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Llamas v. Titus

Court of Chancery of Delaware

June 18, 2019

JEFFREY LLAMAS and STEVEN LLAMAS, Plaintiffs,
v.
STUART W. TITUS, JOHN W. HUEMOELLER and TIMOTHY R. SCOTT, Defendants, and STONE ASH, LLC f/k/a GENERAL HEMP, LLC, a Delaware limited liability company, and KETTNER INVESTMENTS, LLC, a Delaware limited liability company, Nominal Defendants. Company Stated Payments Annualized Payments AXIM Pledge Petroleum Air Water Earth TL-66 and Cross & Co. Stone Ash TOTAL: 395, 000 (100%)

          Date Submitted: April 15, 2019

          Albert H. Manwaring, IV, Albert J. Carroll, Alberto E. Chávez, MORRIS JAMES LLP, Wilmington, Delaware; Counsel for Plaintiffs.

          Kenneth J. Nachbar, R. Judson Scaggs, Jr., Lauren Neal Bennett, Thomas P. Will, Barnaby Grzaslewicz, Elizabeth A. Mullin, MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, Delaware; Counsel for Defendants and Nominal Defendants.

          MEMORANDUM OPINION

          LASTER, V.C.

         Before his death on November 5, 2017, Michael Llamas owned a 90% member interest in Stone Ash, LLC (the "Company"), and he served as one of its two managers. Defendant Stuart Titus owned the other 10% member interest and served as its other manager. When Michael died, his status as a member terminated, and the economic rights associated with his interest passed to his estate.[1] Michael's status as a manager likewise terminated. Titus was left as the sole member and sole manager of the Company.

         The Company owned a large block of stock in Medical Marijuana, Inc., an Oregon corporation that is a development-stage, penny-stock issuer involved in cannabis-related businesses. Its shares trade over the counter under the symbol "MJNA," which this decision uses to refer to the issuer. Through his positions with the Company, Michael managed MJNA's operations, despite not having any formal position with that entity.

         Michael's death left Titus in control of the Company and, through it, MJNA. Enter James Arabia, one of Michael's advisors. After learning of Michael's death, Arabia moved quickly to assert control over the Company. He did so by advising Titus to appoint defendants John Huemoeller and Timothy Scott as additional managers, explaining that they could support Titus and that Michael would have wanted it that way. Huemoeller and Scott are beholden to Arabia, and adding them would give Arabia control over the Company at the manager level. Moreover, under the terms of the Company's then- operative LLC agreement (the "Original LLC Agreement"), Huemoeller and Scott could remove Titus as a manager, thereby consolidating Arabia's control.

         Titus followed Arabia's advice. On November 7, 2017, two days after Michael's death, Titus executed a written consent that appointed Huemoeller and Scott as additional managers (the "November 7 Consent"). Only after signing the November 7 Consent did Titus become concerned about its implications. He reached out to Stephen Silverman, a lawyer who had represented the Company. After meeting with Silverman, Titus understood that he had handed over control to Arabia. He was shocked and dismayed, and he asked Silverman to fix the problem he had created.

         Meanwhile, members of the Llamas family learned about Arabia's coup. A flurry of communications and meetings ensued. On November 13, 2017, Titus and Silverman met with the plaintiffs: Steven Llamas, Michael's father, and Jeffrey Llamas, Michael's brother. Titus executed a new LLC agreement for the Company (the "Amended LLC Agreement"). Among other things, it established a board of managers with a maximum of three members. In three locations, it described Titus as the sole member and manager of the Company. The description was inaccurate, because no one ever took action to remove Huemoeller or Scott.

         During the same meeting, Titus executed a written consent that purported to appoint Titus, Steven, and Jeffrey as members of the board of managers (the "November 13 Consent"). But it did not first remove any of the incumbent managers.

         Several days later, Titus told Arabia about the Amended LLC Agreement and the November 13 Consent. Arabia convinced Titus to return to the fold. On November 20, 2017, Titus executed another LLC agreement for the Company (the "Final LLC Agreement"). On November 21, 2017, Titus executed a written consent that purported to remove Steven and Jeffrey and replace them with Huemoeller and Scott (the "November 21 Consent").

