Full opinion text
MEMORANDUM OPINION AND ORDER SCHENKIER, United States Magistrate Judge. This is the Court’s second summary judgment opinion in this case, which arises out of disputes between plaintiff, Kinesoft Development Corporation (“Kinesoft”), and defendant Softbank Holdings Inc. (“Softbank”), concerning the performance of the terms of a 1995 Shareholders Agreement (“the Shareholders Agreement”) and a 1997 Settlement Agreement (“the 1997 Agreement”). In its second amended complaint, Kinesoft alleges breach of the Shareholders Agreement (Count I) and the 1997 Agreement (Count II) by Softbank; breach of fiduciary duty by Softbank (Count IV) and Ronald D. Fisher, the Vice Chairman of Softbank (Count V); and tor-tious interference with prospective economic advantage by Softbank (Count III). The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332, and venue is proper in this Court under 28 U.S.C. § 1391. In its earlier opinion (“Kinesoft I”), the Court granted Kinesoft’s motion for summary judgment on Softbank’s counterclaim. In this opinion, the Court addresses the motion for summary judgment filed by the defendants (doc. # 47), which seeks a judgment disposing of all five counts of the second amended complaint. For the reasons that follow, defendants’ motion is granted in part and denied in part. I. Summary judgment is proper if the record shows that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. See Lexington Ins. Co. v. Rugg & Knopp, Inc., 165 F.3d 1087, 1090 (7th Cir.1999). A genuine issue for trial exists only when the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. See Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505; Flip Side Prods., Inc. v. Jam Prods. Ltd., 843 F.2d 1024, 1032 (7th Cir.1988). Softbank has complied with Local Rule 56.1(a), which requires a party moving for summary judgment to file a statement of material facts as to which the moving party contends there is no genuine issue. As required, Softbank’s statement of material, undisputed facts included “references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph.” United States Dist. Court, N. Dist. of III. LR 56.1. All properly supported material facts set forth in a summary judgment motion are deemed admitted unless properly controverted by the opposing party. See id.; see also Corder v. Lucent Techs., Inc., 162 F.3d 924, 927 (7th Cir.1998); Flaherty v. Gas Research Inst., 31 F.3d 451, 453 (7th Cir.1994); Waldridge v. American Hoechst Corp., 24 F.3d 918, 921-22 (7th Cir.1994) Thus, once Softbank moved for summary judgment, and offered evidentiary materials to support its factual allegations, Kinesoft could not merely rely on its denials in the pleadings to show that a genuine issue of material fact existed. See Shermer v. Illinois Dep’t of Transp., 171 F.3d 475, 477 (7th Cir.1999) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Rather, Ki-nesoft’s obligation is to “come forward with appropriate evidence demonstrating that there [was] a pending dispute of material fact.” Waldridge, 24 F.3d at 921; see also Vector-Springfield Properties, Ltd. v. Central Illinois Light Co., Inc., 108 F.3d 806, 809 (7th Cir.1997). To meet this burden, Kinesoft must counter the evidence submitted by Softbank with materials of “evidentiary quality” (e.g., depositions or affidavits) that create a factual issue. Adler v. Glickman, 87 F.3d 956, 959 (7th Cir.1996). While the evidence offered need not be in a form that would be admissible at trial, see Liu v. T & H Mach., Inc., 191 F.3d 790, 796 (7th Cir.1999), the evidence must identify a specific, genuine issue for trial. See Shermer, 171 F.3d at 477. After careful review of the parties’ Rule 56.1 statements, the material facts are set forth below. As will be clear from the discussion, while many of these facts are undisputed, many facts material to certain of plaintiffs claims remain in genuine dispute. II. A. The Shareholders Agreement. In May 1995, in exchange for 41 percent of Kinesoft’s common stock, Softbank paid $12 million to Kinesoft and its two principal shareholders: Peter Sills, Kinesoft’s Chief Executive Officer (“CEO”); and Peter Mason, who at one time was Kinesoft’s attorney and who also served as a Kinesoft director from approximate^ May 25, 1995 until January 2000 (Defs.’ Resp. Facts ¶ 5). The remaining 59 percent of Kinesoft’s common stock was owned proportionately by Mr. Sills, who currently owns 58.75 percent of the Kinesoft common stock (Final Pretrial Order, § 111(4)), and Mr. Mason, who currently owns 25 percent of Kinesoft’s common stock (Final Pretrial Order, § 111(8); Pl.’s Add’l Facts ¶68). On May 25, 1995, Mr. Sills and his former partner, Mark Achler, together with Kinesoft, Softbank and Softbank Corporation (Softbank’s parent), entered into the Shareholders Agreement (Defs.’ Facts ¶ 6). The Shareholders Agreement requires Kinesoft to have a Board of Directors, and provides for the manner of their selection: “[e]ach Shareholder will vote or cause to be voted all shares of Common Stock owned by it for the election of nominees so designated as directors at any annual or special meeting called for such purpose” (Shareholders Agreement § 2(a)). The Shareholders Agreement further provides that “any corporate action” is to be taken by vote of the Board and authorized by no less than a majority of the directors present at any meeting at which a quorum is present or “by written consent of all directors of the Company except as may be otherwise required by paragraph (c) ... or by law” (Id. at § 2(b)). Section 2(c) of the Shareholders Agreement provides that certain corporate action (e.g., any capital expenditure of $500,000 or more) cannot be taken by Ki-nesoft unless all (rather than a majority) of the directors present at a Board of Directors meeting vote in favor of that action (Defs.’ Ex. 4, at § 2(c)(iii)); (Defs.’ Facts ¶ 6). The parties agree that the Shareholders Agreement gives Softbank and Mr. Sills the right to designate persons for election to the Kinesoft Board (Pl.’s Add’l Facts ¶ 76; Defs.’ Reply Facts ¶ 76). The parties have identified five persons who served as members of the Kinesoft Board of Directors at all times relevant to this action. At those times, Mr. Fisher and Dr. T.A. Dolotta were Softbank’s designated Directors to the Kinesoft Board (Pl.’s Add’l Facts ¶ 76). Messrs. Sills, Mason and Achler were Kinesoft’s designated Directors (Id.). None of these five directors were elected at a formal board meeting (Id.; Defs.’ Reply Facts ¶ 76); rather, all five were placed on the Board by a written, “formal unanimous consent of the Board of Directors” (Pl.’s Resp. Facts ¶ 6; Defs.’ Reply Facts ¶ 76; Final Pretrial Order, § 111(7)). When Kinesoft hired a new president and moved the company from Chicago, Illinois to Austin, Texas, no formal Board meeting was held to approve these acts: the communications all were through e-mails and telephone calls (PL’s Add’l Facts ¶ 68). B. The 1997 Agreement. On May 25, 1995, Kinesoft and Softbank entered into the “Game Porting Agreement” (Defs.’ Facts ¶ 8). Under the terms of that agreement, Softbank was to provide Kinesoft with a certain number of console games to be “ported” to a PC platform; “porting” involves translating pre-existing video games from the console platform to the personal computer platform (Id. ¶¶ 7-8). Kinesoft sued Softbank for breach of the Game Porting Agreement, and Softbank admits now that it did not provide Kinesoft with the agreed upon number of games (Defs.’ Facts ¶ 9). That lawsuit was resolved when Softbank and Kinesoft entered into a settlement agreement on June 12, 1997 — the 1997 Agreement that is a subject of this lawsuit (Id. ¶ 9). As consideration for the 1997 Agreement, Kinesoft released all claims against Softbank Corporation under the Game Porting Agreement (Id.). Under the terms of the 1997 Agreement, Softbank was required to make “Initial” and “Subsequent Advances” to Kinesoft totaling $10 million, as follows: (1) $5 million on June 12, 1997, the date the 1997 Agreement was executed; (2) $2.5 million on April 1, 1998; and (3) $2.5 million on October 1, 1998 (Defs.’ Facts ¶ 10). Soft-bank made each of the Initial and Subsequent Advances on the. designated dates (Defs.’ Facts ¶ 10). The June 1997 Agreement also provides that, in certain circumstances, Softbank “shall make available” to Kinesoft up to $15 million in “Capital Advances” (Defs.’ Ex. 9, at § 2.01(d)-(e)). Sections 2.01(d) and (e) of the 1997 Agreement pertain to Capital Advances. Because those provisions are central to this case we quote them in full: (d) In addition to the Advances set forth in paragraphs (a), (b) and (c) above, SOFTBANK shall make available to Kinesoft an aggregate of FIFTEEN MILLION DOLLARS ($15,000,000), which shall be comprised of capital advances (“Capital Advances”) to be made by SOFTBANK to Kinesoft in accordance with this subsection (d) and subsection (e) below, from time to time and at Kinesoft’s request, for expenses and transactions not in the ordinary course of business and pursuant to the “Business Plan” (as defined below). SOFTBANK’S obligation to make Capital Advances is subject to the satisfaction of the conditions set forth in subsection (e) below and is separate from and in addition to its obligations to make the Initial Advance and the Subsequent Advances. (e) Any request for Capital Advances by Kinesoft shall be governed by the following: (i) Capital Advances shall be for purposes reasonably calculated to further Kinesoft’s pursuit of becoming a leader in the interactive entertainment industry by, among other things, (x) using its technology to engage in the development of game and other interactive titles on behalf of third-party creators and with respect to its own titles, (y) licensing its technologies and proprietary content to others, and (z) publishing its technologies and proprietary content for itself and others (the “Business Plan”). Without limiting the foregoing, the following capital transactions and expenditures shall be deemed to be in furtherance of the Business Plan: (A) the acquisition of existing companies, divisions, or operations with computer software tools and other key technologies, products, licenses, content, game or other interactive titles, intellectual property or personnel; (B) the acquisition (by license or otherwise) of computer software tools and other key technologies, products, content, game or other interactive titles, and intellectual property; (C) extraordinary costs associated with the hiring of key individuals in connection with the development of technologies, content and markets for Kinesoft’s products and services; or (D) the acquisition or establishment of significant infrastructure and/or facilities. (ii) Kinesoft shall request a Capital Advance by submitting to Softbank a written request therefor in accordance with Section 5.04. (a “Draw Request”), which Draw Request shall set forth: (A) the amount of the requested Advance; (B) a description of the proposed use of the proceeds of such Advance, including information which a prudent corporate director would reasonably request in order to evaluate a proposed corporate action (such as the terms of the proposed transaction and its strategic fit within the Business Plan; information regarding any acquisition target (if applicable) and/or of the technologies, assets, facilities or personnel involved in the transaction; and relevant financial information regarding the expected impact of the transaction on Kinesoft) and (C) the proposed funding date. SOFTBANK shall respond to a Draw Request as soon as ■ practicable under the circumstances, but not later than 20 Business Days following the date of the Draw Request (and not later than 10 Business Days if such Draw Request is for $2,000,000 or less); and, if such Draw Request is approved pursuant to subsection (in) below make such Capital Advance to Kine-soft at Kinesoft’s direction on the requested funding date, in U.S. dollars and in immediately available funds. (iii) In the case of a Capital Advance in excess of $2,000,000, SOFT-BANK shall make the Capital Advance described in the applicable Draw Request upon approval thereof by a majority of the board of directors of Kinesoft, which approval shall include the approval of at least one representative of SOFT-BANK on such board. In the case of a Capital Advance of $2,000,000 or less, SOFTBANK shall make the Capital Advance described in the applicable Draw Request upon approval thereof by at least one representative of SOFTBANK on the board of directors of Kinesoft. Capital Advances shall be made by SOFTBANK in connection with transactions which are reasonably calculated to achieve the goals set forth in the Business Plan, including transactions of the type described in subsections (i)(A), (B), (C), and (D) above, and SOFTBANK will not unreasonably withhold or delay funding of any appropriate Draw Request. Kinesoft shall be allowed to draw a Capital Advance under this Agreement notwithstanding that Kinesoft may have other sources of financing therefor or may have other funds available to it. (iv)if there is a denial of a Draw Request in whole or in part, SOFT-BANK shall provide Kinesoft with a detailed explanation of the basis for such denial and the terms upon which SOFTBANK’s decision with respect thereto would be reversed. (Defs.’ Ex. 9, at §§ 2.01(d)-(e)) (underlining in original). Section 5.04 of the 1997 Agreement, which is referred to in Section 2.01(e)(ii), provides the manner that notice is to be given and to whom it is to be directed: Section 5.04. Notice. All notices, consents or other communications shall be in writing, and shall be deemed to have been duly given and delivered when delivered by hand, or when mailed by registered or certified mail, return receipt requested, postage prepaid, or when received via telecopy, telex or other electronic transmission, in all cases addressed to the party for whom intended at its address set forth below: If to SOFTBANK: SOFTBANK Holdings Inc. Attention: Ronald D. Fisher If to Kinesoft: Kinesoft Development Corp. Attention: Peter Sills, Chairman and Chief Executive Officer or such other address as a party shall have designated by notice in writing to the other party given in the manner provided by this Section. (PL’s Ex. A, 1997 Agreement § 5.04) (bold face and underlining in original). The 1997 Agreement also addresses future amendments, modifications or waivers of its terms: Section 5.01. Amendments and Waivers. The parties agree to consider proposed amendments or modifications of the terms or provisions of this Agreement but no such proposed amendment shall be binding unless the same shall be in writing and duly executed by the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed to or shall constitute a waiver of any other provisions hereof. No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof. (Pl.’s Ex. A, 1997 Agreement § 5.01) (bold face and underlining in original). Finally, the 1997 Agreement also contains a merger and integration clause, which provides as follows: Section 5.02. Entire Agreement. This Agreement, together with the Release, sets forth the entire understanding of the parties with respect to the subject matter hereof. Any previous agreement or understandings between the parties regarding the subject matter hereof are merged into and superseded by this Agreement and the Release. (Id., § 5.02) (bold face and underlining in original). C. Prior Requests for Capital Advances. Prior to the summer of 1999, Kinesoft made three requests for Capital Advances that Softbank approved — although only two requests were actually funded (Defs.’ Facts ¶¶ 20-22). We address each of those requests for Capital Advances in chronological order. On May 20, 1997, Kinesoft initiated its first request for a Capital Advance by sending an e-mail to Mr. Fisher seeking $250,000 to pay for “extraordinary” expenses relating to hiring (Defs.’ Facts ¶ 20; Defs.’ Ex. 17). Although there was no proposed funding date included in the initial e-mail (PL’s Add’l Facts ¶ 70), Mr. Fisher did not deny the request on that basis. Instead, he noted that a Capital Advance could not be made until the 1997 Agreement was signed (Defs.’ Facts ¶ 20; Defs.’ Ex. 17). That agreement was signed on June 12, 1997, and by a letter dated June 24, 1997, Kinesoft confirmed the request for a Capital Advance. In the June 24, 1997 letter, Kinesoft asked that the funding be provided immediately (Defs.’ Facts, Ex. 9). Thereafter, Soft-bank approved the request and made the Capital Advance for $250,000 (Defs.’ Facts ¶ 20). In the fall of 1997, Kinesoft initiated a second request for a Capital Advance: this one for approximately $6.5 million to fund the acquisition of two PC games being developed by third parties (Defs.’ Facts ¶ 21; Defs.’ Ex. 18). On behalf of Soft-bank, Mr. Fisher and Mr. Mason requested further financial information about these acquisitions (Defs.’ Facts ¶ 21). On December 3,1997, after receiving additional information, Mr. Fisher approved the request (Defs.’ Facts ¶ 21; Defs.’ Ex. 18). However, Kinesoft’s Board of Directors never voted on approval of this request (PL’s Add’l Facts ¶ 71), and the funds were never advanced because the Kinesoft acquisition opportunity became unavailable (Defs.’ Facts ¶ 21; Defs.’ Reply Facts ¶ 71). As with the May 1997 request, Ki-nesoft’s initial request for the $6.5 million advance did not contain a proposed funding date (PL’s Add’l Facts ¶ 71; Pl.’s Ex. Q). However, Softbank did not deny the request for a Capital Advance on that basis: rather, in response to that request, Softbank requested (and Kinesoft provided) specific funding dates (Defs.’ Reply ¶ 71; Defs.’ Ex. 18). On or about May 1, 1998, Kinesoft initiated a third request for a Capital Advance by sending an e-mail to Mr. Fisher seeking $1.32 million for “capital equipment expenditures” to be made in two installments (Defs.’ Facts ¶ 22; PL’s Ex. 20). Again, Kinesoft’s request did not include a proposed funding date; and this time, the request also did not include a description of the proposal, but it did list the equipment Kinesoft sought to purchase (PL’s Add’l Facts ¶ 72). Softbank sought no further details concerning the proposed acquisition. However, in an e-mail dated May 11, 1998, Kinesoft specifically requested that Softbank advance the funds within 30 days of Kinesoft’s request (Defs.’ Reply Facts ¶ 72; Defs.’ Ex. 20). On that same date, Softbank approved the request for a Capital Advance (and the proposed 30-day funding date), and subsequently advanced the first installment of approximately $998,000 (Defs.’ Facts ¶ 22). The second installment was never paid because Kine-soft withdrew the request for the balance of that Capital Advance (Id.). D. The Introduction of Mr. Levy Into The Relationship. On October 27,1998, Mr. Fisher contacted Mr. Jordan Levy about assisting Soft-bank in its dealings with Kinesoft. Mr. Levy was a significant shareholder of Soft-bank Corporation and “two or three Soft-bank funds.” (PL’s Ex. K, Levy Dep., at 22, 25-26). In his first overture to Mr. Levy, Mr. Fisher stated as follows: ... as you know we still have an investment in Kinesoft. The games business is not an area that I understand particularly well, and I am concerned about the ongoing level of investment in the Company. ' I also think that based on the history I am too “understanding” of their problems (read I need a hard-ass!). Is this something- that you would be interested in helping me on? (PL’s Ex.. H: 10/27/98 Fisher e-mail to Levy). Mr. Levy indicated his willingness to help, and on October 30, 1998, Mr. Fisher asked Mr. Levy to “join the [Kine-soft] Board and represent Softbank’s interests” for the purpose of helping Softbank “figure out where the company is really headed and whether there is any hope of realizing any value from it” (PL’s Ex. H: 10/30/98 Fisher e-mail to Levy). On November 2,1998, Mr. Levy wrote to indicate his agreement to Mr. Fisher’s request, and stated his understanding of what his role could entail: “I just want everyone to know that I am taking on the Harvey Keitel role in Pulp Fiction vs being the one who brought this baby to Softbank. I will do everything that I can to help them get successful” (Id.: 11/02/98 Levy e-mail to Fisher). Mr. Sills testified that, during a telephone call in late 1998, Mr. Fisher first advised Mr. Sills and Mr. Spitzer that he would like to put Mr. Levy on the Kinesoft Board of Directors in place of Mr. Fisher (PL’s Ex. D, Sills Dep., at 435). Messrs. Sills and Spitzer spoke with Mr. Levy, and thereafter, Mr. Sills informed Mr. Fisher that Kinesoft perceived a conflict of interest with Mr. Levy as the Kinesoft Director representing Softbank’s interests (Id., at 435, 437). In March 1999, Mr. Sills interviewed Mr. Levy for a possible seat on Kinesoft’s Board, and the two of them discussed Kinesoft’s business and strategy (Defs.’ Facts ¶ 25). Thereafter, on April 8, 1999, Mr. Sills sent an e-mail to Mr. Fisher which did not specifically raise any conflict issue, but instead addressed different concerns that had arisen from the meeting with Mr. Levy. Mr. Sills wrote that “Jordan led me to believe that Softbank had taken a new strategic direction and therefore would not be honoring its additional funding obligations under [the] June 1997 Agreement” (Defs.’ Facts ¶ 25; Defs.’ Ex. 23, at KS 01168). Mr. Fisher responded that Softbank intended to “honor” its “funding obligations under the 1997 Agreement,” but he harbored concerns over whether Kinesoft could achieve the goal of its Business Plan: that is, to become a “leader in the interactive entertainment industry” (PL’s Ex. I: 04/26/99 Fisher e-mail to Sills). In that email, Mr. Fisher also reiterated his desire to have Mr. Levy serve on Kinesoft’s Board: sji & # # We will certainly honor our funding obligations under the 1997 Agreement. We would not unreasonably withhold funding we had agreed to advance. However, this commitment was to achieve Kinesoft’s Business Plan to become a leader in the interactive entertainment industry. The obligation is to fund ... transactions reasonably calculated to achieve the goals in the Business Plan. We are, of course, willing to review in good faith future requests for capital as contemplated by the Agreement. Nevertheless, we have reservations whether Kinesoft can realistically be a potential leader in the interactive entertainment industry. If not, any proposed transaction will [sic] fail the test of being reasonably calculated to achieve this goal. I thought you should know of our reservations now rather than later if we have to turn down requests for capital. I would also like to designate Jordan as Softbank’s official Board member for Ki-nesoft. In this way we can be sure that we handle any requests that you have as expeditiously as possible. You also apparently misunderstood Jordan’s suggestion that you consider investing in the Internet. We are certainly not urging you to take one course or another. We both believe strongly in the potential for Internet ventures. Jordan was trying to be constructive in indicating what he would do with unused capital. sf» »f» H* sf» «f» (Id.). Mr. Sills testified that, after he received the April 26, 1999 e-mail, he “believed that Jordan Levy was on the Board of Directors by virtue of the April 26, 1999 e-mail from Ronald Fisher, and began to treat him as such” (PL’s Add’l Facts ¶ 78; PL’s Ex. 0, Sills Aff. ¶ 10). E. The Digital Anvil Proposal. On August 6, 1999, Mr. Sills and Mr. Spitzer flew to Buffalo, New York for a planned meeting with Mr. Levy (Answer ¶ 22; PL’s Add’l Facts ¶ 81-82). Mr. Levy knew that Messrs. Sills and Spitzer planned to ask for a Capital Advance (PL’s Add’l Facts ¶ 81; PL’s Ex. D, Sills Dep., at 504-06; Defs.’ Reply Facts ¶ 81; PL’s Ex. K, Levy Dep., at 204-05), although he did not know in advance of the meeting the details of the proposed use of the funds (PL’s Add’l Facts ¶81). During the August 6 meeting, Mr. Sills and Mr. Spitzer presented to Mr. Levy a proposal to obtain a Capital Advance from Softbank to fund a joint business venture with Digital Anvil, an established company (Pl.’s Add’l Facts ¶ 81). In exchange for $5 million capital to be supplied by Kine-soft, Digital Anvil offered Kinesoft the opportunity to gain early access to the “Playstation 2” development through Digital Anvil’s connections with Sony (Pl.’s Add’l Facts ¶¶ 81-82; Defs.’ Ex. 29, at S0012-S0015). According to the plan advanced by Mr. Sills and Mr. Spitzer at this meeting, Kinesoft sought to form a new company with Digital Anvil, to be called “NewCo,” which would create games for Playstation 2 (Pl.’s Ex. U: 8/9/99 Levy email to Fisher). The “talking document” that comprised the written Digital Anvil proposal made to Mr. Levy did not contain a “proposed funding date” (Defs.’ Facts ¶ S3). The parties agree that Kinesoft presented Mr. Levy with a binder of materials explaining the Digital Anvil proposal, and that Messrs. Levy, Sills and Spitzer discussed that proposal and the materials at length (Pl.’s Add’l Facts ¶ 82). However, the parties dispute whether the proposal made by Kinesoft at the August 6, 1999 meeting can be labeled a “Draw Request” under the terms of the 1997 Agreement (Defs.’ Reply Facts ¶ 81). And, the parties dispute precisely what Mr. Levy said in response to Kinesoft’s proposal during that meeting. Kinesoft offers evidence (by the deposition testimony of Mr. Sills and Mr. Spit-zer) that at the meeting, Mr. Levy stated as follows (Pl.’s Add’l Facts ¶ 82): (a) Kinesoft would have no further access to the funds for the Digital Anvil deal or any other deal or use. The nature of the use and/or deal was totally irrelevant. (b) Softbank had no further interest in Kinesoft or the business Kinesoft was in. (c) It was through no fault of Kinesoft, but Kinesoft no longer had the right partner — Softbank had basically just changed its mind and was now focused solely and exclusively on the Internet. (d) Masayoshi Son had requested that Levy be a “prick” in dealing with Kinesoft and that he needed someone to be a “prick” with Kinesoft in order to get what he wanted. (e) The problem was not just Kinesoft, but that Softbank was moving quickly to divest itself of all of its non-Internet holdings because it was going to be a “pure” Internet company. (f) Softbank has turned an investment of tens of millions of dollars in Yahoo! into billions of dollars. This is what Softbank is interested in, not the business Kinesoft is in. (g) Softbank had rights under the Shareholders Agreement and would be exercising them. Softbank did not have to honor its commitments of funding since Kinesoft was not a leader in interactive entertainment, and Softbank had discretionary power over the spending of more than $500,000 by Kinesoft and would not approve any such expenditures going forward. (h) If Peter Sills took $5 million out of the company and bought out Soft-bank’s interest, he could do whatever he wanted with the company. ,(i) If Peter Sills did not like it, what was he going to do, sue Softbank, a huge multinational concern? Softbank’s power in the industry is great and it is much better to be its friend than its enemy. If Peter Sills elected to sue Softbank, he would have to do so with his own funds,.... Softbank asserts that Mr. Levy merely informed Messrs. Sills and Spitzer that he did not think that Kinesoft’s “potential transaction with Digital Anvil was advisable because he believed that Kinesoft ought to focus on its ‘core business,’ ” and he did not believe that the Digital Anvil deal was “a good strategy for a small company with a limited number of key executives” (Defs.’ Reply ¶ 82). Softbank denies most of the statements attributed to Mr. Levy at the meeting, and specifically denies that Mr. Levy said at this meeting that Softbank had no interest in Kinesoft; instead, Softbank asserts that Mr. Levy “merely observed that Softbank’s business had ‘shifted towards the Internet’ ” (Id.). Finally, Softbank concedes that Mr. Levy “suggested to Mr. Sills that, under the right circumstances, it might be sensible for Kinesoft to purchase Softbank’s equity investment in Kinesoft,” but denies that Mr. Levy told Mr. Sills that Kinesoft should buy out Softbank’s interest for $5 million (Id.). After his meeting with Messrs. Sills and Spitzer, Mr. Levy sent an e-mail to Mr. Fisher summarizing the Kinesoft proposal (Pl.’s Add’l Facts ¶ 83). The parties disagree as to whether Mr. Levy’s August 9, 1999 e-mail forwarded to Mr. Fisher a “Draw Request” by Kinesoft for capital to fund the Digital Anvil venture (Defs.’ Reply Facts ¶ 83). The August 9 e-mail states in relevant part: I met with Peter Sills and Ron Spitzer in Buffalo last Friday. They have been speaking with me over the last several weeks about [sic] [their] entry into the Playstation 2 gaming business. They have a proposal to enter into a joint venture with Digital Anvil ... to form a[n]ew company to produce a Playstation 2 game ... The deal would be a $5MM commitment as follows: A. [P]ay NewCo $250,000 for Playstation 2 sub-license[.] B. Loan NewCo $2.75MM, payback at end of 4 years[.] C. Kinesoft to invest a minimum of $2MM in development of [sic] [their] own Playstation 2 titles. D. Own 15% of equity in NewCo, with a call or put in one year for $1.25MM, which if called brings them down to 10% ownership. 