Neimark v. Mel Kramer Sales

102 Wis. 2d 282, 306 N.W.2d 278 (1981)

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Neimark v. Mel Kramer Sales

Wisconsin Court of Appeals
102 Wis. 2d 282, 306 N.W.2d 278 (1981)

Facts

Mel Kramer was the majority stockholder in Mel Kramer Sales, Inc. (MKS) (defendant), a closely held Wisconsin corporation. MKS executed an agreement whereby if a shareholder were to die, MKS would have to purchase back the deceased’s shares. The payment for these shares would be made in installments. Kramer subsequently died, but MKS refused to abide by the agreement to repurchase his shares. Jack Neimark (plaintiff), a minority shareholder, brought a derivative action to compel MKS to honor the agreement. The trial court found that complying with the agreement would not have made MKS unable to repay its other debts. The trial court also found that MKS would have had an adequate earned surplus to cover each installment payment but did not fully analyze whether MKS would have had adequate earned surplus to cover the full purchase price at the moment the shares were to be repurchased. The trial court ordered specific performance and directed MKS to comply with the agreement. MKS appealed.

Rule of Law

Issue

Holding and Reasoning (Decker, C.J.)

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