Documente Academic
Documente Profesional
Documente Cultură
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CASE NO.
PLAINTIFFS COMPLAINT FOR:
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Plaintiffs,
1.
2.
3.
4.
19
vs.
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5.
6.
7.
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BREACH OF CONTRACT;
FRAUD;
CONVERSION;
INTENTIONAL INTERFERENCE
WITH PROSPECTIVE ECONOMIC
RELATIONS;
BREACH OF FIDUCIARY DUTY;
DECLARATORY RELIEF;
PRELIMINARY AND PERMANENT
INJUNCTWE RELIEF
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-1-
PLAINTIFFS COMPLAINT
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1.
and at all times relevant hereto was a California limited liability company that maintains offices and
2.
times relevant hereto was an individual residing in Los Angeles County, California. (TCBH and
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3.
is and at all
times relevant hereto was an individual residing in Los Angeles County, California.
4.
Plaintiffs are unaware of the true names and capacities, whether individual,
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Defendants), and therefore sue said DOE Defendants by such fictitious names. Plaintiffs will
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seek leave of Court to amend this Complaint to show the true names and capacities of such DOE
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Defendants when the same has been ascertained. Plaintiffs are informed, believe, and thereupon
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allege that each of the fictitiously-named Defendants is responsible to Plaintiffs for the injuries
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suffered and alleged herein, and/or is subject to the jurisdiction of the Court as necessary party for
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5.
Plaintiffs are informed and believe that Defendant Simson and each of the DOE
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Defendants (collectively, Defendants) are now and were at all times mentioned herein the
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agents, principals, partners, joint venturers, employees and/or alter-egos of the other Defendants,
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and that all of the acts and conduct alleged herein were performed within the course and scope and
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relationship.
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-2PLAINTIFFS COMPLAINT
6.
Jurisdiction and venue are proper in this Court because the wrongful acts and
omissions alleged occurred in the County of Los Angeles, the harm suffered by Plaintiffs occurred
in the County of Los Angeles, and Defendant is and at all times relevant herein was doing business
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7.
In. or about February 2008, Plaintiff Raboin was introduced to Defendant Simson
through a shared business associate, Troy Bogert (Bogert). Raboin first met with Defendant in
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Burbank, California to discuss a then-untitled film project, which came to be known as They
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During this meeting, Defendant Simson described the Film as a project whereby
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some of the biggest names in the music industry including but not limited to a number of celebrity
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musicians, would be interviewed for the Film. Simson explained that the Film would center on
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Waddy Wachtel, a session musician famous within the music industry for playing and collaborating
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with various high-profile rock musicians, a roster which included but was not limited to Keith
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Richards, Roger Daltry, Robert Plant, Joe Walsh, Stevie Nicks, Iggy Pop, Jackson Browne, James
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Taylor, and many others. Simson specifically represented to Raboin that he could and would
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interview many if not all of these high-profile musicians, among others, in connection with the
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Film to reminisce about their times with Wachtel. In subsequent meetings, Raboin and Simson
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further developed the Films structure to include live performances of these musicians with
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Wachtel at a rock and roll club then called the Joint at 8771 W. Pico Blvd, Los Angeles, CA
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90035, during which segments these musicians would play some of the more famous songs on
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which Wachtel had collaborated. Raboin explained to Simson that the greater the number of high
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profile musicians and celebrities interviewed by Simson for the Film during production, the easier
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it would be for Raboin to raise investment funds needed to complete the Film.
-3PLAINTIFFS COMPLAINT
10.
During the initial meeting, Simson explained to Raboin that he needed Raboins
help to raise capital for the Film and to otherwise handle the business affairs of this project. Simson
explained that he had already conducted and filmed a number of these interviews himself under
the moniker Gary Simson Productions, which interviews and footage would be incorporated
into the Film. Simson estimated that the remainder of the Film would take approximately one and
one-half (1-1/2) years to complete. Raboin expressed interest in the project, and the two agreed to
business plan for making and financing the Film. In this e-mail, Simson set forth his personal
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regarding cost deferment, and his plans relating to a theatrical release of the Film. Simson also
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outlined a budget for the Film, wherein he listed his personal fees for services to be rendered in
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connection with the Film at $52,800 in exchange for twenty-four (24) weeks of work. Simson
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further (under) estimated the cost to obtain music rights for the Film at a total of $240,000 for the
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Shortly thereafter and over the next four (4) years, the parties commenced filming,
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marketing, developing, and editing the Film as agreed. In reliance on Defendant Simsons conduct
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and comments to Plaintiffs, Plaintiff TCBH purchased thousands of dollars worth of equipment
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to film and edit the Film via capital calls which were funded almost entirely by Plaintiff Raboin
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himself. Plaintiff TCBH also hired various third-party contractors to work on the Film. During this
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time period, the parties regularly referred to one another as business partners with one other
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and with third parties including, but not limited to, potential distributors and marketers of the
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Film.
