AMENDMENT NO. 1 TO SHAREHOLDERS AGREEMENT
EXHIBIT
4.17
Execution
Copy
AMENDMENT
NO. 1 TO
This
Amendment No. 1, dated as of December 7, 2005 (this “Amendment”) to the
Shareholders Agreement, dated as of March 14, 2000 (the “Agreement”), by and
among Berkshire Hathaway Inc., a Delaware corporation (“Berkshire”); Xxxxxx
Xxxxx, Xx. (“Xxxxx”), Xxxxxx Xxxxx Xxxxxx, Xxx Xxxx Xxxxx Trust #3, Xxxxx Xxx
Xxxxx Trust #3, Xxxxxx Xxx Xxxxx Trust #3, Xxxxxx Xxxxx Xxxxx Trust #3, Xxx
Xxxx
Xxxxx Wyoming Trust, W. Xxxxx Xxxxx Wyoming Trust, Xxxxx Xxx Xxxxx Wyoming
Trust, Double Eight Land Corporation (the “Xxxxx Family Entities”) and Xxxxx X.
Xxxxx and Xxxxxxx X. Xxxx (the “Management Investors,” and, together with
Berkshire, Xxxxx and the Xxxxx Family Entities, the “Investors”); and
MidAmerican Energy Holdings Company, an Iowa corporation (formerly named Teton
Acquisition Corp., and hereinafter referred to as the “Company”).
WHEREAS,
Xxxxx and the holders of a majority in interest of the Xxxxx Family Entities’
Securities have agreed to eliminate their existing right under Section 4(c)
of
the Agreement to require the payment of cash by Berkshire upon any exercise
of
the Xxxxx Put, but will retain their existing right under Section 4(c) to
receive shares of Berkshire common stock upon any exercise of the Xxxxx
Put;
WHEREAS,
Berkshire has agreed to grant to the Management Investors a similar right to
put
their shares of Common Stock, no par value, of the Company (“Common Stock”) to
Berkshire in exchange for shares of Berkshire common stock;
WHEREAS,
the Management Investors have agreed to grant to Berkshire a right of first
refusal in respect of the Securities owned by them;
WHEREAS,
the parties hereto desire to clarify that all puts of Common Stock to Berkshire
in exchange for Berkshire common stock made at any time after Berkshire owns
in
excess of 80% of the vote and value of the Company are intended to qualify
as a
tax-free reorganization within the meaning of Section 368(a)(1)(B) of the
Internal Revenue Code of 1986 (the “Code”) and the parties further intend that
the Agreement, as amended, constitutes a “plan of reorganization” within the
meaning of Treasury Regulation Section 1.368-2(g) as to such puts and that
each
such exchange of Common Stock for Berkshire common stock will be pursuant to
such plan of reorganization; and
WHEREAS,
the parties hereto desire to amend the Agreement to effect the foregoing changes
and other related changes, all as further set forth herein.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the parties hereto agree as follow:
1. SECTION
2(a).
Section
2(a) of the Agreement is hereby deleted in its entirety and replaced by a new
Section 2(a) to read as follows:
“(a)
Resale
of Management Investors' Securities.
Except
as otherwise provided in Section 3, and except for Permitted Management
Transfers (as defined below), no Management Investor shall Transfer any
Securities, or any beneficial interest therein, other than to (i) such
Management Investor's spouse, or his or her ancestors, lineal descendants,
siblings or estate, (ii) any trusts for the benefit of such Management Investor
or any of the persons or entities described in subpart (i) hereof, (iii) any
limited liability company, partnership or corporation controlled by, and
substantially entirely owned by, such Management Investor and/or any of the
persons or entities described in subpart (i) hereof and (iv) charitable
foundations or trusts which are controlled by such Management Investor and/or
any of the persons described in subpart (i) hereof (collectively, “Management
Permitted Transferees”). As used herein, “Permitted Management Transfers” shall
mean (v) Transfers between or among such Management Investor's and/or his
spouse's Management Permitted Transferees, (w) Transfers between Management
Investors, (x) Transfers at any time in compliance with Sections 2(d) through
2(k) hereof, (y) Transfers made at any time pursuant to the Management Put
described in Section 4(a), the Management Call described in Section 4(b) or
the
Management Exchange Put described in Section 4(d) and (z) other Transfers agreed
upon by such Management Investor and Berkshire from time to time. For the
avoidance of doubt, this Section 2(a) is not intended to diminish any transfer
restrictions contained in any option agreement governing the Options. The
Transfer restrictions contained in this Section 2 shall terminate upon a
Berkshire Majority Transfer.”
