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there was an employment contract, the PPA, that
required Ventures to perform underwriting services and
required Ciena to transfer cash and warrants to
Ventures for the performance of such services; (2) the
sole consideration to be furnished by Ventures was
investment banking services; (3) Ciena’s intent was to
secure the services of Ventures; (4) Ventures was
available to perform the services as a placement agent
at the time Ciena opted not to use its services; (5)
Ventures at least engaged in preparatory work and was
reimbursed $35,000 for preparation of documents related
to the PPA; and (6) the warrants at issue were granted
to Ventures as a result of the triggering of the
liquidated damages clause contained in the employment
contract.
These “essential facts” simply fail to support respondent’s
position. Numbers 1 through 3 merely state that a contract
existed and describe the intent of the parties in performing the
contract. In support of number 4 (i.e., respondent’s recitation
of the fact that “Ventures was available to perform the
services”), respondent cites section 1.280G-1, Income Tax Regs.,
inapplicable regulations relating to parachute payments. Number
5, emphasizing legal fees Ventures incurred relating to the PPAs,
is not a pertinent fact. Finally, number 6 returns to the
specious contention respondent presented in his opening brief:
that the warrants were issued as a result of the liquidated
damages clause. Even if a connection was established by virtue
of the warrants in the liquidated damages clauses of the PPAs,
all such connections were severed by the SRA, which superseded
the PPAs.
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Last modified: November 10, 2007