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`Plaintiff,
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`v.
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`C.A. No. 2020-0490-PAF
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`BRYAN BANMAN,
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`HUMAN REGENERATIVE
`TECHNOLOGIES, LLC,
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`Defendant.
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`IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
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`DEFFENDANT'S ANSWER TO VERIFIED COMPLAINT
`TO OBTAIN BOOKS AND RECORDS
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`Defendant Human Regenerative Technologies, LLC ("HRT" or "Defendant"),
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`by and through the undersigned counsel, hereby responds to the Verified Complaint
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`to Obtain Books and Records ("Complaint") filed by plaintiff Bryan Banman
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`("Plaintiff") as follows. Unless expressly admitted, Defendant denies all allegations,
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`including any allegations in section headings and footnotes. Except when noted
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`otherwise, capitalized terms appearing hereunder shall refer to the capitalized terms
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`defined in the Complaint.
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`NATURE OF THE ACTION
`1.
`Through this action, Banman seeks to enforce his rights under 6 Del. C.
`§ 18-305 ("Section 18-305") to obtain copies of certain books and records of HRT.
`ANSWER: The allegations in Paragraph 1 contain a description of this
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`litigation, to which no response is required. To the extent a response is required,
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`Defendant denies the allegations.
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`EFiled: Jul 28 2020 04:46PM EDT
`Transaction ID 65805611
`Case No. 2020-0490-PAF
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`2.
`Since at least January 2019, HRT and its Managing Member,
`Christopher Sharp ("Sharp"), have been in continuous breach of their obligations
`under Section 18-305 of the Delaware Limited Liability Company Act to provide
`Banman with access to HRT's books and records.
`ANSWER: The allegations in Paragraph 2 contain legal conclusions to
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`which no response is required. To the extent a response is required, Defendant
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`denies the allegations in Paragraph 2, except admits that Sharp is the Managing
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`Member of HRT.
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`3.
` Banman delivered a written Demand (defined below) upon HRT and
`Sharp, seeking to obtain copies of certain of HRT's books and records, including,
`but not limited to: (i) HRT's annual income statements, profit and loss statements,
`and balance sheets for the past five years; (ii) HRT's federal and state tax returns for
`tax years 2015 through 2019; (iii) HRT's current, fully-executed written limited
`liability company agreement and HRT's formation documents; (iv) documents
`concerning the current ownership of HRT; and (v) all transaction documents relating
`to any changes in the ownership or structure of HRT during the period of Banman's
`membership.
`ANSWER: The
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`contain
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`purported
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`allegations
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`in Paragraph
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`3
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`characterizations of the Demand, which speaks for itself, and Defendant denies any
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`allegations that are contrary to or inconsistent therewith. By way of further response,
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`Defendant admits that Plaintiff delivered the demand upon HRT and Sharp.
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`4.
`Banman's Demand is made for proper purposes that are reasonably
`related to Banman's interest as a minority Member of HRT, and Banman has fully
`complied with all requirements under Section 18-305 as to the form and manner of
`making a demand.
`ANSWER: The allegations in Paragraph 4 contain legal conclusions to
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`which no response is required. To the extent a response is required, Defendant
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`denies the allegations. By way of further response, Defendant states that Plaintiff's
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`actual purpose for making the Demand is to obtain confidential information for
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`purposes of competing with HRT.
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`5.
`HRT and Sharp are obligated to permit Banman to inspect the books
`and records requested in Banman's Demand under Section 18-305. Nevertheless,
`HRT and Sharp have failed and refused to permit Banman such inspection, and
`continue to thwart, without justification or explanation, Banman's access to HRT's
`books and records.
`ANSWER: Denied.
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`6.
`For these reasons, Banman respectfully requests that this Court enter an
`order: (i) compelling HRT and Sharp to immediately produce to Banman each and
`every book and record requested in Banman's Demand; (ii) directing HRT to pay
`reasonable attorneys' fees and expenses in connection with Banman's enforcement
`of his inspection rights; and (iii) granting Banman such other and further relief as
`the Court deems just and equitable under the circumstances.
`ANSWER: The allegations in Paragraph 6 contain a description of this
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`litigation, to which no response is required. To the extent a response is required,
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`Defendant denies that Plaintiff is entitled to the relief listed in Paragraph 6, or to any
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`relief at all.