2. SECTION
2(d).
Section
2(d) of the Agreement is hereby amended by deleting the word “unless” contained
therein and by replacing it with the following words: “and, except as otherwise
permitted by Section 2(a) hereof, no Management Investor shall Transfer any
Securities, unless, in any such case,”.
3. SECTION
2(e).
Section
2(e) of the Agreement is hereby amended by deleting the words “shares of Common
Stock” in both places where they appear therein and by replacing them in both
such places with the words, “applicable Securities”.
4. SECTION
4(a).
Section
4(a) of the Agreement is hereby amended by adding a new proviso at the end
of
the first sentence thereof, to read as follows: “; and provided further that a
Management Investor may not exercise his or her Management Put at any time
that,
and for so long as, the Company notifies the Management Investors that, in
its
good faith judgment after consultation with outside counsel experienced in
tax
matters, there is a meaningful risk that the exercise of a Management Put at
that time could reasonably be expected to cause any exchange pursuant to a
Xxxxx
Exchange Put or a Management Exchange Put to fail to qualify as a tax-free
reorganization within the meaning of Section 368(a)(1)(B) of the
Code.”
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5. SECTION
4(b).
Section 4(b) of the Agreement is hereby amended by inserting the words “subject
to the provisions contained in the last sentence of Section 4(f)(ii) hereof,”
immediately after the words “At any time after the earlier of the third
anniversary of the date hereof or a Berkshire Majority Transfer,” contained in
the first sentence of Section 4(b). Section 4(b) of the Agreement is hereby
further amended by deleting the words “only once” contained in the proviso to
the first sentence thereof and replacing such words with the words “no more than
twice”.
6. EXISTING
SECTIONS 4(c), 4(d) AND 4(e).
Sections
4(c), 4(d) and 4(e) of the Agreement shall be eliminated in their entirety
and
replaced by new Sections 4(c), 4(d) and 4(e) to read as follows:
“(c)
The
Xxxxx Exchange Put.
At any
time following the date of Amendment No. 1 to this Agreement, and provided
in
any such case that Berkshire is then an Eligible Purchaser, Xxxxx, any or all
of
the Xxxxx Entities and any or all of the Xxxxx Family Entities shall have the
right to require Berkshire to purchase, upon the terms and subject to the
conditions of this Agreement, any or all of the shares of Common Stock owned
by
such persons and entities (the “Xxxxx Exchange Put”) in exchange for shares of
Berkshire common stock (“Berkshire Shares”) equal in value to the Final Agreed
Purchase Price or Final Appraised Purchase Price, as applicable. For purposes
of
any such purchase and exchange, the value of each Berkshire Share to be received
in the exchange shall be equal to the closing price quoted for such Berkshire
Shares on the New York Stock Exchange on the day immediately preceding the
closing of such exchange. In the event that Xxxxx, any of the Xxxxx Entities
or
any of the Xxxxx Family Entities elect to exercise the Xxxxx Exchange Put,
then
such person or entity shall provide a written exchange put notice to Berkshire
specifying the number of shares of Common Stock to be put and exchanged by
them
(a “Xxxxx Exchange Put Notice”). The Xxxxx Exchange Put shall terminate upon a
Berkshire Majority Transfer. Berkshire shall register all Berkshire Shares
issued upon any exercise of a Xxxxx Exchange Put for resale by promptly filing
an S-3 Registration Statement (or, when applicable, a prospectus supplement)
with respect to such shares if the value thereof exceeds $15 million and,
in connection therewith, Berkshire shall, if eligible, request automatic
effectiveness under Rule 415 (“Rule 415”) promulgated pursuant to the Securities
Act of 1933, as amended. Notwithstanding anything contained in this Agreement
to
the contrary, Berkshire shall have no obligation to register any such Berkshire
Shares (or, following a registration of such Berkshire Shares, to maintain
the
effectiveness of the applicable Registration Statement) if all such Berkshire
Shares may be sold in a single sale without any limitation as to volume under
Rule 144(e) of the Securities Act by virtue of Rule 144(k) thereunder. In
addition, if any registration of such Berkshire Shares should not be made or
continued because it would require Berkshire to disclose in a registration
statement information not otherwise then required by law to be publicly
disclosed (without regard to any existing registration statement filed in
connection with this Agreement) and Berkshire has a bona fide purpose for
delaying such disclosure (a “Valid Business Reason”), then Berkshire may
postpone filing the registration statement or, if a registration statement
has
already been filed, may (upon prompt notice to the selling stockholders)
postpone amending or supplementing such registration statement, until such
Valid
Business Reason no longer exists, provided that Berkshire agrees to use all
reasonable efforts to minimize the duration and frequency of any such delays
to
the extent consistent with Berkshire’s financial, strategic, and other business
priorities and provided further that any such postponement or postponements
shall not exceed an aggregate of ninety (90) days during any consecutive period
of one hundred and eighty (180) days..
