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Cashout under the 1990 Employment Agreements for a termination as
of December 31, 1991, plus interest to the date paid.
In sum, the circumstances surrounding the negotiations that
secured the Retained Executives’ rights to the Retention Payments
and 1991 SRP Benefits under the 1991 Employment Agreements, and
the relationship between these payments and the Termination
Awards and SRP Cashouts under the 1990 Employment Agreements,
convince us, and we so find, that the Retention Payments and 1991
SRP Benefits were obtained by the Retained Executives as
consideration in exchange for relinquishing their rights to the
Termination Awards and SRP Cashouts.32 Since the latter payments
were indisputably contingent on a change in control, and they
were relinquished in exchange for the Retention Payments and 1991
SRP Benefits, we are persuaded that the Retention Payments and
the disputed 1991 SRP Benefits would not in fact have been made
absent the change in ownership. Accordingly, we hold that the
32 Although it is true that a Retained Executive’s right to
receive a Termination Award was essentially unconditional (during
the June 1992 Window), while his right to a Retention Payment was
conditioned upon either (i) involuntary termination without
cause, (ii) voluntary termination for “good reason”, or (iii)
completion of an approximately 3-year employment period, we
believe that a Retained Executive was compensated for the
assumption of these new restrictions by the amount by which the
Retention Payment exceeded the Termination Award. Specifically,
the Retention Payment payable to each Retained Executive on the
first day the 1991 Employment Agreement was effective exceeded
his Termination Award, and the Retention Payment increased pro
rata for each week of employment after the effective date of the
1991 Employment Agreement.
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