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13.
The parties mutual business associate, Bogert, was initially involved in the Project.
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The parties initially agreed that Bogert would serve as the Films editor. Within approximately
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nine (9) months of these initial meetings, however, Bogert left the project, frustrated with
-4PLAINTIFFS COMPLAINT
Defendant Simson s lack of progress in securing and conducting the various musician interviews,
which in turn made it exceedingly difficult to raise funding sufficient to pay Bogerts requested
fees.
14.
On or around March 30, 2008, the parties, with Bogert, drafted their first Private
Placement Memorandum (PPM) wherein they outlined their joint business plan with respect to
the Film for prospective investors in the project. The purpose of the PPM was to raise funds for
the project which would be managed through a limited liability company (the LLC) they
intended to create.
15.
In exchange for his work filming, editing and conducting most of the interviews, the
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parties agreed that Defendant Simson would be paid a $52,500 fee from Plaintiff TCBH, which fee
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would be separate from his member share of the LLC s projected future profits (from the Films
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eventual sale and distribution). The parties referenced this fee in this initial PPM as an expense of
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the LLC. Over the next few years, Simson repeatedly demanded that his fee be increased to
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On or about April 23, 2008, Plaintiff Raboin, Defendant Simson, and Troy Bogert
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formed Plaintiff They Could Be Heroes, LLC, as a California limited liability company, for the
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purpose of creating, filming, editing, marketing, developing, and distributing the Film. All three
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individuals initially served as co-Managers of TCBH. When Bogert left the project later that year,
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Plaintiff Raboin and Defendant Simson became the sole remaining co-Managers of TCBH.
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17.
On or about May 16, 2008, Raboin, Simson and Bogert entered into a written
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Operating Agreement for TCBH (the Operating Agreement), which generally memorialized the
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terms of their operation and management of TCBH. A true and correct copy thereof is attached
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hereto as Exhibit A.
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18.
Pursuant to the terms of the Operating Agreement, Plaintiff and Defendants agreed
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to create, produce, film, edit, market, develop, and distribute the Film under the sole control,
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ownership, and authorship of Plaintiff TCBH. Exhibit A. Pursuant to the terms of the Operating
-5PLAINTIFFS COMPLAINT
Agreement, Plaintiff and Defendants also agreed that the Film and all related materials including,
but not limited to, all video and audio footage, edited materials, derivative materials, marketing
materials, distribution materials, paperwork, correspondence, and other such items, would be
owned (and ultimately distributed and/or sold) solely by Plaintiff TCBH, for which purpose they
19.
In June 2008, Plaintiff Raboin drafted and distributed a new PPM for investment
purposes. Simson personally reviewed and approved it prior to circulation. As set forth in this new
PPM, the parties sought to raise $1 million in investment funds on or by December 1, 2008.
Further, by its terms, Plaintiff Raboin was to receive a ten per cent (10%) commission on any
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investment funds raised. Notwithstanding Raboin s best efforts, the parties were able to raise only
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musicians for the Film, but he was only able to secure and conduct the filmed interview of one
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On or about October 28, 2008, Plaintiff Raboin pre-registered the copyright for the
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Film on behalf of the LLC. He specifically pre-registered the Films author/owner as Plaintiff
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Through 2009, Plaintiff Raboin contacted and contracted with various third parties
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for graphics and editing work in connection with the Film. He hired cameramen, a film editor (to
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replace Bogert), a production assistant, an associate producer, and other individuals to assist
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Simson in the Films pre-production, filming, and post-production work. He made a point of
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keeping Plaintiff Raboin apprised of his work and progress and regularly sent invoices to Plaintiff
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Raboin to cover these various Film-related expenses, which Plaintiff Raboin did.
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23.
