John R. Kolb, Jr. v. ACRA CONTROL, LTD., d/b/a ACRA Control, Inc.; ACRA CONTROL, INC., other ACRA U.S.A.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2352
JOHN R. KOLB, JR.,
Plaintiff - Appellant,
v.
ACRA CONTROL, LTD., d/b/a ACRA Control, Inc.; ACRA CONTROL,
INC., other ACRA U.S.A.,
Defendants – Appellees,
and
CURTISS-WRIGHT CONTROLS, INC.,
Defendant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Paul W. Grimm, District Judge. (8:12-
cv-02782-PWG)
Argued: September 16, 2015 Decided: November 20, 2015
Before KING, KEENAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Ian Andrew Cronogue, MURRAY, CRONOGUE & WERFEL, P.L.C.,
Alexandria, Virginia, for Appellant. Howard Ross Feldman,
WHITEFORD, TAYLOR & PRESTON L.L.P., Baltimore, Maryland, for
Appellees. ON BRIEF: Richard Murray, MURRAY, CRONOGUE & WERFEL,
P.L.C., Alexandria, Virginia, for Appellant. Aaron L.

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Casagrande, Christopher C. Jeffries, WHITEFORD, TAYLOR & PRESTON
L.L.P., Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
This appeal arises out of an employment arrangement between
John R. Kolb (Kolb) and ACRA Control, Ltd. (ACRA Ireland). In
1999, ACRA Ireland hired Kolb as president of its new wholly-
owned American subsidiary, ACRA Control, Inc. (ACRA USA).
During employment negotiations, Kolb and ACRA Ireland agreed to
a Performance Incentive Compensation Plan (PICP), under which
Kolb would be granted options to purchase shares of ACRA Ireland
if ACRA USA’s sales met certain benchmarks. Although ACRA USA
met those benchmarks in at least some years, Kolb never received
any options under the PICP.
Kolb filed this action, alleging that ACRA Ireland breached
the PICP by failing to issue him share options and that ACRA USA
was unjustly enriched. The district court granted ACRA Ireland
and ACRA USA’s (collectively, the “ACRA entities”) motion for
summary judgment, finding that Kolb had waived his rights under
the PICP. The district court also denied Kolb’s motion to
amend. For the reasons below, we affirm.
I.
On February 28, 1999, ACRA Ireland, an Irish corporation,
formed ACRA USA, a Maryland corporation, as a wholly-owned
subsidiary. Both corporations supply real-time data processing
ground stations and airborne data acquisition and recording

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systems to the aerospace industry. ACRA Ireland hired Kolb as
president of ACRA USA. Kolb also served as ACRA USA’s secretary
and treasurer. Fergal Bonner, ACRA Ireland’s managing director
at the time, negotiated an employment agreement with Kolb. At
the same time the parties entered into the initial employment
agreement, they also executed the PICP.
Under the PICP, Kolb would receive options to purchase
shares of ACRA Ireland if certain conditions were satisfied:
[ACRA Ireland] agrees that when the average turnover
(ATO) of [ACRA Ireland] due to US Sales, as defined,
exceeds one million ($1,000,000) dollars, [Kolb] will
be granted an option to purchase 2,159 ordinary shares
of one (1) Irish pound each in [ACRA Ireland] at the
option price defined in the paragraph below. For each
successive increase of one ($1,000,000) Million in ATO
as defined, [Kolb] will be granted an option to
acquire an additional 2,159 ordinary shares of one (1)
Irish pound each in [ACRA Ireland]. The maximum
number of shares available to be granted to [Kolb]
will be 10,795 ordinary shares of one (1) Irish pound
each.
J.A. 420. The PICP defined ATO as “the total sales revenue of
[ACRA Ireland] in the US, for the current fiscal year plus the
previous fiscal year, divided by two (2) corresponding to the
previous two fiscal years.” J.A. 421. The share options were
to be issued at a price of 10 Irish pounds per share. The PICP
was to be “in effect and maintained for a minimum of five (5)
years during the period of employment unless mutually agreed in
writing.” J.A. 420 (emphasis in the original).