1st titles would ship no sooner than Xmas 2001, yes 2001! The reason for Kinesoft interest is that Digital Anvil has access to all of the Sony technology but they cannot invest any Microsoft money in non-Windows development, so they need Kin[e]soft’s § . If Kinesoft starts Playstation 2 development today, they would not have a product to market until Xmas 2001 at best as well. Rather than bore you with the details, here is what I said, as nicely as I could. 1. I would pass the information on to you but that I would not recommend, support, encourage or anything even close to this the investment in the Playstation II platform. 2. Until they demonstrate that they can build a title and bring it to market, a market that wants it, we are within our rights to withhold additional investment in anything other than our core strategy of PC based games. They are working on 2 games for Xmas 2000. 3. If they were smart-, noiv would be a good time to try to “take” Softbank out and get control of [sic] [their] company. I suggested to them that we would probably walk away under the right circumstances and give them the company. 4. I explained the changes in strategy since June 1995 and that this no longer fits within the Softbank business and that while you did want to be in this business in 1995 and had every intention of support, the world has changed but they have not. At the conclusion of the meeting, I layed out three alternatives for them to consider. A. Make us a proposal to buy us out of the deal. B. Continue along the PC game path and develop[] a great title or two. C. Build a strategy to be in the internet gaming business in a way that makes sense and we believe they can execute. I think that they left here clearly understanding that we would NOT alloiv them to invest in the Playstation II deal, but I am not sure they will give up. They have already consulted lawyers with respect to the agreement and believe that we eanno[ ]t stand in their way here.... [I] consulted them to not [t]ake the legal track, especially against Softbank.... (Pl.’s Ex. U, S 0021) (italics added). Softbank’s 1999 Annual Report reflects this shift of focus in Softbank’s business strategy described in Mr. Levy’s e-mail. The Report states that Softbank had received the consent of its Board to become an “Internet-centric company” (Defs.’ Reply Facts ¶ 73; Pl.’s Ex. R, at 2). Soon after the release of that annual report, Softbank divested holdings in Ziff-Davis and Kingston Technologies, two non-Internet related companies (Defs.’ Reply Facts ¶ 74). Softbank admits that once this shift toward the Internet took place at Soft-bank, Kinesoft was outside of Softbank’s “core focus” (Defs.’ Reply Facts ¶¶ 75, 82 (Ex. K, Levy Dep., at 188)). F. Kinesoft’s Further Communications with Softbank Concerning the Digital Anvil Proposal. On August 31, 1999, Mr. Sills wrote to Mr. Levy regarding the Digital Anvil proposal (Pl.’s Add’l Facts ¶ 84; Defs.’ Ex. 33). Mr. Sills’ e-mail reflects Kinesoft’s understanding that Softbank would not make a Capital Advance for that proposal, and instead requested that Softbank consider an alternative approach that would use Kinesoft rather than Softbank capital: Given Soft[b]ank’s denial of our request, I have been considering other ways in which we could still preserve the considerable value that this deal would bring to Kinesoft. As a board member, I would like to know if you would support this deal if Kinesoft were to “self-fund” it with our existing capital? If so, I would then need to present this opportunity to Peter Mason, our other board member, and secure his support prior to moving forward. At this point, I would want to get your sign off, before making such a presentation. The time frame for this deal is short. If we do not move quickly, Digital Anvil will secure other partnerships, and we could very well be locked out of this opportunity. * # H* ❖ Hi # (Defs.’ Ex. 33: 08/31/99 Sills e-mail to Levy) (emphasis added). Mr. Levy responded to Mr. Sills by email dated September 7,1999, stating: I will be with Ron Fisher tonight and ask him what he thinks. I would need to know: How much cash will it require? What will that mean for the future of the business? Will you need additional cash later from Softbank [?] Please answer these [questions] as soon as you can and I will let you know what I think tomorrow. (Pl.’s Ex. W: 09/07/99 Levy e-mail to Sills). On September 8, 1999, Mr. Sills answered Mr. Levy’s questions as follows: Sorry I was not able to get back to you quickly enough for your meeting. However, the information has not substantially changed since we presented it to you last month in Buffalo. However, without Soft[b]ank’s support for the draw request, there is an additional financial drain on the company. Though this increases our risk, we feel that this is manageable. The rewards[,] however, are early access to the Playstation 2 marketplace, which, as you know, is worth a great deal. You should have all of the information in the packet Ronald Spitzer and I left with you.... Time is very short, ... (Pl.’s Ex. W: 09/08/99 Sills e-mail to Levy). After meeting with Mr. Fisher, Mr. Levy replied as follows: Ron and I spoke about this last night and he is in agreement that the best thing for everyone is to make a deal to get you 100% of your company. They/We have no appetite to do anything in this space and that will severely constrain you going forward. I once again make the following offer, give Softbank $ 5MM and relieve them of any further involvement and we will give you all of our stock in Kinesoft. Peter, I am sorry, but things have changed in the Softbank world and game development and software just do not fit into the business model. Add to it the current state of your business, and you just do not have the right partner any longer. We would be writing off $10MM plus whatever else you received, not pretty but the right thing for all involved. You should then look for a partner who will have interest in this business and you can make a good deal. ... In conclusion, I will not support any investment in anything that you are not currently doing and until you have success, financial that is, we will be very tight with investment. (Pl.’s Ex. W: 09/08/99 Levy e-mail to Sills) (emphasis added). Although Mr. Fisher did not recall seeing Mr. Levy’s September 8, 1999 e-mail to Mr. Sills (Pl.’s Add’l Facts 184; PL’s Ex. J, Fisher Dep., at 391-93), Mr. Fisher did not deny having a discussion with Mr. Levy regarding this matter (PL’s Ex. J., Fisher Dep., at 392). However, Mr. Levy’s e-mail did not base Softbank’s denial of a Capital Advance on the lack of a Draw Request that met all procedural requirements under the 1997 Agreement, and it did not indicate that a decision by Softbank on whether to approve Kinesoft’s use of its own funds had to await a vote at a formal board meeting by Kinesoft. In response to this denial of Kinesoft’s proposal to use its own funds to pursue the Digital Anvil deal, Mr. Sills wrote a letter dated September 10, 1999 to Mr. Levy— and this time copied Mr. Fisher on it (PL’s Add’l Facts ¶ 85). That letter stated in relevant part: ... After reviewing [your] letter, and considering your comments in Buffalo last month, I find it extremely disheartening that Soft[b]ank has consciously opted not to honor its obligations. It is my goal to bring this matter to closure quickly so as to minimize any further damage to Kinesoft’s ongoing business. I hope I can count on your assistance in these matters. Let me recap a bit of our recent history. August 6th both Ronald Spitzer, president of Kinesoft