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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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