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was still a member of the board at that time. Pursuant to the
Mid-Am purchase agreement, petitioner acquired Mid-Am, and Mid-
Am’s sole shareholder, Thomas Hastings (Hastings), received,
among other things, 58,366 shares of stock in petitioner, a put,
and the entitlement to more shares as an earn-out. The
consideration received by Hastings, a college friend of R.
Eihusen, was unusually generous as compared with the
consideration petitioner used in other acquisitions, and V.
Eihusen believed that this transaction was undertaken for the
purpose of diluting his ownership interest in petitioner.
V. Eihusen filed a third-party complaint in the ESOP
litigation against members of the board, alleging that they
committed a breach of fiduciary duty owed to him and to other
shareholders of petitioner and that they engaged in civil
conspiracy. Subsequently, he amended the third-party complaint
to name petitioner and Hastings as defendants. V. Eihusen prayed
in the third-party complaint for an injunction, the rescission of
agreements among and between petitioner, Mid-Am, and Hastings, an
award of attorney’s fees and costs, and for the ordering of other
types of relief. On October 30, 1995, the District Court
dismissed the third-party complaint, as amended, for lack of
subject matter jurisdiction.
Following this dismissal, V. Eihusen on November 14, 1995,
filed a lawsuit in the District Court of Hall County, Nebraska
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