HomeMy WebLinkAbout10-6005SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Anderson
Sheriff
Jody S Smith
Chief Deputy
Richard W Stewart
Solicitor
EFF[:E OF-HE SHERIFF
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Frank Rothrock
vs.
N.R.G. Controls, Inc.
Case Number
2010-6005
SHERIFF'S RETURN OF SERVICE
09/22/2010 Ronny R. Anderson, Sheriff, who being duly sworn according to law, states that he made a diligent search
and inquiry for the within named defendant to wit: N.R.G. Controls, Inc., but was unable to locate them in
his bailiwick. He therefore returns the within Order and Petition as not found as to the defendant N.R.G.
Controls, Inc. Current business at 2120 Market Street, Camp Hill, PA 17011 advised Deputies they have
never heard of the defendant. However, they believe N.R.G. Controls, Inc. is doing business at 48 S.
Harrisburg Street, Harrisburg, PA 17113.
SHERIFF COST: $46.94
September 22, 2010
SO ANSWERS,
RON R ANDERSON, SHERIFF
(c} Ooun_ry5uRe Shen. TeieoeYt Ins
FRANK ROTHROCK, IN THE COURT OF COMMON PLEAS OF
PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA
V.
N.R.G. CONTROLS, INC.,
DEFENDANT NO. 10-6005 CIVIL
IN RE: PETITION TO COMPEL INSPECTION OF CORPORATE RECORDS
AND/OR DOCUMENTS
ORDER OF COURT
AND NOW, this 27th day of September, 2010, upon consideration of Frank
Rothrock's Petition to Compel Inspections of Corporate Records and/or
Documents,
IT IS HEREBY ORDERED AND DIRECTED that:
1. A Rule is issued upon the Defendant to show cause why the Petition
requested should not be granted;
2. The Defendant will file an answer on or before October 12, 2010;
3. If no answer to the Rule to Show cause is filed by the required date,
the relief requested by Petitioner shall be granted upon the Court's receipt of a
Motion requesting Rule be made Absolute. If the Defendant files an answer to
this Rule to Show Cause, the Court will determine if further Order or hearing is
i"x= wed ssary.
--, The Prothonotary is directed to forward said Answer to this Court.
-- ZZ
--'
By the Court,
M. L. Ebert, Jr., J.
_,,ZPhilip Sunderland, Esquire
Attorney for Plaintiff
416 Pine Street, Suite 203
Williamsport, PA 17701
?on Haller, Esquire
1719 North Front Street
Harrisburg, PA 17102-2305
om McClay, President
N.R.G. Controls, Inc.
P. O. Box 7643
Steelton, PA 17113
R.G. Controls, Inc.
2120 Market Street
Camp Hill, PA 17011
Thomas B. Schmidt, III (19196)
Donna L. Fisher (39410)
PEPPER HAMILTON LLP
100 Market Street, Suite 200
Post Office Box 1181
Harrisburg, PA 17108-1181
717.255.1155
717.238.0575 (fax)
Attorneys for NRG Controls, Inc.
FRANK ROTHROCK,
Petitioner,
VS.
NRG CONTROLS, INC.,
FILED-OFFICE v
OF THE PRE?TN0110TAR
2010 OCT 12 PM 1:
?.,?,.
r.UMBERL
PENNSYLVANIA
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 10-6005 Civil Term
Respondent.
ANSWER OF RESPONDENT NRG CONTROLS, INC. WITH NEW MATTER
Respondent NRG Controls, Inc. ("NRG"), by its undersigned attorneys, answers
the Petition To Compel Inspection Of Corporate Records And/Or Documents ("Petition") and
raises new matter, as follows:
1. Admits in part and denies in part. NRG is a corporation organized and
existing under the laws of the Commonwealth of Pennsylvania. Its office and principal place of
business is not in the Borough of Camp Hill, Cumberland County, but is at 48 South Harrisburg
Street, Harrisburg, Dauphin County, Pennsylvania.
2. Denies. Petitioner Frank Rothrock ("Rothrock") is not a shareholder of
NRG by virtue of a stock sale agreement dated January 19, 1989, a true and correct copy of
which is attached to and incorporated in this answer as Exhibit A, as supplemented and amended
#13277350 v1
by an agreement dated September 8, 1992, a true and correct copy of which is attached to and
incorporated in this answer as Exhibit B.
