(dissenting). In affirming the denial of defendant’s motion, pursuant to CPLR 3211 (a) (1), to dismiss plaintiffs cause of action for breach of contract, the majority recites many well-established propositions of the law of contracts with which I fully agree. The majority disregards, however, the cardinal rule that whether a contract has been made must be determined in light of the “ ‘totality’ ” of the parties’ conduct and communications (Zheng v City of New York, 19 NY3d 556, 572 [2012], quoting Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d 397, 400 [1977]), without placing “ ‘disproportionate emphasis ... on any single act, phrase or other expression’ ” (Zheng, 19 NY3d at 572, quoting Brown Bros., 41 NY2d at 399-400). This rule requires dismissal of the breach of contract claim in light of the undisputed documentary evidence demonstrating that, when the parties broke off their negotiations for a possible extension of plaintiffs employment, they were unable to agree on certain terms that both sides regarded as essential. To be clear, the parties did not overlook these issues, nor did they decide to revisit them in the future, if necessary, while nonetheless going forward with a new agreement. They were consciously deadlocked on these matters, and neither side would give way. As a matter of law, this failure to agree on essential terms is fatal to plaintiffs attempt to enforce any alleged agreement to extend his employment, “not because *66of lack of definiteness, but because of lack of assent” (1 Farnsworth on Contracts § 3.27 at 419 [3d ed 2004]).1
No contract can come into existence without “a manifestation of mutual assent to [its] essential terms” (Matter of Express Indus. & Term. Corp. v New York State Dept. of Transp., 93 NY2d 584, 590 [1999] [internal quotation marks omitted]; see also e.g. Galesi v Galesi, 37 AD3d 249, 249 [1st Dept 2007]). Here, the totality of the undisputed documentary evidence of the parties’ negotiations submitted in support of the CPLR 3211 (a) (1) motion to dismiss — comprising 20 emails, one letter and two drafts exchanged during the period from June 15 through August 23 of 2012 — establishes, as a matter of law, that, far from ever reaching a meeting of the minds, the parties ended their discussions in a state of affirmative and express disagreement on several terms they both deemed essential to a possible extension of their contractual relationship. Thus, the documentary evidence of the negotiations, viewed as a whole, “utterly refutes” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]) plaintiffs allegation that he and defendant, as the result of an exchange of three sketchy emails at the outset of their discussions, entered into an enforceable agreement for a new three-year term of employment, notwithstanding their subsequent documented and undisputed failure to agree on all essential terms.
The conclusion that the documentary evidence submitted by defendant utterly refutes plaintiffs claim, so as to render appropriate dismissal pursuant to CPLR 3211 (a) (1), is inescapable. First, plaintiff was necessarily a party to each and every step of this bilateral negotiation, and he thus has direct knowledge of the entire course of the negotiations. Second, notwithstanding his direct knowledge of all that transpired between *67himself and defendant in those discussions, plaintiff makes no claim that the documentary evidence before us gives a picture of the negotiations that is in any way either inaccurate or incomplete. In particular, plaintiff does not assert that any of the issues left unresolved in the email record supporting the motion were subsequently resolved, either orally or through written communications that defendant has not submitted. Rather, plaintiffs position is that the parties’ documented and undisputed inability to resolve their differences on issues they both regarded as essential to concluding an agreement should not prevent him from suing on that putative agreement. Stated otherwise, plaintiff is arguing that he should have a chance to persuade a factfinder to make for the parties a bargain that — as established by undisputed documentary evidence — the parties themselves could not reach. I see no reason to extend proceedings on a claim so lacking in legal merit. Accordingly, we should reverse the order appealed from and grant defendant’s motion to dismiss the breach of contract cause of action pursuant to CPLR 3211 (a) (1). I respectfully dissent from the majority’s failure to do so.2
The majority can only reach its result by putting “disproportionate emphasis” on the aforementioned three emails while disregarding the documentary evidence of the parties’ ensuing negotiations, including 17 emails exchanged during the period from July 20 to August 23, 2012.3 Those subsequent emails conclusively establish that, contrary to the premise of plaintiffs *68claim, neither party intended simply to renew the terms of their previous agreement (the 2009 agreement) for a new three-year term to begin on September 1, 2012, the day following the final date of the term of the 2009 agreement. Rather, in those negotiations, both parties — plaintiff no less than defendant— proposed terms that varied substantially from the terms of the 2009 agreement. And, to reiterate, the parties ultimately could not agree on all of the terms they regarded essential for a new term of employment. Thus, the full course of the parties’ negotiations demonstrates that their initial exchange ending on July 16, 2012 — on which the majority relies to the exclusion of the rest of the record — left open essential terms on which no meeting of the minds subsequently could be reached. In view of the parties’ ultimate inability to agree on the essential terms “left open” by the early emails singled out by the majority, those communications plainly were “not intended to be understood as an offer or as an acceptance” (Restatement [Second] of Contracts § 33 [3]).
