Mindspirit, LLC v. Evalueserve Ltd. (346 F. Supp. 3d 552, 2018)

Paul G. Gardephe, United States District Judge

In this action, Mindspirit, LLC, and its two members - Malvika Kumar and Rosewood Partners - allege that Defendant Evalueserve Ltd. breached an agreement to issue 480,000 Evalueserve stock options to Mindspirit. According to Plaintiffs, although Evalueserve issued these options to Mindspirit in April 2001, it later breached the parties' agreement by wrongfully re-issuing these stock options in the names of Rajat Gupta and Anil Kumar, non-parties to this action. (See Am. Cmplt. (Dkt. No. 19) ¶¶ 20, 49, 61, 64-70, 109-113)

As a result of this Court's ruling on Evalueserve's motion to dismiss, Mindspirit is the sole remaining plaintiff, and only Mindspirit's breach of contract and unjust enrichment claims remain, (See id.; Sept. 26, 2016 Order (Dkt. No. 45) )

Evalueserve has moved for summary judgment on Mindspirit's remaining claims, arguing that (1) they are barred by the applicable statute of limitations; (2) the parties' contract bars the unjust enrichment claim; (3) there was no breach of contract; (4) the doctrine of illegality bars the breach of contract claim; (5) the parties' mutual mistake either (a) excuses any further performance by Evalueserve or (b) is grounds for reformation of the contract; and (6) there has been no unjust enrichment to Evalueserve, because (a) Evalueserve provided the value at issue to third-parties and did not retain that value, and (b) equity and good conscience do not require restitution. (Def. Mot. (Dkt. No. 78) ) Mindspirit has cross-moved for summary judgment on Evalueserve's statute of limitations and illegality defenses, (Pltf. Mot. (Dkt. No. 73) )

For the reasons stated below, Evalueserve's motion for summary judgment will be granted as to the unjust enrichment claim, but will otherwise be denied. Mind spirit's cross-motion for partial summary judgment will be granted as to Evalueserve's illegality defense, but will otherwise be denied.

BACKGROUND

I. FACTS

A. The Parties

Plaintiff Mindspirit is a Nevada limited liability company, formed on January 26, 2001, with two members: Malvika Kumar - the wife of Anil Kumar ("Kumar") - and Rosewood Partners. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 86) ¶¶ 1-5) Since Mindspirit's formation, Rosewood has held 75% of the membership interest in Mindspirit, and Malvika Kumar has held the remaining 25%. (Id. ¶¶ 3-4)

Rosewood is an Illinois partnership. (Deuser Aff. (Dkt. No. 40) ¶ 6) Between 2001 and 2013, Rajat Gupta ("Gupta") was one of Rosewood's general partners. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 86) ¶ 7) According to Rajat Gupta, Rosewood is "a family partnership for [his] kids." (Gupta Dep. (Dkt. No. 88-92) at 99; see also id. at 16 (Gupta referring to Rosewood as "my family investment company") ) Rosewood presently has five partners: the Anita Gupta 2013 Irrevocable Trust, Geetanjali Gupta, Deepali Gupta, Megha Gupta, and Aditi Gupta. (Deuser Aff. (Dkt. No. 40) ¶ 8)

Kumar and Gupta formed Mindspirit, using Shivbir Grewal, an attorney selected by Kumar, to perform the necessary legal work. (See Kumar Dep. (Dkt. No. 88-90) at 28-29 ("[I]n late 2000-early 2001, Gupta and I had discussed the fact that we were making so many investments that it was actually for the benefit of our families that we set up an organization where those investments would be held, from an estate planning perspective, and we thought we would set one up called Mindspirit from which the investments would be made.... We retained a law firm in L.A. to ... do the paperwork, and that's what they did.") ) When Mindspirit was formed, Kumar told Grewal that Gupta would be the manager of and signatory for Mindspirit. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 86) ¶ 59)

Mindspirit's principal place of business is 59 Beachside Avenue in Stamford, Connecticut (id. ¶ 1), which is one of Gupta's residences. (Gupta Dep. (Dkt. No. 88-92) at 4) Until 2007, Mindspirit's mailing address was Gupta's business office in Stamford, where Mindspirit's business records were maintained. (Id. at 12, 23) Mindspirit's accounting and tax returns were handled by Gupta's "family's tax accountant." (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 86) ¶ 11; Gupta Dep. (Dkt. No. 88-92) at 24-25)

Gupta does not recall whether he was the manager of Mindspirit (Gupta Dep. (Dkt. No. 88-92) at 16 ("I don't know [if I was a manager.] It was just an investment vehicle.") ), but assumes as much. (Id. at 27 ("Q. Is Mr. Kumar correct when he states, at least as of January 25th, 2001, that you would be the signatory on behalf of Mindspirit, LLC and the manager? A. Based on what I saw, I signed those documents so [I] must have been.") )

According to Kumar, his wife Malvika was responsible for "[being] aware of"

Mindspirit's investments, and "ensur[ing] that Mindspirit complie[d] with all laws and filings." (Kumar Dep. (Dkt. No. 88-90) at 34-35) Mindspirit's only investment was in Evalueserve, however. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 86) ¶ 58)

Evalueserve is a Bermuda company that was incorporated on October 25, 2000. (Id. ¶ 13) Its main office is in Gurgaon, India. (Id. ¶ 14) Evalueserve was founded by Alok Aggarwal ("Aggarwal") and Marc Vollenweider to provide consulting services. (Id. ¶¶ 16-17; Vollenweider Dep. (Dkt. No. 88-62) at 58-60) From Evalueserve's formation until 2013, Aggarwal and Vollenweider were its only directors. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 86) ¶ 18) Aggarwal also served as executive chairman, while Vollenweider served as chief executive officer through December 2016. (Id. ) Vollenweider is still a member of Evalueserve's board. (Id. ¶ 19)

B. The Agreement

In late December 2000 or early January 2001, Aggarwal, Vollenweider, Gupta, and Kumar began discussions about Gupta and Kumar becoming "angel investors" in Evalueserve. (Id. ¶ 40) At some point in January or February 2001, Aggarwal, Vollenweider, and Gupta met at Gupta's office to discuss the potential investment. (Id. ¶ 51) According to Aggarwal, about "a week or so later, [Gupta] [ ] said that he would like to invest with Anil Kumar through ... Mindspirit ...." (Aggarwal Dep. (Dkt. No. 88-54) at 28)

On April 20, 2001, Evalueserve sent Gupta several transaction documents drafted by Evalueserve reflecting the arrangement between Evalueserve and Mindspirit, including a Stock Option Grant Notice ("Grant Notice"), a Stock Option Agreement, the Evalueserve, Ltd, 2001 Equity Incentive Plan ("Equity Incentive Plan"), and a Securities Purchase Agreement ("Purchase Agreement"). (See Def. Resp. to Pltf. R. 56.1 Stmt. (Dkt. No. 82) ¶ 3; Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 86) ¶ 87) Vollenweider had signed these documents and dated them April 17, 2001. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 86) ¶ 87) A cover letter included with these documents asks Gupta to sign and return all of the documents to Aggarwal (id. ¶ 88), but no party to this suit has produced a countersigned copy of any of these documents. (Id. ¶ 89) Gupta received the documents and retained them in Mindspirit's files, however, and Kumar received and retained at least the Grant Notice, the Stock Option Agreement, and the Equity Incentive Plan. (Id. )