         In this lawsuit, Steven and Jeffrey contend that they were properly appointed as managers but never properly removed. Although they do not dispute the effectiveness of the Final LLC Agreement, they contend that the November 21 Consent is invalid along with all of the actions that the board of managers subsequently took.

         In response to this lawsuit, the defendants have raised an array of arguments and defenses, one of which is dispositive. Assuming for the purposes of analysis that Titus validly adopted the Amended LLC Agreement (which the defendants otherwise contest), the defendants correctly point out that Titus never removed the incumbent managers.

         This post-trial decision holds that the November 13 Consent did not appoint Steven and Jeffrey to the board of managers. Once adopted, the Amended LLC Agreement limited the size of the board to three managers. With Titus, Huemoeller, and Scott occupying those seats, there were no vacancies to fill. The November 13 Consent therefore provides no basis to challenge any actions that the managers of the Company subsequently took. Since November 7, 2017, the Company's managers have been Titus, Huemoeller, and Scott.

         I. FACTUAL BACKGROUND

         During a one-day trial, the parties introduced 208 exhibits and lodged ten deposition transcripts. Seven fact witnesses testified live. The parties agreed to sixteen stipulations of fact in the pre-trial order.[2]

         All of the witnesses had some type of credibility issue, and many had several. The members of the Llamas family, the named defendants, and Arabia had personal interests in the outcome of the case and strong feelings about each other. Titus was a particularly unreliable witness who repeatedly changed his story and offered dubious interpretations of contemporaneous documents. Arabia, Huemoeller, and Scott were confident witnesses, but they had the air of confidence men. They seemed only to be telling part of the story. Steven and Jeffrey were generally credible, but they had the least first-hand knowledge about significant events, and Jeffrey had some unconvincing memory lapses. Silverman and Priscilla Vilchis, Michael's girlfriend when he died, testified by deposition. Their accounts were mixed: Some portions seemed credible, others exaggerated, and still others undermined by conspicuous failures of memory.

         I have done my best to reconcile the conflicting accounts. Generally speaking, contemporaneous documents have received the most weight. The plaintiffs bore the burden of proving the facts necessary to support their claims by a preponderance of the evidence.[3]

         A. Michael and MJNA

         By all accounts, Michael was a charismatic and energetic entrepreneur. By his mid-twenties, he had amassed a fortune in real estate as the co-founder of North American Companies, "a real estate development and acquisitions firm specializing in all areas of distressed debt."[4] But all was not done according to Hoyle. In September 2012, the United States Department of Justice indicted Michael for his alleged involvement in multistate mortgage fraud and Ponzi schemes.[5] In August 2016, Michael pled guilty to a subset of the charges, and he was awaiting sentencing when he died in November 2017.

         Before his entanglements with the law, Michael's business interests expanded to cannabis-related products. In March 2011, at age twenty-six, he purchased a controlling interest in MJNA. The parties share an interest in depicting MJNA as a substantial enterprise deserving the positive associations that customarily accompany publicly traded status. MJNA's disclosures tell the more complicated story of a dubious penny-stock issuer with a long history of questionable transactions.[6]

         According to its disclosures, MJNA began life in 2003 as Berkshire Collection, Inc., a Canadian corporation that traded under the symbol "BKRCF."[7] According to a complaint filed by the SEC in 2009, Berkshire Collection was one of fifty-nine subsidiaries spun off by Blackout Media Corporation and its principal, Sandy Winick, as part of a scheme to create publicly traded companies lacking any business purpose and manipulate their shares.[8] After pleading guilty in 2015, Winick was sentenced in 2016 to seventy-eight months in prison and ordered to pay $2, 431, 038.32 in restitution and $5 million in civil forfeiture.[9]

         In May 2005, Berkshire Collection reincorporated in Oregon.[10] In January 2007, it changed its name to Mynewpedia Corp. and adopted the trading symbol "MYNW." Id. Approximately one year later, the corporation merged with Club Vivanet, Inc., adopted that name, and changed its trading symbol to "CLVV." See id. at 1-2. Club Vivanet described itself as "a global marketing company delivering a range of products and services through a network of IGC's (Independent global consultants) around the world." Id. at 4. Its balance sheet for the period ended March 31, 2008, listed assets of $7, 441 (literally; not expressed in thousands), and its statement of operations disclosed an operating loss of $678, 669, a net loss of $10, 670, and a total of 8, 300, 000 shares issued and outstanding. Id. at 13-14.