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`PARTIES
`7.
`Plaintiff Banman is an individual residing in Toronto, Ontario, Canada.
`Banman is and has been a Member of HRT at all times since the execution of a
`Membership Unit Grant Agreement between Banman and HRT on June 20, 2014.
`ANSWER: Defendant admits the allegations in the first sentence of
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`Paragraph 7. The allegations in the second sentence of Paragraph 7 purport to
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`characterize the terms and conditions of the Membership Unit Grant Agreement,
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`which speaks for itself. Defendant refers to the Membership Unit Grant Agreement
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`for a full and complete statement of its terms, and denies any allegations that are
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`contrary to or inconsistent therewith. Defendant further states that the terms of
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`Plaintiff's membership in HRT are also laid out in the Operative LLC Agreement
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`(defined below and attached as Exhibit A), which speaks for itself, and Defendant
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`refers to the Operative LLC Agreement for a full and complete statement of its terms,
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`and denies any allegations that are contrary to or inconsistent therewith.
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`8.
`Defendant HRT is a Delaware limited liability company, with its
`principal place of business located at 2255 Campus Drive, El Segundo, California
`90245. The name and address of the registered agent of HRT for service of process
`is Registered Agent Solutions, Inc., 9 E. Loockerman Street, Suite 311, Dover, DE
`19901.
`ANSWER: Admitted.
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`9.
`Sharp is and has been the Managing Member of HRT at all times since
`the HRT Limited Liability Company Agreement (the "LLC Agreement") was
`executed on or about December 20, 2013.
`ANSWER: Admitted.
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` JURISDICTION AND VENUE
`10. The Court has subject matter jurisdiction over this action pursuant to 8
`Del. C. § 18-305(f) and 10 Del. C. § 341 because it is an action seeking enforcement
`of Banman's right to obtain HRT's books and records under Section 18-305 of the
`Delaware Limited Liability Company Act.
`ANSWER: Paragraph 10 states legal conclusions to which no response is
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`required.
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`11. The Court has personal jurisdiction over HRT pursuant to 6 Del. C. §
`18-105 because HRT is a Delaware limited liability company.
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`ANSWER: Defendant admits that HRT is a Delaware limited liability
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`company. The remaining allegations in Paragraph 11 state legal conclusions to
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`which no response is required.
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`FACTUAL BACKGROUND
`12. HRT was formed as a Delaware limited liability company pursuant to
`the Delaware Limited Liability Company Act on May 6, 2013.
`ANSWER: Admitted.
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`13. On December 20, 2013, HRT, Sharp, and ECM Trust entered into the
`LLC Agreement to govern the parties' respective rights and obligations concerning
`the management and membership of HRT.
`ANSWER: Paragraph 13 purports to characterize the terms and conditions
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`of the LLC Agreement, which speaks for itself, and Defendant denies any allegations
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`that are contrary to or inconsistent therewith. By way of further response, Defendant
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`states that the version of the LLC Agreement attached as Exhibit A to the Complaint
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`(the "Original LLC Agreement") is no longer the operative version of the LLC
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`Agreement. Schedule A to the LLC Agreement has been subsequently amended to
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`reflect changes in HRT's ownership structure, consistent with Section 9.2 of the LLC
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`Agreement. The current version of the LLC Agreement (the "Operative LLC
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`Agreement") is attached hereto as Exhibit A. Defendant refers to the Operative LLC
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`Agreement for a full and complete statement of its terms, and denies any allegations
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`that are contrary to or inconsistent therewith.
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`14. A true and accurate copy of the LLC Agreement is attached hereto as
`Exhibit A.
`ANSWER: Admitted to the extent that Exhibit A constitutes the Original
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`LLC Agreement. By way of further response, Defendant hereby incorporates its
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`Answer to Paragraph 13, as if fully set forth herein.
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`15. Under the LLC Agreement, Sharp is designated as the Manager of
`HRT. Ex. A § 2.1.
`ANSWER: Paragraph 15 purports to characterize the terms and conditions
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`of the Original LLC Agreement, which speaks for itself, and Defendant denies any
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`allegations that are contrary to or inconsistent therewith. By way of further response,
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`Defendant hereby incorporates its Answer to Paragraph 13, as if fully set forth
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`herein.
