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coincidentally, mirrored the split under the assignment and
assumption agreement. Therefore, we view the LLC’s 1998-2000
distributions in relative percentages approximating 68, 20, and
12 among Drs. Joffe and McKernan and Ms. Moore, respectively, as
strong evidence that those distributions reflected a 68-20-12-
percent membership interest allocation in the LLC among those
individuals during those years.
In the light of the foregoing, we find no basis for
concluding that the effective date provision of the assignment
and assumption agreement was caused by a mutual mistake
reformable by parol evidence under Georgia law.
b. Dr. Joffe’s Transfers of Membership Interests Under
the Assignment and Assumption Agreement Were Not
Void Because of Noncompliance With Article 10 of
the LLC Operating Agreement
Petitioners argue that, because Dr. Joffe’s membership
interest transfers to Dr. McKernan and Ms. Moore failed to comply
with the requirements of article 10 of the LLC operating
agreement, governing dispositions of membership interests, and
article 6, governing meetings of LLC members, his purported
transfer to Ms. Moore, as of January 1, 1997, “is null and void
ab initio” pursuant to article 10.7. Petitioners’ argument
ignores established principles of Georgia law, which provide that
contractual provisions may be waived by the mutual consent of the
parties to the contract, and that such consent may be established
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Last modified: November 10, 2007