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matters, his removal as petitioner’s chairman and CEO. V.
Eihusen on several occasions also communicated with First
National representatives and objected to First National, in its
role as the ESOP’s trustee, voting the ESOP’s shares in
petitioner as directed by the ESOP committee because of what he
believed was the ESOP committee’s conflict of interest. First
National continued receiving directives from the ESOP committee
with respect to voting the ESOP’s shares in petitioner. The
voting maintained V. Eihusen’s lack of control of petitioner’s
board and management.
3. ESOP Litigation
Because it was receiving conflicting directives from the
ESOP committee and from V. Eihusen, First National on October 11,
1994, filed a lawsuit in the U.S. District Court for the District
of Nebraska (ESOP litigation), under the caption “First National
Bank of Omaha, as Trustee of the Chief Industries, Inc. Employee
Stock Ownership Plan and Trust, Plaintiff vs. Chief Industries,
Inc.; Robert G. Eihusen, Linda M. Berney, David Schocke, Barbara
Saladen, as members of the Administration Committee of the Chief
Industries, Inc. Employee Stock Ownership Plan; Virgil R.
Eihusen, Individually; and Robert G. Eihusen, Individually,
Defendants”. First National essentially sought through this
lawsuit a declaratory judgment that it might vote the shares in
petitioner held by the ESOP in accordance with the specific
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