3. Admits in part and denies in part. NRG admits only that the letter dated
August 6, 2009, a copy of which is attached to the Petition as its Exhibit B, was received. NRG
denies that the letter when received, or Exhibit B to the Petition, included a verified power of
attorney signed by Rothrock. Paragraph 2, above, is incorporated here by reference. Moreover,
because Rothrock is not a shareholder of NRG, he has no standing to make a request for
inspection of NRG's books and records pursuant to 15 Pa.C.S. § 1508 (corporate records;
inspection by shareholders).
4. Denies. Rothrock does not have standing to seek inspection of NRG's
books and records pursuant to 15 Pa.C.S. § 1508. Moreover, even if he had standing as a
shareholder in NRG to seek such an inspection of its books and records, Rothrock does not have
a proper purpose for doing so.
5. Denies. Paragraphs 2 and 4, above, are incorporated here by reference.
6. Denies. This paragraph of the Petition states a legal conclusion to which
no response is required. By way of response, however, Rothrock has no standing to inspect
NRG's books and records by virtue of 15 Pa.C.S. § 1508, nor has he complied with its
requirements. Paragraphs 2 and 3, above, are incorporated here by reference.
7. Denies. This paragraph of the Petition states a legal conclusion to which
no response is required. By way of response, however, Paragraphs 2, 3, 4, and 6, above, are
incorporated here by reference.
8. Denies. NRG will show, if required to do so, that Rothrock does not have
a proper purpose for inspecting the books and records of NRG and, on the contrary, seeks only to
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disrupt the management of its affairs. Paragraphs 9 through 15, below, are incorporated here by
reference.
NEW MATTER
9. Rothrock does not have a proper purpose for inspecting NRG's corporate
and business records but, on the contrary, seeks only to disrupt the management of its affairs.
10. Rothrock's Petition is barred by the doctrines of waiver, estoppel and
laches.
11. Rothrock's Petition is barred by the doctrine of unclean hands.
12. Rothrock's Petition is barred by a release contained in the stock sale
agreement dated January 19, 1989, which provides as follows:
11. Mutual Release; Indemnifications.
(a) Effective upon Closing, Rothrock and Pond,
jointly and severally, hereby release and forever discharge the
Corporation [NRG] ... of and from any and all manner of
action or actions, cause and causes of action, suits, debts and
sums of money, dues, claims and demands whatsoever, in law
or in equity, which they have ever had, or now have, or might
hereafter have against the Corporation [NRG] ... arising out
of their relationships and involvements with the Corporation
as shareholders, directors, officers, employees and in all other
capacities; ...
See Exhibit A.
13. All consideration for NRG's purchase of Rothrock's shares has been paid.
14. By virtue of the stock sale agreement, Rothrock's share certificates are
cancelled.
15. Even if there were a failure to pay all consideration for Rothrock's shares,
which is denied, any claim for such consideration would be barred by the applicable statute of
limitations.
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WHEREFORE, the Petition in this matter should be dismissed, with prejudice,
and NRG awarded attorney's fees and costs.
Respectfully submitted,
Thomas .Schmidt III (PA 19196)
Donna L. Fisher (PA 39410)
PEPPER HAMILTON LLP
100 Market Street, Suite 200
Post Office Box 1181
Harrisburg, PA 17108-1181
717.255.1155
717.238.0575 (fax)
schmidtt@pepperlaw.com
fisherd@pepperlaw.com
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#13277350 vi
VERIFICATION
I, Tom Dunleavy, sign this Verification on behalf of NRG Controls, Inc., and
verify that to the best of my knowledge, information and belief, the averments of fact in the
foregoing document are true and correct. As an officer of NRG Controls, Inc., I am authorized
to make this verification.
I understand that this statement is made subject to the penalties of 18 Pa. C.S.
§4909 (unsworn falsification to authorities).
11
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STOCK SALE AGREEMENT
THIS STOCK SALE AGREEMENT is spade this 'I tA day of
January, 1989, by and among NRG CONTROLS, INC., a Pennsylvania
corporation ("Corporation"); FRANK ROTHROCK and DARLENE
ROTHROCK, his wife ("Rothrock"); ROSS POND ("Pond"); and THOMAS
G. MCCLAY ("McClay").
WHEREAS, Rothrock owns 475 shares of common stock of the
Corporation; and
WHEREAS, Pond owns 100 shares of common stock of the
Corporation; and
WHEREAS, McClay owns 475 shares of common stock of the
corporation; and
WHEREAS, certain differences of opinion have arisen
pertaining to the operation of the Corporation; and
WHEREAS, Rothrock and Pond desire to have their common
stack redeemed by the Corporation, on the terms and conditions
set forth in this agreement.