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`16. As Manager, Sharp has "full, complete and exclusive authority, power,
`and discretion to manage and control the business, assets and affairs of the Company,
`to make all decisions regarding those matters and to perform any and all other acts
`or activities customary or incident to the management of the Company's business,
`assets and affairs." Id.
`ANSWER: Paragraph 16 contains a partial quotation from the Original LLC
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`Agreement, which speaks for itself, and Defendant denies any allegations that are
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`contrary to or inconsistent therewith. By way of further response, Defendant hereby
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`incorporates its Answer to Paragraph 13, as if fully set forth herein.
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`I.
`Banman's Ownership Interest in HRT
`17. On June 20, 2014, Banman and HRT executed a Membership Unit
`Grant Agreement pursuant to which Banman acquired 100 Membership Units in
`HRT.
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`ANSWER: Paragraph 17 purports to describe the terms and conditions of the
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`Membership Unit Grant Agreement, which speaks for itself. Defendant refers to the
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`Membership Unit Grant agreement for a full and complete statement of its terms,
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`and denies any allegations that are contrary to or inconsistent therewith.
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`18. A true and accurate copy of the Membership Unit Grant Agreement is
`attached hereto as Exhibit B.
`ANSWER: Admitted.
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`19. Banman's membership units in HRT fully vested as of July 1, 2017. Ex.
`B § 1. Banman holds ten percent (10%) of HRT's units.
`ANSWER: The allegations in Paragraph 19 purport to characterize the terms
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`and conditions of the Membership Unit Grant Agreement, which speaks for itself.
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`Defendant refers to the Membership Unit Grant Agreement for a full and complete
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`statement of its terms and denies any allegations that are contrary to or inconsistent
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`therewith. By way of further response, Defendant admits that Plaintiff is a minority
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`member of HRT. See Operative LLC Agreement at Schedule A (listing Plaintiff as
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`holding 10% of HRT's outstanding units as of May 1, 2018).
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`I.
`HRT's and Sharp's Continuing Misconduct
`20. Since Banman's membership acquisition in HRT, HRT and Sharp have
`been continuously deficient in providing Banman, as a Member of HRT, the
`information required under Section 18-305 of the Delaware Limited Liability
`Company Act. More specifically, HRT and Sharp have not delivered any of the
`information mandated by Section 18-305(a)(1) – (6) from June 2014 through the
`date of this Complaint.
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`ANSWER: Defendant denies the allegations in Paragraph 20, except admits
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`that Plaintiff is a member of HRT.
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`21.
`In addition to HRT's and Sharp's failure to provide the information
`required by Section 18-305, Sharp has provided inconsistent information to Banman
`concerning HRT's value and Banman's ownership interest, and Sharp has refused to
`provide documents concerning HRT's value and ownership structure. For example:
`a).
`In an audit/valuation report that Sharp had prepared
`concerning HRT in 2017, Sharp and HRT did not identify
`Banman as an owner, even though Banman held ten
`percent of HRT's units. This 2017 audit/valuation report
`valued HRT at approximately $20 million.
`b). On another occasion, Sharp informed Banman that
`HRT was valued at over $31 million as of March 31, 2017.
`c).
`In other communications with Banman, Sharp
`placed the value of HRT between $40 million and $90
`million.
`ANSWER: The allegations in the first sentence of Paragraph 21 contain legal
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`conclusions to which no response is required. To the extent a response is required,
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`Defendant denies the allegations except admits that Sharp has provided certain
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`information to Plaintiff concerning HRT's value and Plaintiff's ownership interest.
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`The allegations listed in the second sentence of Paragraph 21 purport to characterize
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`the contents of documents and written communications, which speak for themselves,
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`and Defendant denies any allegations that are contrary to or inconsistent with those
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`documents and written communications.
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`22.
`In addition, upon and information and belief, Sharp engaged in an
`interested-party transaction that may have changed HRT's ownership structure and
`altered Banman's ownership interest and rights. In March 2018, Sharp indicated to
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`Banman that Sharp intended to combine HRT and another one of Sharp's companies,
`Skye Orthobiologics, LLC, through the formation of a parent holding company.
