## Facts

- David D. Ingwersen owned OptiCard Payment Services, Inc. and was owed $38,000 by OptiCard under a promissory note.
- Ingwersen and Planet Group, Inc. executed a Share Purchase Agreement (SPA) dated November 28, 2007, under which Planet acquired OptiCard’s shares and related intellectual property; the transaction’s effective closing date was January 1, 2009.
- Contemporaneously, Ingwersen entered an Employment Agreement with Planet for post-acquisition employment.
- The Employment Agreement permitted termination only “for cause,” defined by reference to violations of the SPA, and required written notice stating reasons plus a 30-day cure period.
- On April 20, 2009, Planet terminated Ingwersen and offered a severance agreement that he did not sign; Planet initially treated the termination as without cause.
- Planet later asserted it had cause based on alleged inaccuracies in Ingwersen’s financial representations and warranties in the SPA and sought contractual indemnification and related relief.
- Ingwersen contended that the SPA’s representations and warranties did not survive closing and that Planet could not recharacterize a without-cause termination as for-cause after the fact.
- Ingwersen sued for breach of the Employment Agreement; Planet counterclaimed for breach of the SPA, contractual indemnification, unjust enrichment, and breach of the implied covenant of good faith and fair dealing.
- The court decided cross-motions for summary judgment focusing on the viability of Planet’s SPA-based remedies post-closing and their effect on the employment dispute.

## Issues

1. Whether Planet could assert post-closing claims for breach of SPA representations and warranties when the SPA contained no express survival clause.
2. Whether the SPA’s indemnification provision covered Planet’s first-party losses or was limited to third-party claims.
3. Whether unjust enrichment and implied-covenant claims could supply relief effectively barred by the SPA’s post-closing limitations.
4. Whether alleged SPA breaches discovered after termination could establish “cause” under the Employment Agreement and defeat Ingwersen’s damages claim despite Planet’s failure to follow contractual notice-and-cure procedures.

## Decision

- The court granted Ingwersen summary judgment in part by dismissing Planet’s post-closing claims for breach of SPA representations and warranties because the SPA lacked a clause extending them beyond closing.
- The court held the SPA’s indemnification provision did not create a broad first-party damages remedy for Planet’s own losses and was directed to third-party claims.
- The court rejected Planet’s unjust enrichment and implied-covenant theories as impermissible attempts to obtain rights beyond the written SPA.
- The court denied Planet’s effort to obtain summary judgment against Ingwersen’s employment-contract claim, concluding Planet could not rely on non-surviving SPA allegations (and noncompliance with notice-and-cure procedures) to support a for-cause termination theory.

## Legal Principles

- In a negotiated acquisition agreement, representations and warranties generally do not remain enforceable after closing absent contractual language providing for post-closing survival.
- Indemnification provisions are construed by their text and structure; clauses framed around “claims” and related third-party concepts are not treated as first-party damages provisions without clear language.
- Under Nebraska law, unjust enrichment is generally unavailable where an express contract governs the parties’ relationship and the subject matter of the dispute.
- The implied covenant of good faith and fair dealing cannot add substantive obligations or override express contractual limits; it governs performance of existing contractual duties.
- When an employment agreement conditions “cause” on violations of a separate contract and requires notice-and-cure procedures, the employer must satisfy those procedural and substantive predicates to rely on a for-cause termination defense.

## Conclusion

The court limited Planet’s post-closing remedies by enforcing the SPA’s absence of warranty survival and its third-party-oriented indemnity language, barred parallel equitable and implied-duty claims, and allowed Ingwersen’s employment-contract claim to proceed because Planet could not retroactively establish contractual “cause” based on non-surviving SPA allegations and unmet notice-and-cure requirements.


Ingwersen v. Planet Grp., Inc., No. 8:09CV263, 2011 WL 2623501 (D. Neb. June 30, 2011)