         In 2009, the company changed its name to "Medical Marijuana, Inc." as part of a transaction in which control passed to Bruce Perlowin, a convicted marijuana smuggler and self-described "King of Pot."[11] The company disclosed that it would now "provide institutional level financial systems to local, state and federal governments, testing and certification services, education programs, consulting and turn-key solutions to all levels of government and the Medical Marijuana Industry."[12] In 2016, the SEC charged Perlowin with fraud in connection with his subsequent marijuana-related venture, Hemp, Inc. According to the SEC's complaint, Perlowin and his co-defendants sold hundreds of millions of unregistered and purportedly unrestricted shares to public investors.[13]

         In March 2011, Michael acquired a controlling interest in MJNA. According to MJNA's public filings:

On March 23, 2011, an equity/asset exchange was effected between Hemp Deposit and Distribution Corp., a Delaware corporation ("HDDC") and Medical Marijuana, Inc. (the "Company" or "MMI"). The equity/asset exchange called for the Company issuing 260, 000, 000 million [sic] shares of common stock to HDDC which required an increase in the authorized [sic] from 300, 000, 000 shares to 600, 000, 000 shares which increase was effective on March 28, 2011. The issuance of the 260, 000, 000 shares was affected [sic] on March 31, 2011. The resignation of all officers and directors of Medical Marijuana, Inc. with the appointment of interim officers and directors was also affected [sic] on March 28, 2011. Permanent appointments will be made in the near future.[14]

         As a result of this transaction, HDDC came to own 51.4% of MJNA's common stock. Id. at 14. Michael controlled HDDC, which also did business as CannaBANK, Inc.[15]

         In its first filing after the acquisition, MJNA disclosed that "the continuing development of the issuer's multi-faceted business plan developed a loss."[16] As of March 31, 2011, just after the acquisition, MNJA reported total assets of $74, 376.39, including current assets of $598.47. Id. at 18. It reported goodwill of negative $46, 779, 037 and retained earnings of negative $2, 497, 531.55. Id. The company had issued 506, 049, 062 shares, of which 115, 855, 872 were held by the public. Id. at 3. MJNA was, for all intents and purposes, a shell corporation with a catchy ticker symbol.

         After the HDDC transaction, Michael took over as interim president of MJNA.[17] He later became MJNA's president and a director.[18] Michelle Sides, the Chief Operating Officer of HDDC/CannaBANK, assumed the roles of Chairman and Chief Operating Officer.[19] The new management team reoriented the company towards "cannabidiol (CBD) extract."[20]

         Under Michael's control, MJNA continued its practice of issuing massive amounts of stock. During the second quarter of 2011, MJNA issued 17, 501, 947 shares. "Consultants" received 12, 238, 800 shares "for establishing and assisting the corporation," and private investors received 5, 263, 147 shares.[21] During the third quarter of 2011, MJNA issued 30, 014, 755 shares. Most went to consultants or to pay for a trademark.[22] As of December 31, 2011, MJNA reported 558, 565, 764 shares outstanding.[23] As of December 31, 2012, it reported 808, 238, 318 shares outstanding. Id. During subsequent years, MJNA kept pumping out shares. As of December 31, 2018, MJNA had an authorized capitalization of five billion total shares. Of this amount, 3, 562, 197, 168 were issued and outstanding, with 2, 148, 156, 858 in the public float.[24]

         B. The Company

         The United States Department of Justice unsealed Michael's indictment on September 14, 2012. The next business day, he resigned from his positions with MJNA. Sides and other executives continued in their roles.[25]

         One week after Michael's indictment, Sides formed the Company.[26] In November 2012, Sides transferred the entire member interest to Titus for nominal consideration. Concurrently, Titus granted Michael an option to buy 90% of the Company's member interests for nominal consideration. JX 11; JX 12.

         The record does not clearly reveal what role Titus occupied at the time in the MJNA family of companies, nor the nature of his relationship with Michael. He first appeared in MJNA's public filings in its 2014 annual report, where he is listed as "Chief Executive Officer, President and Director."[27] The filing recites that Titus "began his association with our family of companies in 2009, playing a pivotal role in raising capital among several other duties." Id. The plaintiffs say that "Titus was an early stockholder in [M]NA] and invested prior to Michael's involvement." Dkt. 126 at 7. They also say that "[b]y March of 2015, Titus was named as CEO" of MJNA. Id. at 8.

