OPINION AND ORDER Plaintiff Fuller Landau Advisory Services Inc. brings this action against Defendant Gerber Finance Inc. for breach of contract, breach of the implied covenant of good faith and fair dealing, and an accounting. Defendant moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), and the Court converted that motion under Federal Rule of Civil Procedure 12(d) into one for summary judgment. For the reasons that follow, Defendant’s motion for summary judgment is granted in part.I. Background1Plaintiff Fuller Landau Advisory Services Inc. (“Fuller”) provides, among other things, investment banking advisory services relating to corporate transactions. (Dkt. No. 1 (“Compl.”)7.) Defendant Gerber Finance Inc. (“Gerber”) is a financial services firm. (Compl.8.) During the relevant time period, Gerber was owned by five shareholders: Investec 1 Limited, Juge Holdings Inc., Catnap Properties Inc., Justin Wessels, and Gerald Joseph, who also served as Gerber’s Chief Executive Officer. (Compl.
10−11.)Gerber’s shareholders wanted to sell the company, and around June 2016, Gerber retained Fuller to provide financial advisory services in connection with Gerber’s potential sale. (Dkt. No. 21, Ex. 1 (“Fee Agreement”) at 1; Compl.12.) The parties agreed that if Gerber sold its business, Gerber would compensate Fuller for its services by paying a “Success Fee.” (Fee Agreement6.) The Success Fee would be equal to 2 percent of the “minimum value”2 of the “Transaction Amount” plus 1 percent of any Transaction Amount above the minimum value. (Id.) In relevant part, the Fee Agreement defines the Transaction Amount as follows:[T]he aggregate value of all voting and non-voting common equity of the Company, calculated on a fully diluted basis and based upon the purchase price at which the Transaction takes place, plus the aggregate amount of: (i) any indebtedness, preferred shares and other securities outstanding at the time of the Transaction assumed by the buyer….(Fee Agreement7.)Pursuant to the Fee Agreement, Fuller introduced a potential buyer, Trade Finance Solutions (TFS Canada Bond Series, Inc.) (“TFS” or “Buyer”), to Gerber. (Compl.28.) In January 2017, Global Fund Holdings Corp., an affiliate of TFS, purchased all of the outstanding shares of Gerber stock form the former shareholders. (Compl.30; Dkt. No. 26, Ex. B at 1.)Prior to the sale, Gerber owed a debt to a syndicate of lenders led by Bank of America/Merrill Lynch (“the Lenders”). (Compl.15; Dkt. No. 21, Ex. 2 at 1.) Gerber’s credit agreement with the Lenders had a “change of control” clause, under which a sale of 51 percent or more of Gerber’s stock would trigger a default. (Dkt. No. 2113; Dkt. No. 21, Ex. 2 at 4, 60.)It is undisputed, however, that TFS’s affiliate entered into a limited guaranty with Bank of America (on behalf of all of the Lenders). (Dkt. No. 21, Ex. 4 at 1.) According to Plaintiff, TFS “guaranteed to the Lenders the due and timely payment” of Gerber’s indebtedness as of the closing date of Gerber’s sale. (Dkt. No. 2120.) As collateral securing its guaranty, TFS granted the Lenders a security interest in all of the Gerber shares it acquired. (Id.; Dkt. No. 21, Ex. 5.) Plaintiffs also contend that TFS “became a party to various agreements” with the Lenders “pursuant to an amendment to [Gerber's] credit agreement.” (Dkt. No. 22 at 3.)After the TFS purchase, Gerber paid Fuller a Success Fee based on the purchase price of the shares. (Compl.35.) Fuller contends, however, that it is also entitled to a Success Fee based on the value of the debt that Gerber owed to the Lenders at the time of the TFS purchase. (Compl.