NOV,, THEREFORE, for good and valuable consideration, and
intending to be legally bound hereby, the parties agree as
follows:
1. Sale of Stock. Rothrock and Pond hereby agree to
sell, and Corporation hereby agrees to purchase, all of their
common stock of the Corporation identified above, consisting in
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the aggregate of 575 shares, for the redemption price described
below. Share certificates for the same shall be delivered at
Closing to be held in escrow as provided below.
2. Price. The purchase price being paid for the stock by
the Corporation is as follows:
(a) Rothrock will be paid $100,000 at Closing,
and in addition shall be paid the further sun of $767,882
in weekly payments of $1,845.87 each over eight (8) years
for a total cash payment of $867,882. Such deferred
payments will include interest at an annual rate of 8.47%.
Provided, that all or any part of such deferred weekly
payments may be prepaid at any time and from time to time
without penalty, with any such prepayment being applied
against the latest of the deferred weekly payments due
hereunder; it being the understanding and agreement of the
parties hereto that any prepayment will not reduce the
interest payable on the total obligation and that,, whether
or not any prepayments are made, Rothrock will receive a
total deferred payment of $767,882 and a total cash
payment of $867,882.
(b) Pond will be paid $50,000 at Closing, and in
addition shall be paid the further sum of $145,000 in
weekly payments of $557.69 each over five (5) years for a
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total cash payment of $195,000. Such deferred payments
will include interest at an annual rate of 8.47t.
Provided, that all or any part of such deferred weekly
payments may be prepaid at any time and from time to time
without penalty, with any such prepayment being applied
against the latest of the deferred weekly payments due
hereunder; it being the understanding and agreement of the
parties hereto that any prepayment will not reduce the
interests payable on the total obligation and that,
whether or not any prepayments are made, Pond will receive
a total deferred payment of $145,000 and a total cash
payment of $195,000.
(c) Each weekly payment provided for in (a) and (b)
above shall be deemed to be timely made if checks in the
full amounts payable are mailed to Rothrock and Pond by
regular first class mail on or before Friday of each week.
3. Judgment Notes. At Closing the Corporation shall
deliver its judgment notes in recordable form substantially in
the form attached hereto in the respective amounts of $767,882
payable to the order of Rothrock, and $145,000 payable to the
order of Pond, such notes to be personally guaranteed by McClay
and his wife. The lien or liens of any judgment or judgments
obtained upon the filing of said notes or the lien or liens of
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{,
any levy or levies obtained through the issuance of any writ of
execution thereon, whensoever obtained, regardless of the order
of priority otherwise available to the judgment creditor or
creditors involved, shall be fully subject and subordinate to
the mortgage and/or lien and/or security interest positions of
the primary lending institution which is loaning or advancing
funds to the Corporation for working capital or on a line of
credit basis now or in the future to the following extent:
Extent of Subordination
From January _ 1989 to January 1990 - $ 750,000.00
From January _ 1990 to January _ 1991 - $ 850,000.00
From January _ 1991 to January _ 1992 - $ 950,000.00
From January _ 1992 to January _ 1993 - $100501000.00
From January _ 1993 to January _ 1994 - $1,1500000.00
From January + 1994 to January _ 1995 - $1,250,000.00
From January _ 1995 to January 1996 - $1,750,000.00
From January 1996 to January _ 1997 - $2,25®,000.00
The parties acknowledge and recognize that Lebanon Valley
National Bank is anticipated to be the initial priuasy lending
institution for the aforesaid purposes. Rothrock and Pond
agree and consent to promptly execute and deliver to any such
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primary lender, from time to time, any documents which such
primary lender reasonably requires for the purpose of
maintaining or evidencing its primary position.
4. Escrow of Stock; Default. The share certificates
representing the 475 and 100 shares being sold, respectively,
by Rothrock and Pond shall, at the time of Closing, be endorsed
in blank for transfer and placed in escrow with Lebanon Valley
National Bank as escrow agent (the "Agent"). Such shares shall
be held in escrow throughout the respective periods while the
Corporation is making deferred payments to Rothrock and Pond,
and during that time shall be deemed not to be outstanding or
to have any voting, dividend or similar rights.
