Estate of George C. Blount, Deceased, Fred B. Aftergut, Executor - Page 38

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          control of the corporation.  We rejected that argument because              
          there were other shareholders whose consent was required to amend           
          the agreement.  Thus, control of the corporation did not, under             
          those facts, give the decedent the unilateral ability to amend              
          the agreement.                                                              
               In the instant case, the 1981 Agreement provided that it               
          could be modified only by the written consent of the “parties               
          thereto”.  The agreement contained no mechanism for adding                  
          parties.  Thus, after Mr. Jennings died and his shares were                 
          redeemed, decedent and BCC were the only remaining parties.23               
          Moreover, decedent owned shares constituting a controlling 83.2-            
          percent interest in BCC.  Consequently, after Mr. Jennings’s                

               23 Because persons who became BCC shareholders after the               
          1981 Agreement was executed were fully subject to the                       
          restrictions on the transfer of BCC’s shares established in that            
          agreement, an argument could be made that such subsequent                   
          shareholders--in particular, the ESOP--were “parties” to the 1981           
          Agreement.  In contending that the 1996 Agreement validly                   
          modified the 1981 Agreement and set the purchase price of                   
          decedent’s BCC shares at $4 million, the estate has necessarily             
          taken the position (and respondent does not dispute) that the               
          ESOP was not a “party” to the 1981 Agreement and that its consent           
          was not required to make modifications thereto.                             
               If, alternatively, “party” for purposes of the modification            
          provision of the 1981 Agreement were interpreted to include                 
          subsequent shareholders like the ESOP, then the 1996 Agreement on           
          which the estate relies in this case as establishing the value of           
          decedent’s BCC shares would be an invalid modification (because             
          it would lack the consent of all “parties”).  As a consequence,             
          the 1981 Agreement in its unmodified form would presumably                  
          survive.  However, the estate has not argued in the alternative             
          that the (unmodified) 1981 Agreement established the value of               
          decedent’s shares, and we deem that argument waived.                        

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