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(d)
The
Management Exchange Put.
At any
time following the date of Amendment No. 1 to this Agreement, and provided
in
any such case that Berkshire is then an Eligible Purchaser, any or all of the
Management Investors shall have the right to require Berkshire to purchase,
upon
the terms and subject to the conditions of this Agreement, any or all of the
shares of Common Stock owned by such persons (the “Management Exchange Put”) in
exchange for Berkshire Shares equal in value to the Final Agreed Purchase Price
or Final Appraised Purchase Price, as applicable; provided, however, that a
Management Investor may exercise a Management Exchange Put as to his or her
Common Stock only once in any twelve month period. For purposes of any such
purchase and exchange, the value of each Berkshire Share to be received in
the
exchange shall be equal to the closing price quoted for such Berkshire Shares
on
the New York Stock Exchange on the day immediately preceding the closing of
such
exchange. In the event that any of the Management Investors elect to exercise
the Management Exchange Put, then such person shall provide a written exchange
put notice to Berkshire specifying the number of shares of Common Stock to
be
put and exchanged by them (a “Management Exchange Put Notice”). The Management
Exchange Put shall terminate upon a Berkshire Majority Transfer. Berkshire
shall
register all Berkshire Shares issued upon any exercise of a Management Exchange
Put for resale by promptly filing an S-3 Registration Statement (or, when
applicable, a prospectus supplement) with respect to such shares if the value
thereof exceeds $15 million and, in connection therewith, Berkshire shall,
if
eligible, request automatic effectiveness under Rule 415. Notwithstanding
anything contained in this Agreement to the contrary, Berkshire shall have
no
obligation to register any such Berkshire Shares (or, following a registration
of such Berkshire Shares, to maintain the effectiveness of the applicable
Registration Statement) if all such Berkshire Shares may be sold in a single
sale without any limitation as to volume under Rule 144(e) of the Securities
Act
by virtue of Rule 144(k) thereunder. In addition, if Berkshire determines,
in
its good faith judgment, that any registration of such Berkshire Shares should
not be made or continued because of a Valid Business Reason, then Berkshire
may
postpone filing the registration statement or, if a registration statement
has
already been filed, may (upon prompt notice to the selling stockholders)
postpone amending or supplementing such registration statement, until such
Valid
Business Reason no longer exists, provided that Berkshire agrees to use all
reasonable efforts to minimize the duration and frequency of any such delays
to
the extent consistent with Berkshire’s financial, strategic, and other business
priorities and provided further that any such postponement or postponements
shall not exceed an aggregate of ninety (90) days during any consecutive period
of one hundred and eighty (180) days.
(e)
The
Purchase Price
The
purchase price payable pursuant to Section 4(a) or 4(b) above shall be payable
in cash and the purchase price (also sometimes referred to as the exchange
price) payable pursuant to Section 4(c) or 4(d) above shall be payable in
Berkshire Shares. Any purchase and exchange effected pursuant to Section 4(c)
or
4(d) above at a time when Berkshire owns more than 80% in vote and value of
the
Company shall be deemed to have been implemented in a plan of reorganization
within the meaning of Treasury Regulation section 1.368-2(g). With respect
to
any shares of Common Stock subject to any Management Put, Management Call,
Xxxxx
Exchange Put or Management Exchange Put, the purchase price (or exchange price)
shall equal the applicable number of shares of Common Stock multiplied by the
purchase price per share, which shall be the fair market value of a share of
Common Stock assuming the Company is valued on a going-concern basis as though
it were a publicly traded company with reasonable liquidity in the market for
its shares and without a controlling shareholder and without attributing any
change of control premium to the sale of such share, and taking into account
all
aspects of the Company's capital structure including all outstanding options.