1. The Grant Notice

The April 17, 2001 Grant Notice provides that "Evalueserve, Ltd. (the 'Company'), pursuant to its Evalueserve, Ltd. 2001 Equity Incentive Plan (the 'Plan') hereby grants to you (the 'Optionholder') an option to purchase the number of shares of the Company's Common Stock set forth below." (Grant Notice (Dkt. No. 86-3) at 2)

The Grant Notice identifies Mindspirit as the "Optionholder"; the date of the grant as April 17, 2001; the number of shares subject to option as 480,000; the exercise price as $0.56; and the nature of the options as "nonstatutory stock options." (Id. ) The Grant Notice includes a vesting schedule, with options for 160,000 shares vesting on April 17, 2002; options on an additional 160,000 shares vesting on April 17, 2003; and options on the remaining 160,000 shares vesting on April 17, 2004. (Id. ) The Grant Notice provides that all options will expire on April 16, 2006. (Id. )

Under a section entitled "Additional Terms/ Acknowledgements," the Grant Notice states:

The undersigned Optionholder acknowledges receipt of, and understands and agrees to, this Grant Notice, the Stock Option Agreement and the [Equity Incentive] Plan. Optionholder further acknowledges that as of the Date of Grant, this Grant Notice, the Stock Option Agreement and the [Equity Incentive] Plan set forth the entire understanding between Optionholder and the Company regarding the acquisition of stock in the Company under the [Equity Incentive] Plan and supersede all prior oral and written agreements on the subject with the exception of (i) options previously granted and delivered to Optionholder under the [Equity Incentive] Plan, and (ii) the following agreements only: ________.

(Id. )

The Grant Notice further provides that, "[t]his option is subject to all of the terms and conditions as set forth herein and in the Stock Option Agreement between the Company and the Optionholder, the [Equity Incentive] Plan and the Notice of Exercise, all of which are ... incorporated [ ] in their entirety." (Id. )

2. The Stock Option Agreement

The Stock Option Agreement provides that,

[p]ursuant to your Stock Option Grant Notice ("Grant Notice") and this Stock Option Agreement, and in consideration of the help and guidance to be provided by you to it, Evalueserve Ltd, (the "Company") has granted yon (the "Optionholder") an Option under its Evalueserve, Ltd. 2001 Equity Incentive Plan (the "Plan") to purchase the number of shares of the Company's Common Stock indicated in your Grant Notice at the exercise price indicated in your Grant Notice.

(Stock Option Agreement (Dkt. No. 86-3) at 4)

Section 5 of the Stock Option Agreement states:

SECURITIES LAW COMPLIANCE. Notwithstanding anything to the contrary contained herein, you may not exercise your Option unless the shares of Common Stock issuable upon such exercise are then registered under the Securities Act or, if such shares of Common Stock are not then so registered, the Company has determined that such exercise and issuance would be exempt from the registration requirements of the Securities Act, The exercise of your Option must also comply with other applicable laws and regulations governing your Option, and you may not exercise your Option if the Company determines that such exercise would not be in material compliance with such laws and regulations.

(Id. at 5)

Section 8 of the Stock Option Agreement provides that "[y]our Option is not transferable." (Id. ) Section 9 of the Stock Option Agreement provides: "RIGHT OF FIRST REFUSAL UPON PROPOSED SALE. The provisions of Sections 4 through 6 of that certain Securities Purchase Agreement of even date herewith between the Company and you shall be applicable to all shares of Common Stock acquired by you upon exercise of an Option." (Id. )

Section 11 of the Stock Option Agreement provides that

[y]our Option is subject to all the provisions of the [Equity Incentive] Plan, the provisions of which are hereby made apart of your Option, and is further subject to all interpretations, amendments, rules and regulations which may from time to time be promulgated and adopted pursuant to the [Equity Incentive] Plan. In the event of any conflict between the provisions of your Option and those of the [Equity Incentive] Plan, the provisions of the [Equity Incentive] Plan shall control.

(Id. ) Section 13 of the Stock Option Agreement provides that "[t]his Agreement shall be governed by and construed in accordance with the laws of the State of New York, except that body of law relating to choice of laws." (Id. at 6)

3. The Equity Incentive Plan

The Equity Incentive Plan was adopted by Evalueserve's shareholders on January 5, 2001. (Equity Incentive Plan (Dkt. No. 86-3) at 9) Section 1(a) of the Equity Incentive Plan provides that, "[t]he persons eligible to receive Option Awards are the Employees and Directors of and Consultants to the Company and its Affiliates." (Id. at 9) Section 5(a) similarly provides that "Nonstatutory Stock Options may be granted to Employees, Directors and Consultants." (Id. at 14) Section 2(g) defines "Consultant" as "any person, including an advisor, (i) engaged by the Company or an Affiliate to render consulting, advisory or professional services and who is compensated for such services...." (Id. at 10)

Sections 2(b) and 3 of the Equity Incentive Plan give the Evalueserve Board of Directors the

power, subject to, and within the limitations of, the express provisions of the Plan:

i. To determine ... which of the persons eligible under the Plan shall be granted Option Awards; when and how much each Option Award shall be granted; what type or combination of types of Option Award shall be granted; the provisions of each Option Award granted ...; and the number of shares of Common Stock with respect to which an Option Award shall be granted to each such person.

ii. To construe and interpret the Plan and Option Awards granted under it, and to establish, amend and revoke rules and regulations for its administration. The Board, in the exercise of this power, may correct any defect, omission or inconsistency in the Plan or in any Option Agreement, in a manner and to the extent it shall deem necessary or expedient to make the Plan fully effective.

iii. To amend the Plan or a[n] Option Award as provided in Section 11....

(Id. at 13)

Section 11(e) of the Equity Incentive Plan provides that "the rights under any Option Award shall not be impaired by any [ ] amendment unless (i) the Company requests the consent of the Participant and (ii) the Participant consents in writing." (Id. at 22)

Section 5(d)(i) of the Equity Incentive Plan provides that,

[prior to the date on which a registration statement under the Securities Act relating to the Common Stock is declared effective by the Securities and Exchange Commission], a Consultant shall not be eligible for the grant of an Option Award if, at the time of grant, either the offer or the sale of the Company's securities to such Consultant is not exempt under Rule 701 because of the nature of the services that the Consultant is providing to the Company, or because the Consultant is not a natural person, or as otherwise provided by Rule 701, unless the Company determines that such grant need not comply with the requirements of Rule 701 and will satisfy another exemption under the Securities Act as well as comply with the securities laws of all other relevant jurisdictions.

(Id. at 15)

Section 6(g) of the Equity Incentive Plan states:

Transferability of a Nonstatutory Stock Option. A Nonstatutory Stock Option shall be transferable to the extent provided in the Option Agreement. If the Nonstatutory Stock Option does not provide for transferability, then the Nonstatutory Stock Option shall not be transferable except by will or by the laws of descent and distribution and shall be exercisable during the lifetime of the Optionholder only by the Optionholder.