It is telling that, at the outset of the negotiations, plaintiff did not object that an agreement to renew the terms of the 2009 agreement had already been reached when, by email dated July 20, 2012, defendant first sent him a draft for a new contract that included at least three significant changes from the terms of the 2009 agreement. Plaintiff did raise objections to two of the changes proposed by defendant, namely, (1) a new provision for “clawback” of the sign on bonus in the event of termination for cause or unprovoked resignation and (2) the deletion of a provision that payment of the bonus for the previous contract year would not count against guaranteed minimum compensation for the year in which the payment was made. Notwithstanding plaintiffs opposition to these particular proposals, he did not assert that defendant had no right to propose changes to the terms of the 2009 agreement. In fact, plaintiff proposed a different “clawback” provision that, while *69more favorable to him than defendant’s proposal, had not been present in the 2009 agreement.4
Ultimately, the record shows, at least three issues remained unresolved upon the expiration of the 2009 agreement at the end of August 2012, after negotiations reached a standstill on or about August 23. Two of those outstanding issues arose from proposals to deviate from the terms of the 2009 agreement that had been made by plaintiff himself, not defendant. These issues were (1) whether defendant would pay plaintiff, after the end of his employment, for the entire period during which he would be forbidden to communicate with defendant’s clients and to solicit defendant’s employees (three months and nine months, respectively, following the end of the compensated six-month noncompete period), and (2) whether plaintiffs post-employment “Special Non-Compete Payment” (as described in the majority’s opinion) would count against his guaranteed minimum compensation. The parties were also deadlocked on defendant’s proposal to extend by nine months the post-employment period during which plaintiff would be forbidden to solicit defendant’s employees.
While the majority makes light of the importance of these issues, it is plain from the record that the parties considered them to be material and essential. For example, regarding his proposal that defendant compensate him during the entire period of post-employment restriction of contact with defendant’s clients and employees (a benefit to which he was not entitled under the 2009 agreement), plaintiff told defendant in an August 17 email: “I cannot accept non compete language that prevents me from doing my or a job [sic] without getting paid.” On its face, this was a demand by plaintiff for a substantive change from the terms of the 2009 agreement, not just a proposal to “tinker with language that was written 3 yrs ago,” as he inaccurately characterized his proposals in an August 23 email, the final documented communication of the negotiations *70in the record, which he sent as the August 31 expiration date of the term of the 2009 agreement loomed only eight days away.5
I agree with the majority insofar as it articulates the hornbook principle that, where the parties to an alleged contract have agreed on all essential terms of an agreement, their failure to carry out their intention to memorialize those terms in a formal, signed writing will not necessarily render their informal agreement unenforceable, provided that neither party has expressly reserved the right not to be bound in the absence of such formal documentation. I also accept, for present purposes, the majority’s view that the documentary evidence upon which defendant moved for dismissal does not include an express reservation by either party of the right not to be bound until a formal written contract had been executed (cf. Jordan Panel Sys. Corp. v Turner Constr. Co., 45 AD3d 165 [2007]). This, however, does not mean that the emails of June 15 and July 16, which plaintiff contends gave rise to a binding agreement to extend the terms of the 2009 agreement, can support such an inference in the face of the undisputed documentary evidence, as described above, that both parties contemplated substantial changes to the terms of the 2009 agreement and that each side regarded the issues that remained outstanding at the end of their negotiations as deal breakers. Even if the June 15 and July 16 emails could support plaintiffs position when viewed in isolation, such support evaporates, as a matter of law, in the context of “the totality of [the parties’ undisputed acts and words], given the attendant circumstances, the situation of the parties, and the objectives they were striving to attain” (Brown Bros., 41 NY2d at 400). Stated otherwise, the documentary evidence of the whole course of the parties’ dealings establishes that, notwithstanding what might otherwise appear from three brief emails artificially detached from the communications that followed, the parties never reached a meeting of the minds to extend the terms of the 2009 agreement for another three years, nor did they reach a meeting of the minds on all essential terms of a successor agree*71ment.6 Since, according to the complaint itself, the fundamental premise of the cause of action for breach of contract is that the parties agreed on July 16, 2012 to extend the terms of the 2009 agreement, the disproof of this assertion by the documentary evidence is fatal to the claim.
