- 59 - interpret petitioner as addressing the latter point, petitioner seems to suggest that a pre-control-change agreement must have imposed a legal obligation on, or there must have existed at least an informal pre-control-change understanding requiring, the parties to enter into the post-control-change agreement under which the payments are made in order for such payments to be treated as contingent on a change in control within the meaning of section 280G. As petitioner observes on brief: In the instant case neither Petitioner nor the executives were under any legal obligation to enter into the 1991 Employment Agreements or the 1992 Amendments [citations omitted]; they could have gone in separate directions from the legal standpoint. * * * Thus, the payments necessarily were made “pursuant to” the new [i.e., 1991 and 1992] agreements and were not contingent on a change in control of Petitioner. * * * * * * * * * * [I]n the instant case there was no formal or informal pre-acquisition understanding that the parties would enter into the 1991 Employment Agreements or the 1992 Amendments and that the * * * [retention] payments [and 1991 SRP Benefits] would be made under those agreements. Respondent interprets “pursuant to” as used in Q&A-23's reference to the relationship between pre- and post-control- change agreements in the sense of the earlier agreement’s functioning as a proximate cause of certain terms of the later agreement. Thus, if a legally enforceable pre-control-change agreement is the proximate cause of provisions in an agreement entered into after the change in control, the latter agreement isPage: Previous 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 Next
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