Development, and I met with you regarding a Draw Request as outlined in our Agreement dated June 13, 1997. We brought with us more than sufficient documentation outlining the deal before us, which we were prepared to speak to. This request, which is based upon a deal which has consumed much of our time over the last several months, is extremely beneficial to Kinesoft, and well within the parameters set forth under the terms of the Agreement. I do not believe, based upon our conversations, that any of this is in dispute. In fact, in discussing the deal before us, you yourself stated that the deal was clear and represented a reasonable move into the console market (Playstation 2). Our partner in this deal, Digital Anvil, is also backed by Microsoft, and is well known in our industry as a significant “player” in the market. However, we were not able to present these materials to you for discussion. The determination, according to your statements representing Soft[b]ank, was that the decision had already been made prior to our arrival in Buffalo. Soft[b]ank had no interest in living up to it[s] obligations and commitments, as such, no draw request would be honored. The reasoning that had been calculated on your part to satisfy the contract was that Soft[b]ank was not obligated to honor any draw request until Soft[b]ank deemed Kinesoft a “success. ” While this in no icay lives up to either the wording or intent of the Agreement, when pressed for a definition of the term “success” during our follow-up phone conversation, you informed me that no such definition would be forthcoming. Cutting to the chase, as you have outlined, in your e-mail of Sept. 8th, Soft[b]ank’s business has changed. Due to their recent and phenomenal success in the Internet, they are moving quickly to divest themselves of any and all positions which are not Internet related. They are also taking a dim view of any business venture that is not living up to their current Internet returns. As you yourself stated, Soft[b]ank no longer has any interest in our business. Softbank ... seems to be working under a misconception concerning our relationship. While Kinesoft is indeed minority owned by Soft[b]ank, the current issue before us is not one of asking for further investment. It is the fulfillment of Soft[b]ank’s settlement obligations to Kinesoft and to myself. In 1997, I signed away significant rights based upon securing a[] Settlement Agreement with Soft[b]ank which I felt in the long run would be mutually beneficial to both parties.... As a result, Kinesoft released its claims and Soft[b]ank committed to make advances to Kinesoft, provided only that advances were made in the form of a Draw Request, “for purposes reasonably calculated to further Kinesoft’s pursuit of becoming a leader in the interactive entertainment industry.” After reviewing Soft[b]ank’s current, clearly stated position both with my executive staff, additional board members, and corporate counsel, I have come to the conclusion that I must inform you that you are in breach of both our Settlement Agreement of June 1997 as well as the associated Release. ‡ % sfc ‡ (Defs.’ Ex. 35: 09/10/99 Sills Letter to Levy) (emphasis added). The parties do not dispute that Kinesoft believed that Softbank was in breach of the 1997 Agreement and that this belief is reflected in Mr. Sills September 10, 1999 letter to Messrs. Levy and Fisher (Defs.’ Facts ¶ 37). However, Softbank claims that in a letter some five weeks later, dated October 19, 1999, Mr. Fisher made clear that Softbank would honor the 1997 Agreement. The text of that letter is as follows: Thank you for copying me on your September 10 letter to Jordan. There seems to be a misunderstanding about Softbank’s position. As I said in my April 26 e-mail, we will certainly honor our funding obligations under the 1997 Agreement. But these arise only if a proposed, capital expenditure is reasonably calculated to achieve the Business Plan to become a leader in the interactive entertainment industry. We do not believe your new foray into Playstation 2 has a reasonable chance of success. Given our reservations, we do not believe Softbank is obligated to rubber stamp your proposal. In signing the 1997 Agreement, Softbank did not give up its directors’ rights. On the contrary, Section 2.01(e) specifically requires the approval of a Softbank representative for any Capital Advance. In addition, although the 1997 Agreement in effect superseded the Game Porting Agreement, it had no effect on the Shareholders Agreement which still controls corporate governance at Kinesoft. Section 2 of the Shareholders Agreement requires Softbank’s vote to authorize a change in the scope of business like the development of products for Playstation 2. In exercising that right, Softbank is not obligated to defer to you or the other Kinesoft staff or directors. I’m sorry you apparently misunderstood Jordan’s explanation of Softbank’s position. In candidly sharing with you our Internet strategy, he was not signaling that we would refuse to honor our obligations. We would never do that. The point is rather that we have serious reservations about Kinesoft’s prospects pursuing new initiatives. (Defs.’ Ex. 36: 10/19/99 Fisher letter to Sills) (emphasis added). In that letter, Mr. Fisher did not base Softbank’s denial of a Capital Advance on a failure by Kine-soft to comply with the procedural requirements for a Draw Request; nor did Mr. Fisher assert that it was premature for Kinesoft to conclude that Softbank would reject Kinesoft’s use of its own money for the Digital Anvil project because the matter had not yet come up for a formal board vote. Kinesoft was apparently not reassured by Mr. Fisher’s letter, and on November 15,1999, it commenced this lawsuit. G. Kinesoft’s Economic Performance. It is undisputed that Kinesoft has generated no profits from January 1, 1997 through the present (Defs.’ Facts ¶ 19). Kinesoft has not released any PC game for consumer sale during that time and does not plan to release any game until sometime in 2001 (Defs.’ Facts ¶ 18). Since January 1997, Kinesoft’s business has been devoted entirely to its attempt to develop two games; to its unsuccessful effort to license two other games; and to the consideration of other games that it never developed (Defs.’ Facts ¶ 18). Moreover, the discovery record is clear that if and when Kinesoft releases PC games for consumer sale, there is no guarantee that those games will be profitable. Kinesoft acknowledges that the interactive entertainment industry is a “hit driven” business where the greatest profits are generated by only a few of the games released, and the revenues are earned by only a few game producers (Defs.’ Facts ¶ 41; Defs.’ Ex. 41, at S 0316 (Sills Report); Defs.’ Ex. 42, at Schedules 4 and 9 (Bruehl Expert Report); Defs.’ Ex. 44, at 224-25 (Willis Dep.)). Mr. L. Gregory Ballard, one of Kine-soft’s experts, states that “no company has yet discovered the ‘magic formula’ to absolutely guarantee that their titles are successful” (Defs.’ Facts ¶ 41). Mr. Ballard acknowledged that “many [game] titles are not successful” even for companies that have figured out a “formula” for creating successful titles (Defs.’ Facts ¶ 42), and that it is difficult to predict whether a company will release a “hit” video game unless that company has a past performance of success (Defs.’ Facts ¶ 45). Mr. Anton Bruehl, another Kinesoft expert, has provided sales projections for the PC and console software and hardware market generally, and from those general projections has extrapolated general sales projections for the Playstation 2 and PC games markets (Defs.’ Facts ¶ 46). However, in his deposition, Mr. Bruehl testified that “it might be difficult to forecast success or failure ... [bjecause of the changing nature of the industry, the fickle nature of consumers, and a lot of elements that could happen to any company. Nothing can be predicted with a great deal of certainty” (Pl.’s Ex. DD, Bruehl Dep., at 432). Mr. Bruehl states that average sales for a game could be analyzed for a company with prior success and many years of experience in the field, but testified he had not done such an analysis of Kinesoft (Defs.’ Facts ¶ 46; Pl.’s Resp. Facts ¶ 42; PL’s Ex. DD, Bruehl Dep., at 437-38). According to Mr. Bruehl, unless a company has a record of releasing only “hit game titles, it would be unreasonable to predict that every game a company plans to release would be a commercial success” (Defs.’ Facts ¶ 52). Finally, Mr. Chris Roberts, the Chief Executive Officer of Digital Anvil, testified regarding the industry and launch of the Playstation 2 platform. Mr. Roberts testified that only the top ten or twenty games (of the thousands produced and released each year) generate all of the industry’s profits (Defs.’ Ex. 25, Roberts Dep., at 93). Mr. Roberts indicated that some products, like Playstation 2, are more likely to succeed than other new products based on various factors, like the experience of those working on the game and the amount of capital available to develop it; but Mr. Roberts did not state that the Playstation 2 and any games to be used on that system were a “sure bet” (PL’s Ex. S, Roberts Dep., at 104-05). Mr. Roberts said he could “hazard a guess” as to the potential success of the Playstation 2 market; and that he had “a pretty strong gut feel that Playstation 2 is going to be a very lucrative business” (Defs.’ Facts ¶ 44; Defs.’s Ex. 25, Roberts Dep., at 53). Mr. Ballard, however, said it was not possible to generalize whether a particular game title for Playstation 2 would be successful “without knowing more about that title” (Defs.’ Facts ¶ 44). Consistent with this opinion, Mr. Roberts testified that no one could project how a new game would sell in the market, and that such projections were speculation and conjecture (Defs.’ Facts ¶ 43; Defs.’ Ex. 25, Roberts Dep., at 79-80). The report of Kinesoft’s expert Stephen I. Willis opines that “Kinesoft’s actions lead to a reasonable expectation of success” (Defs.’ Ex. 12, at 17). Mr. Willis makes several future lost profits projections, which total nearly $80 million before reduction to present value (Final Pretrial Order, § VII). First, Mr. Willis projects that Kinesoft will lose $3.67 million in future profits from two PC games on which Kinesoft is working but is months away from fully developing or releasing (Defs.’ Ex. 12, at 17). Second, Mr. Willis projects that Kinesoft will lose some $7 million in future profits from the sale of three PC games that Kinesoft has considered but has never started to develop (Id.). Third, Mr. Willis projects that Kinesoft will lose an additional $18.39 million in future profits from the .sale of three unspecified Playstation 2 games that Kinesoft has never identified or started to develop. Finally, Mr. Willis projects that Kinesoft will lose another $50.36 million attributable to “economic harm from [the] continuing effect on Kinesoft’s lower earnings” (Id.). Mr. Willis admits that his lost profits projections are not based on actual lost profits but instead are based on lost profits that Kinesoft might have earned in the future. Although Mr. Willis admits that “relatively few titles ... are commercially and financially successful,” his future lost profits claim assumes that, on average, Kinesoft’s titles would succeed commercially and financially at a “B + ” rate (Defs.’ Facts ¶ 51; Defs.’ Ex. 12, at 18; Pl.’s Resp. Facts ¶ 51; Pl.’s Add’l Facts ¶ 87). Mr. Willis admits that he did not examine Kinesoft’s profit history in order to calculate Kinesoft’s lost profits, because Kine-soft has none in this line of business (Defs.’ Ex. 44, Willis Rep., at 251). Mr. Willis’ report utilizes Mr. Bruehl’s general industry information, but “his lost profits projections are not based on any analysis of a comparable company selling comparable games” (Defs.’ Facts ¶ 53; Pl.’s Resp. Facts ¶ 53). III. Against the backdrop of this evidentiary record, we consider Softbank’s request for summary judgment. For the reasons explained below, the Court denies Softbank’s motion for summary judgment on Counts I, II, IV. and V, as well as the compensatory and punitive damages claims, but grants the .motion as to Count III and the lost profits claims. IV. In Count I, Kinesoft alleges that Soft-bank breached the 1997 Agreement. Ki-nesoft offers two theories to support this claim: (1) a “non-performance” theory (that Softbank breached the contract by improperly rejecting Kinesoft’s request for a Capital Advance the Digital Anvil venture) (Second Am. Compl. ¶ 29); and (2) a “repudiation theory” (that Softbank, by its words and conduct, utterly renounced any intention of ever honoring any requests by Kinesoft for a Capital Advance) (Id. ¶¶ 30-32). Softbank denies that it breached the 1997 Agreement. Softbank claims that its obligations under the 1997 Agreement were never triggered, because Kinesoft failed to present a Draw Request for the Digital Anvil proposal in accordance with the agreed-upon procedures necessary to obtain a Capital Advance, thereby failing to satisfy a condition precedent (Defs.’ Mem. at 4; Defs.’ Reply at 1). Softbank also denies that it repudiated the 1997 Agreement, on the ground that Softbank never made any “unequivocal statements” of repudiation (Defs.’ Mem. at 6; Defs.’ Reply at 5-6). The parties agree that Illinois law governs the determination of this claim, pursuant to the choice of law provision in the 1997 Agreement (Ans. ¶ 2; Pl.’s Add’l Facts ¶ 62; 1997 Agreement §§ 5.05-5.06). Thus, we address under Illinois law first the non-performance theory, and then the repudiation theory. A. Softbank argues that because Kine-soft failed to submit a procedurally correct Draw Request, there could be no breach because Softbank had no contractual obligation to perform. This “conditions precedent” argument is an affirmative defense for which Softbank bears the burden of proof. See Capitol Plumbing & Heating v. Van’s Plumbing, 58 Ill.App.3d 173, 175, 15 Ill.Dec. 617, 373 N.E.2d 1089 (4th Dist.1978). In assessing Softbank’s argument, we consider in turn (1) whether Sections 2.01(d) and (e) constitute conditions precedent; (2) if so, what requirements do those sections impose, and have they been met; and (3) if they have not been met, are they excused by Softbank’s conduct. 