It bears emphasis that the absence of an express reservation of the right not to be bound before the execution of a formal, written agreement does not mean that the existence of an enforceable agreement cannot be negated, as a matter of law, by uncontroverted evidence of the parties’ negotiations after the promise sought to be enforced allegedly was made, as this Court, among other New York courts, has ruled numerous times (see Spier v Southgate Owners Corp., 39 AD3d 277, 278 [1st Dept 2007] [“(t)he parties’ further negotiations showed that there was never a meeting of the minds on all essential terms”]; Galesi, 37 AD3d at 249; Yenom Corp. v 155 Wooster St. Inc., 23 AD3d 259, 259-260 [1st Dept 2005] [“(E)ven if there were no intent to be bound only upon execution of a formal contract, the many substantial changes to Cooper’s draft that were prepared by plaintiffs counsel and the parties’ subsequent correspondence establish that there was never a meeting of the minds on material terms”], lv denied 6 NY3d 708 [2006]; Dratfield v Gibson Greetings, 269 AD2d 294, 295 [1st Dept 2000] [affirming summary judgment dismissing a claim for breach of contract notwithstanding that “neither party expressly reserved the right not to be bound prior to the execution of the signed contract”]; May v Wilcox, 182 AD2d 939, 940 [3d Dept 1992] [no contract came into existence as the result of a written offer because, “(a)s evidenced ... by the ongoing correspondence between the parties’ attorneys as well as the parties’ discussions, there was no meeting of the minds with respect to” certain essential terms]; see also CAC Group Inc. v Maxim Group LLC, 523 Fed Appx 802, 804 [2d Cir 2013] [in a case governed by New York law, affirming the dismissal of an action to enforce an unsigned agreement for the sale of a promissory note “(a)lthough neither party expressly reserved the right not to be bound prior to the execution of a document” (internal quotation marks omitted)]).
An instructive illustration of the foregoing principle is provided by the above-cited case of Galesi (37 AD3d 249), in *72which this Court affirmed a judgment dismissing a complaint for breach of contract pursuant to a grant of summary judgment to the defendants. In so doing, we held that the record established that the parties had made, at most, “an indefinite and unenforceable ‘agreement to agree’ ” (id. at 249). We explained that, even “[a]ssuming that the alleged promise was made,” and notwithstanding evidence that the parties had reached agreement on some terms, “the exchange of drafts, further discussion, and the totality of the circumstances clearly showed that there was never a meeting of the minds on all essential terms” (id.). Similarly here, the documentary evidence of the parties’ negotiations establishes that, notwithstanding their July 16 “agreement to agree” on the terms of a new employment agreement, they were subsequently unable to agree on all of the terms they deemed essential to put such an agreement into operation upon the expiration of the contract then in force. It necessarily follows that no new agreement came into being, since, as the majority itself recognizes, “an enforceable contract requires mutual assent to its essential terms and conditions” (Edelman v Poster, 72 AD3d 182, 184 [1st Dept 2010]).
Remarkably, in purporting to distinguish “easily” the above-cited decisions of this Court in Spier, Galesi, Yenom and Dratfield based on “ ‘the totality of the circumstances’ ” (quoting Galesi) on which those cases were decided, the majority synopsizes the very point I am making. Here, as in the cited cases, the record presents us with more than just the terse email exchange that plaintiff claims to have given rise to a contract, and on which the majority focuses to the exclusion of the remainder of the record. We have before us the documentary record of more than a month of the parties’ negotiations following what the majority regards as the decisive email of July 16, 2012, and plaintiff has disputed neither the accuracy nor the material completeness of this record. The Court of Appeals has instructed us to look to the “ ‘totality’ ” of this record, in light of “ ‘the attendant circumstances, the situation of the parties, and the objectives they were striving to attain’ ” (Zheng, 19 NY3d at 572-573, quoting Brown Bros., 41 NY2d at 399-400), to determine whether plaintiff may be able to prove that he and defendant entered into a new agreement. When we do look to the totality of the record of the parties’ dealings, however, we find — as we found in Spier, Galesi, Yenom and Dratfield — that the parties could not agree on all of the essential terms of the *73agreement they contemplated. The inescapable conclusion is that no enforceable contract came into being.