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ACRA Ireland did not calculate the ATO at any point during
Kolb’s employment. For the first five years of Kolb’s
employment, ACRA Ireland did not calculate the ATO because ACRA
USA’s revenue never reached $1 million. For the remainder of
Kolb’s employment, 2004 to 2011, ACRA Ireland did not calculate
the ATO because it believed that the PICP only had a five-year
term and had therefore expired in 2004. While the ATO for these
years—-had it been calculated—-likely would have exceeded $1
million, ACRA Ireland never granted Kolb any share options under
the PICP during his employment.
In addition to the PICP, Kolb and ACRA Ireland entered into
two other share option agreements. In 2003, ACRA Ireland
offered Kolb an option to buy 2,268 shares of ACRA Ireland for
€31.96 per share.1 The 2003 option agreement did not reference
the PICP. Kolb purchased 100 shares under the 2003 option
agreement. In October 2010, Curtiss-Wright Controls (UK) Ltd.
(Curtiss-Wright UK) entered into negotiations with ACRA
Ireland’s shareholders to purchase all of the outstanding ACRA
Ireland shares. In November 2010, ACRA Ireland offered Kolb an
option to buy 2,168 shares of ACRA Ireland for €76.00 per share.
Again, the 2010 option agreement did not reference the PICP.
1 Between the execution of the PICP and the execution of the
2003 option agreement, Ireland switched its currency from the
Irish pound to the euro. At the time of conversion, €1.00 was
equivalent to about 0.79 Irish pounds.

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Kolb purchased all 2,168 shares under the 2010 option agreement,
conditioned on the completion of Curtiss-Wright UK’s proposed
purchase of all the outstanding ACRA Ireland shares. In his
notice exercising the 2010 option, Kolb “confirm[ed] and
acknowledge[d]” that apart from the 2,168 shares acquired by
exercising the 2010 option and the 100 shares acquired by
exercising the 2003 option, he had “no other rights or
entitlements in respect of Shares.” J.A. 574.
On July 28, 2011, Curtiss-Wright UK finalized its purchase
of all the outstanding ACRA Ireland shares with the execution of
the Share Purchase Agreement (SPA). The SPA was signed by
Curtiss-Wright and ACRA Ireland’s shareholders, including Kolb.
The SPA, which is 103 pages, states:
The Sellers2 have agreed to sell and the Buyer has
agreed to purchase the Shares on the terms and subject
to the conditions of this Agreement.
The Shares represent the entire issued share capital
of the Company.
J.A. 449. The SPA and related documents contain several
warranties and representations relevant to the current dispute.
The SPA provides that “each Seller shall irrevocably waive
any claims against [ACRA Ireland or any subsidiary,] its agent,
or employees which he/she may have outstanding at Completion.”
2 The SPA defines “Sellers” as the “legal and beneficial
owners of the Shares,” which includes Kolb. J.A. 449, 480.

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J.A. 464. Schedule 4 to the SPA, which contains the sellers’
warranties, provides:
The Shares comprise the whole of the allotted and
issued share capital of [ACRA Ireland]. There are no
shares issued or allotted in [ACRA Ireland or any
subsidiary] which are not legally and beneficially
owned by the Sellers, [ACRA Ireland] or a
[subsidiary]. At Completion there is no agreement,
arrangement or obligation in force which calls for the
present or future allotment, issue or transfer of, or
the grant to any person of the right (whether
conditional or otherwise) to call for the allotment,
issue or transfer of, any share or loan capital of
[ACRA Ireland or any subsidiary] . . . .
J.A. 491. Schedule 4 also provides that neither ACRA Ireland
nor a subsidiary “has offered nor is proposing to introduce any
. . . share option/purchase or retention scheme for any employee
or other person” and that “[t]here are no claims in existence,
pending, or threatened against [ACRA Ireland or any subsidiary]
. . . by a current or former officer or employee in relation to
his terms and conditions of employment or appointment.” J.A.
515–16.
Schedule 3 of the SPA requires a “letter in the Agreed Form
from each of the Sellers to [ACRA Ireland and its subsidiaries]
acknowledging that the Seller has no claim against the relevant
company other than for compensation in relation to wages and
salary due for the last month.” J.A. 489. The same day the SPA
was executed, Kolb delivered the letter required by Schedule 3
to ACRA Ireland. The letter stated:

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I have no claim or right of action of any kind
outstanding against [ACRA Ireland or any subsidiary]
or any . . . officers or employees arising from my
ownership of shares . . . or otherwise. To the extent
that any such claim exists or may exist, I irrevocably
waive such claim and release [ACRA Ireland and any
subsidiary], its officers and employees from any
liability in respect thereof.
J.A. 598.
Kolb admits that he forgot about the PICP sometime between
when it was executed in 1999 and the execution of the SPA and
related documents in 2011. Approximately one year after signing
the SPA, Kolb filed this action for breach of contract against
ACRA Ireland, arguing that ACRA Ireland breached the PICP by
failing to issue share options despite sales meeting the
requisite ATO.3 A subsequent amended complaint added an unjust
enrichment claim against ACRA USA. On May 16, 2014, the
district court granted the ACRA entities’ motion for summary
judgment, finding that Kolb had waived his rights under the PICP
by executing the SPA and related documents. Kolb filed a motion
for reconsideration, which the district court denied. Kolb
timely appealed.4
3 Kolb's original complaint also asserted breach of contract
claims against ACRA USA and Curtiss-Wright USA. The district
court disposed of these claims on Curtiss-Wright USA’s motion
for summary judgment and ACRA USA’s motion to dismiss. Kolb
does not contest either ruling.
4 Kolb also appeals the district court’s denial of Kolb’s
second motion to amend, which sought to add a claim against ACRA
(Continued)

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II.
We review a grant of summary judgment de novo. Evans v.
Techs. Applications & Serv. Co., 80 F.3d 954, 958 (4th Cir.
1996). “Summary judgment is appropriate when ‘there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.’” Bostic v. Schaefer,
760 F.3d 352, 370 (4th Cir. 2014) (citation and internal
quotation marks omitted). “A dispute is genuine if a reasonable
jury could return a verdict for the nonmoving party.”
Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir.
2013) (citation and internal quotation marks omitted). “A fact
is material if it ‘might affect the outcome of the suit under
the governing law.’” Id. (citation and internal quotation marks
omitted). “We are required to view the facts and all
justifiable inferences arising therefrom in the light most
favorable to the nonmoving party . . . .” Id. at 312. In doing
so, we must not weigh evidence or make credibility
determinations. Mercantile Peninsula Bank v. French, 499 F.3d
345, 352 (4th Cir. 2007). “[C]ourts may not resolve genuine
disputes of fact in favor of the party seeking summary
Ireland under the Maryland Wage Payment and Collection Law, Md.
Code Ann. Lab. & Empl. § 3-501 et seq.

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judgment.” Tolan v. Cotton, ––– U.S. ––––, 134 S. Ct. 1861,
1866 (2014) (per curiam).
III.
As an initial matter, we assume that the PICP was in effect
for the entire period of Kolb’s employment. See J.A. 420 (“The
[PICP] will be in effect and maintained for a minimum of five
(5) years during the period of employment unless mutually agreed
in writing.” (emphasis in original)); see also id. (providing
that when the ATO was achieved, ACRA Ireland would grant Kolb
share options “[n]ot later than ninety (90) days after the end
of the fiscal year of [ACRA Ireland] and each subsequent fiscal
year of [ACRA Ireland] ending during the period of employment”
(emphasis added)). Moreover, it is undisputed that Kolb was
never granted any share options under the PICP. The only
question before us is whether the district court properly
determined that Kolb waived any claims arising out of the PICP
by executing the SPA and related documents.
IV.
A.
In considering the waiver issue, we must first determine
whether to apply Maryland’s or Ireland’s waiver law.

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Because jurisdiction is based on diversity, we apply the
choice of law principles of the state in which the case was
filed--here, Maryland. Marks v. Scottsdale Ins. Co., 791 F.3d
448, 451 (4th Cir. 2015). “When determining which law controls
the enforceability and construction of a contract, [Maryland
courts] apply lex loci contractus.” Lewis v. Waletzky, 31 A.3d
123, 129 n.8 (Md. 2011). This principle instructs that “[i]n
deciding questions of interpretation and validity of contract
provisions, Maryland courts ordinarily should apply the law of
the jurisdiction where the contract was made.” Allstate Ins.
Co. v. Hart, 611 A.2d 100, 101 (Md. 1992). Because the PICP was
entered into in Maryland and this case involves the
enforceability of the PICP, we apply Maryland law to determine
whether Kolb has waived his rights under the PICP.5
B.
It is well-established under Maryland law that “‘the
parties [to a contract] by their conduct may waive the
5 The parties agree that Irish law governs the construction
of the SPA and related documents. See J.A. 478 (“[The SPA] and
any dispute arising out of or in connection with it or its
subject matter or formation . . . shall be governed by and
construed in accordance with the laws of Ireland.”). In the
district court, Kolb argued that the SPA and related documents,
by their terms, did not waive rights arising out of the PICP.
However, he has not raised that argument here. Therefore, as
discussed below, matters of Irish law are only at issue to the
extent Kolb argues that lack of privity precludes waiver.