         In April 2014, eighteen months after Sides formed the Company, Michael exercised his option and acquired 90% of the member interests from Titus.[28] Also in April 2014, the Company created Kannaway, LLC, which distributed CBD-based products through relationship-based, multi-level marketing. See JX 89 at '055. In December 2014, the Company sold Kannaway to MJNA for 833, 333, 333 shares of common stock.[29] The Company had also loaned $1, 403, 331 to MJNA. Id. at 31.

         The Company has generated cash by regularly selling MJNA shares in the open market. See Titus Dep. 41-43. Rule 144 of the Securities Act of 1933 permits an affiliate of an issuer to sell in each quarter a number of unregistered shares that does not exceed 1% of the issuer's outstanding shares. See 17 C.F.R. § 230.144(b)(2) & (e)(1)(i); JX 89 at '058 ("Every 90 days, [the Company], as affiliates of MJNA [sic] is allowed by SEC rules to sell up to 1% of the outstanding shares in MJNA."). Relying on this rule, the Company can sell a considerable number of shares. For example, between November 13, 2017, and September 12, 2018, the Company sold 71, 257, 999 shares of MJNA for approximately $7, 012, 244. JX 150 at 19.

         The Company uses the money it raises to pay its expenses and to fund the operations of MJNA and its affiliates. MJNA has struggled to generate operating income and depends on the Company's injections of capital for its financial viability.[30]

         Despite having resigned from his positions with MJNA in September 2012, Michael continued to manage its operations. It appears that he initially did so through HDDC. Later, he did so through the Company.[31] Although Titus assumed the role of CEO at MJNA at some point in 2014, he focused on the promotional and public-facing aspects of the business.[32]

         C. Arabia

         In early 2014, while under indictment and around the same time that he exercised his option to acquire 90% of the Company's member interests, Michael met Arabia through a mutual friend. Arabia considers himself a veteran of corporate disputes and "parliamentary maneuvers" in boardrooms.[33] His career in finance began in the 1980s, when he worked on high-yield debt offerings. During that decade, he was part of at least one hostile takeover attempt-involving I.C.H. Corporation-that generated litigation in this court.[34] In the late 1990s, he served as CEO of I.C.H. Corporation until the board terminated him. See Arabia Dep. 28-29; Arabia Aff. Ex. A. He then served as CEO of Naturewell, Inc., a company that traded over the counter under the symbol "NAWL." Arabia left Naturewell when its assets were liquidated. See Arabia Tr. 229; Arabia Aff. Ex. A. Naturewell's public filings indicate that in March 2013, it recast itself as Brazil Interactive Media, Inc. and began trading under the symbol BIMI; then, in September 2014, it became American Cannabis Company, Inc., which continues to trade over the counter under the symbol "AMMJ."[35]

         After meeting Michael, Arabia became his trusted advisor on financial and legal matters and an informal consultant to the Company and its affiliates. See Arabia Aff. ¶¶ 3, 7; Arabia Tr. 230. Although fulfilling these roles became his main occupation, Arabia did not receive any formal compensation for his services. See Arabia Dep. 39, 48-49. He benefitted instead by being able to purchase shares from MJNA at a discount in private placements or through other financing transactions.[36] One of Arabia's affiliates, TL-66, LLC, has amassed sizeable holdings in MJNA.[37]

         Through his relationship with Michael, Arabia achieved a remarkable financial turnaround. Arabia had just declared personal bankruptcy in 2013, the year before he met Michael. See Arabia Dep. 53-55; Arabia Tr. 264. Arabia's bankruptcy came fresh off his defeat in a preemptive lawsuit in which he had tried to prevent foreclosure on his home.[38]Yet by 2016, TL-66 had loaned nearly $10 million to the Company, secured by a first-priority lien on all of the Company's assets. See JX 136. Two of the witnesses in the case believe that Michael parked funds with Arabia to protect against the forfeiture risk posed by his indictment.[39] That seems more plausible than the notion that Arabia's wife, who owns 100% of TL-66, advanced millions of dollars to the Company. She is a personal trainer who, as of 2017, was still challenging a $40, 000 judgment against her for unpaid credit card debt.[40] It likewise seems plausible that the creation of the Company itself, coming so promptly after Michael's indictment, along with the indirect and temporally delayed manner by which Michael acquired a less-than-100% interest, was part of an effort to restructure Michael's assets to mitigate forfeiture risk.

