parties contract whether mr hampton turned his terminations was involuntary specifically who initiated the termination and the circumstances surrounding the reasons for mr hanson sturman ation the district court improperly considered in ways the evidence in light most favorable to mr color and not mr hampton court is aware of this matter turns on the post closing agreement which has two sentences district court st page fourteen goes outside of the record to talk about what the purpose of the escrow agreement was and the court found without any evidence in the record the purpose choice for hampton's shares that he owned as a minority shareholder when his company was saul there was four million dollars placed nasco and he had a pro rata share of one hundred and sixty four thousand dollars there's nothing the record said this is only for predictability and continuation during the transition period instead we know because november two thousand and seventeen when the escrow payment was paid out there was only a nominal decrease nes a payment you would have received about six thousand dollars plus or three percent less so i get paid fifteen the court spent two pages talk about constructivist charge which is not even an issue  court viewed the light most favorable to mr kohler to find that mr hanson has expressed a willingness to leave before obtaining real renewal of customer agreement and that was with a ma customer mr hampton in his affidavit and his deposition consistently said what had happened here is he was given a new job responsibilities which included international travel  went to his immediate supervisor and asked whether that was something that they could reconsider because he had a senior in high school and elderly parents that were living with them and that he wanted to be home for them all he was asking for was reconsideration on job responsibilities and whether that would work for them and then said after having a meeting with the c e o after speaking to mr sydell and mr fantasy several days later the company offered him a severance package to depart thirty days later more than thirty days later became a factor in the court and said do i need to do this international travel that it's not something i have done in the past can i do something different where you work with me on this and instead they came back to him and said your value to us and as cents as we just need to have around agreement came after that yes your honor and thank you the judge well can be materiality it is exactly what we we believe should have happened here is you don't need to go any further than the separation agreement the separation agreement and plane and i'm back ambiguous language so that it was khadafi the wish to reach an amicable separation with mr hampton and then it was dull steve who presented the separation agreement their attorneys to have this this employees they like that's what their testimony was it's just they didn't need them anymore and how do i know that's because if you look at the life most never got to mr hampton we know st of all everybody testified no loss of revenue for the three months hello how benefits in the salary bonuses to separation and the two hundred dollars an hour until april th all that adds up to three percent less than one hundred and fifty five thousand is th is there somewhere i can go to quantify other than a separation agreement i don't do not think you can quantify the value of that separation agreement it gives you a thirty seven thousand five hundred severance pay back and some benefits but it does not give you any mr hampton specifically get replaced which would be more akin to somebody who would quit his job no they testified they didn't even replace him that they just took his job responsibilities and gave it to others for that they keep him on the payroll no khadafi got the benefit of not even have him on the payroll see where were they happy because they got what they needed out of them in the consulting agreement yesterday they were able to renew that major customer and then finally the agreement the post close to agreement between color and hampton that quarterly was out anything no he didn't lose out anything this would be a total went fall for him because he didn't lose out anything finally you are honored to pick up on foot judge walker's just point out is this is our position  the district court should have stayed within the four forces that separation agreement and that language said that it was khadafi to initiated determination and that mr hampton and that would entitle mr education number one was mr hampton terminated by cadel's key number two was the termination without cause as described in the employment agreement number three does the resolution of either of those issues require the of material disputed issues of fact the answer to all three of those questions was no the post closing agreement an ambiguously states that in order for the exception to continuous employment to apply he must be terminated by the corporation without cause as provided in the older milestone employment agreement that language in the post closing agreement references incorporates the express without cause provision of the employment and there was no attempt to comply with that provision requirement of thirty days written notice prior to terminations section sixteen b of the employment agreement moreover since the terminations was in fact initiated by hand in i'll talk more about let me find the cites to the record your honor  first of all the unusual discussion where this came up in my colleague was what was discussing this in his presentation where mr hampton was complaining about the trouble that was required so his own testimony is and this is hampton deposition pages is undisputed in the record was fired without cause like a bell ski you know where to get it done anything wrong he was fired without cause for mr hampton was asking to be fired because that's what they did with thompson this was the st time there was a discussion of his future after they they discussed the change in his responsibilities and he starts talking about separation additionally he admits he company initiated the terminations your honor the company and we have a declaration from mr thompson in the record that supports this that he did not want to leave and he had no intention of leaving but the company gave him no choice and terminated him without cause that testimony is unopposed in this record so it was clearly a different situation because mr thompson did not want to leave the organization and he wanted him to leave on the other hand for record his actual words so what you're presenting is the construction of what he's cleared as opposed to an undisputed meaning is nothing in the record that would suggest any kind of contrary view of that remark and additionally we have the statements by  that that's just that's just standing within the contracts i greeted but judge krink went at it in a slightly different direction your honor he was focusing on who initiated the terminations for purposes of the by the company language and i think he was he was taking the lead here from the other district