`Sharp asked Banman to sign documents in connection with that anticipated
`transaction and asked Banman to acknowledge that he had been provided with
`adequate access to HRT's records. When Banman asked to review HRT's books and
`records before signing any documents, Sharp declined Banman's request.
`ANSWER: Defendant denies the allegations in Paragraph 22, except admits
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`that, in 2018, Sharp discussed changing the ownership structure of HRT with
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`Plaintiff.
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`23. Sharp also has attempted unlawfully to eliminate or devalue Banman's
`interest in HRT. On December 26, 2018, Sharp sent a "notice" to Banman through
`which HRT purported to unilaterally "redeem" Banman's ownership interest in HRT
`without any basis or justification.
`ANSWER: Defendant denies the allegations in the first sentence of
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`Paragraph 23. Defendant denies the allegations contained in the second sentence of
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`Paragraph 23, except admits that Sharp, on behalf of HRT, sent a notice of
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`redemption to Plaintiff on December 26, 2018.
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`24. On January 7, 2019, in response to Sharp's December 26, 2018
`"redemption notice," Banman delivered a books and records demand to HRT. Sharp
`refused to produce any HRT records, and then retracted the redemption notice.
`ANSWER: Defendant denies the allegations in Paragraph 24, except admits
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`that Plaintiff sent a January 7, 2019 letter to HRT in which Plaintiff purportedly
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`requested inspection of HRT's books and records and that Defendant did not proceed
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`with the redemption of Plaintiff's membership interest in HRT.
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`I.
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`The Books and Records Demand
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`25. Given the continuing dereliction of HRT's and Sharp's obligations, on
`June 5, 2020, Banman delivered a second books and records demand to HRT,
`seeking copies of certain HRT books and records (the "Demand").
`ANSWER: Defendant denies the allegations in Paragraph 25, except admits
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`that Plaintiff sent the Demand to HRT on June 5, 2020.
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`26. A true and accurate copy of the Demand is attached hereto as Exhibit
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`C.
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`ANSWER: Admitted.
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`27. Banman delivered the Demand to HRT and Sharp by Federal Express
`and email. Ex. C at 1.
`ANSWER: Admitted.
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`28.
`In the Demand, Banman requested that HRT and Sharp produce certain
`books and records to which Banman is entitled under Section 18-305(a) of the
`Delaware Limited Liability Company Act. Specifically, Banman demanded that
`HRT and Sharp produce copies of the following:
`• HRT's annual income statements, annual profit and loss
`statements, and annual balance sheets for the past five
`years (January 1, 2015 to the present);
`• HRT's federal and state tax returns for tax years 2015,
`2016, 2017, 2018, and 2019;
`• a copy of the current, fully-executed written limited
`liability company agreement
`for HRT, HRT's
`certificate of formation and all amendments thereto,
`together with executed copies of any written powers of
`attorney pursuant to which the limited liability
`company agreement and any certificates and all
`amendments thereto have been executed;
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`• documents sufficient to show the current ownership of
`HRT—including the name and last known address of
`each member, the amount contributed by each member,
`the number of units held by each member, a statement
`of the value of each member's interest, and the time
`period(s) during which each member held units; and
`• all transaction documents relating to any changes in the
`ownership or structure of HRT, or the addition of any
`new members, during the period June 20, 2014 to the
`present, including documents relating to any mergers,
`acquisitions, or combinations involving HRT or the
`creation of a holding company/parent company to hold
`some or all of HRT's equity.
`ANSWER: The allegations in the first sentence of Paragraph 28 state legal
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`conclusions to which no response is required. To the extent a response is required,
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`Defendant denies that Plaintiff is entitled to the requested inspection. The
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`allegations in the second sentence of Paragraph 28 purport to characterize the
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`contents of the Demand, which speaks for itself, and Defendant denies any
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`allegations that are contrary to or inconsistent therewith.
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`29.
`In the Demand, Banman explained that he has a present need to
`ascertain the value of HRT and his interest in HRT because he wishes to explore a
`sale or redemption of his interest. Banman also explained that he needed to
`understand the scope of prior equity transactions at HRT in connection with
`assessing potential tax implications and effects on his ownership interest. Banman
`further stated that he needed the requested documents due to the inconsistent
`information provided by Sharp about the value of HRT and the value of Banman's
`interest in HRT. Ex. C at 2.