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requirements of [the] written contract.’” Questar Homes of
Avalon, LLC v. Pillar Constr., Inc., 882 A.2d 288, 294 (Md.
2005) (alteration in original) (quoting Univ. Nat'l Bank v.
Wolfe, 369 A.2d 570, 576 (Md. 1977)). Waiver is “the
intentional relinquishment of a known right, or such conduct as
warrants an inference of the relinquishment of such right, and
may result from an express agreement or be inferred from
circumstances.” Myers v. Kayhoe, 892 A.2d 520, 530 (Md. 2006)
(citations and internal quotation marks omitted). Because
“[w]aiver rests upon the intention of the party, . . . acts
relied upon as constituting waiver must unequivocally
demonstrate that waiver is intended.” Taylor v. Mandel, 935
A.2d 671, 686 (Md. 2007) (citations omitted).
C.
Kolb argues that he has not waived his rights under the
PICP for three reasons: (1) he did not have full knowledge of
his rights; (2) he could not unilaterally waive his rights; and
(3) ACRA Ireland cannot enforce the SPA since it was not a party
to the SPA. We consider each argument in turn.
1.
Kolb first contends that he did not waive his rights under
the PICP because he did not have full knowledge of those rights.

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Maryland courts have defined waiver as “the intentional
relinquishment of a known right.” Taylor, 935 A.2d at 686
(emphasis added). “The right or advantage waived must be known;
[t]he general rule is that there can be no waiver unless the
person against whom the waiver is claimed had full knowledge of
his rights, and of facts which will enable him to take effectual
action for the enforcement of such rights.” Id. at 687
(alteration in original) (citations and internal quotation marks
omitted).
The Maryland Court of Appeals has apparently not considered
whether constructive knowledge is sufficient to satisfy waiver’s
knowledge requirement. Where state law is unclear, federal
courts must predict the decision of the state’s highest court.
See Wells v. Liddy, 186 F.3d 505, 527-28 (4th Cir. 1999).
In several states, courts have determined that the
knowledge required for waiver can be either actual or
constructive knowledge.6 These states align with Williston on
Contracts, a treatise frequently cited by the Maryland Court of
6 See, e.g., Brown-Marx Assocs., Ltd. v. Emigrant Sav. Bank,
703 F.2d 1361, 1369 (11th Cir. 1983) (applying Alabama law);
Richardson v. Wells Fargo Bank, N.A., 873 F. Supp. 2d 800, 810
(N.D. Tex. 2012) (applying Texas law); Winans v. Weber, 979 So.
2d 269, 274 (Fla. Dist. Ct. App. 2007); Lyons ex rel. Lawing v.
Holder, 163 P.3d 343, 349 (Kan. Ct. App. 2007); In re
Guardianship of Florence T.O., 744 N.W.2d 915, 919 (Wis. Ct.
App. 2007).

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Appeals.7 See 13 Richard A. Lord, Williston on Contracts § 39:22
(4th ed. 1990)(hereinafter Williston). Williston notes that
“[i]t is also essential to the existence of a waiver of a right
to performance under a contract that the party charged with the
waiver have actual or constructive knowledge of the right or
privilege allegedly waived.” Id. Williston continues:
[T]he party who has allegedly waived its rights is
presumed to know those things (including matters
concerning the other party’s performance or failure to
perform) which reasonable diligence on its part would
bring to its attention. Thus, the party charged with
waiver may not plead willful ignorance and escape the
waiver; rather, a waiver made with knowledge of facts
which would put an ordinary person on inquiry is
sufficient.
Id.; see also 28 Am. Jur. 2d Estoppel and Waiver § 188 (“It must
generally be shown by the party claiming a waiver that the
person against whom the waiver is asserted had, at the time,
knowledge, actual or constructive, of the existence of the
party’s rights or of all material facts upon which they
depended.”).
Based on the foregoing authority, we predict that the
Maryland Court of Appeals would hold that constructive knowledge
of a right—-that is, “[k]nowledge that one using reasonable care
or diligence should have, and therefore that is attributed by
7 Notably, the Maryland Court of Appeals has quoted
Williston with approval while discussing waiver. See Canaras v.
Lift Truck Servs., Inc., 322 A.2d 866, 879 (Md. 1974).

