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confirming his agreement to give Ms. Moore “10% of the net
proceeds upon the sale of * * * [the LLC]”, but, petitioners
argue, not an additional 10-percent share of annual income, (3)
the fact that the Schedules K-1 attached to the 1997-2000 LLC
partnership returns all state that the three members share LLC
profits and losses in a ratio of 88 percent for Dr. Joffe, 10
percent for Dr. McKernan, and 2 percent for Ms. Moore, (4) the
Kelly correspondence, in which Mr. Kelly expressed his
understanding, presumably obtained from the Moore letter and,
perhaps, from other conversations or communications with Ms.
Moore, that the foregoing 88-10-2-percent LLC ownership split was
still in effect, (5) the LLC members’ failure to satisfy the
requirements of the LLC operating agreement governing
dispositions of membership interests, and (6) the SouthTrust Bank
credit report, which, petitioners allege, indicates that, as late
as December 1, 1998, SouthTrust Bank believed that Dr. Joffe
still owned 88 percent of the LLC. Petitioners state: “The
documentary evidence of the bank loan * * * confirms that * * *
[Dr. Joffe] pledged * * * [his 88 percent] membership interest to
SouthTrust Bank in March 1999, [the date of the loan] over two
years after respondent claims he transferred 10% of that interest
[to Ms. Moore].”
Petitioners view the language in the assignment and
assumption agreement creating an effective date “as of” January
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