In 2009, Plaintiff Raboin prepared a third PPM to again try to raise more money for
the Film project. He again sent it to Simson, who personally reviewed and approved it beforehand.
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-6PLAINTIFFS COMPLAINT
By and through this third PPM, the parties sought to raise $1 million by the end of 2009. This
time, Plaintiff Raboin was able to raise $180,000 from various investors.
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2008, only two Jackson Browne and Mick Fleetwood were relatively high-profile musicians as
25.
In 2010, after working on the Film for over two years, Defendant Simson s interest
in the Film appeared to be flagging. Simson only interviewed two (2) musicians during the entire
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Around this time in 2010, Defendant Simson abruptly asked Raboin how he could
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limit his liability on the Film and in connection with the LLC. Surprised by this query, Raboin
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asked what Simson had in mind. Simson responded by explaining to Raboin that he no longer
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wished to be personally responsible for the Films sale and distribution, or for the LLCs
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management and operations. He further explained that he merely wanted to produce and direct the
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film in exchange for a flat fee, like the LLC s other third-party contractors. Raboin suggested that
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Simson remove himself as co-Manager of TCBH, in place of which Raboin, acting on the LLCs
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behalf, would contract with Simson to serve as a producer/director on the project. As part of these
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discussions, Simson asked Raboin for a detailed accounting of the LLCs finances, which Raboin
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provided. Raboin also prepared a fourth PPM to seek another round of investor funding for the
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producer/director agreement. During the subsequent two (2) year-long negotiations period,
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Simson continued to perform his previously agreed upon producer/director duties for TCBH, but
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ceased performing any LLC management duties as TCBH s co-Manager, leaving Plaintiff Raboin
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as the sole remaining Manager of Plaintiff TCBH. Simson subsequently confirmed as much in e
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28.
In 2011, Defendant Simson managed to secure and film eight (8) additional
musician interviews, the most high-profile of which was that of Fleetwood Macs vocalist, Stevie
Nicks.
29.
During this same year, Defendant Simson sharply increased his spending of TCBH
funds for purported Film-related expenses. When Raboin questioned Simsons sudden need for
the requested expenditures, Simson complained to Raboin that the Film was underfunded and that
Raboin needed to increase his fundraising efforts on TCBHs behalf. Raboin in turn prepared a
fifth PPM to seek yet another round of investor funding for the project.
30.
During the first few months of 2012, the parties ongoing negotiations regarding the
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demanded exceedingly high fees for his services that Plaintiff TCBH simply could not afford.
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Raboin repeatedly explained to Simson that TCBH simply could not afford to pay Defendant
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Simson his demanded $93,000 fee and cover other production expenses. During these
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negotiations, Simson repeatedly proposed that he personally take over the entire Film project from
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Plaintiffs including, but not limited to, the Films ownership, distribution, and marketing efforts,
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31.
On or around March 23, 2012, Defendant Simson announced to Raboin that he was
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resigning from Plaintiff TCBH as a member and as a producer/director and that he wanted
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nothing further to do with Plaintiffs whatsoever. He further demanded that all references to his
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name be removed from the LLCs website, literature, bank account(s), promotional materials,
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and all appropriate government documents. As part of his resignation letter, Simson accused
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Raboin of financially mismanaging the Film and failing to account for various Film-related
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expenses, even though Raboin had repeatedly provided thorough and accurate accountings on
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Simson personally depleted the companys funds through his sudden increase in expense
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reimbursements in 2011.
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32.
At the time that Defendant Simson cut all ties with the Film in March 2012,
Plaintiff Raboin had raised approximately half a million dollars for the Films marketing,
development, filming, and editing. The various investors in the Film collectively owned fifteen
percent (15%) of Plaintiff TCBH at this time. When Simson quit Plaintiff TCBH entirely, Plaintiff
33.
equipment that he had used to film and edit the Film. Unbeknownst to Plaintiffs, moreover,
Defendant Simson failed to relinquish all copies of the Film itself including, but not limited to, all
footage filmed, all edited material and all other physical material relating to the Film in his
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Rather than return LLC property to Plaintiff TCBH and relinquish his involvement
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with the Film, Defendant Simson instead continued to conduct interviews for the Film on his own,
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as if he had never entered into the Operating Agreement or other agreements with Plaintiffs.