(Id. at 16-17)

Section 7(b) of the Equity Incentive Plan states:

Securities Law Compliance. The Company shall seek to obtain from each regulatory commission or agency having jurisdiction over the Plan such authority as may be required to grant Option Awards and to issue and sell shares of Common Stock upon exercise of the Option Awards, provided, however, that this undertaking shall not require the Company to register under the Securities Act the Plan, any Option Award or any Common Stock issued or issuable pursuant to any such Option Award. If, after reasonable efforts, the Company is unable to obtain from any such regulatory commission or agency the authority that counsel for the Company deems necessary for the lawful issuance and sale of Common Stock under the Plan, the Company shall be relieved from any liability for failure to issue and sell Common Stock upon exercise of such Option Awards unless and until such authority is obtained.

(Id. at 18)

Section 15 of the Equity Incentive Plan provides that "[t]he law of the State of New York shall govern all questions concerning the construction, validity and interpretation of this Plan, without regard to such state's conflict of laws rules." (Id. at 24)

4. The April 17, 2001 Purchase Agreement

Section 1.2 of the Purchase Agreement states:

Grant of Options. In consideration of certain help and guidance being provided by the Investor to the Company, concurrently herewith the Company is granting to the Investor an option (the "Option") to purchase that number of shares of its Common Stock pursuant to its 2001 Equity Incentive Plan as is set forth on Schedule A.

(SPA (Dkt. No. 86-5) at 2) Schedule A provides that the "Investor" is "Mindspirit LLC"; that Mindspirit has purchased 180,000 shares of Evalueserve's common stock; that the purchase price of the stock was $100,000; and that the "Number of Shares Subject to Option" is 480,000. (Id. at 11)

Section 2.5 of the Purchase Agreement provides:

Other than as is set forth on Schedule B attached hereto, no consent, approval, order, or authorization of, or registration, qualification, designation, declaration or filing with, any Bermudian, United States Federal or state or foreign governmental authority on the part of the Company is required in connection with (i) the consummation of the transactions contemplated by this Agreement or the Option Agreement or (ii) the offer, issuance, sale and delivery of the Shares and Options.

(Id. at 3) Schedule B provides that "[t]he consent of the Bermuda Monetary Authority must be procured for the issuance of the Common Stock and the Option to the Investor." (Id. at 12)

C. Consideration and Performance

On September 20, 2001, Gupta caused Rosewood to pay $100,000 to Evalueserve on Mindspirit's behalf. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 86) ¶ 120) In connection with that payment, Kumar gave Gupta $25,000 at a later date. (Kumar Dep. (Dkt. No. 88-90) at 62) Kumar states that the $25,000 came from his wife, Malvika Kumar. (Id. at 80) Although Gupta and Kumar testified that they did not agree to provide any "help and guidance," or consulting services, to Evalueserve (see Gupta Dep. (Dkt. No. 88-92) at 34-35; Kumar Dep. (Dkt. No. 88-90) at 27-28, 44-45, 48), they nonetheless provided some assistance to Evalueserve. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 86) ¶ 117) For example, Gupta contacted at least one other "angel investor" about Evalueserve (Gupta Dep. (Dkt. No. 88-92) at 31-32), and remembers having discussions with Evalueserve regarding "their clients" and what Evalueserve was "trying to do." (Id. at 38) Kumar recalls "going through" a "spreadsheet of names" with Aggarwal. (Kumar Dep. (Dkt. No. 88-90) at 50-51)

During the first four months of 2002, Evalueserve's Board adopted a resolution approving the issuance of 180,000 shares of common stock to Mindspirit. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 86) ¶ 136) Evalueserve's Board also adopted a resolution listing Evalueserve's "optionee[s]" as Gupta and Kumar individually - with 360,000 options and 120,000 options, respectively - rather than Mindspirit. (See Def. Resp. to Pltf. R. 56.1 Stmt. (Dkt. No. 82) ¶ 4; Evalueserve Board Resolution (Dkt. No. 76-6) ) The resolution was signed by Vollenweider - as Evalueserve's chief executive officer and director - on April 8, 2002, and by Aggarwal - as Evalueserve's chairman and director - at an unspecified time. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 86) ¶¶ 18, 137) Mindspirit did not receive a copy of this Board resolution until this litigation ensued. (Def. Resp. to Pltf. R. 56.1 Stmt. (Dkt. No. 82) ¶ 5)

Vollenweider and Nand Gangwani - Evalueserve's chief financial officer since January 2008 (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 86) ¶ 15) - testified that Evalueserve needed the options to be in the names of individuals for regulatory reasons, and that they obtained Gupta's permission to change the option holder(s) from Mindspirit to Gupta and Kumar. (Def. Resp. to Pltf. R. 56.1 Stmt. (Dkt. No. 82) ¶ 6) Aggarwal testified, however, that Gupta orally requested the change, and that Evalueserve agreed to make the change as "a favor" to Gupta. (Id. ¶ 7) Gupta recalls no such conversation (Gupta Dep. (Dkt. No. 88-92) at 99), and Kumar testified that Gupta never told him about any such conversation. (Kumar Dep. (Dkt. No. 88-90) at 78-79) There is no written amendment to either the Grant Notice or the Stock Option Agreement that reflects such a change. (Def. Resp. to Pltf. R. 56.1 Stmt. (Dkt. No. 82) ¶ 10)

D. Approval from the Bermuda Monetary Authority

Under Bermuda law, the Bermuda Monetary Authority (the "BMA") must approve the issuance of any equity security by a Bermuda company to a non-resident of Bermuda, unless general permission has been given. (See Part IV of the Bermuda Exchange Control Regulations, Section 12(1) (Dkt. No. 84-2) at 11 ("Except with the permission of the [Bermuda Monetary Authority], no person shall in Bermuda issue any security or, whether in Bermuda or elsewhere, issue any security which is registered or to be registered in Bermuda, [to a non-resident of Bermuda]."); Richardson-Augustus Decl. (Dkt. No. 88-35) 1 ("Under Bermuda law, the Bermuda Monetary Authority (the 'BMA') must approve the issuance of any equity security by a Bermuda company to a non-resident of Bermuda, other than in cases where general permission has been given."); U.S. Dep't of State 2014 Investment Climate Statement for Bermuda (Dkt. No. 84-5) at 7 ("For exchange control purposes, the BMA must give prior approval for issues to and transfers of securities in Bermuda companies involving non-residents, except where general permission has been granted pursuant to the Notice of Public of June 2005.") )

In a May 6, 2002 letter to the BMA, Evalueserve's Bermuda counsel - Appleby, Spurling & Kempe - sought approval for Evalueserve to issue 180,000 shares to Mindspirit, and on May 14, 2002, the BMA granted permission. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 86) ¶¶ 132, 148-49) On October 8, 2002, Evalueserve issued a certificate for 180,000 shares to Mindspirit. (Id. ¶ 152) On October 11, 2002, Aggarwal sent a subscription sheet to Gupta for the 180,000 shares, and Gupta signed it and returned it on behalf of Mindspirit. (Id. ¶ 153) Evalueserve sent the certificate to Mindspirit, in care of Gupta, on October 21, 2001. (Id. ¶ 152) Gupta gave the stock certificate to his accountant. (Id. )