         Over the course of his career, Arabia established a close business and personal relationship with Huemoeller. The two men started out as bond traders with the same firm in 1982, and they have remained close ever since.[41] When Huemoeller founded a company called HumWare Media Corporation, which trades over the counter under the symbol "HMWM," he hired Arabia as a consultant. Huemoeller Dep. 16-17. When Arabia served as CEO of Naturewell, he brought Huemoeller onto the board. See id. at 17. After becoming Michael's trusted advisor, Arabia arranged for Huemoeller to join the board of AXIM Biotechnologies, Inc., a firm controlled by MJNA that is also involved in the cannabinoid industry and whose shares trade in the over-the-counter market under the trading symbol "AXIM." See id. at 7-8; Titus Tr. 173; JX 89 at '056. Through the events giving rise to this litigation, Arabia secured a position for Huemoeller as a manager of the Company. Since then, he has hired Huemoeller as a consultant to TL-66 and Cross & Company, another entity that Arabia controls. See JX 168 at 2; Huemoeller Dep. 10-13. Except for a board fee from a company called Pledge Petroleum, all of Huemoeller's income comes from positions traceable to Arabia:

Company
Stated Payments
Annualized Payments
AXIM
$5, 000/quarter $25, 000 stock payment annually
$45, 000 (11.39%)
Pledge Petroleum
$5, 000/month
$60, 000 (15.19%)
Air Water Earth
$0
$0 (0%)
TL-66 and Cross & Co.
$20, 000/month
$240, 000 (60.76%)
Stone Ash
$10, 000/quarter $10, 000 bonus to join as Manager
$50, 000 (12.66%)
TOTAL: 395, 000 (100%)

         Arabia also established close business and personal relationships with Scott, a recently retired pastor. The two met over twenty-five years ago when Scott presided over a funeral that Arabia attended. Between 1993 and 2006, Arabia belonged to Scott's congregation, and Scott has performed services over the years for Arabia and members of his family, including Arabia's marriage, his daughters' marriages, and his in-laws' funerals. While CEO of I.C.H. Corporation, Arabia secured a board seat for Scott, and when other directors voted to terminate Arabia, Scott immediately resigned. Scott Dep. 14-16. Scott's service on the I.C.H. board led to a directorship at Naturewell, where Scott recommended Arabia for the CEO spot. Id. at 16-17; see also Arabia Dep. 114-15. After becoming involved with Michael, MJNA, and their affiliates, Arabia secured seats for Scott on the boards of MJNA and AXIM. See Arabia Dep. 114; Scott Dep. 9-10. Through the events giving rise to this litigation, Arabia obtained a position for Scott as a manager of the Company. Since then, Scott has been seated as a director to KannaLife Sciences, another MJNA portfolio company. Scott Tr. 279-80. Other than some salary for his service to a non-profit, all of Scott's income is traceable to Arabia:

Company

Stated Payments

Annualized Payments

AXIM

$30, 000/year

$30, 000 (23.08%)

MJNA

$20, 000/year

$20, 000 (15.39%)

Hope Rescue

$30, 000/year (previously $0)

$30, 000 (23.08%)

Stone Ash

$10, 000/quarter $10, 000 bonus to join as Manager

$50, 000 (38.46%)

KannaLife

N/A

N/A

TOTAL: $130, 000 (100%)

         Given their longstanding personal and business relationships, Huemoeller and Scott are loyal to Arabia. See Huemoeller Dep. 51-52; Scott Dep. 62-63. During the events giving rise to this suit, Scott promised Arabia that "everything you say is confidential and I'm very loyal to you and our friendship." JX 111. Arabia testified that he would do "a million-dollar deal on a handshake" with either of them. Arabia Dep. 186.

         D. November 5: Michael's Death

         In the early morning hours on Sunday, November 5, 2017, Michael died in a car accident. He was thirty years old. After hearing the news, Arabia put in motion a plan to gain control over the Company.