Since it is plain from the totality of the documentary evidence of the parties’ dealings that they did not agree, on July 16, 2012, to extend the terms of the 2009 agreement for another three years, and not even plaintiff claims that the parties reached a meeting of the minds on new terms at any subsequent time, I conclude that plaintiffs cause of action for breach of contract fails as a matter of law. Further, contrary to the majority’s position that the terms on which the parties failed to agree simply don’t matter, the record establishes that the parties regarded these terms as material and essential. Where “the parties have, in piecemeal fashion, reached [an] agreement on some terms but not on others, . . . there is a contract if the matters left open were not deemed material by the parties, and there is not a contract if the matters left open were deemed material” (Four Seasons Hotels v Vinnik, 127 AD2d 310, 317 [1st Dept 1987] [emphasis added], citing Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d 105 [1981]).
In this case, whatever a reviewing court might think, the parties plainly regarded the issues on which unresolved differences remained when negotiations broke off as deal breakers. Again, those issues included (1) whether plaintiff would be paid during the entire post-employment period of restriction of contact with defendant’s clients and employees, (2) whether his post-employment special noncompete payment would count against his minimum guaranteed compensation during the period of his employment, and (3) whether to extend the post-employment period during which plaintiff would be forbidden to solicit defendant’s employees by nine months. The first two issues were changes from the terms of the 2009 agreement that plaintiff had proposed; the third was proposed by defendant. Hence, when the negotiations broke off in August, neither plaintiff nor defendant believed that they had already made a deal to extend the 2009 agreement on July 16. Since the existence of such a renewal agreement — the sole basis alleged in the complaint for plaintiffs breach of contract cause of action — is conclusively disproved by the undisputed documentary evidence (a point that the majority does not, and cannot, dispute), the claim should be dismissed.
Further, we cannot disregard the differences that remained between the parties upon the expiration of the 2009 agreement on the theory that these open terms could, if necessary, have *74been resolved by judicial gap-filling. Such gap-filling is permissible only where “some objective method of determination [of the open term] is available, independent of either party’s mere wish or desire” (Metro-Goldwyn-Mayer v Scheider, 40 NY2d 1069, 1071 [1976] [internal quotation marks omitted]; see also Matter of 166 Mamaroneck Ave. Corp. v 151 E. Post Rd. Corp., 78 NY2d 88, 91 [1991] [judicial filling of gaps in a contract is appropriate “where it is clear . . . that the parties intended to be bound and there exists an objective method for supplying a missing term”], quoted in Aiello v Burns Intl. Sec. Servs. Corp., 110 AD3d 234, 244 [1st Dept 2013, Renwick, J.]). In this case, the issues that remained unresolved between the parties when their negotiations ended do not appear susceptible to such resolution, and “a court, in intervening [to supply the missing terms], would be imposing its own conception of what the parties should . . . have undertaken” (Joseph Martin, Jr., Delicatessen, 52 NY2d at 109), rather than enforcing a bargain the parties themselves had made.
Although my colleagues deny it, by allowing plaintiffs breach of contract claim to go forward notwithstanding the parties’ undisputed and documented failure to reach a meeting of the minds on a number of terms that the parties themselves regarded as essential, the majority treats those essential but disputed terms — terms that, as noted, cannot be supplied through judicial gap-filling on any objective basis — as nullities. In essence, the majority holds that, because the parties agreed on most of the terms for a new period of employment, plaintiff is entitled to ask a factfinder to dictate to the parties the open terms on which they failed to agree and then to award plaintiff damages for defendant’s failure to perform the agreement thus imposed on the parties by the judicial system. This approach is contrary to the settled law of this state.