On October 15, 2002, the Appleby firm wrote to the BMA seeking approval for Evalueserve to issue 360,000 options to Gupta and 120,000 options to Kumar, and on October 18, 2002, the BMA granted permission. (Id. ¶¶ 155-56) After BMA approval, Evalueserve recorded the options in Gupta and Kumar's names on its books, (Id. ¶ 157; Vollenweider Dep. (Dkt. No. 88-62) at 137, 166, 198) The options recorded in the names of Gupta and Kumar were the options for which Mindspirit had bargained. (See Vollenweider Dep. (Dkt. No. 88-62) at 119-21; Gangwani Dep. (Dkt. No. 88-77) at 79-80)

E. Evalueserve Extends the Expiration Date of the Options; 2009-2011 Communications Regarding the Options; and the Bermuda Monetary Authority's Rejection of the Attempt to Exercise the Options

In March 2006, Evalueserve's Board extended the expiration date for all outstanding options to April 6, 2011. (See March 2006 Evalueserve Resolutions (Dkt. No. 88-61) at 2; Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 86) ¶ 167; Vollenweider Dep. (Dkt. No. 88-62) at 176 (testifying that the March 2006 extension was "a blanket extension" that "applie[d] to all the [outstanding] stock options") ) Unaware of this action by Evalueserve's board, and aware that the Grant Notice provides that the options referenced in the Grant Notice will expire on April 16, 2006 (Grant Notice (Dkt. No. 86-3) at 2), Kumar became concerned in June 2006 that the options had expired. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 86) ¶ 162; Kumar Dep. (Dkt. No. 88-90) at 82-83 ("[I]t occurred to me, based on my recollection of the stock option agreement, that it had a five-year expiration[,] and I was confused as to whether the expiration would be April 17th, 2006, which is per the stock option agreement, or whether [the options would expire five years from] the date the money was sent [from Rosewood to Evalueserve].") ) Accordingly, on June 25, 2006, Kumar sent an email to Aggarwal with two questions: (1) the "Date of wire to Bermuda (late 2001?) - for USA 100,000/ - for 180K shares"; and (2) the "Split of the 480K options on your books between RKG and me." (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 86) ¶ 161) Notwithstanding the language in Kumar's email, Kumar claims that - at that time - he believed the options were in Mindspirit's name, (Kumar Dep. (Dkt. No. 88-90) at 177-78 ("Q.... As of this point, 2006, did you understand these options to be in your personal name? A. No.") )

On June 29, 2006, Aggarwal responded to Kumar's e-mail as follows: "The money was transferred to Bermuda on September 21, 2001," and "360K options were granted to Rajat Gupta and 120K to Anil Kumar. These options were granted on November 7, 2001 at $.5556 per share." (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 86) ¶ 165) Gupta does not recall whether Kumar passed this information on to him. (Id. ¶ 166)

Kumar testified that although Aggarwal speaks of options being granted to Gupta and Kumar, he nonetheless understood Aggarwal to mean "[t]hat [the options] were split within Mindspirit of the two families." (Kumar Dep. (Dkt. No. 88-90) at 178) Kumar claims that he believed all along that the options were in Mindspirit's name. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 86) ¶ 171) In a telephone conversation after Aggarwal's June 29, 2006 email, Aggarwal told Kumar that the expiration date of outstanding options had been extended, and that the options at issue would not expire in 2006. (See Kumar Dep. (Dkt. No. 88-90) at 89-91 (testifying that Aggarwal told him " '[d]on't worry about [expiration in] 2006' " and that " '[a]ll the other option holders have also got[ten] extended' ") )

Gupta testified that he expected that Evalueserve was monitoring the expiration date of the options and would contact him if the options were about to expire. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 86) ¶ 163) Gupta does not know why the options were not exercised by 2006. (Id. ¶ 172)

On June 18, 2009 - three years later - J. Aaron Deuser, Gupta's accountant, sent an email to Gangwani, Evalueserve's chief financial officer, entitled "stock option grant." (Jan. 27, 2010 Gangwani email chain (Dkt. No. 88-124) at 5-6) The body of the email indicates that Gupta believed that the options had expired:

... I'm the accountant for Rajat Gupta, I just had a brief discussion with Mr. Gupta regarding his expired stock options in Evalueserve. He requested that I set up a meeting between us, our tax account[ant] and yourself to discuss the details associated with an alternative method of capturing that value....

(Id. at 2) In emails with Evalueserve over the following year, Deuser never mentioned Mindspirit or Rosewood, and consistently referred to the options as Gupta's options. (See generally id.; June 3, 2010 Gangwani email chain (Dkt. No. 88-126) ) Deuser claims, however, that, "in many instances," he "just used Mr. Gupta as a placeholder," because if he "reach[ed] out to a company and [said] ... Mindspirit or Rosewood or something like that, typically nobody knows what I'm talking about [W]hile they might be aware of an entity that he used, referencing Mr. Gupta was the most common practice." (Deuser Dep. (Dkt. No. 88-91) at 16-17)

In a July 12, 2010 email, Karmeshu Aggarwal ("K. Aggarwal") - Evalueserve's "head of accounting or head of finance" (Vollenweider Dep. (Dkt. No. 88-62) at 100) - told Deuser that, "[r]egarding [s]tock options - there are 360,000 options granted in year 2001 @ USD 0.5556 per option as exercise price. We would request Rajat to exercise these options [within] the next three months...." (July 31, 2010 K. Aggarwal email chain (Dkt. No. 86-31) at 4) Gupta does not recall receiving this information from Deuser at that time. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 86) ¶ 200) Gupta claims that he believed the options were in Rosewood's name. (See Gupta Dep. (Dkt. No. 88-92) at 67-68)

In a July 21, 2010 email to K. Aggarwal, Deuser said:

I appreciate your taking the time to speak with me just now regarding the stock options.

One follow up question I did have, I just pulled out the original stock paperwork I have[,] and [ ] it looks like the[ ] options were originally issued to Mindspirit LLC, I know we just talked about this[,] but can you please confirm the options were previously transferred to both Rajat and Anil.

Rajat should have 360,000 and Anil should have 120,000.

(Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 86) ¶ 203) In response, K. Aggarwal asked Deuser to "send [him] a copy of the paperwork." (July 21, 2010 K. Aggarwal email (Dkt. No. 88-130) at 1)

In an August 26, 2010 email to Gangwani, Evalueserve's CFO, Deuser said:

Mr. Gupta and Mr. Kumar have requested that we try to split up the Mindspirit entity that is owned by the two of them. Is it possible to have the new options issued in each individual's name?

(Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 86) ¶ 204) In response, Gangwani wrote, "I will let Karmeshu [Aggarwal] get back to you on [that question]." (Aug. 26, 2010 Gangwani email (Dkt. No. 88-132) at 2)

In August 2010, Evalueserve's Board extended the expiration date for all outstanding options to April 6, 2016. (See August 2010 Evalueserve Resolutions (Dkt. No. 88-71); Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 86) ¶ 167; Vollenweider Dep. (Dkt. No. 88-62) at 178-79; Aggarwal Dep. (Dkt. No. 88-54) at 159-60)

On October 4, 2010, K. Aggarwal emailed Deuser copies of September 1, 2010 letters addressed to Kumar and Gupta. (October 4, 2010 Deuser email chain and attachments (Dkt. No. 88-108) at 2, 6-7) Both letters state: "[w]ith reference to [the] stock options granted to you by Evalueserve on 7 November 2001, please be noted that pursuant to resolutions approved by the Board of Directors on August 31, 2010, the expiration date of the said options with the Company stands extended to April 6, 2016." (Id. at 6-7) In his October 4, 2010 email to Deuser, K. Aggarwal writes: "please note that these [options] are in individual names." (Id. at 2) Deuser forwarded the extension letters to Gupta and Kumar that same day. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 86) ¶ 205) Gupta does not recall receiving this email from Deuser, and does not know whether he ever saw the extension letter. (Id. ¶ 206)

In a December 9, 2010 email to Vikas Agarwal, an Evalueserve employee, Kumar inquired about transferring the 180,000 shares of Evalueserve stock held by Mindspirit to Malvika Kumar and Rosewood. (December 15, 2010 Agarwal email chain (Dkt. No. 88-78) at 5-6 ("Mindspirit is owned by Rajat's family partnership (Rosewood) and Malvika Kumar (my wife). How do we change the name on the purchased shares to Rosewood and Malvika?") ) In response, Vikas Agarwal told Kumar that Malvika Kumar and a representative of Rosewood - as the partners of Mindspirit - would need to approve the transfer. (Id. at 3) Approximately two months later, on February 10, 2011, Evalueserve - at the request of Malvika Kumar and Rosewood - transferred the 180,000 shares of Evalueserve stock held by Mindspirit to Malvika Kumar and Rosewood. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 86) ¶ 212)

Kumar testified that once Mindspirit's shares in Evalueserve were transferred, there was no more reason for Mindspirit to exist, (Kumar Dep. (Dkt. No. 88-90) at 133 ("Q. So when the shares transferred, there was no more reason to have Mindspirit? A, That's correct.") ) That same month - February 2011 - Gupta closed Mindspirit's bank account. (Feb. 10, 2011 Gupta Ltr. (Dkt. No. 88-146) at 2) After Mindspirit's bank account was closed, Deuser emailed Kumar, stating, inter alia, "FYI ... the Mindspirit account at [JPMorgan] was closed yesterday as well so I believe that completes everything else," to which Kumar responded, "Perfect. Thanks." (Feb. 11, 2011 Kumar email chain (Dkt. No. 88-115) at 2) According to Deuser, Gupta closed Mindspirit's bank account because "we were dissolving Mindspirit, and once everything was allocated out to Rosewood and Malvika, there was no need to keep the bank account open." (Deuser Dep. (Dkt. No. 88-91) at 61)

In April 2011, Evalueserve contacted Gupta and Kumar and told them that - for tax reasons - they should immediately exercise the options listed in their names. (See Def. Resp. to Pltf. R. 56.1 Stmt. (Dkt. No. 82) ¶ 11)

On April 16, 2011, Deuser emailed Evalueserve a "Stock Option Exercise notice for Rajat Gupta," and stated that "[w]e would like to exercise the option immediately...." (April 16, 2011 Deuser email (Dkt. No. 88-134) at 3) On April 17, 2011, Kumar emailed Evalueserve a completed notice of exercise form, in which Kumar sought to exercise 120,000 options. (April 17, 2011 Kumar email chain and attachment (Dkt. No. 88-116) at 2, 4-5) Gupta's notice of exercise form was filled out in his name for his own benefit. (Gupta Notice of Exercise (Dkt. No. 88-135) at 7-8) Kumar's notice of exercise form was filled out in his name for the benefit of the Kumar Revocable Trust. (Kumar Notice of Exercise (Dkt. No. 88-116) at 4) Neither notice of exercise form mentioned Mindspirit.

On April 18, 2011, Evalueserve sent to Kumar and Deuser the compliance forms for the Bermuda Monetary Authority, showing the corporate record entries for their options. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 86) ¶ 216) Kumar completed and signed the forms, and returned them that same day. (Id. ) Kumar applied to have the Evalueserve shares issued in the name of the Kumar Revocable Trust. (Id. ¶ 222) On April 21, 2011, Aggarwal informed Kumar by email that the "corresponding shares will be in your name and not in your trust's name or any other name." (Id. ¶ 223) Kumar replied in an April 22, 2011 email stating, "No problem. Can easily have it in my name." (Id. ¶ 224)

On April 25, 2011, Gupta completed and signed stock option exercise paperwork, including compliance forms, and gave these documents to Deuser, who sent them to Evalueserve. (Gupta Dep. (Dkt. No. 88-92) at 79-81; Deuser Dep. (Dkt. No. 88-91) at 69-70; April 25, 2011 Deuser email chain and attachments (Dkt. No. 88-135); April 25, 2011 Gupta email chain and attachments (Dkt. No. 88-147) )

Gupta maintains that, even at this point, it was not clear to him that the options were in his name. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 86) ¶ 226) Gupta and Kumar say that they were not then aware that exercising Evalueserve options required the approval of the Bermuda Monetary Authority. (Id. ¶ 227)

On May 9, 2011, the Appleby firm submitted Gupta's application to exercise the options to the Bermuda Monetary Authority. (Wilson Decl, (Dkt. No. 88-25) ¶ 5; June 22, 2011 Appleby email and attachments (Dkt. No. 88-26) ) On May 10, 2011, Appleby submitted to the BMA Kumar's application to exercise the options. (Wilson Decl. (Dkt. No. 88-25) ¶ 5; June 22, 2011 Appleby email and attachments (Dkt. No. 88-27) )

On June 8, 2011, the BMA notified the Appleby firm that it had rejected Kumar's and Gupta's applications to exercise the options. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 86) ¶ 230) The record does not reflect why the BMA rejected the applications to exercise the options. Aggarwal notified Kumar and Gupta that the BMA had rejected their exercise of the options. (Id. ¶¶ 231-32)

F. Communications After the Bermuda Monetary Authority Rejects the Attempt to Exercise the Options

Evalueserve offered to re-submit Kumar's and Gupta's applications to the BMA, (See Vollenweider Dep. (Dkt. No. 88-62) at 195) Kumar never re-submitted his application to exercise the options, however, because he "thought the right way was [ ] actually not to work with the [BMA], but to get the options transferred back to where they belonged" - that is, "with Mindspirit." (Kumar Dep. (Dkt. No. 88-90) at 153-55)

Gupta initially instructed Deuser to pursue re-application, and on October 21, 2011, Deuser asked Aggarwal whether the existing paperwork would suffice for the re-application, or whether additional paperwork was needed. (Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 86) ¶¶ 242, 244) On February 7, 2012, Navneet Sharma - an Evalueserve manager - sent Deuser an email regarding "the process of re-submitting the application of Rajat Gupta's exercise of stock options with [the] Bermuda Monetary Authority." (March 2, 2012 Gangwani email chain (Dkt. No. 76-19) at 3-4) Sharma asked Deuser to "arrange for Mr. Gupta to complete the attached Personal Declaration." (Id. at 4)

In response, Deuser sent the following email that same day:

Prior to moving forward with exercise of the options, I have one outstanding concern that hasn't been fully addressed....

Given that the stock options were originally issued in the name of Mindspirit and were not transferable according to article 1.8 of the agreement, I believe the options should still be held in the name of Mindspirit, or its owners Rosewood Partners and Malvika Kumar.

Can Evalueserve confirm this is the company's understanding as well? If not, would someone be able to provide additional explanation regarding the transfer of options to Mr. Gupta?