(a) If at any time the Corporation shall default in
any of its payment obligations to either (or both)
Rothrock or Pond, and such default shall not be cured
within 10 days after receipt by the Corporation of written
notice of default given by the party to whom such payment
is owed (the "injured party"), the entire unpaid amount
owed to both Rothrock and Pond shall become immediately
due and payable, and, additionally, the Agent shall remove
all shares from escrow and return them to the respective
parties.
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r .
(b) Upon payment in full by the Corporation to
either selling shareholder hereunder, the share
certificate representing the shares held in escrow in
respect to that selling shareholder shall, upon notice of
full payment given to the Agent by both the Corporation
and that selling shareholder, be delivered promptly to the
Corporation.
(c) During the entire time that the escrow remains
in effect as to any of the shares, the Corporation (i)
will pay no dividends on its outstanding stock, and (ii)
will not issue any additional outstanding stock.
5. Additional Consideration: Rothrock. As additional
consideration, Rothrock shall be entitled to the following:
(a) at Closing, Rothrock shall receive the sum
of $25,000 in full payment of his $25,000 loan to the
Corporation.
(b) at Closing, Rothrock shall receive ownership of
and title to the 1986 Ford Van (as to which the
Corporation shall pay all costs of transfer including
applicable sales tax), and the tools and equipment
itemized on Schedule A hereto.
(c) at Closing, or prior thereto, Rothrock's counsel
fees for legal services in connection with matters
pertaining to the Corporation shall be paid in full.
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(d) as soon as practicable after Closing, Rothrock
shall receive assignment of the contracts of the
Corporation relating to the following projects:
Bellefonte Area School District
Jersey Shore Area School District
wellsboro Area School District
Otto-Eldred Area School District
Lock Haven University
St. Boniface Church
Centre County Vocational-Technical School
The parties acknowledge that such assignments may require the
consent of the clients which may not be given in one or more
cases, and the parties agree that, provided the Corporation uses
its best efforts to secure any necessary approvals, the failure
to secure one or more approvals and the nonassignment of any of
the contracts shall not be deemed to be a default hereunder. In
connection with any such assignment, Rothrock agrees to indemnify
and hold harmless the Corporation and McClay from any and all
losses or expenses they may incur with respect to the project
being assigned, and, further, the Corporation shall be entitled to
its pro rata share of income based on the percentage of completion
of the project at the time of the assignment, and Rothrock shall
be entitled to the balance of the income from such project.
(e) during the period while the Corporation
is making deferred payments to Rothrock, the Corporation
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shall continue to make payments on behalf of Rothrock to
the union pension and health and welfare funds in
accordance with prevailing hourly contribution
requirements, provided that the Corporation's obligation
shall be limited to an aggregate contribution of $8,000
during calendar year 1989 and $8,000 for each succeeding
calendar year.
(f) during the period while the Corporation is making
payments to Rothrock, he shall have the right to purchase
Robertshaw Control parts from the Corporation at its cost;
provided, that such right shall apply to parts either held
in inventory or used by the Corporation in the ordinary
course of its business, and that the Corporation shall
have no further obligation under this subparagraph in the
event for any reason it ceases to be an authorized
representative of Robertshaw.
6. Additional Consideration: Pond. As additional
consideration hereunder, Pond shall be entitled to ownership of
and title to the 1983 Ford Van (as to which the Corporation
shall pay all costs of transfer including applicable sales
tax), and at or before Closing to have his counsel fees for
legal services paid in full in connection with matters
pertaining to the Corporation.
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7. Term Life Insurance. As additional security for
Rothrock and Pond, the Corporation agrees to obtain and pay the
premiums on a $1,000,000 term life insurance policy on the life
of McClay, such insurance to remain in effect for eight years.
Such policy shall stipulate that the beneficiaries shall be
Rothrock and Pond to the extent of all unpaid amounts that may
be owed to them under this Agreement at the time of McClay's
death, with the balance of insurance proceeds to be payable to
the Corporation. Rothrock agrees that the aggregate premiums
paid by the Corporation with respect to this insurance shall be
deducted from the final deferred payments due him; provided,
that if any insurance proceeds are used to pay an amount owed
to Rothrock hereunder, Rothrock shall reimburse the Corporation
for that portion of the aggregate premiums determined by multi-
plying the aggregate premiums paid by the Corporation by a
fraction the numerator of which shall be the amount of insur-
ance proceeds paid to Rothrock pursuant to this Agreement and
the denominator of which shall be $767,882. With respect to
the insurance provided for under this paragraph 7, it is the
intention of all parties to secure the same through Robert G.
