- 34 -
receive the same per-share consideration for her minority
interest as the controlling shareholder received.24
The failed 1994 Agreement represented the conservator's
continued pursuit of the same goals after the controlling
interest in Agri was in fact sold; namely, securing a fixed price
for decedent's interests from the new owner (FABG) that, in
addition, compensated decedent for her rights under the 1991
Agreement to receive the same consideration for her shares as
received by the controlling shareholder; i.e., the Hill Rights.25
The change in control had exacerbated the conservator's concerns
as a fiduciary regarding decedent's minority interest, since
decedent's interest in FABG was proportionally smaller than her
interest in Agri, and FABG was under unfamiliar management.
When the district court declined to approve the 1994
Agreement based on Rod's objections, the conservator commenced
24 Although the estate did not proffer the testimony of the
conservator who negotiated the 1991 Agreement, we are satisfied
from the successor conservator's testimony concerning decedent's
circumstances, and the 1991 Agreement itself, that the purpose of
the agreement was to benefit decedent by eliminating the downside
risks described above.
25 The conservator also sought to achieve an additional goal
in the 1994 Agreement to benefit decedent's interests; namely,
the avoidance of capital gains tax liability on the sale of the
FABG stock. The 1991 Agreement did not confer any right to defer
the sale (until death) of decedent's stock in the event of a sale
of the controlling interest in Agri. In providing that FABG's
call option was not exercisable until after decedent's death, the
1994 Agreement also implemented the conservator's goal regarding
capital gains tax liability.
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