“To create a binding contract, there must be a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms” (Express Indus., 93 NY2d at 589 [emphasis added], citing Joseph Martin, Jr., Delicatessen, 52 NY2d at 109). In Express Indus., for example, the Court of Appeals held, as a matter of law, that no contract had been created by one party’s execution of a writing supplied by the other party that “omitted material terms of the purported contract” (id. at 586). In so holding, the Court of Appeals rejected the view of the Appellate Division majority that the items left blank in the writing simply raised *75“an issue of fact” (id. at 589 [internal quotation marks omitted]), noting that Express, the proponent of the alleged contract, had not suggested any objective basis for supplying the omitted terms (id. at 590). Further, the Court of Appeals observed that the open issue had been “identified by Express as a deal breaker” (id. at 591). Similarly, here, where the documentary record of the negotiations establishes that the parties could not agree on certain material terms, and that each side regarded these open issues as deal breakers, as a matter of law, no binding contract came into being.
I also disagree with the majority’s view that plaintiff should be permitted to seek to recover a production bonus for the second trimester of 2012 (which ended on Aug. 31, 2012) under the expired 2009 agreement. This claim is distinct from plaintiffs cause of action alleging that the parties entered into an agreement for a new term of employment commencing on September 1, 2012, or that they agreed to extend the 2009 agreement past its termination date of August 31, 2012. Rather, the claim for the production bonus is based on the 2009 agreement’s provision that made plaintiff “eligible to be paid a bonus on a trimester basis” out of a bonus pool for his department, “within two months of the close of a given trimester,” which, in this case, was October 31, 2012.7 However, the 2009 agreement expressly conditions plaintiffs eligibility for payment of a production bonus on his being “actively employed by [defendant] at the time of our firm-wide bonus payment dates,” a condition that plainly was not satisfied here, since both parties understood that plaintiff (whether rightly or wrongly) was no longer defendant’s employee as of October 31, 2012. Accordingly, plaintiff is not entitled to recover a production bonus for the second trimester of 2012.
The majority holds that plaintiff is entitled to seek to recover a production bonus for the second trimester of 2012, notwithstanding the contractual condition that he be “actively employed” by defendant on the date the bonuses for a given *76trimester are paid, based on its view that plaintiff may be able to prove that he is “entitled to such bonus as wages, which are not subject to forfeiture.” The terms of the 2009 agreement defeat this claim as a matter of law.8 While the 2009 agreement describes the production bonus as “based on your performance,” the bonus was plainly discretionary, as no formula was provided for calculating plaintiffs bonus (as opposed to the amount of the bonus pool for the entire department). That plaintiffs superiors considered his performance in determining his production bonuses (which is hardly surprising) did not change the discretionary nature of the payment. Nor does plaintiff allege that his production bonus for the second trimester of 2012 had been allocated while his employment was still ongoing, so he cannot claim that his right to the bonus had become vested before his employment came to an end.
The discretionary nature of the bonus, and the fact that plaintiffs entitlement to it had not vested before he left defendant’s employ, distinguish this case from the decisions on which the majority relies (Ryan v Kellogg Partners Inst. Servs., 19 NY3d 1, 16 [2012] [the plaintiff was entitled to recover a bonus that “was vested before he left his job” and the payment of which “was guaranteed and non-discretionary”]; Weiner v Diebold Group, 173 AD2d 166 [1st Dept 1991] [the plaintiff sued to recover deferred payments of a previously awarded bonus that his former employer had refused to make]). The controlling precedent with respect to plaintiffs bonus production claim is Truelove v Northeast Capital & Advisory (95 NY2d 220 [2000]), which recognizes that receipt of a discretionary bonus may lawfully be conditioned on continued employment at the time of payment. I would follow that rule in this case.
For the foregoing reasons, I believe that we should reverse the order appealed from and grant defendant’s motion to dismiss plaintiffs cause of action for breach of contract pursuant to CPLR 3211 (a) (1). Accordingly, I respectfully dissent.
Moskowitz, Richter and Feinman, JJ., concur with Renwick, J.; Friedman, J.R, dissents in a separate opinion.
Order, Supreme Court, New York County, entered August 22, 2013, modified, on the law, to dismiss so much of the first cause of action for breach of contract as seeks to recover a special *77noncompete payment under plaintiffs 2009 employment agreement, and otherwise affirmed, without costs.