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Defendant Simson started an online fundraising campaign in or about 2013 to raise funds to
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continue the filming, editing, marketing and distribution work for the Film, in which campaign
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materials he claimed that the project was his and his alone. He also changed the Films name to
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King of the Sidemen, to hide his conversion of the Film for himself from Plaintiffs and their
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investors.
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35.
Plaintiffs have since had no choice but to seek judicial redress for their grievances
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36.
On or about May 16, 2008, Plaintiff Raboin and Defendant Simson entered into the
Operating Agreement, which generally memorialized the terms of their operation and management
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Simson agreed to create, produce, film, edit, market and distribute the Film under the control and
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ownership of Plaintiff TCBH. Exhibit A. Pursuant to the terms of the Operating Agreement,
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Plaintiff Raboin and Defendant Simson also agreed that the Film itself and all footage, marketing
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materials, and related items and property would be owned exclusively by Plaintiff TCBH. Exhibit
14A.
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39.
The Operating Agreement represents a valid and binding written contract, the
Plaintiffs performed their obligations under the Operating Agreement, save those
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obligations that have been waived, excused or prevented by Defendants actions, omissions and/or
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breaches.
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41.
As alleged above, Defendant Simson has converted the Film for his own personal
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use in breach of the Operating Agreement, and he has continued to create, produce, film, edit,
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market and distribute the Film for his own personal use in breach of the Operating Agreement, and
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Defendants breaches. As a direct and proximate result of said breaches, Plaintiffs have been
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damaged in an amount to be proven at trial according to proof, and which they believe to be in
excess of $10 million, plus pre-judgment interest thereon at the maximum legal rate.
FRAUD
(By
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44.
As alleged above, Defendant Simson repeatedly lied and misrepresented his true
intentions to Plaintiff Raboin to induce him into going into business with Defendant, to induce him
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into forming Plaintiff TCBH with Defendant Simson, and to induce Plaintiffs into continuing to
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fund and otherwise assist with the filming, editing, marketing and distribution of the Film. During
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their initial meetings in 2008, Defendant Simson repeatedly represented to Plaintiff Raboin that he
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had every intention of sharing the profits and control of the Film with Plaintiff Raboin. During
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paid a flat fee for his producer/director services in lieu of any rights to the Films ownership,
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marketing, control, and profits. At no point in time did Defendant Simson inform Plaintiff Raboin
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that he had no intention of doing any of the above and instead had every intention of taking the
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46.
Defendants representations and omissions of material fact were false, false at the
time they were made, and continued to be false through the date of filing this lawsuit.
47.
Defendant knew these representations and omissions of material fact were false,
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false at the time they were made, and false through the point in time when he resigned from the
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project in 2012, but he intentionally made them anyway. Defendant intentionally made these false
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representations and omissions of material fact to induce Plaintiff into going into business with
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Defendant and to further induce Plaintiff into continuing to fund and otherwise assist with the
48.
Had Defendant Simson been honest, forthcoming and truthful about his true
intentions with respect to the Film, Plaintiff Raboin would never have gone into business with
Defendant, and Plaintiff Raboin would never have permitted or authorized Defendant to work on
the Film. Defendant understood this, and yet willfully and fraudulently induced Plaintiff into going
into business with him and funding, editing, marketing and distributing the Film to Plaintiffs
ultimate detriment.
49.
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omissions of material fact made by Defendant. Plaintiff relied on these representations and
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omissions because he had no reason to disbelieve these statements given the years-long history of
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working together with Defendant on the Film. Plaintiff otherwise developed a personal friendship
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with Defendant Simson and did not believe that his friend would deceive him in such a despicable,
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ugly manner.
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50.
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Defendants wrongful conduct, Plaintiff has been damaged in an amount to be proven at trial
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according to proof and which they believe to be in excess of $10 million, plus pre-judgment
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Defendants actions were willful, fraudulent and/or malicious within the meaning
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CONVERSION
(BY
52.
53.
Plaintiffs were at all times mention herein, and are currently, the rightful owners of
the Film and all related materials thereto, including, but not limited to, all footage filmed,
photographs, edited segments of the Film, audio portions of the Film, and all marketing materials,
correspondence, notes, credit sequences, paperwork, papers, and derivative versions of the Film.
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54.
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Plaintiffs are informed and believe and on that basis allege that Defendant Simson
has converted the Film and all related materials thereto to his own personal use.