With respect to any Options subject to a Management Put, the purchase price
shall be determined as if the Options had been exercised, with the purchase
price per share determined as described above, and reduced by the applicable
exercise price or prices. With respect to any Options subject to a Management
Call, the purchase price determined as described in the immediately preceding
sentence shall be increased to the extent required to reflect the loss of the
remaining time value of the Options. The applicable purchase price (or exchange
price, as applicable) as determined pursuant to this Section 4(e) is referred
to
as the “Purchase Price” and the applicable “Final Agreed Purchase Price,” “Final
Appraised Purchase Price” and “Final Purchase Price” shall be determined
pursuant to the applicable procedures set forth in Sections 4(f) and 4(g)
below.”
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7. EXISTING
SECTIONS 4(f) AND 4(g) AND NEW SECTION 4(f).
Sections
4“(f)” and 4“(g)” of the Agreement are amended by recaptioning such sections as
Sections 4“(g)” and 4“(h)”, respectively, and by inserting a new Section 4(f)
immediately before such recaptioned section 4(g), with such new Section 4(f)
to
read in its entirety as follows:
“(f)
Determination
of the Purchase Price for the Management Put or Management Call or for the
Management Exchange Put.
(i) As
soon as reasonably practicable, but in any event within fifteen (15) days,
following the delivery of a Management Put Notice or a Management Call Notice,
the Company shall prepare and deliver to each selling Management Investor a
statement setting forth the good faith calculation of the Purchase Price as
of
the date of the notice, together with detail reasonably sufficient for such
Management Investor(s) to evaluate the accuracy of such calculation (the
“Purchase Price Statement”). Unless any selling Management Investor, within
fifteen (15) days after receipt of the Purchase Price Statement, delivers to
the
Company a notice (the “Dispute Notice”): (i) objecting in good faith to such
Purchase Price Statement, (ii) setting forth in reasonable detail the items
being disputed and the reasons therefor and (iii) specifying such selling
Management Investor's preliminary calculation of the Purchase Price as of the
date of the Put Notice or the Call Notice, as applicable, such Purchase Price
Statement shall be deemed to be final, and the Purchase Price set forth therein
shall be deemed to be the applicable “Final Agreed Purchase Price”. If a selling
Management Investor delivers a Dispute Notice and if the Company and such
selling Management Investor(s) are unable to agree upon a Final Agreed Purchase
Price within thirty (30) days of the date of the Dispute Notice, then any such
selling Management Investor or the Company may elect to submit the calculation
of the Purchase Price to an independent appraiser who shall be a member of
a
reputable valuation firm or investment bank which is designated jointly by
the
Company and such Management Investor(s); provided, however, that the Company
and
the Management Investors (as a group) may each only exercise their respective
rights to seek an appraisal under this Section 4(f)(i) or, in the case of the
Management Investors, Section 4(f)(ii) only once in any twelve (12) month
period. Such appraiser shall determine the Purchase Price as of the date of
the
Management Put Notice or Management Call Notice, as applicable, and such
Purchase Price shall be deemed to be the applicable “Final Appraised Purchase
Price”. If the appraisal results from a Management Put Notice or a Management
Call Notice, within thirty (30) days of the determination of the Final Appraised
Purchase Price by the appraiser, (i) any Management Investor, including the
Management Investor giving the original Management Put Notice, may elect to
exercise or withdraw its Management Put to sell Securities to the Company for
the applicable Final Appraised Purchase Price and (ii) the Company may elect
to
exercise or withdraw the Management Call to purchase Securities from any
Management Investor, including the Management Investor giving the original
Management Put Notice, for the applicable Final Appraised Purchase Price. If
the
Management Put is exercised pursuant to the preceding sentence by any Management
Investor, then the Management Investors (as a group) shall have no further
right
to request an appraisal under this Section 4(f)(i) or under Section 4(f)(ii)
below for a twelve (12) month period in connection with a Management Put or
Management Call or a Management Exchange Put, and if the Management Call is
exercised pursuant to the preceding sentence, then the Company shall have no
further right to request an appraisal for a twelve (12) month period in
connection with a Management Put or Management Call.
