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Kmak v. American Century Companies, Inc.

United States Court of Appeals, Eighth Circuit

June 5, 2014

Thomas Kmak, Plaintiff - Appellant
v.
American Century Companies, Inc., Defendant - Appellee

Submitted February 11, 2014

Page 514

Appeal from United States District Court for the Western District of Missouri - Kansas City.

For Thomas Kmak, Plaintiff - Appellant: Michael A. Brockland, Robert T. Haar, HAAR & WOODS, Saint Louis, MO; Theodore A. Kardis, DOUGHERTY & MODIN, Kansas City, MO; Andrew G. May, Tonya Gentry Newman, Peter B. Newton, NEAL & GERBER, Chicago, IL.

For American Century Companies, Inc., Defendant - Appellee: Randall E. Hendricks, Daniel B. Hodes, ROUSE & HENDRICKS, Kansas City, MO.

Before LOKEN, BYE, and COLLOTON, Circuit Judges.

OPINION

Page 515

BYE, Circuit Judge

Thomas Kmak appeals the district court's dismissal of Kmak's second amended complaint (" Complaint" ) for failure to state a claim upon which relief could be granted. Because Kmak sufficiently alleged that American Century Companies, Inc. (" American Century" ) retaliated against him in violation of public policy, we reverse and remand.

I

American Century is an investment management firm. It hired Kmak in 1990 to develop its Retirement Plan Services division. Beginning in 1998, American Century adopted a series of stock option plans, enabling Kmak and other employees to purchase America Century's privately held common stock. On October 10, 2003, and April 28, 2005, Kmak exercised these options and purchased a total of 238,000 shares. As a shareholder, Kmak received an annual dividend per share at the end of every year.

Each stock purchase was governed by a " Stock Restriction Agreement for Exercise of Stock Option" (" Stock Restriction Agreement" ). The Stock Restriction Agreement contained the following provision:

(h) Call Rights on Shares of Common Stock.
(i) The Company will have the right to call any of the Shares for repurchase, in exchange for payment in cash of the most recent value of the Shares as determined in accordance with the valuation procedures provided below, at any time following the Purchaser's disability, death, or termination of, or retirement from, the Company's ...

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