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January 31, 1997. In addition, Olin agrees to pay
Consultant the equivalent of 5% annual simple interest
on any deferred payments.
On the record before us, we find that petitioners have failed
to establish that Mr. Palmer and Olin Ordnance orally modified the
Marion plant/Palmer consulting agreement as of September 12, 1994,
by agreeing to terms essentially the same as those appearing in
the July 1995 amendment. In fact, the record, including Mr.
Palmer’s own testimony, his March 22, 1995 memorandum to Mr.
Harris and Mr. Picker, and his May 22, 1995 memorandum to Ms.
Svarzkopf, establishes that Mr. Palmer and Olin Ordnance did not
agree to such an oral modification as of September 12, 1994.
Mr. Palmer testified that he was having “continuing discus-
sions” in March 1995 with Mr. Picker and Mr. Harris about an
agreement to defer income. Mr. Palmer’s testimony shows that
there was no modification, oral or written, of the Marion
plant/Palmer consulting agreement in effect in March 1995, let
alone on September 12, 1994.
Moreover, petitioners’ March 22, 1995 memorandum to Mr.
Harris and Mr. Picker stated in pertinent part:
This memo responds to your request that I identify the
conditions under which I would agree to an extension of
my present consulting contract thru January 1996. * * *
I offer the following thoughts:
* * * * * * *
2. In addition, I would have the right to postpone
receipt by me of payment for any monthly invoice to
a future date of my choosing, but in any case not
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