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(ii)
As
soon as reasonably practicable, following the delivery of a Management Exchange
Put Notice, Berkshire shall prepare and deliver to each Management Investor
who
delivered such a notice a Purchase Price Statement. Unless any such Management
Investor, within fifteen (15) days after receipt of the Purchase Price
Statement, delivers to Berkshire a Dispute Notice (i) objecting in good faith
to
such Purchase Price Statement, (ii) setting forth in reasonable detail the
items
being disputed and the reasons therefore and (iii) specifying such Management
Investor’s preliminary calculation of the Purchase Price as of the date of the
Management Exchange Put Notice, such Purchase Price Statement shall be deemed
to
be final, and the Purchase Price set forth therein shall be deemed to be the
applicable “Final Agreed Purchase Price”. If a Management Investor delivers a
Dispute Notice and if Berkshire and such Management Investor(s) are unable
to
agree upon a Final Agreed Purchase Price within thirty (30) days of the date
of
the Dispute Notice, then any such Management Investor(s) or Berkshire may elect
to submit the calculation of the Purchase Price to an independent appraiser
who
shall be a member of a reputable valuation firm or investment bank which is
designated jointly by Berkshire and such Management Investor(s); provided,
however, that Berkshire and the Management Investors (as a group) may each
only
exercise their respective rights to seek an appraisal under this Section
4(f)(ii) or, in the case of the Management Investors, under Section 4(f)(i)
only
once in any twelve (12) month period. Such appraiser shall determine the
Purchase Price as of the date of the Management Exchange Put Notice and such
Purchase Price shall be deemed to be the applicable “Final Appraised Purchase
Price”. Notwithstanding anything to the contrary contained in Section 4(b) or
elsewhere in this Agreement, from and after the date of delivery of a Management
Exchange Put Notice by any Management Investor, the Company shall have no right
to exercise its Management Call as to any shares of Common Stock that are the
subject of a Management Exchange Put.”
8. SECTION
4(g).
Recaptioned Section 4(g) of the Agreement is hereby amended by deleting the
words “ten (10) days” in the second sentence thereof and replacing them with the
words “fifteen (15) days”.
9. SECTION
4(h).
Recaptioned Section 4(h) of the Agreement is hereby amended by inserting the
words “(or Final Agreed Purchase Price or Final Appraised Purchase Price, as
applicable)” immediately after the words “Final Purchase Price” in the first
sentence thereof and by deleting the last two sentences of such section and
by
replacing them with three new sentences to read as follows:
“The
purchase price shall be paid in cash or Berkshire Shares, as applicable, at
the
closing. At the closing, the selling or exchanging Investor(s) shall deliver
to
the purchasing party the certificates evidencing the Securities to be conveyed,
duly endorsed and in negotiable form with all requisite documentary stamps
affixed thereto. In addition, if the closing relates to an exercise of a Xxxxx
Exchange Put or a Management Exchange Put, then Berkshire shall deliver to
the
exchanging Investor(s) duly authorized and executed certificates evidencing
the
applicable Berkshire Shares at the closing.”
10. THE
WORDS “XXXXX PUT” AND “XXXXX PUT NOTICE”.
The
words “Xxxxx Put” and “Xxxxx Put Notice” shall be replaced with the words “Xxxxx
Exchange Put” and “Xxxxx Exchange Put Notice”, respectively, in each and every
place that they appear in the Agreement.
11. CERTAIN
SECTION REFERENCES.
All
references to “4(d)” and “4(e)” contained within the defined terms set forth in
Section 7(a) of the Agreement shall be amended to read “4(e)” and “4(f)”,
respectively.
12. DEFINITION
OF “TRANSFER”.
The
definition of the term “Transfer” contained in Section 7(a) of the Agreement
shall be amended by adding the words “Management Exchange Put” immediately after
the words “Management Put” contained therein.
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13. SECTION
8(d).