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Defendant Simson knew at all times relevant herein that the Film and related
56.
Defendant Simson has ignored Plaintiffs requests that he relinquish control of the
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57.
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Defendants wrongful conduct. As a direct and proximate result of Defendants wrongful conduct,
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Plaintiffs have been damaged in an amount to be proven at trial according to proof, and which they
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believe to be in excess of $10 million, plus pre-judgment interest thereon at the maximum legal
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rate.
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58.
Defendants actions were willful, fraudulent and/or malicious within the meaning
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59.
60.
Plaintiff Raboin and Defendant Simson agreed to create, produce, film, edit, market
and distribute the Film under the control and ownership of Plaintiff TCBH. Exhibit A. Pursuant
to the terms of the Operating Agreement, Plaintiff and Defendants agreed that the Film would
be
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owned entirely by Plaintiff TCBH, for which purpose they formed this entity. Exhibit A.
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61.
After resigning from TCBH, Defendant Simson has continued to film, edit,
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market, and distribute the Film to various third parties, including but not limited to raising
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additional funds for the same by soliciting money from the general public using the website
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Kickstarter.com, in breach of the Operating Agreement. Defendant further has renamed the
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film King of the Sidemen and marketed it as such, as though he never had any business
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relationship relating to the film with Plaintiffs in the first place. This has directly interfered with
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Plaintiffs own ongoing efforts to film, edit, market, and distribute the Film on their own behalf, as
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62.
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63.
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Defendants wrongful conduct. As a direct and proximate result of Defendants wrongftil conduct,
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Plaintiffs have been damaged in an amount to be proven at trial according to proof, and which they
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believe to be in excess of $10 million, plus pre-judgment interest thereon at the maximum legal
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rate.
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64.
Defendants actions were willful, fraudulent and/or malicious within the meaning
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65.
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Operating Agreement, Defendant Simson owed duties of fiduciary loyalty and care to Plaintiff
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1.2
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Plaintiffs by: (a) failing to interview the celebrity musicians he had purportedly lined up to
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participate in the Film as he had previously promised; (b) requesting reimbursement for excessive
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expenditures, thereby causing TCBH s account to become depleted; and (c) effectively stealing
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the Film and related materials from Plaintiffs for his own personal use in breach of the Operating
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Defendants breaches of fiduciary duties. As a direct and proximate result of said breaches,
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Plaintiffs have been damaged in an amount to be proven at trial according to proof, and which they
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believe to be in excess of $10 million, plus pre-judgment interest thereon at the maximum legal
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rate.
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69.
Defendants actions were willful, fraudulent and/or malicious within the meaning
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DECLARATORY RELIEF
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70.
An actual controversy has arisen and now exists as between Plaintiffs and
Defendant Simson concerning their respective rights and duties under the Operating Agreement
and with respect to the Film and all related materials thereto. Plaintiffs contend that Plaintiff
TCBH owns all rights and title to the Film pursuant to the Operating Agreement, and that
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Defendant Simsons continued work on the Film for his own personal use is a breach of the
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Operating Agreement.
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72.
Plaintiffs are informed and believe, and on that basis allege, that Defendant Simson
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disputes that he has breached the terms of the Agreement as alleged above, and that he further
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disputes Plaintiffs contention that they have the sole right to ownership and control over the
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Film.
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73.
Plaintiffs desire a judicial determination of the parties respective rights and duties
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relating to the Film, a declaration that the Operating Agreement has been breached by
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Defendants, and a declaration that Plaintiff TCBH owns all rights, title and interest in and to the
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Film and all related materials thereto. A judicial determination is necessary and appropriate at this
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time under the circumstances in order that the Plaintiffs may ascertain their rights and duties
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under the Operating Agreement, and to resolve, among other things, the rightful ownership and
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74.
The actions of Defendant alleged above have caused, and continue to cause, great
and irreparable harm to Plaintiffs, which cannot adequately be measured solely by monetary
damages.
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Plaintiffs are entitled to preliminary and permanent injunctive relief enjoining and
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prohibiting Defendant Simson, and any and all of his agents, servants, assigns and all others acting
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in concert with or on behalf of Defendant, from taking any action in connection with the Film
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inconsistent with Plaintiffs ownership thereof including, without limitation, continuing to create,
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produce, film, edit, market and distribute the Film, transferring any interest in the Film or affecting
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For a declaration that the Operating Agreement has been breached by Defendant
Simson;
3.