(Id. at 3) The next day, Sharma responded, "Sure, I will look into this and get back to you at the earliest." (Id. at 2)

Three weeks later, in a February 29, 2012 email, Deuser wrote to Sharma "to quickly follow up ... on the [ ] issue regarding transferring the stock options back (or reversing the original transfer) into the name of Mindspirit or its owner Rosewood. Please let me know if I can provide any additional information on our end to assist in the process." (Id. ) In a March 2, 2012 email, Gangwani, who had been copied on the emails exchanged between Deuser and Sharma, wrote:

I have been on the road and couldn't get back you[ ] earlier. We cannot transfer the options to Mindspirit. Also there wasn't error in assigning the stock options to Rajat Gupta. While the original grant letter was made in the name of Mindspirit, [ ] when it went to Rajat Gupta for signing he called Alok Aggarwal (Chairman and co-founder of Evalueserve) and asked him to make it in the names of Rajat Gupta and Anil Kumar instead (with two thirds of the options going to Rajat Gupta and one-third to Anil Kumar). It was based on this request from Rajat Gupta that the revised grant letter was sent to the Bermuda authorities for BMA approval and recording.

(Id. at 2)

In a May 30, 2012 letter to Evalueserve, John Granda - counsel to Gupta - "request[ed] on Mr. Gupta's behalf that the so-called 'Gupta Options' be transferred to Rosewood Partners," and "withdr[e]w any prior request from Mr. Gupta or his representatives to exercise the so-called Gupta Options." (May 30, 2012 Granda Ltr. (Dkt. No. 88-31) at 4)

In a December 14, 2012 letter, Granda requested that Evalueserve either "effect a cashless exercise of the options to purchase 360,000 shares ... originally granted to Mindspirit LLC" "[c]oncomitant with the sale of shares to [a] third party" or "[i]mmediately effect the transfer of the Option to Rosewood Partners." (Dec. 14, 2012 Granda Ltr. (Dkt. No. 88-32) at 3)

In a December 20, 2012 letter, Granda reported that he had also been retained by Kumar and his wife, Malvika Kumar, "with respect to an option to purchase 120,000 shares ... originally issued to Mindspirit LLC (the 'Option')." (Dec. 20, 2012 Granda Ltr. (Dkt. No. 88-33) at 3) Granda requested that Evalueserve either "effect a cashless exercise of the Option" "[c]oncommitant with the sale of shares to [a] third party" or "[i]mmediately effect the transfer of the Option to Malvika Kumar." (Id. )

In response to Granda's letters, Evalueserve's counsel denied the requests to transfer the options to Rosewood and Malvika Kumar, and reiterated that Evalueserve was willing to re-submit an application to the BMA for the exercise of both Kumar's and Gupta's options. (See Dec. 27, 2012 Rimland Ltr. (Dkt. No. 88-34) )

G. The Buy-Back Program

As part of a buy-back program initiated on December 20, 2013, Evalueserve offered to purchase shares received by option holders upon the exercise of their options, up to a maximum of "50% of the [the option holder's] vested options." (See Def. Resp. to Pltf. R. 56.1 Stmt. (Dkt No. 82) ¶ 18; Dec. 20, 2013 Evalueserve Buy Back Program (Dkt. 86-21) at 3-4) Evalueserve offered Kumar the opportunity to participate in the buy-back program as an option holder, but he decided not to participate because he believed that the offer was "[u]ndervalued." (Kumar Dep. (Dkt. No. 88-90) at 169-70) Gupta testified that Rosewood did not participate in the buy-back program because it was only offered the opportunity to sell its shares, and was not given an opportunity to sell shares obtained through the exercise of the options. Gupta did not wish to acknowledge what he understood to be Evalueserve's offer to buy back only Rosewood's shares. (Gupta (Dkt. No. 88-92) at 108 ("I thought that Rosewood owned both shares and options, and for some reason, the option part of it was not sent to me, and ... I didn't want to acknowledge it partially.") )

II. PROCEDURAL HISTORY

Plaintiffs Mindspirit, LLC, Malvika Kumar, and Rosewood Partners filed the Complaint on August 3, 2015 (Dkt. No. 1), and filed the Amended Complaint on January 13, 2016. (Dkt. No. 19) The Amended Complaint asserts claims for (1) breach of contract; (2) "negligent [and] careless performance of contractual work"; (3) breach of the implied duty of good faith and fair dealing; (4) breach of fiduciary duty; (5) fraudulent concealment and misrepresentation by a fiduciary; (6) "actual & constructive fraud in contract and course of contract"; (7) unjust enrichment; (8) gross negligence; (9) promissory estoppel; (10) securities fraud; and (11) equitable estoppel. (Id. ) On February 23, 2016, Evalueserve moved to dismiss all of Plaintiffs' claims, pursuant to Fed. R. Civ. P. 12(b)(1) and (6), on the grounds that (1) Malvika Kumar and Rosewood Partners lacked standing; (2) this Court lacked subject matter jurisdiction; and (3) Plaintiffs failed to state a claim. (Dkt. No. 22)

On April 4, 2016, Plaintiffs moved for a temporary restraining order to prevent the Evalueserve stock options at issue from expiring on April 6, 2016. (Dkt. No. 26) On April 5, 2016, this Court conducted a hearing on Plaintiffs' application (Dkt. No. 31), and on April 6, 2016, this Court issued an order denying Plaintiffs' request for a temporary restraining order, finding that Plaintiffs had not demonstrated (1) a likelihood of success on the merits; or (2) that they would suffer irreparable harm in the absence of a temporary restraining order. (Apr. 6, 2016 Order (Dkt. No. 38) at 3-7)

On September 26, 2016, this Court issued an order granting Evalueserve's motion to dismiss (1) Malvika Kumar and Rosewood Partners' claims, because they lacked standing; and (2) Mindspirit's claims other than breach of contract and unjust enrichment. (Sept. 26, 2016 Order (Dkt. No. 45) )

Pending before the Court are (1) Evalueserve's motion for summary judgment on Mindspirit's remaining claims (Dkt. No. 78); and (2) Mindspirit's cross-motion for summary judgment on Evalueserve's statute of limitations and illegality defenses. (Dkt. No. 73)

DISCUSSION

I. LEGAL STANDARD

Summary judgment is warranted where the moving party shows that "there is no genuine dispute as to any material fact" and that it "is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A dispute about a 'genuine issue' exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). "When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994) (citing Dister v. Cont'l Grp., Inc., 859 F.2d 1108, 1114 (2d Cir. 1988) ). " '[T]hat opposing parties assert competing versions of the same event is not in itself sufficient to preclude summary judgment,' in that contradictory testimony only establishes a 'genuine' issue for trial if it 'lead[s] to a different legal outcome.' " Yi Fu Chen v. Spring Tailor, LLC, No. 14 Civ. 218 (PAE), 2015 WL 3953532, at *4 (S.D.N.Y. June 29, 2015) (quoting Krynski v. Chase, 707 F.Supp.2d 318, 322 (E.D.N.Y. 2009) ).

