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could take certain actions on behalf of WCB Holdings:
the chief manager needed the approval of the members
representing the majority of the class A governance
units before he could issue additional membership
units, lend, borrow, or commit WCB Holdings’s funds in
excess of $25,000, authorize capital expenditures in
excess of $10,000, sell any of WCB Holdings’s assets,
including its Empak stock, worth over $10,000 in any
twelve month period, or vote any securities, including
its Empak stock, owned by WCB Holdings.
Majority op. p. 14; emphasis added.
After decedent funded, by gift, on March 15, 1997, the
Children’s Trust, the Grandchildren’s Trust, and the QTIP Trust,
each with certain class A governance units and certain class A
financial units in WCB Holdings, decedent no longer owned a
majority of the class A governance units in WCB Holdings, the
only voting units in WCB Holdings. Thus, decedent could not have
approved, and certainly could not have required, that the chief
manager commit any of WCB Holdings’s funds in excess of $25,000
for the purpose of redeeming the WCB Holdings class B membership
interests owned by BFLP. In addition, decedent could not have
approved, and certainly could not have required, that the chief
manager sell to Empak, through a redemption by Empak, Empak stock
owned by WCB Holdings worth over $10,000 in any 12-month period.
Another factual flaw in the majority opinion’s rationale
relates to the conclusion that decedent had the ability to cause
Empak to redeem the Empak stock owned by WCB Holdings. That
conclusion disregards not only the implications of the majority
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