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to Mr. Marcus.4 The parties do not dispute that the settlement
agreement, unlike the Inverness agreement, was a valid and
legally enforceable contract under which Mr. Dunne agreed to sell
his FRC stock. However, because the settlement agreement did not
terminate Mr. Dunne’s interest in FRC until the settlement date,
which in 1997 was still some unspecified date in the future, we
must consider whether Mr. Marcus nonetheless possessed
substantially all of the accouterments of ownership by May 8,
1997.
The key provisions of the settlement agreement are that in
exchange for his stock Mr. Dunne would receive the book value of
FRC, set at $175,000, and half of the profit from the halon
contract. Mr. Dunne’s FRC stock would be held in escrow until he
received his share of the halon contract and the book value of
his stock. The settlement agreement also provided that Mr. Dunne
would have no shareholder or director rights after the settlement
date, which was to be the date of signing a memorializing
document anticipated to be no later than May 16, 1997.
Respondent argues that because the settlement agreement
expressly provided that Mr. Dunne would hold no shareholder
4 While respondent argues that petitioners have abandoned
this alternative argument because they did not argue it in their
posttrial brief, we believe that it is in the best interest of
justice to consider this alternative argument. During the trial,
we raised the issue of whether it was appropriate to consider the
settlement date as the date of sale, and respondent addressed
this issue on brief.
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