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agreement to make a more formal agreement at a later date. It
appears that Mr. Marcus attempted to memorialize this by
extending a settlement offer in his January 16, 1997, letter to
Mr. Dunne, but Mr. Dunne did not accept that offer.
The other facts and circumstances also indicate that the
Inverness agreement did not transfer any accouterments of owning
Mr. Dunne’s shares to Mr. Marcus. While Mr. Dunne told Mr.
Marcus that he could conduct business as he wished at the
Inverness meeting, Mr. Marcus appears to have already had that
power as president of FRC. Furthermore, Mr. Dunne was not
exercising significant managerial control before 1997. In
addition, after the Inverness agreement, Mr. Dunne continued to
receive dividends from FRC and he continued to enjoy the benefits
and burdens of being a shareholder because he had not fixed a
selling price for his shares. Mr. Dunne also exercised his right
as a shareholder to petition for appointment of a custodian for
FRC in a State court. Finally, Mr. Dunne repeatedly asserted to
FRC and third parties that he continued to be a shareholder of
FRC after 1996. Therefore, we find that Mr. Dunne retained
beneficial ownership of FRC for at least part of 1997.
We next consider whether the May 8, 1997, settlement
agreement transferred beneficial ownership of Mr. Dunne’s stock
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