`ANSWER: The allegations in Paragraph 29 purport to characterize the
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`contents of the Demand, which speaks for itself, and Defendant denies any
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`allegations that are contrary to or inconsistent therewith. By way of further response,
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`Defendant denies that Plaintiff has a "present need to ascertain the value of HRT and
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`his interest in HRT" because the LLC Agreement limits Plaintiff's ability to "sell,
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`assign,
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`transfer,
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`exchange,
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`encumber,
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`or
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`pledge
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`his membership
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`interest/Membership Units, without the prior written consent of the Members
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`holding a majority of the Percentage Interest in the Company, which consent may
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`be withheld or denied for any reason or for no reason." Operative LLC Agreement
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`§ 9.1; Original LLC Agreement § 9.1 (same).
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`30. Banman did not receive any response to his June 5, 2020 Demand, let
`alone confirmation that Banman's Demand for books and records would be honored.
`ANSWER: Defendant denies the allegations in Paragraph 30, except admits
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`that, as of the date the Complaint was filed, HRT did not respond to (or allow
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`Plaintiff to inspect HRT's books and records in response to) the Demand.
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`31. The Demand enumerated the following legitimate and proper purposes
`to obtain copies of HRT's books and records: (1) to ascertain the value of HRT; (2)
`to ascertain the value of Banman's interest in HRT; (3) to confirm that HRT's books
`and records accurately reflect Banman's ownership interest; (4) to investigate
`potential mismanagement and self-dealing; and (5) to determine whether Sharp, as
`Manager, is maintaining HRT's records in accordance with applicable law, rules, and
`regulations. Ex. C at 2.
`ANSWER: The allegations in Paragraph 31 contain legal conclusions
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`regarding the propriety of the purposes identified in the Demand, to which no
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`response is required. To the extent a response is required to those allegations, they
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`are denied. The remaining allegations in Paragraph 31 purport to characterize the
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`contents of the Demand, which speaks for itself, and Defendant denies any
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`allegations that are contrary to or inconsistent therewith.
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`32. These purposes are proper, as they are reasonably related to Banman's
`interest as a minority Member of HRT, and the inspection is not sought for a purpose
`that is in the interest of a business or object other than the business of HRT.
`ANSWER: Denied.
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`33. The books and records sought are essential and narrowly tailored to
`serve Banman's purposes in sending the Demand.
`ANSWER: Denied.
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`34. The scope of documents demanded is just and reasonable.
`ANSWER: Denied.
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`35. Banman's Demand complies with the provisions of Section 18- 305 as
`to both the form and the manner of making a demand for inspection.
`ANSWER: Paragraph 35 contains legal conclusions to which no response is
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`required. To the extent a response is required, Defendant denies the allegations.
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`36. The Demand requested that HRT provide copies of the requested books
`and records by June 15, 2020.
`ANSWER: The allegations in Paragraph 36 purport to characterize the
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`contents of the Demand, which speaks for itself, and Defendant denies any
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`allegations that are contrary to or inconsistent therewith.
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`37. As of the date of this Complaint, HRT and Sharp have neither provided
`the requested documents, responded to the Demand, nor have they acknowledged
`receipt of the Demand.
`ANSWER: Defendant denies the allegations in Paragraph 37, except admits
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`that HRT did not, as of the date the Complaint was filed, respond to (or allow
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`Plaintiff to inspect HRT's books and records in response to) the Demand.
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`38. HRT and Sharp are therefore continuing to breach their obligations to
`provide Banman with HRT's books and records under Section 18-305 of the
`Delaware Limited Liability Company Act.
`ANSWER: Denied.
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`COUNT I
`(Inspection of Books and Records pursuant to 6 Del. C. § 18-305)
`39. Banman repeats and alleges the foregoing allegations as if fully set forth
`herein.
`ANSWER: Defendant repeats all of the preceding answers and incorporates
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`them by reference as if fully set forth herein.