         On the day Michael died, Arabia visited Steven, Michael's father. Steven spent most of his professional life as a police officer, then after leaving the force, took jobs in customer service and sales. When Michael got started in the real estate industry, he hired his father to handle customer service. In 2014, after moving into the cannabis business, Michael again hired his father. Steven had only limited contact with Arabia before Michael's death.

         After offering his condolences, Arabia asked Steven about settling Michael's estate. During the conversation, Arabia told Steven that they must not "under any circumstances, allow a forensic audit of the companies." Steven Tr. 58. Arabia also proposed adding Huemoeller and Scott as managers of the Company, observing that Titus "wasn't capable of handling the job of running the day-to-day operations by himself." Id. at 58-59. Despite expressing this opinion of Titus, Arabia said that they should increase Titus's salary. My sense is that Arabia wanted to offer Titus more money so that he would go along with the plan to add additional managers.

         Steven believed that at least one manager should be a member of the Llamas family. He wanted a family member who could look out for the interests of Michael's minor child, who would eventually inherit Michael's 90% economic interest in the Company.

         Arabia responded by telling Steven that Titus would likely go along with his plan, not Steven's, because Titus needed money. Arabia also offered to provide the Llamases with $500, 000, which he suggested would help with any financial difficulties they might encounter after Michael's death. Steven interpreted this offer as a bribe. Id. at 59-60.

         That evening, Arabia contacted Huemoeller and Scott about serving as managers of the Company. Both agreed immediately. Huemoeller Tr. 270; Scott Tr. 279.

         E. November 6: Meetings at Arabia's House

         On November 6, 2017, Arabia hosted an emergency meeting of the MJNA board in his home. Arabia was not a member of the board, but he hosted the meeting anyway. Arabia did not invite Steven or Jeffrey, but they too attended anyway.

         Arabia opened the board meeting by proposing to double Titus's salary as CEO. He then asked Steven and Jeffrey whether Michael had a will. Steven and Jeffrey were surprised by this question, because they understood that Arabia had custody of Michael's will. See Steven Tr. 61; Jeffrey Tr. 120. No will has ever been found.

         Once the board adjourned, Arabia and Titus met privately. Arabia told Titus that Michael would not have wanted Titus running the Company alone and would have wanted Arabia to be involved. Arabia Tr. 259-60; Arabia Dep. 121-22. Arabia stressed that Titus should appoint additional managers whom Michael and Arabia trusted. Arabia Aff. ¶ 9. Arabia suggested Huemoeller and Scott, who Arabia said would act primarily as Titus's advisors. Titus was concerned about compensation that he felt the Company owed him. Arabia assured Titus that Huemoeller and Scott would "never play any games with [Titus] getting [his] fair share." Arabia Dep. 122.

         After his private meeting with Titus, Arabia circled up with Steven and Jeffrey. Arabia told them that he wanted to appoint two individuals as managers whom he had known for a long time and could rely on, mentioning Scott and Huemoeller. See Steven Tr. 61; Jeffrey Tr. 120-21. Steven reiterated that he wanted a member of the Llamas family to serve as a manager. Steven Tr. 61-62. Arabia again offered to help out the Llamas family, this time with 100 million shares of MJNA stock. Id. at 62.

         F. November 7: Titus Appoints Huemoeller and Scott.

         Arabia drafted the November 7 Consent with the assistance of counsel. See Arabia Tr. 261. It called for Titus to act in his capacity as "Sole member of the Executive Committee and Sole Manager" to appoint Huemoeller and Scott "as members of the Executive Committee and Managers of the Company." JX 27. On November 7, 2017, Titus executed it. PTO ¶ 8.

         By signing the November 7 Consent, Titus gave Arabia control over the Company at the manager level. The Original LLC Agreement stated:

The responsibility for the management and oversight of the operation and affairs of the Company shall be and are [sic] hereby vested in an Executive Committee, which shall consist of at least one (1) and not more than five (5) members. Each of the members of the Executive Committee shall be designated as a Manager for purposes of this agreement, with one of the Managers designated by a vote of the Executive Committee to act as Chairman. No Manager need be a Member of the Company . . . .

         JX 10 § 5.1. As a majority of the Executive Committee, Huemoeller and Scott could outvote Titus and exercise control over the Company.

         In addition, if they wished, Huemoeller and Scott could remove Titus as a manager without cause. Section 5.5 of the ...


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