In deciding a summary judgment motion, the Court " 'resolve[s] all ambiguities, and credit[s] all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment.' " Spinelli v. City of New York, 579 F.3d 160, 166 (2d Cir. 2009) (quoting Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001) (internal quotation marks and citation omitted) ). However, a " 'party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.... [M]ere conclusory allegations or denials ... cannot by themselves create a genuine issue of material fact where none would otherwise exist.' " Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (alterations in original) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995) ).

"The same standard[s] appl[y] where, as here, the parties file[ ] cross-motions for summary judgment...." Morales v. Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir. 2001). "[W]hen both parties move for summary judgment, asserting the absence of any genuine issues of material fact, a court need not enter judgment for either party. Rather, each party's motion must be examined on its own merits, and in each case all reasonable inferences must be drawn against the party whose motion is under consideration." Id. (internal citations omitted).

II. BREACH OF CONTRACT CLAIM

Evalueserve has moved for summary judgment on Mindspirit's breach of contract claim on the following grounds: (1) there was no breach of contract; (2) the parties' mutual mistake either (a) excuses any further performance by Evalueserve or (b) is grounds for reformation of the contract; (3) the doctrine of illegality bars the breach of contract claim; and (4) the claim is barred by the applicable statute of limitations. (Def. Mot. (Dkt. No. 78) )

Mindspirit has cross-moved for summary judgment on Evalueserve's statute of limitations and illegality defenses. (Pltf. Mot. (Dkt. No. 73) )

A. Applicable Law

"Under New York law, there are four elements to a breach of contract claim: '(1) the existence of an agreement, (2) adequate performance of the contract by the plaintiff, (3) breach of contract by the defendant, and (4) damages.' " Ellington Credit Fund, Ltd. v. Select Portfolio Servicing, Inc., 837 F.Supp.2d 162, 188-89 (S.D.N.Y. 2011) (quoting Harsco Corp. v. Segui, 91 F.3d 337, 348 (2d Cir. 1996) ).

"Under New York law, 'if a contract is unambiguous on its face, its proper construction is a question of law' that may be resolved on summary judgment." LVP Assocs. L.L.C. v. Bank of China, New York Branch, No. 17 CV 5274 (SHS), 2017 WL 5514523, at *4 (S.D.N.Y. Nov. 16, 2017) (quoting Gaia House Mezz LLC v. State St. Bank & Tr. Co., 720 F.3d 84, 89 (2d Cir. 2013) ). "[W]hether the contract is ambiguous is [also] a question of law for the court." Law Debenture Tr. Co. of New York v. Maverick Tube Corp., 595 F.3d 458, 465 (2d Cir. 2010). "Contract provisions are unambiguous if they 'have a definite and precise meaning ... concerning which there is no reasonable basis for a difference of opinion.' " LVP Assocs., 2017 WL 5514523, at *4 (quoting Breed v. Ins. Co. of N. Am., 46 N.Y.2d 351, 355, 413 N.Y.S.2d 352, 385 N.E.2d 1280 (1978) ). By contrast, a contract is ambiguous "where its language is susceptible to multiple interpretations." Summit Health, Inc. v. APS Healthcare Bethesda, Inc., 993 F.Supp.2d 379, 391 (S.D.N.Y. 2014) (citing Brad H. v. City of New York, 17 N.Y.3d 180, 186, 928 N.Y.S.2d 221, 951 N.E.2d 743 (2011) ). "Ambiguity will not be found," however, "where one party's view strains the contract language beyond its reasonable and ordinary meaning." Governmental Employees Ins. Co. v. Ohio Cas. Grp., 47 F.Supp.3d 190, 194 (S.D.N.Y. 2014) (internal citations and quotation marks omitted); see also Hugo Boss Fashions, Inc. v. Federal Ins. Co., 252 F.3d 608, 616 (2d Cir. 2001) ("[A]mbiguity does not exist simply because the parties urge different interpretations.") (internal quotation marks and citation omitted).

" '[E]xtrinsic evidence may not be considered unless the [contract] itself is ambiguous.' " Summit Health, 993 F.Supp.2d at 390 (quoting Kasowitz, Benson, Torres & Friedman, LLP v. Duane Reade, 98 A.D.3d 403, 406, 950 N.Y.S.2d 8 (1st Dep't 2012) ); see also Int'l Multifoods Corp. v. Commercial Union Ins. Co., 309 F.3d 76, 83 (2d Cir. 2002) ("[I]f the court finds that the contract is not ambiguous[,] it should assign the plain and ordinary meaning to each term and interpret the contract without the aid of extrinsic evidence....") (internal quotation marks and citations omitted). "When a contract is ambiguous and there is relevant extrinsic evidence as to the parties' intent, the proper interpretation of the disputed language [is generally] a question of fact for the jury." Summit Health, 993 F.Supp.2d at 391 (citing Seiden Assocs., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 428 (2d Cir. 1992) ): see also Fed. Ins. Co. v. Am. Home Assur. Co., 639 F.3d 557, 567 (2d Cir. 2011) ("[C]ontract claims are generally not subject to summary judgment[ ] if the resolution of the dispute turns on the meaning of an ambiguous term or phrase.").

"Although a determination that a contract is ambiguous ordinarily requires denial of summary judgment, the court may nonetheless grant summary judgment where the extrinsic evidence illuminating the parties' intended meaning of the contract is so one-sided that no reasonable person could decide to the contrary." New York Marine & Gen. Ins. Co. v. Lafarge N. Am., Inc., 599 F.3d 102, 115 (2d Cir. 2010) (internal quotation marks and citation omitted), "Similarly, summary judgment may be granted despite any ambiguities in the contract where there is no extrinsic evidence that would support a resolution of the ambiguities in favor of the nonmoving party's case." Id. (internal quotation marks and citations omitted). "These apparent exceptions merely reinforce the principle that the lynchpin of a summary judgment determination is, in most cases, the existence vel non of genuine issues of material facts." Id.

B. Mindspirit and Evalueserve's Agreement Concerning Evalueserve's Options Grant

1. Documents that Constitute the Agreement

The Court concludes that Mindspirit and Evalueserve's agreement concerning an options grant is reflected in the Grant Notice, the Stock Option Agreement, and the Equity Incentive Plan. (See Grant Notice (Dkt. No. 86-3) at 2) Sections 4, 5, and 6 of the Purchase Agreement are incorporated by reference in the Stock Option Agreement pursuant to Section 9 of the Stock Option Agreement. (Stock Option Agreement (Dkt. No. 86-3) at 5) These documents and provisions constitute Mindspirit and Evalueserve's agreement regarding Evalueserve's options grant to Mindspirit (the "Agreement").