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`40. Pursuant to Section 18-305 of the Delaware Limited Liability Company
`Act, each member of HRT, including Banman, is entitled to obtain from HRT,
`among other things, "[t]rue and full information regarding the status of the business
`and financial condition of the limited liability company" and "[o]ther information
`regarding the affairs of the limited liability company as is just and reasonable."
`ANSWER: Paragraph 40 contains legal conclusions to which no response is
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`required. To the extent a response is required, Defendant denies the allegations to
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`the extent that they are inconsistent with or contrary to Section 18-305 of the Limited
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`Liability Company Act.
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`41. HRT has violated, and continues to violate, Section 18-305 by failing
`to provide Banman, as a minority Member of the Company, the information required
`under Section 18-305(a)(1) – (6) of the Delaware Limited Liability Company Act.
`ANSWER: Denied.
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`42. Banman made a written demand upon HRT and Sharp for copies of the
`books and records set forth in the Demand.
`ANSWER: Paragraph 42 purports to characterize the contents of the
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`Demand, which speaks for itself, and Defendant denies any allegations that are
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`contrary to or inconsistent therewith.
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`43. Banman fully complied with all requirements under Section 18- 305 as
`to the form and manner of making a demand for inspection.
`ANSWER: Paragraph 40 contains legal conclusions to which no response is
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`required. To the extent a response is required, Defendant denies the allegations.
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`44. Banman's Demand for inspection is made for proper purposes. The
`purposes stated in Banman's Demand are reasonably related to Banman's interest as
`a minority Member of HRT.
`ANSWER: Denied.
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`45. The documents identified in the Demand are essential and narrowly
`tailored to the proper purposes set forth in Banman's Demand.
`ANSWER: Denied.
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`46. The scope of documents requested in the Demand is just and
`reasonable.
`ANSWER: Denied.
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`47. HRT and Sharp continue to thwart Banman's access to HRT's books
`and records.
`ANSWER: Denied.
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`48.
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`ANSWER: Paragraph 48 contains legal conclusions to which no response is
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`required. To the extent a response is required, Defendant denies the allegations.
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`49. By reason of the foregoing, and pursuant to Section 18-305 of the
`Delaware Limited Liability Company Act, Banman is entitled to an order compelling
`HRT and Sharp to produce to Banman copies of the books and records set forth in
`Banman's Demand.
`ANSWER: Defendant denies that Plaintiff is entitled to the relief requested,
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`or to any relief at all.
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`ANSWER TO REQUEST FOR RELIEF
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`Defendant denies that Plaintiff is entitled to the relief requested, or to any
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`relief at all.
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`AFFIRMATIVE DEFENSES
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`Defendant asserts the following affirmative defenses. Defendant does so
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`without admitting or denying any of the allegations in the Complaint or assuming
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`the burden of proof or persuasion for any defense that is borne by Plaintiff.
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`Defendant reserves the right to amend and/or supplement its affirmative defenses as
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`the action proceeds.
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`FIRST AFFIRMATIVE DEFENSE
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`Plaintiff's stated purposes are not his true purposes for the inspection sought.
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`SECOND AFFIRMATIVE DEFENSE
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`Plaintiff lacks a proper purpose for its demands for inspection.
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`THIRD AFFIRMATIVE DEFENSE
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`The Complaint fails to state a claim upon which relief may be granted.
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`PRAYER FOR RELIEF
`WHEREFORE, Defendant respectfully requests that this Court enter an order
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`and judgment:
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`1.
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`2.
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`Dismissing the Complaint with prejudice;
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`Awarding Defendant the costs of defending this action, including
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`reasonable attorneys' fees and costs; and
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`3.
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`Granting such other and further relief as the Court deems just and
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`proper.
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`OF COUNSEL:
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`Ryan D. Saba
`ROSEN SABA, LLP
`9350 Wilshire Blvd., Suite 250
`Beverly Hills, CA 90212
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`Dated: July 28, 2020
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`/s/ Richard P. Rollo
`Richard P. Rollo (#3994)
`Angela Lam (#6431)
`John T. Miraglia (#6682)
`RICHARDS, LAYTON & FINGER, P.A.
`920 North King Street
`Wilmington, Delaware 19801
`(302) 651-7700
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`Attorneys for Defendant Human
`Regenerative Technologies, LLC
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`RLF1 23656165v.1
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`17
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`
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