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For a declaration that Plaintiffs own all rights, title and interest in and to the Film
and all related materials thereto;
4.
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Film and the immediate return of the Film and all related materials thereto to
5.
For an Order enjoining and prohibiting Defendants and any and all of their agents,
servants, assigns and all others acting in concert with or on behalf of Defendants,
from taking any action in connection with the Film inconsistent with Plaintiffs
film, edit, market and distribute the Film, from transferring any interest in the Film,
6.
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according to proof;
7.
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8.
For such other and further relief as the Court may deem just and proper.
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and
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By:
OL
LLER
Attorneys for Plaintiffs
THEY COULD BE HEROES, LLC,
and THOMAS RABOIN
.
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and
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By:
OLAFJ. MULL
Attorneys for Plaintiffs
THEY COULD BE HEROES, LLC,
and THOMAS RABOIN
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EXHIBIT A
ARTICLE 1: DEFINITIONS
Capitalized terms used in this agreement have the meanings specified in this Article or
elsewhere in this agreement and when not so defined shall have the meanings set forth in the
California Limited Liability Company Act.
Capital Conthbution means the amount of cash, property or services coniributed to the
Company.
Company means They Could Be Heroes, LLC, a California limited liability company.
Member means a Person who acquires Membership Interests, as permitted under this
agreement, and who becomes or remains a Member.
Membership Interests means either Percentage Interest or Units, based on how
ownership in the Company is expressed on Exhibit A.
Percentage Interest means a percent ownership in the Company entitling the holder to
an e onomc and voting interest in the Company.
Person means an individual, partnership, limited partnership, Irust, estate, association,
corporation, limited liability company, or other entity, whether domestic or foreign.
Unit means a unit of ownership in the Company entitling the Member holding such
Unit to an economic interest and a voting interest in the Company.
shall be amended from time to time to reflect any changes in Managers. In the event of a dispute
between Managers, final determination shall be made by a vote of the majority ofthe Managers.
Any Manager may bind the Company in all matters in the ordinary course ofbusiness.
4.2 Meetings of Managers Regular meetings of the Managers are not required but may
be held at such time and place as the Managers deem necessary or desirable for the reasonable
management of the Company. Meetings may take place in person, by conference telephone or
by any other means permitted under California law. In addition, actions may be taken without a
meeting if all of the Managers sign a written consent reflecting the action taken.
4.3 Banking. The Managers are authorized to set up one or more bank accounts and are
authorized to execute any banking resolutions provided by the institution where the accounts are
being set up. All funds of the Company shall be deposited in one or more accounts with one or
more recognized financial institutions in the name of the Company.
4.4 Officers. The Managers are authorized to appoint one or more officers from time to
time. The officers shall hold office until their successors are chosen and qualified. Subject to
any employment agreement entered into between the officer and the Company, an officer shall
serve at the pleasure of the Managers. The current officers of the Company are listed on Exhibit
C.
(a) A current list of the full name and last known business or residence address of
each Member and Manager, together with the Capital Contribution, the amount and terms
of any agreed upon future Capital Contribution, and Membership Interest of each
Member;
(b) A copy of the articles of organization and any amendments;
(e) Copies of the Companys federal, state, and local income tax or information
returns and reports, if any, for the six most recent taxable years; and
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5.4 Tax Matters Member. Gary Simson shall act as tax matters member of the
Company to represent the Company (at the Companys expense) in connection with all
examinations of the Companys affairs by tax authorities and to expend Company funds for
professional services and costs associated therewith.
6.1 Members and Voting Rights. Members shall have the right and power to vote on
all matters with respect to which this agreement or California law requires or permits such
Member action. Voting shall be based on Membership Interests. Unless otherwise stated in this
Agreement or under California law, the vote ofthe Members holding a majority of the
Membership Interests shall be required to approve or carry an action.
6.2 Meetings. Regular or annual meetings ofthe Members are not required but may be
held at such time and place as the Members deem necessary or desirable for the reasonable
management of the Company.