1. “Illinois courts define a condition precedent as one which must be performed either before a contract becomes effective or which is to be performed by one party to an existing contract before the other party is obligated to perform.” MXL Industries, Inc. v. Mulder, 252 Ill.App.3d 18, 25, 191 Ill.Dec. 124, 623 N.E.2d 369 (2d Dist.1993). “The satisfaction of a condition [precedent] is generally subject to the rule of strict compliance.” Id. The determination of whether an agreement contains a condition precedent is a question of law for the court. “A court determines whether an agreement makes an event a condition by the process of interpretation.” See E. Allen Farns-woRth, Farnsworth on Contracts (“Farns-worth on ContraCts”), § 8.2, at 394 (2d ed.1998). In Illinois, the process of interpreting contractual language is, at • the threshold, a matter for the court alone. A court “must initially determine, as a question of law, whether the language of a purported contract is ambiguous as to the parties’ intent.” Quake Construction, Inc. v. American Airlines, Inc., 141 Ill.2d 281, 288, 152 Ill.Dec. 308, 565 N.E.2d 990 (Ill.1990). “If no ambiguity exists in the writing, the parties’ intent must be derived ... as a matter of law, solely from the writing itself.” Id. at 288, 152 Ill.Dec. 308, 565 N.E.2d 990. See also Air Safety, Inc. v. Teachers Realty Corp., 185 Ill.2d 457, 462-63, 236 Ill.Dec. 8, 706 N.E.2d 882 (Ill.1999) (rejecting application of “extrinsic ambiguity” doctrine in contracts with integration clauses, applying “four corners rule” and stating that agreement “speaks for itself’; is “not to be changed by extrinsic evidence”; and court “initially looks to language of contract alone”). Having reviewed the 1997 Agreement, the Court finds that the language of Sections 2.01(d) and (e) reflects no ambiguity-regarding the parties’ intent: those sections contain express conditions precedent to Kinesoft obtaining a Capital Advance. “Conditions that are agreed to by the parties ... are ... express conditions.” Faknsworth On Contracts, § 8.2, at 394. Express conditions are those that are written down in specific words. Catherine M.A. McCauliff, Corbin on Contracts, § 30.10, at 19 (Rev. ed.1999) (conditions made by agreement of the parties are expressed in definite language when the contract is made and are called an “express” condition); Farnsworth On Contracts, § 8.2, at 394 (conditions agreed to by the parties are referred to as “express conditions”). Express conditions are intended to make an event a condition to an obligation and can be recognized by use of terms such as “if,” “on condition that,” “provided that,” “in the event that,” and “subject to,” but other words may suffice. Farnsworth On Contracts, § 8.2, at 394. That is precisely the kind of language that the 1997 Agreement uses in describing Capital Advances. For example, Section 2.01(d) of the 1997 Agreement states that: “Softbank’s obligation to make Capital Advances is subject to the satisfaction of the conditions set forth in subsection (e) ....” (emphasis added). Section 2.01(e) then describes the requirements by which requests for Capital Advances “shall be governed.” Section 2.01(e)(ii), to which the subsection (d) refers, then lists the procedures that “shall” be followed when Kinesoft makes a “Draw Request” for a Capital Advance, such as: a “written request” submitted to Softbank in (accordance with Section 5.04) which sets forth the “amount of the requested advance” (§ 2.01(e)(ii)(A)); “a description of the proposed use of the proceeds of such Advance ...” (§ 2.01(e)(ii)(B)); and “the proposed funding date” (§ 2.01(e)(ii)(C)). Read together, those terms unambiguously express the parties’ intent to make the procedures outlined in Section 2.01(e)(ii) conditions precedent to Soft-bank’s obligation to make a Capital Advance. The issue of interpretation in this case is therefore not whether the language of the contract reflects the parties’ intent to create conditions precedent or to require that those conditions be fully satisfied prior to the actual distribution of a Capital Advance: that language is unambiguous. The particular question that has arisen here is whether the language of the contract requires those same conditions to be fully satisfied not only before a Capital Advance is paid, but also before it is even considered. The absence of clear language governing this precise question creates an ambiguity. Where an ambiguity is present in a contract, Illinois permits courts to admit “parol evidence” to “aid the trier of fact in resolving the ambiguity.” Air Safety, 185 Ill.2d at 462-63, 236 Ill.Dec. 8, 706 N.E.2d 882 (citing Farm Credit Bank v. Whitlock, 144 Ill.2d 440, 447, 163 Ill.Dec. 510, 581 N.E.2d 664 (Ill.1991)); see also Quake, 141 Ill.2d at 288, 152 Ill.Dec. 308, 565 N.E.2d 990. Here, the evidence Kinesoft asks us to consider is course of performance evidence. It is clear that under Illinois law the parties’ course of performance is admissible to help to resolve the ambiguity identified in the 1997 Agreement. See, e.g., Barney v. Unity Paving, Inc., 266 Ill.App.3d 13, 18, 203 Ill.Dec. 272, 639 N.E.2d 592 (1st Dist.1994) (“It is a firmly established principle of contract interpretation that courts should give great weight to the parties’ interpretation of the contract because the parties are in the best position to know what was intended by the language employed”); Chicago and Northwestern Railway Co. v. Peoria and Pekin Union Railway Co., 46 Ill.App.3d 95, 100-01, 4 Ill.Dec. 468, 360 N.E.2d 404 (3d Dist.1977) (in case of ambiguity, court relied on parties’ course of performance as evidence of their “settled construction” and relying on Restatement (Second) of Contracts § 228(4), held that “[t]he parties to an agreement are in the best position to know what they meant, and their action under the contract is often the strongest evidence of their intended meaning”); New York Central Dev. Corp. v. Byczynski, 95 Ill.App.2d 474, 477, 238 N.E.2d 414 (3d Dist.1968) (in addition to parol evidence, courts can admit evidence of parties’ acts or course of performance to interpret what parties intended as to silent, but essential matters, in the contract). See generally St. Joseph Data Service, Inc. v. Thomas Jefferson Life Ins. Co. of America, 73 Ill.App.3d 935, 940, 30 Ill.Dec. 575, 393 N.E.2d 611 (4th Dist.1979) (suggesting that where there is ambiguity, the court may admit parol evidence or evidence of the parties’ course of performance). Indeed, it stands to reason that course of performance may be used to interpret the intent of the parties, since such evidence likely reflects the parties’ understanding of their agreement. FarnswoRth on Contracts § 7.13, at 318 n. 30 (quoting an English judge who once said: “show me what the parties did under the contract and I will show you what the contract means”). The next question is whether the Court may consider extrinsic evidence in resolving the ambiguity on a motion for summary judgment. In general, Illinois gives questions of contractual ambiguity to the trier of fact, together with the evidence necessary to resolve them. See generally Air Safety, 185 Ill.2d at 462-63, 236 Ill.Dec. 8, 706 N.E.2d 882; Whitlock, 144 Ill.2d at 447, 163 Ill.Dec. 510, 581 N.E.2d 664; Quake, 141 Ill.2d at 288-89, 152 Ill.Dec. 308, 565 N.E.2d 990. However, there is an exception to this general rule: “Under Illinois law, if a contract is ambiguous, its interpretation is a question of law for the court as long as the extrinsic evidence bearing on the interpretation is undisputed.” Baker v. America’s Mortgage Servicing, Inc., 58 F.3d 321, 326 (7th Cir.1995) (citing Nerone v. Boehler, 34 Ill.App.3d 888, 890-91, 340 N.E.2d 534 (5th Dist.1976); Ridenhour v. Mollman Publishing Co., 66 Ill.App.3d 1049, 1051, 23 Ill.Dec. 36, 383 N.E.2d 803 (1978)). See also Sherb