                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________          U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                JUNE 22, 2009
                               No. 09-10673
                                                             THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                     D.C. Docket No. 07-02839-CV-JOF-1

GIL KOVAR,

                                                        Plaintiff-Appellant,

                                     versus

CSX TRANSPORTATION, INC.,

                                                        Defendant-Appellee.

                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                        ________________________
                               (June 22, 2009)

Before CARNES, WILSON and COX, Circuit Judges.

PER CURIAM:

      Plaintiff Gil Kovar was employed by CSX Transportation, Inc. (CSX) for

thirty-two years. On several occasions during the course of his employment, Kovar

was granted CSX stock options. On each occasion, the options were issued in a
Notice of Non-Qualified Stock Option Grant (collectively, “the Notices”), pursuant

to the CSX Omnibus Incentive Plan (“the Plan”). The options were unvested at the

time of the grants and would vest on a schedule specified in each Notice.

      In March 2005, Kovar was terminated by CSX. On March 18, 2005, Kovar and

CSX executed an Employment Separation Agreement that states, “All CSX options

previously granted to you will be treated in accordance with the terms outlined in the

corresponding plan document or grant agreement.” (R.1-38, Ex. 1 at 2.) When Kovar

was terminated, CSX cancelled Kovar’s unvested options.

      Kovar sued CSX for breach of contract, alleging that he was entitled to retain

the unvested options and the right to exercise them when they became vested. The

parties agree that the option grants are governed by Virginia law. On cross-motions

for summary judgment, the district court granted summary judgment for CSX and

denied Kovar’s motion. The court held that the contract between CSX and Kovar was

unambiguous; and, under the unambiguous contract, stock options vest only during

employment unless one of the exceptions listed in the Notices is present. (R.2-56 at

7-8.) The court found no such exception present in Kovar’s case and held that CSX

did not breach the contract by cancelling Kovar’s unvested options. (Id. at 9.)




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      Kovar appeals the judgment, arguing that the district court erred by reading a

term into the contract that does not exist. He seeks both vacation of the summary

judgment for CSX and entry of summary judgment for himself.

      The parties agree that the Notices and the Plan form the entire contract defining

Kovar’s rights to the options he was granted. Having reviewed that contract, we

agree with the district court that it is unambiguous. And, pursuant to the contract,

options will not vest after an employee is terminated, unless his termination satisfies

one of the conditions enumerated in the Notices. (See R.1-38, Ex. 2 (listing

termination as a result of a business transaction, reduction in force, or any other

circumstances approved by the Compensation Committee as conditions upon which

“Options will vest . . . as if you had continued employment[.]”).) Kovar does not

dispute that he was terminated and that his termination does not satisfy any of these

conditions. Therefore, the unvested options that Kovar had at the time of his

termination would never vest, and he would never be entitled to exercise those

options. CSX did not breach any contractual duty to Kovar by cancelling those

unvested options. The district court correctly granted summary judgment to CSX.

      AFFIRMED.




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