Meetings may be called by any member or members holding 10% or more ofthe
Membership Interests, for the purpose of addressing any matters on which the Members may
vote. A written notice shall be given not less than 10 days nor more than 60 days before the date
of the meeting to each member entitled to vote at the meeting. In any instance in which the
approval of the Members is required under this agreement, such approval may be obtained in any
manner permitted by California law, including by conference telephone or similar
communications equipment. In addition, notice to any meeting may be waived, and any action
which could be taken at a meeting can be approved if a consent in writing, stating the action to
be taken, is signed by the holders of the ninnrnm Membership Interest needed to approve the
action.
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7.1 Withdrawal. A Member may withdraw from the Company prior to the dissolution
and winding up of the Company with the unanimous consent of the other Members, or if such
Member transfers or assigns all of his or her Membership Interests pursuant to Section 7.2
below. A Member which withdraws pursuant to this Section 7.1 shall be entitled to a distribution
in an amount equai to such Members Capital Account.
7.2 Restrictions on Transfer. A Member shall not transfer any Membership Interests,
whether now owned or later acquired, unless Members holding a two-thirds majority ofthe
Membership Interests not subject to transfer consent to such transfer. A person may acquire
Membership Interests directly from the Company upon the written consent of all Members. A
person which acquires Membership Interests in accordance with this section shall be admitted as
a Member of the Company after the person has agreed to be bound by the terms of this Operating
Agreement by executing a consent in the form of Exhibit D.
(b) Entry of a decree of judicial dissolution under Section 17351 ofthe California
Corporations Code.
(c) At any time there are no Members, provided that the Company is not
dissolved and is not required to be wound up if, within 90 days after the occurrence of the
event that terminated the continued membership of the last remaining Member, the legal.
representative of the last remaining Member agrees in writing to continue the Company
and to the admission of the legal representative of such Member or its assignee to the
Company as a Member, effective as of the occurrence of the event that terminated the
continued membership ofthe last remaining Member.
8.2 No automatic dissolution upon certain events. Neither the death, incapacity,
disassociation, bankruptcy or withdrawal of a Member shall automatically cause a dissolution of
the Company.
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10.2 Governing Law; Severability. This agreement shall be construed and enforced in
accordance with the internal laws of the State of California. If any provision of this agreement is
determined by any court of competent jurisdiction or arbitrator to be invalid, illegal, or
unenforceable to any extent, that provision shall, ifpossible, be construed as though more
narrowly drawn, if a narrower construction would avoid such invalidity, illegality, or
unenforceability or, if that is not possible, such provision shall, to the extent of such invalidity,
illegality, or unenforceability, be severed, and the remaining provisions of this agreement shall
remain in effect.
10.3 Benefit. This agreement shall be binding on and inure to the benefit of the parties
and their heirs, personal representatives, and permitted successors and assigns.
10.4 Number and Gender. Whenever used in this agreement, the singular shall include
the plural and the plural shall include the singular, and the neuter gender shall include the male
and female as well as a trust, finn, company, or corporation, all as the context and meaning of
this agreement may require.
10.5 No Third Party Beneficiary. This agreement is made solely for the benefit of the
parties to this agreement and their respective permitted successors and assigns, and no other
person or entity shall have or acquire any right by virtue of this agreement.
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TN WITNESS RKOF,
pC have executed or caused to be executed Ibis
Operating Agreement as of the date below.
Dated:___________
Tom Raboin
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EXHIBIT A
MEMBERS
The following persons are the initial Members of the Company, and their initial capital
contributions and ownership is set forth below.
Name
Gary Simson
Tom Rabom
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Percentage Interest
35%
15%
EXHIBIT B
MANAGERS
The foilowing person(s) are elected as Manager(s) ofthe Conipauy
GuyS
Tom Raboin
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EXHIBIT C
OW[CERS
Title
President
Vice President
Name of Officer
Gary Simson
Tom Raboin
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EXHIBIT D
NEW MEMBERS CONSENT
The undersigned agrees to be bound as a Member by the terms of the Operating Agreement of
They Could Be Heroes, LLC as if the undersigned was a signatory thereof.
(Signature)
Name:
Date:
-12-
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and
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II
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By:
OLAFJ. MULL
Attorneys for Plaintiffs
THEY COULD BE HEROES, LLC,
and THOMAS RABOIN
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-19PLAINTIFFS COMPLAINT
EXHIBIT D
NEW MEMBERS CONSENT
The undersigned agrees to be bound as a Member by the terms of the Operating Agreement of
They Could Be Heroes, LLC as if the undersigned was a signatory thereof.
(Signature)
Name:
Date:
-12-