2. The Recipient of the Options

As to the first element of the breach of contract claim, while there is no dispute that Mindspirit and Evalueserve entered into an agreement concerning a grant of Evalueserve stock options (see Def. Br. (Dkt. No. 87) at 12; Pltf. Br. (Dkt. No. 74) at 5-6), there is a dispute regarding "the parties receiving the options" pursuant to the Agreement, (See Pltf. Resp. to Def. R. 56.1 Stmt. (Dkt. No. 86) ¶ 91) According to Mindspirit, the parties agreed that Evalueserve would provide Mindspirit with 180,000 shares of Evalueserve common stock and 480,000 Evalueserve stock options in exchange for a $100,000 investment in Evalueserve. (See Pltf. Br. (Dkt. No. 74) at 5-6) Mindspirit claims that the parties' agreement with respect to the recipient of the options is "refiect[ed]" in the Grant Notice, which incorporates by reference the Stock Option Agreement, the Equity Incentive Plan, and certain provisions of the Purchase Agreement. (Pltf. R. 56.1 Stmt. (Dkt. No. 76) ¶ 3; see also Pltf. Opp. (Dkt No. 85) at 13-14)

Evalueserve agrees that "the Grant Notice and attachments ... provide most of the terms concerning the options," but argues that these documents do not address "the parties receiving the options." (Def. R. 56.1 Stmt. (Dkt. No. 88) ¶ 91) Evalueserve urges the Court to "apply a reasonable inference and read the [Grant Notice] to provide for issuance [of the options] to Gupta and A. Kumar." (Def. Br. (Dkt. No. 87) at 20)

a. The Plain Meaning of the Grant Notice and Stock Option Agreement

With respect to the "parties receiving the options," the plain language of the Grant Notice and Stock Option Agreement indicates that Evalueserve agreed to provide options to Mindspirit, The Grant Notice identifies Mindspirit as the "Optionholder," and states that "Evalueserve, Ltd., pursuant to its Evalueserve, Ltd. 2001 Equity Incentive Plan ..., hereby grants to you (the 'Optionholder') an option to purchase the number of shares of the Company's Common Stock set forth below." (Grant Notice (Dkt. No. 86-3) at 2) The Stock Option Agreement similarly provides that, "[p]ursuant to your Stock Option Grant Notice ('Grant Notice') and this Stock Option Agreement, ... Evalueserve, Ltd. (the 'Company') has granted you (the 'Optionholder') an Option under its Evalueserve, Ltd. 2001 Equity Incentive Plan (the 'Plan') to purchase the number of shares of the Company's Common Stock indicated in your Grant Notice at the exercise price indicated in your Grant Notice." (Stock Option Agreement (Dkt. No. 86-3) at 4) These provisions have a "definite and precise meaning," LVP Assocs., 2017 WL 5514523, at *4, and reading these documents to issue options to any party other than Mindspirit would "strain[ ] the contract language beyond its reasonable and ordinary meaning." Governmental Employees Ins. Co., 47 F.Supp.3d at 194.

b. The Board's Authority to Amend Option Awards

In an effort to escape the plain meaning of these provisions, Evalueserve argues that interpreting the Agreement as providing options to Kumar and Gupta "is consonant with the contractual terms, since the[ ] [Equity Incentive Plan] give[s] Evalueserve's board broad powers to construe, interpret and correct an Option Award." (Def. Br. (Dkt. No. 87) at 21)

Section 3(b) of the Equity Incentive Plan gives Evalueserve's board the authority to "construe and interpret the Plan and Option Awards granted under it," and to "correct any defect, omission or inconsistency in the Plan or in any Option Agreement." (Equity Incentive Plan (Dkt. No. 86-3) at 12-13) That power is expressly "subject to, and within the limitations of, the express provisions of the Plan" (id. at 12), however, and Section 11(e) of the Equity Incentive Plan provides that "the rights under any Option Award shall not be impaired by any [ ] amendment unless (i) the Company requests the consent of the Participant and (ii) the Participant consents in writing." (Id. at 22) There is no written amendment to either the Grant Notice or the Stock Option Agreement that lists Gupta and Kumar as the recipients of the options. (Def. Resp. to Pltf. R. 56.1 Stmt. (Dkt. No. 82) ¶ 10) Accordingly, interpreting the Grant Notice as providing options to Kumar and Gupta - based on the Evalueserve board's authority to amend option awards - would contravene the plain language of the Equity Incentive Plan.

c. S.E.C. Rule 701 and Mutual Mistake

Evalueserve also contends that "issuing the options to Gupta and [ ] Kumar-complied with the contract," because (1) pursuant to the Equity Incentive Plan, Mindspirit was only eligible for options as a "consultant"; and (2) "to qualify for an option, a consultant needed to comply with S.E.C. Rule 701" - an exemption to the rule barring the sale of unregistered securities, which only applies to consultants who are natural persons. (Def. Br. (Dkt. No. 87) at 19-21) Evalueserve proposes that, "[i]n the alternative[,] the Court could reform the contract to substitute Gupta and [ ] Kumar for Mindspirit based on mutual mistake," because issuing options to Mindspirit as a consultant was impossible to perform under applicable law. (Id. at 22 n.12 (citing Simkin v. Blank, 19 N.Y.3d 46, 52-53, 945 N.Y.S.2d 222, 968 N.E.2d 459 (2012) ("[Contracts may be] set aside or reformed [where] a mutual mistake rendered a portion of the agreement impossible to perform.") ); see also id. at 20-21 ("Gupta and A. Kumar ... are the only natural persons associated with Mindspirit who provided bona fide consulting services.") )

Section 5 of the Securities Act "makes it unlawful, directly or indirectly, to publicly offer or sell unregistered stock," S.E.C. v. Sourlis, 851 F.3d 139, 143 (2d Cir. 2016) (citing 15 U.S.C. § 77e ), and it is undisputed that Evalueserve has never registered its securities with the S.E.C. (Pltf. Resp. to Def. R. 56.1 (Dkt. No. 86) ¶ 266) Under S.E.C. Rule 701, however, unregistered securities - including stock options - may be issued to a "consultant" as long as the consultant is a natural person. See 17 C.F.R. § 230.701(c) ; 15 U.S.C. § 77b(a)(1) (defining "security" to include "any ... option, or privilege on any security").

Read together, the plain language of the Grant Notice, Stock Option Agreement, and Equity Incentive Plan provides that Mindspirit could only receive options as a "consultant," as that term is defined in the Equity Incentive Plan. The Grant Notice provides that it "is subject to all of the terms and conditions as set forth ... in the Stock Option Agreement ..., [and] the [Equity Incentive] Plan." (Grant Notice (Dkt. No. 86-3) at 2) The Stock Option Agreement provides that it "is subject to all the provisions of the [Equity Incentive] Plan, the provisions of which are hereby made a part of your Option." (Stock Option Agreement (Dkt. No. 86-3) at 5) The Stock Option Agreement further provides that, "[i]n the event of any conflict between the provisions of your Option and those of the [Equity Incentive] Plan, the provisions of the [Equity Incentive] Plan shall control." (Id. ) The Equity Incentive Plan, in turn, limits eligibility for options to employees, directors, and consultants. (See Equity Incentive Plan (Dkt. No. 86-3) at 9 ("The persons eligible to receive Option Awards are the Employees and Directors of and Consultants to the Company and its Affiliates."); id. at 14 ("Nonstatutory Stock Options may be granted to Employees, Directors and Consultants.") ) Mindspirit was neither an employee of, nor a director of, Evalueserve or one of its affiliates. Accordingly, under the Equity Incentive Plan, Mindspirit could only receive options as a consultant.

That does not mean, however, that Mindspirit had to comply with S.E.C. Rule 701 to receive options under the Equity Incentive Plan. Section 5(d)(i) of the Equity Incentive Plan provides that,

[prior to the date on which a registration statement under the Securities Act relating to the Common Stock is declared effective by the S.E.C], a Consultant shall not be eligible for the grant of an Option Award if, at the time of grant, either the offer or the sale of the Company's securities