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law to a given person,” Black’s Law Dictionary (10th ed. 2014)
(defining “constructive knowledge”)-–is sufficient to waive that
right.
Kolb asserts that because ACRA Ireland did not calculate
the ATO or grant him options to purchase shares when the ATO was
achieved, he did not have knowledge of his rights under the
PICP. Regardless of whether Kolb had actual knowledge of his
rights under the PICP, we find as a matter of law that he had
constructive knowledge of those rights. First, Kolb was well-
acquainted with the PICP and its terms. Kolb and ACRA Ireland
signed the PICP only after “extensive negotiations.” J.A. 1022.
Kolb considered the PICP “a critical, if not decisive, factor”
in his choice to leave his higher paying job and become
president of ACRA USA. J.A. 351; see also J.A. 2264 (Kolb
testifying that the ability to gain ownership in ACRA Ireland
was a key component of his compensation package). Moreover,
Kolb indicated that, as president of ACRA USA, he was
“generally” aware of the company’s sales at all times and that,
in any given year, he had all the information required to
calculate the ATO available to him. J.A. 1121, 1200–01. He
further acknowledged that the ATO was a simple calculation that
he could have calculated if he had wanted to. J.A. 1199-1201.
Reasonable diligence on Kolb’s part would have alerted him
that ACRA USA’s revenues triggered his rights to share options

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under the PICP. That is, Kolb had full knowledge of “facts
which [would] enable him to take effectual action for the
enforcement of such rights.” Taylor, 935 A.2d at 687 (citation
and internal quotation marks omitted). Accepting Kolb’s
contention that he had no knowledge of his rights under the PICP
would permit Kolb to “escape the waiver” by “plead[ing] willful
ignorance.” 13 Williston § 39:22. Because Kolb had
constructive knowledge of his rights under the PICP, he could
waive those rights.
2.
Next, Kolb argues that he could not have unilaterally
waived his rights under the PICP because the provision at issue
was for the mutual benefit of both himself and ACRA Ireland.
Under Maryland law, “[e]ither party to a contract may waive
any of the provisions made for his benefit.” Cattail Assocs.,
Inc. v. Sass, 907 A.2d 828, 843 (Md. Ct. Spec. App. 2006)
(citation and internal quotation marks omitted). However,
“[a]lthough a party may waive a provision included in a contract
for that party’s sole benefit, a party cannot waive a
contractual requirement that benefits both sides to the
transaction.” Id. (citation and internal quotation marks
omitted).

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Kolb contends that the PICP provision at issue—-which gives
him the option to buy shares of ACRA Ireland for 10 Irish pounds
per share—-also benefits ACRA Ireland because it would receive
monetary compensation for each option exercised. However, the
rule that a contractual provision—-typically a condition
precedent—-benefiting both parties cannot be unilaterally waived
is intended to protect the nonwaiving party. 13 Williston
§ 39:24 (“[A] waiver of contract requirements and conditions
may not be made unilaterally when it would deprive the
nonwaiving party of a benefit under the provision in
question.”). Here, ACRA Ireland, the nonwaiving party, does not
contend that the provision granting Kolb share options was made
for its benefit. In fact, it explicitly argues that the
provision was for Kolb’s exclusive benefit.
Kolb’s argument that his waiver is not enforceable because
ACRA Ireland would have benefited from his exercise of the share
options turns ACRA Ireland’s shield into his own sword by using
the rule to avoid an otherwise valid waiver. Such a result is
contrary to the law of waiver. See 13 Williston § 39:15
(“[O]nce it has been established that a right has been waived,
the party possessing the right prior to the waiver is generally
precluded from asserting it in a court of law.”). Kolb has not
cited, and we have not found, any case in which a party who
waived a contractual provision was later able to circumvent that

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waiver by asserting that the provision was actually for the
benefit of both parties. We will not allow Kolb to do so here.
3.
Finally, Kolb argues that ACRA Ireland and ACRA USA may not
enforce the waivers contained in the SPA and related documents
because they were not parties to the SPA.
Kolb bases this contention on his Irish law expert’s
opinion that under Irish law, “‘no stranger to the consideration
can take advantage of a contract, although made for his
benefit.’”8 J.A. 1451. The ACRA entities’ Irish law expert
agrees to an extent, opining that “the doctrine of privity of
contract would ordinarily prevent a non-party to the contract
from taking legal proceedings to affirmatively enforce that
contract against one of the parties to it” under Irish law.
J.A. 1985. However, the ACRA entities’ expert opines that lack
of privity would not preclude ACRA from raising Kolb’s waivers
in the SPA and related documents as an affirmative defense.
8 Kolb’s expert cites the Irish case of Murphy v. Bower,
[1868] 2 IR 506 (Ct. Com. Pl. 1866) (Ir.), as the source of
this quotation. However, the quotation does not appear in
Murphy. The quotation does appear in Tweedle v. Atkinson,
(1861) 121 Eng. Rep. 762, 764, 1 B&S 393, 398 (Eng.), an English
case also cited by Kolb’s expert in the same discussion. Both
experts agree that Irish courts consider English law persuasive
authority.