English, provided it can be secured from him at a cost and on
terms substantially comparable to those offered generally by
other insurance agents or brokers.
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8. Closing. Closing shall occur on or before February 2,
1989 at such location as shall be selected by the parties. The
conditions of the obligations of the parties to close hereunder
shall be as follows:
(a) in the case of the Corporation and McClay,
(i) delivery of the Rothrock and Pond shares;
(ii) resignations and additional warranties of
Rothrock and Pond as per Section 10; and
(iii) securing of financing (both with respect to the
Corporation's cash obligations at Closing
hereunder and its need for business operation
financing) in an amount and on terms and
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conditions that in the sole discretion of
KcClay are acceptable. In that connection,
McClay hereby stipulates that the financing
proposed by the commitment letter dated
December 19, 1988 delivered by Lebanon Valley
National Bank is acceptable; and the parties
hereby agree that if for any reason Lebanon
Valley National Bank fails or refuses to close
and to actually provide the financing
contemplated therein, McClay and the
Corporation shall have no further obligation
except to use best efforts to secure other
acceptable financing by February 16, 1989.
(b) An the case of Rothrock,
(i) receipt of the initial payment and an executed
judgment note as per Sections 2(a) and 3,
respectively,
(ii) receipt of additional consideration as per
subsections (a), (b) and (c) of Section 5; and
(iii) receipt of all remuneration or other benefits
as per Section 10.
(c) in the case of Pond,
(i) receipt of the initial payment and an executed
judgment note as per Sections 2(b) and 3,
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respectively;
(ii) receipt of additional consideration as per
Section 6; and
(iii) receipt of all remuneration or other benefits
as per Section 10.
(d) in the case of all parties,
(i) execution of an appropriate Escrov Agreement
and placing of the Rothrock and Pond shares
in escrow as per Section 4;
(ii) effectiveness of term life insurance policy
as per Section 7; and
(iii) due adoption of resolutions by the
Corporation's Board of
Directors approving this agreement and
authorizing the stock redemptions.
9. Warranties Concerning Stock. Rothrock and Pond hereby
respectively warrant and represent at present and as of Closing
(a) that they have and are conveying good and valid title to
their shares, free of any adverse interests, liens or
encumbrances of any kind, and (b) that the shares being sold
hereunder are all of the shares of Corporation which they own,
and that they hold no options, rights or other interests
entitling them to acquire any additional shares.
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10. Resignations and Additional Warranties. Upon Closing,
Rothrock and Pond shall by appropriate written instruments (a)
resign from the Board of Directors of the Corporation, (b)
resign from any and all corporate offices they hold, and (c)
terminate their respective employments with the Corporation.
Rothrock and Pond at the time of Closing shall further
respectively warrant and represent that, except as and to the
extent provided in this Agreement, they have been paid in full
all remuneration and benefits of any kind owed to them by the
Corporation.
11. Mutual Release; Indemnifications.
(a) Effective upon Closing, Rothrock and Pond,
jointly and severally, hereby release and forever
discharge the Corporation and McClay and their respective
heirs, personal representatives, successors and assigns,
of and from any and all manner of action or actions, cause
and causes of action, suits, debts and sums of money,
dues, claims and demands whatsoever, in law or in equity,
which they have ever had, or now have, or might hereafter
have against the Corporation or McClay or both of them,
arising out of their relationships and involvements with
the Corporation as shareholders, directors, officers,
employees and in all other capacities; and the Corporation
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and KcClay, jointly and severally, hereby release and
forever discharge Rothrock and Pond and their respective
heirs, personal representatives and assigns of and from
any and all manner of action or actions, cause and causes
of action, suits, debts and sums of money, dues, claims
and demands whatsoever, in law or in equity, which they
have ever had, or now have, or might hereafter have
against Rothrock or Pond or both of them, arising out of
their relationships and involvements with the Corporation
as shareholders, directors, officers, employees and in all
other capacities. The releases given herein shall,
however, have no effect on the rights and obligations of
the parties arising under this Agreement.