. Using as an example the negotiation of a hypothetical sale of apples, the late Professor Farnsworth, who was the Reporter of the Restatement (Second) of Contracts, wrote:
“It is essential to distinguish [from indefiniteness] one other cause of incompleteness of agreement — a failure to agree. If the seller and the buyer of apples do discuss the matter of the seller’s responsibility for their quality and are unable to agree on how that matter is to be resolved, the incompleteness of their agreement in that respect will be fatal to the enforceability of their agreement — not because of lack of definiteness, but because of lack of assent. There is a critical distinction between remaining silent on such a matter and discussing it but failing to agree” (1 Farnsworth on Contracts § 3.27 at 419-420).
. For reasons more fully discussed at the end of this writing, I also disagree with the majority’s failure to dismiss plaintiffs breach of contract cause of action insofar as he seeks to recover thereunder a discretionary production bonus for the second trimester of 2012 under the parties’ 2009 employment agreement, the term of which expired on Aug. 31, 2012, before any such bonus became payable. The parties’ 2009 agreement expressly conditioned plaintiffs eligibility for the bonus in question on his being “actively employed by [defendant] at the time of [the] firm-wide bonus payment date[ ].”
. In fact, the majority inaccurately simplifies the documented sequence of events. It fails to mention that, after defendant sent plaintiff an email on June 15, 2012, proposing to extend his employment for another three-year term on “the same terms [as] of your existing contract” (subject to clarification on one point), plaintiffs initial response was essentially to reject the proposal. Specifically, plaintiff sent defendant a one-sentence letter, dated June 22, 2012, stating: “Please accept this letter as notification per section 2.4 of my existing employment agreement that I do not wish to extend my employment agreement under its existing terms.” Thus, when plaintiff subsequently sent defendant his email of July 16, 2012, stating, “I accept, pis send contract,” his rejection of June 22 had already terminated his power to accept any offer that might have been extended by defendant’s June 15 email (see *68Restatement [Second] of Contracts § 38 [1] [“An offeree’s power of acceptance is terminated by his rejection of the offer, unless the offeror has manifested a contrary intention”]). Thus, if there were any offer and acceptance here— and, in my view, the totality of the record negates that possibility — it was plaintiffs July 16 email that would have constituted the offer (reviving, as plaintiffs counteroffer, defendant’s terminated proposal of June 15) and defendant’s responding email of the same date (“Mazel. Looking forward to another great run”) that would have constituted the acceptance. But, to reiterate, the parties’ subsequent correspondence establishes that they never reached agreement on all essential terms for the contemplated new term of employment and, therefore, no enforceable contract came into being.
. Before the negotiations broke off, the parties apparently resolved their differences over the “clawback” of the sign on bonus and the effect on the guarantee for a given year of a bonus paid on account of the previous year (defendant prevailed on the first issue, plaintiff on the second). That the parties ultimately resolved their differences over these issues does not change the fact that plaintiff treated these matters as legitimate subjects for negotiation.
. In the same August 23 email, plaintiff suddenly changed his tune and, after more than a month of proposals and counter-proposals for changes from the terms of the 2009 agreement, told defendant: “Actually I don’t want to negotiate. I think we agreed to terms.” This self-serving assertion is utterly inconsistent with plaintiff’s documented course of conduct over the previous month and, in view of the documentary evidence of the parties’ negotiations, gives no support to an inference that the parties had agreed, on July 16, simply to renew the terms of the 2009 agreement.
. See e.g. Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d 363, 369-370 (2005) (“the common-law rule . . . authorizes review of the course of conduct between the parties to determine whether there was a meeting of minds sufficient to give rise to an enforceable contract”).
. Contrary to the impression conveyed by the majority’s description, the production bonus provision of the 2009 agreement did not entitle plaintiff personally to “no less than 55% of the Net Earnings of the [renewable energy brokerage] Desk.” Rather, plaintiff, along with the other traders working under him, was eligible for a bonus payment out of a pool to be funded in that amount, as becomes clear when one reads the entire sentence from which the quoted words are excerpted: “The total bonus pool available to the Eastern U.S. renewable energy brokerage desk (the ‘Desk’) will be no less than 55% of the Net Earnings of the Desk.”
. Although the majority states that an issue of fact is presented concerning the production bonus claim “given the conflicting language concerning the nature of the bonus payment,” it does not specify what “conflicting language” is referred to.