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We agree. Murphy v. Bower, [1868] 2 IR 506 (Ct. Com. Pl.
1866) (Ir.), which Kolb’s expert acknowledges is “[o]ne of the
most important Irish cases on the law of privity of contract,”
J.A. 1451, held that “where the foundation of the right of
action is rested upon contract, no one can maintain an action
who is not a party to the contract.” Murphy, 2 IR at 512
(emphasis added). Here, ACRA is not attempting to maintain a
right of action against Kolb based on the SPA and related
documents, but rather is using Kolb’s waiver as an affirmative
defense.
Kolb cannot use privity of contract principles to escape
the consequences of his waiver. Kolb could have waived his
rights under the PICP in any number of ways. See BarGale
Indus., Inc. v. Robert Realty Co., 343 A.2d 529, 533 (Md. 1975)
(under Maryland law, “[a] waiver may be either verbal or in
writing; and it is not necessary that the waiver should be
direct and positive. It may result from implication and usage,
or from any understanding between the parties which is of a
character to satisfy the mind that a waiver is intended.”
(citations and internal quotation marks omitted)). The fact
that Kolb’s waiver happened to be in a contract with a third
party governed by Irish law is inconsequential. Once Kolb
waived his rights under the PICP, those rights were extinguished
as a matter of law. See 13 Williston § 39:15. Kolb cannot

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circumvent an otherwise-valid waiver simply because ACRA Ireland
and ACRA USA were not parties to the contract containing the
waiver. Lack of privity does not prevent ACRA from asserting
the affirmative defense of waiver.
V.
The Maryland Court of Appeals has noted that “[g]iven the
highly factual nature of the waiver inquiry, it is an uncommon
case in which the issue can be resolved by summary judgment.”
Hovnanian Land Inv. Grp. v. Annapolis Towne Ctr. at Parole, LLC,
25 A.3d 967, 984 (Md. 2011). “Occasionally, however, the waiver
is so obvious that a ruling can be made as a matter of law.”
Id. (describing the cases where summary judgment is appropriate
as an “unusual category”).
This is such a case. Kolb waived his rights under the PICP
in a number of ways. First, and as relied on by the district
court, by signing the SPA Kolb “irrevocably waive[d] any claims
against [ACRA Ireland or any subsidiary,] its agent, or
employees which he . . . may have outstanding at Completion.”
J.A. 464. Moreover, in the SPA, Kolb warranted that there was
“no agreement, arrangement or obligation in force which calls
for the present or future allotment, issue or transfer of, or
the grant to any person of the right . . . to call for the
allotment, issue or transfer of, any share . . . of [ACRA

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Ireland or any subsidiary] . . . .” J.A. 491. Kolb also
warranted that neither ACRA Ireland nor a subsidiary “has
offered nor is proposing to introduce any . . . share
option/purchase or retention scheme for any employee or other
person.” J.A. 515.
Second, in the letter required by Schedule 3 of the SPA,
which Kolb delivered to ACRA Ireland, he stated that he had “no
claim or right of action of any kind outstanding against [ACRA
Ireland or any subsidiary]” and to the extent that any such
claim existed or may exist, he “irrevocably waiv[ed] such
claim.” J.A. 598.
Third and finally, in his notice exercising the 2010
option, Kolb “confirm[ed] and acknowledge[d]” that apart from
the shares acquired by exercising the 2003 and 2010 options, he
had “no other rights or entitlements in respect of Shares.”
J.A. 574.
The SPA and related documents clearly show that Kolb
unequivocally waived any rights he had against the ACRA
entities, including any rights arising under the PICP.
Therefore, the district court properly granted summary judgment
in favor of ACRA Ireland and ACRA USA.9
9 Because Kolb waived any claims against ACRA Ireland and
ACRA USA, the district court properly denied Kolb’s second
motion to amend his complaint. See Steinburg v. Chesterfield
(Continued)

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VI.
For the foregoing reasons, we affirm the district court.
AFFIRMED
Cnty. Planning Comm'n, 527 F.3d 377, 390 (4th Cir. 2008)
(holding that a district court does not abuse its discretion in
denying a motion to amend where the amendment would have been
futile).

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