(b) The Corporation and KcClay and his wife
additionally agree to indemnify and hold harmless Rothrock
and his wife, and also Pond, with respect to (i) any
obligations of the Corporation, including the Commerce
Bank loan, which such persons may have personally
guaranteed, actually or purportedly, as of the date of
Closing, and (ii) from and against any liabilities
incurred by such persons by virtue of their having been
employees of the Corporation (unless such liabilities
arise as the result of their having acted outside the
scope of their normal duties and responsibilities, in
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.t
which event this indemnification and hold harmless
undertaking shall be of no effect).
12. Prior Agreement Superseded. The purchase of the
shares by the Corporation in accordance with this Agreement
shall be in lieu of a purchase in the manner specified in the
Stock Retirement Agreement dated December 30, 1985, and the
parties hereto waive any rights which they may have thereunder.
13. Additional Agreements. The parties agree in good
faith from time to time hereafter to execute any bills of sale,
consents or other instruments necessary or appropriate to
effect the transactions provided for or contemplated by this
Agreement.
14. Notices. All notices and other communications
hereunder shall be deemed to have been duly given if sailed as
follows:
(a) To NRG Controls, inc.
(b) To Rothrock
(c) To Pond
(d) To McClay
P.O. Box 7643
Steelton, PA 17113
521 West Baldeagle Street
Lock Haven, PA 17745
127 Lucknow Road
Harrisburg, PA 17110
c/o NRG Controls
P. O. Box 7643
Steelton, PA 17113
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i
Any party may change its respective address for purposes of
this paragraph by giving written notice by mail to the other
parties in this paragraph.
15. Binding Effect. This Agreement shall be construed
under Pennsylvania law and shall be binding upon and inure to
the benefit of the parties and their respective heirs, personal
representatives, successors and assigns.
16. Modification. This Agreement say be modified only by
a written instrument signed by all parties hereto.
17. Final Agreement. This Agreement supersedes all
agreements previously made between the parties relating to its
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subject matter, and there are no other understandings or
agreements between them except as not forth herein.
ATTEST: NRG CONTROLS, INC.
(Corporate Seal)
Hy•
Thomas G. McClay Se retary Frafik Rothroc , President
WITNESS:
ao ? ?cee.a/ri, awl
ra of rock
r ene Roth?r/oc
? / G SV
RIB/ and
Thomas G. McClay
Joinder by Evelyn McClay (with respect only to her obligations
under paragraphs 3 and it hereof):
L,-??ayLc
Evelyn McC y
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f 0 .
COMMONWEALTH OF PENNSYLVANIA )
SS.
COUNTY OF )
On this, the '21-04 day of , 1989, before
me, a Notary Public, the undersigned Vfficer, rsonally appeared
Ic?e,.,,,?e GL&"'?j ?, who personally acknowledged
himself to be the of NRG Controls, Inc., a
corporation, and that he as such officer, being authorized to do
so, executed the foregoing Stock Sale Agreement for the purposes
therein contained by signing the name of the corporation by
himself as .
IN WITNESS WHEREOF, I hereunto set my hand and official
seal.
Nota
My Commission Expire:
NOT W. SEAL
ESPIRIRRiON A. COWNGMA Notary PLOO
I?tItlalown. PA Dwplrn Ca"
Condon 7 1
U
?G?
11 &
AGREEMENT
THIS AGREEMENT made this day of If
1992, by and among NRG CONTROLS, INC., a Pennsylvania corporation;
FRANK ROTHROCK and DARLENE ROTHROCK, his wife ("Rothrock"); and
THOMAS G. McCLAY ("McClay").
WHEREAS, on January 19, 1989, Corporation, Rothrock, Ross
bond ("Pond") and McClay entered into a Stock Sale Agreement
whereby the Corporation was to purchase the common stock of the
Corporation owned by Rothrock (475 shares) and Pond (100 shares);
and
WHEREAS, the Corporation and McClay are in default of the
terms of the aforesaid Stock Sale Agreement, dated January 19,
1989.
NOW, THEREFORE, Rothrock has agreed not to exercise their
right of default under the aforesaid Stock Sale Agreement, dated
January 19, 1989, in consideration of the following:
1. Corporal ion shall make a downpayment to Rothrock of
Two Hundred Fifty Thousand and XX/100 ($250,000.00) Dollars and
thereafter shall make weekly payments to Rothrock of Two Thousand
Five Hundred and XX/100 ($2,500.00) Dollars for a period of
sixty-three (63) weeks by direct deposit into the designated
account of Elliott B. Weiss, Esquire, beginning with the first
Friday immediately following the date of the downpayment, and
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2 _
( I
n
continuing thereafter on each and every subsequent Friday until the
entire sum due Rothrock is paid in full. The Corporation shall
have the right to prepay the said weekly payments at any time.