Section
8(d) of the Agreement is amended by changing the reference to “4(a), (b), (d),
(e) and (g)” contained therein to read “4(a), 4(b), 4(d), 4(e), 4(f) and 4(h)”.
Section 8(d) is further amended by changing the reference to “4(c)-(g)”
contained therein to read “4(c), 4(e), 4(f), 4(g) or 4(h)”.
14. NO
OTHER AMENDMENTS.
Except
as expressly set forth in this Amendment, there shall be no other changes to
the
Agreement and all other provisions of the Agreement shall remain in full force
and effect.
15. GOVERNING
LAW.
This
Amendment shall be governed by and construed in accordance with the laws of
the
State of Iowa applicable to contracts made and to be performed entirely within
such State.
16. SECTION
HEADINGS.
The
headings of sections in this Amendment are inserted for convenience only and
shall not be deemed to constitute a part hereof.
17. COUNTERPARTS.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original and all of which together shall be considered one and the
same agreement.
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IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
date
first above written.
MIDAMERICAN ENERGY HOLDINGS COMPANY | ||
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By: | /s/ Xxxxxxx X. Xxxxxxxx | |
Name: Xxxxxxx X. Xxxxxxxx | ||
Title: |
/s/ Xxxxxx Xxxxx, Xx. | ||
Xxxxxx Xxxxx, Xx. | ||
MANAGEMENT INVESTORS | ||
/s/ Xxxxx X. Xxxxx | ||
Xxxxx X. Xxxxx | ||
/s/ Xxxxxxx X. Xxxx | ||
Xxxxxxx X. Xxxx | ||
BERKSHIRE HATHAWAY, INC. | ||
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By: | /s/ Xxxx X. Hamburg | |
Name: Xxxx X. Hamburg | ||
Title: |
[SIGNATURE
PAGE 1 OF SHAREHOLDERS AGREEMENT]
XXX XXXX XXXXX TRUST #3 | ||
By: | U.S. BANK NATIONAL ASSOCIATION, as trustee | |
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By: | /s/ Xxxxxxxx Sites | |
Name: Xxxxxxxx Sites | ||
Title: VP |
XXXXX XXX XXXXX TRUST #3 | ||
By: | U.S. BANK NATIONAL ASSOCIATION, as trustee | |
By: | /s/ Xxxxxxxx Sites | |
Name: Xxxxxxxx Sites | ||
Title: VP |
XXXXXX XXX XXXXX TRUST #3 | ||
By:
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U.S. BANK NATIONAL ASSOCIATION, as trustee | |
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By: | /s/ Xxxxxxxx Sites | |
Name: Xxxxxxxx Sites | ||
Title: XX |
XXXXXX XXXXX XXXXX TRUST #3 | ||
By: | U.S. BANK NATIONAL ASSOCIATION, as trustee | |
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By: | /s/ Xxxxxxxx Sites | |
Name: Xxxxxxxx Sites | ||
Title: VP |
[SIGNATURE
PAGE 2 OF SHAREHOLDERS AGREEMENT]
/s/ Xxxxxx Xxxxx Xxxxxx | ||
Xxxxxx Xxxxx Xxxxxx | ||
XXX XXXX XXXXX WYOMING TRUST | ||
By: | THE WASHINGTON COMPANY, a Wyoming | |
corporation, successor trustee | ||
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By: | /s/ Xxxx X. Xxxxx | |
Name: Xxxx X. Xxxxx | ||
Title: |
W. XXXXX XXXXX WYOMING TRUST | ||
By: | THE WASHINGTON COMPANY, a Wyoming | |
corporation, successor trustee | ||
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By: | /s/ Xxxx X. Xxxxx | |
Name: Xxxx X. Xxxxx | ||
Title: |
XXXXX XXX XXXXX WYOMING TRUST | ||
By: | THE WASHINGTON COMPANY, a Wyoming | |
corporation, successor trustee | ||
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By: | /s/ Xxxx X. Xxxxx | |
Name: Xxxx X. Xxxxx | ||
Title: |
DOUBLE EIGHT LAND CORPORATION | ||
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By: | /s/ Xxxxxx Xxxxx, Xx. | |
Name: Xxxxxx Xxxxx, Xx. | ||
Title: |
[SIGNATURE
PAGE 3 OF SHAREHOLDERS AGREEMENT]