                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 21 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



HIMC CORPORATION, a Washington                   No. 09-35605
corporation,
                                                 D.C. No. 3:07-CV-05342-FDB
              Plaintiff - Appellee,

  v.                                             MEMORANDUM *

PREM RAMCHANDANI; SHAI BAR
LAVI; ANNA SACHS BAR-LAVI; AVI
SIVAN; and AVRAHAM OVAIDIA,

              Defendants - Appellants.



                   Appeal from the United States District Court
                      for the Western District of Washington
               Franklin D. Burgess, Senior District Judge, Presiding

                             Submitted June 11, 2010 **
                                Seattle, Washington




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: CALLAHAN and IKUTA, Circuit Judges, and BENITEZ, District
Judge.***


      Because summary judgment as to the existence of a contract is proper under

Washington law only where reasonable minds could not disagree that the parties

intended a binding agreement, see Scott Galvanizing, Inc. v. Nw. EnviroServices,

Inc., 844 P.2d 428, 433 (Wash. 1993) (en banc); Swanson v. Liquid Air Corp., 826

P.2d 664, 670–71 (Wash. 1992) (en banc), the district court erred by granting

summary judgment based on its sua sponte finding that no enforceable agreement

existed between HIMC Corp. (“HIMC”) and either Veripay, Inc. (“Veripay”) or

Pasa, Inc. (“Pasa”). Assuming without deciding that the appellants here stand in

the shoes of either Veripay or Pasa for purposes of enforcing the alleged

agreements, there are genuine issues of material fact as to whether the parties

intended the Letter of Intent or Memorandum of Understanding (or both) to

constitute binding agreements. Additionally, there are genuine issues of material

fact as to whether the HIMC Board of Directors’ resolution setting a higher price

for the shares was binding on the parties. Contrary to the district court’s finding, a

document labeled as a “letter of intent” may constitute an enforceable contract

under Washington law, see Loewi v. Long, 136 P. 673, 674 (Wash. 1913), and a



        ***
            The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
stock agreement may be enforceable even if it lacks a price term, see Zalud v.

Boltz, No. 45377-7-I, 2000 WL 1346678, at *2–3 (Wash. Ct. App. Sept. 18, 2000).




      Moreover, there are genuine issues of material fact as to whether the

appellants are entitled to the release of restrictive conditions on HIMC securities

issued to appellants. Although Rule 144 of the Securities Act, 17 C.F.R.

§ 230.144(d)(1)(iii), allows holders to sell restricted stocks that are fully paid for

and held for the required period, testimony before the district court was in sharp

conflict regarding whether the stock at issue here had been fully paid for. Thus,

summary judgment on these claims was inappropriate. Appellants’ contentions

regarding possible ratification and waiver likewise present issues of fact

inappropriate for summary judgment. See Poweroil Mfg. Co. v. Carstensen, 419

P.2d 793, 796 (Wash. 1966); Hoke v. Stevens-Norton, Inc., 375 P.2d 743, 745

(Wash. 1962).

      REVERSED and REMANDED.