court opinions that we had cited could he in will instance where the court adopted a similar load of analysis using that addresses mutual consent of could else hampton and then there is sixteen b that allows for a without cause terminations by cadel's q but would have required thirty days written notice something that never occurred and since under the rules of contract construction the more specific law should govern or the over the more general sixteen a mutual consent is clearly more a political year than sixteen b when there wasn't even a fulfillment of the notice requirement b the only evidence that mr hampton offers d and it and i agree with you go to logan that that is as far as you need to go but to the extent that it doesn't even matter whether this was sixteen it turns wasn't but the again just just to help the court understand the way judge frank was looking at it because of the fact that the mr hampton contests who initiated it d the only evidence in this record that would suggest that mr hampton's did not initiate it is his self serving declaration of inadmissible hearsay that could  they wanted to terminate is one you cannot accept that testimony for the truth of what of what it says because it is classic textbook here's now there is some suggestion but that isn't in an accurate reading of that decision by natural timing publications does not allow the court to consider or to be to rely on in admissible hearsay in that case there was other admissible evidence upon which the court relied to determine that there was a fact issue requiring a trial and there's also a reference to an expression in the cell at tech u s supreme court case of what that for health was that the evidence is not have to be in a form that admissible in trouble all that means is that a party can submit by affidavit what they will then be able to put into trial at evidence by way of either deposition or live testimony it does not mean that we ignore the rules of hearsay and this statement by by the by the plane by mr hampton himself will not be admissible at trial because he again has nobody else who can support the guys from the executives absolutely refuted it they said no such thing to them so the only way that comes into evidence is if it's by hampton and that is classic hearsay it will not come in the smith st kilgore case which i don't believe we  i'd like to turn to zero one other point on that i believe my colleague as well as sure that they are trying to get this hearsay evidence in the record because it's not being offered for the truth of the matter that they actually told him this but instead for its impact on mr hampton himself but that doesn't matter it becomes a material issue if you are looking at it for its impact on that all he had to do was to sit tight until the escrow timo would bet and he would either be terminated without cause as was allowed under sixteen b guaranteeing in the right to participate or they would have kept an employee so what he was thinking at the even if that was their instead all he had to do was wait for them to or up the germination rather than jumping into a mutually agreed upon terminate and which precludes him under the post closing agreement from any recover he had to be terminated without cause and he had to wait for it to actually happen if he was going to be entitled to participate in the escrow to moms otherwise all of those issues become costs from either party the the the court needs to look back to the actual employment agreement that mr hampton had with miles the various types of cause that can exist and that employment agreement is expressly corporative by reference in the post closing agreement or st to a terminations without cause so it is based on those contracts and incorporation of those two contracts that we arrive at what a without cause termination is and some unwillingness to go abroad would not have constituted cause the mr hampton argues that judge frank improperly looked too extrem sick evidence to determine the purpose of the agreement and my colleague suggested to you a moment ago that a purpose of the post closing agreement was to make belsky d happy that's absolutely untrue and there is nothing in the record to support you don't have to look beyond the four corners of the post closing agreement to determine what its purpose was it states in section one in sections three that its purpose was to was to require that hampton stay there through the escrow dates or suffer a determination without cause under the language of the employment agreement in states this in two places that he has to remain there in order to collect so judge the judge at the dish per level judge wright not have to look outside that contract to arrive at that conclusion but there  absolutely nothing that suggests that the purpose of the post closing agreement which could dusky was not even a party was to make them happy but we do have the declaration of mr kohler in the record where he explained and he was a party to the post closing agreement where he explained why this was important in it was to make sure that mr hanson was still there rowing the board the boat towards the achievement of these are not objectives in order to improve the image that everybody would recover one other point that i just want to touch upon involving the campus trade decision and this issue of materiality because it's been briefed extensively i would just emphasize that the minutes thank your honor i can go back and if i can interrupt i'm sorry to do it right away but there's one fact that i find crucial that i'd like to see if you can overcome and that is that your client testif his deposition the determination was by mutual consent thank you your honor so if i could and that's exactly the point i want to address my last two minutes goes back to judge locums question so they were coming to him and saying we don't need to except for this one purpose where you stick around to help us get this contract signed on for a consulting agreement there's a separation agreement that we're asking your sign off but he agrees to that that's implies that it is against my will against my consent it seems to me those two things are not compatible but i think they are compatible because this happens all the time or an employee is and let go the terms of surrender are do you want the severance agreement or you're just going to walk away from it you're still terminated you're still a dime and in this circumstance everybody's helped it worked out well for everybody even mr kohler so when mister koehler was looking for his escrow payments to be mad they were still back here you got everything he had coming to about this is just a total one fall for him he didn't lose out on anything was happy they didn't lose out on anything they still have their customer contract or new hampton was let go and not replaced that's what khadafi testified to once they let him go then replace  not enough all st of all you know we're not conceding that sixteen beats the only way to be terminated you can be sixteen a dull applies to and how do i know that because the contract doesn't specifically reference sixteen d d in the post quote the