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satisfaction that the only available method for opposing the
statements in the affidavits is through cross-examination at
trial. Further, it is insufficient for the opposing party to
argue in the abstract that the legal theory involved in the case
encompasses factual questions. Hibernia Natl. Bank v. Carner,
997 F.2d 94, 98 (5th Cir. 1993); Daniels v. Commissioner, supra.
Since petitioners have offered affidavits directly supporting
their position on a material issue of fact, and since respondent
has failed to counter those affidavits with anything other than
unsupported allegations, respondent cannot avoid summary judgment
on this issue. See Greene v. United States, 806 F. Supp. 1165,
1171 (S.D.N.Y. 1992), affd. 13 F.3d 577 (2d Cir. 1994). Thus, we
find that there is no genuine issue of material fact regarding
whether the donees entered into a legally binding agreement to
sell their stock warrants before, or at the time of, the
assignments by petitioners.14
14The record indicates that no agreement was entered into by
the donees before Nov. 19, 1993, the date they signed the warrant
purchase and sale agreement. On Nov. 16, 1993, NMG’s legal
counsel sent letters to each of the donees enclosing a warrant
purchase and sale agreement. Those letters state that pursuant
to the warrant purchase and sale agreement, the donees would
agree to sell their reissued warrants to WCP and “to abstain from
either exercising its Warrant or selling or otherwise
transferring it to any other party through Dec. 31, 1993.”
Certainly, the formality of having the donees enter into the
warrant purchase and sale agreements suggests that they had not
entered into any binding agreements before Nov. 19, 1993.
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