2. Until such time as Corporation makes the
downpayment, it shall continue to make weekly payments in the
amount of One Thousand Eight Hundred Forty-five and 47/100
($1,845.47) Dollars to Rothrock.
3. As security for the payments set forth hereinabove,
Rothrock shall continue to have the security interests and
guarantees as set forth in the Agreement of January 19, 1989,
including among other things that no additional stock of the
Corporation shall be issued. In addition, the stock now held by
Lebanon Valley National Bank as Escrow Depository for the stock
held by Rothrock and Pond shall be transferred to Elliott B. Weiss,
Esquire. In the event of default, either in the payments due
Rothrock and/or Pond, the stock shall be distributed as follows:
a. If money is still owed to Pond, then to
Rothrock and Pond respectively; and
b. If no money is due to Pond, then all of the
said 575 shares shall be distributed to Rothrock.
4. Pension, Annuity, Health and Welfare payments shall
be brought current by Corporation and shall be applied to the
annuity portion. Thereafter, if any balance is still outstanding,
payments shall be made currently for these benefits, but shall be
applied solely to the annuity portion.
0
- 3 -
5. Upon the payment of the last weekly payment to
Rothrock or Pond, whichever is later, by the Corporation as
provided for herein with respect to the Rothrock payments and as
provided in the Agreement of January 19, 1989 with respect to the
Pond payments, and upon the last of the payments as required by
Paragraph 4 hereof, the stock shall be returned to the Corporation
and all liens evidencing the aforesaid shall be satisfied.
Thereafter, there shall be no further obligations between the
parties under this Agreement or the Agreement of January 19, 1989.
6. The provisions of this Agreement, other than
Paragraph 2 hereof, shall not take affect until the downpayment (as
provided for in Paragraph 1 hereof) is made by Corporation to
Rothrock.
IN WITNESS WHEREOF, the parties hereto have hereunto set
their hands and seals the day and year first above written.
ATTEST,:
By
Secretary
WITNESS:
NRG CONTROLS, INC.
By: -Ua resident F"RAN
THRO
X
? ?
D VANE7-ROTHRO6K
THOMAS G. MCCLAY
CERTIFICATE OF SERVICE
I, Thomas B. Schmidt, III, hereby certify that on October 12, 2010, I caused a true
and correct copy of the foregoing Answer of Respondent NRG Controls, Inc. with New Matter to
be served upon counsel listed below via first class mail:
Philip Sunderland, Esquire
Elliott B. Weiss and Associates
416 Pine Street, Suite 203
Williamsport, PA 17701
Thomas B. Schmidt, III
#13277350 vl
FRANK ROTHROCK,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Petitioner,
VS.
N.R.G. CONTROLS, INC.,
Respondent,
Civil Division
W11,-10-6005
PRAECIPE TO DISCONTINUE
C=1
(r)
rrl
L7,
TO THE PROTHONOTARY:
Per the agreement of both parties kindly mark this matter, as DISCONTINUED with
PREJUDICE.
Elliott B. Weiss, Esquire
Attorney ID # 23810
416 Pine Street, Suite 203
Williamsport, PA 17701
(570)327-2530
DATED this 8/4 day of September 2014.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY; '?NNSYLVANIA
FRANK ROTHROCK, Civil Division
Petitioner,
VS.
N.R.G. CONTROLS, INC.,
Respondent,
NO: 10-6005
CERTIFICATE OF SERVICE
AND NOW, comes Elliott B Weiss, Esquire, Attorney for Plaintiff in the above
captioned matter, and certifies that a true and correct copy of the within Praecipe to Discontinue
has been served upon Defendant by sending a copy by U.S. Mail to the address listed below on
this // day of September, 2014.
Thomas B. Schmidt, III, Esquire
Pepper Hamilton, LLP
Suite 200
100 Market Street
P.O. Box 1181
Harrisburg, PA 17108
traUr
Elliott B. Weiss, Esquire
Attorney ID # 23810
416 Pine Street, Suite 203
Williamsport, PA 17701
(570)327-2530