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HomeMy WebLinkAbout14-2972 Supreme Ca, ennsylvania COU ' fCo�m Pleas For Prothonotary Use Only: r Docket No. l Sj cLry) CL r' County'01,1 ��. ��►7� a `y The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service of pleadings or other papers as required by law or rules of court. Commencement of Action: S El Complaint ® Writ of Summons ® Petition ® Transfer from Another Jurisdiction ® Declaration of Taking E C Lead Plaintiff's Name: Lead Defendant's Name: T Dollar Amount Requested: ®within arbitration limits I Are money damages requested? El Yes ® No (check one) ®x outside arbitration limits i0 N Is this a Class Action Suit? ®Yes El No Is this an MDJAppeal? ® Yes No A Name of Plaintiff/Appellant's Attorney: Douglas G. 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TORT(do not include Mass Tort) CONTRACT(do not include Judgments) CIVIL APPEALS Intentional [I Buyer Plaintiff Administrative Agencies Malicious Prosecution ® Debt Collection:Credit Card [] Board of Assessment ® Motor Vehicle ® Debt Collection:Other ® Board of Elections ® Nuisance ® Dept.of Transportation [3 Premises Liability ® Statutory Appeal:Other I S E] Product Liability(does not include mass tort) ® Employment Dispute: E Discrimination Slander/Libel/Defamation C ® Other: Employment Dispute:Other ® Zoning Board T Other: I ® Other: O MASS TORT 0 Asbestos N ® Tobacco ® Toxic Tort-DES © Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS Toxic Waste Other: ®Ejectment ® Common Law/Statutory Arbitration B ® Eminent Domain/Condemnation ® Declaratory Judgment ® Ground Rent Mandamus ® Landlord/Tenant Dispute Non-Domestic Relations Mortgage Foreclosure:Residential Restraining Order PROFESSIONAL LIABLITY ® Mortgage Foreclosure:Commercial ®Quo Warranto ® Dental ® Partition E3 Replevin Legal ® Quiet Title Other: El Medical [3 Other: Corporate dissolution ® Other Professional: Updated 1/1/1011 •4 Y�. MATTHEW A. EBY, an Individual and : THE COURT OF COMMON PLEAS OF Member of Accents Landscaping,LLC, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, c> V. NO. CIVIL T-t&M - DAVID E. FUREMAN, an Individual and: CIVIL ACTION—LAW -� Member of Accents Landscaping,LLC a' o Defendant. <o --v ©-- =:a C: NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 717-249-3166 1-800-990-9108 Americans with Disabilities Act of 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. 1103- �.s"' pr 4�4 35A9 3 0.5--9 gr o MATTHEW A. EBY, an Individual and : THE COURT OF COMMON PLEAS OF Member of Accents Landscaping,LLC, : CUMBERLAND COUNTY,PENNSYLVANIA Plaintiff V. NO. CIVIL TERM DAVID E. FUREMAN, an Individual and: CIVIL ACTION—LAW Member of Accents Landscaping,LLC Defendant COMPLAINT FOR DISSOLUTION OF CORPORATION AND NOW comes the Plaintiff, MATTHEW A. EBY, an Individual and Member of ACCENTS LANDSCAPING, LLC, by and through his attorneys, Irwin & McKnight, P.C. to file the following Complaint and Petition for Dissolution of Corporation, and in support thereof avers as follows: 1. Plaintiff, Matthew A. Eby, is an adult individual of Cumberland County, Pennsylvania, residing at 2714 Cedar Street, Mechanicsburg, Pennsylvania 17055. 2. Plaintiff owns sixty percent (60%) of the Pennsylvania Limited Liability Company known as Accents Landscaping, LLC, having a registered address of 1636 Williams Grove Road, Dillsburg, Pennsylvania 17019 (hereinafter the "Company"). 3. Defendant, David E. Fureman, is an adult individual currently or previously residing at 435 Town Hill Road, York Springs, Pennsylvania 17372. 4. Defendant owns forty percent(40%) of the Company. 5. The Company was formed for the purpose of operating a landscaping business as well as any lawful activity permitted under law. A true and correct copy of the signed Operating Agreement for the Company from April 2011 is attached hereto and incorporated herein as Exhibit"A." y f 6. Plaintiff Eby and Defendant Fureman are the only members of the Company. 7. Both Plaintiff and Defendant contributed to the formation and operation of the Company and its landscaping business. 8. Pursuant to Article IX of the Operating Agreement of the Company signed by both Plaintiff Eby and Defendant Fureman, and attached hereto as Exhibit "A," the Company shall dissolve upon either the affirmative vote of the Members holding at least seventy-five percent (75%) of ownership, or upon the entry of an order of judicial dissolution under Section 8972 of the Pennsylvania Limited Liability Company Law of 1994. 9. Although both Plaintiff and Defendant initially contributed to the formation and operation of the Company, Plaintiff no longer wishes to operate the business with the. Defendant due to personal and professional differences. 10. Defendant has already undertaken efforts to obtain a number of trucks and related equipment used by the Company as part of its business operations and depreciated by the Company for tax purposes. 11. Defendant, however, has refused and continues to refuse to formally dissolve the Company by agreement pursuant to the terms of the Operating Agreement. COUNT I—CORPORATE DISSOLUTION 12. The averments contained in paragraphs one (1) through eleven (11) are hereby incorporated by reference and are made part of this Count I. 13. Attempts to finalize the dissolution of the Company and equitably allocated and distribute the assets pursuant to Annex B.9 of the Operating Agreement attached hereto as Exhibit"A"have been frustrated by the refusal of the Defendant to agree to a plan of dissolution. 2 Y t 14. A proposed dissolution of the Company and division of its assets was submitted in the form of a Separation Agreement prepared by corporate counsel for the Company. A true and correct copy of the proposed Separation Agreement of the Members of Accents Landscaping, LLC is attached hereto and incorporated herein as Exhibit`B." 15. However, Defendant subsequently refused to sign the agreement attached as Exhibit "B" and instead began taking possession of business assets and equipment of the Company. 16. The two members have therefore been and are still unable to agree upon the division of the assets and liabilities, and are therefore deadlocked and unable to reach the seventy-five percent(75%)threshold set forth in the Operating Agreement. 17. Plaintiff and Defendant are also unable to communicate, and therefore it is beneficial to the parties that the Company be wound up and dissolved. 18. Because of the deadlock, the Company has been unable to complete its dissolution and winding up of all business affairs. 19. The parties are currently deadlocked in the direction of the dissolution of the Corporation and they are unable to break the deadlock and irreparable injury to the Company is being suffered and additional irreparable injury is threatened. 20. Plaintiff therefore petitions this Court for judicial dissolution pursuant to Article IX of the parties' Operating Agreement and Section 8972 of the Pennsylvania Limited Liability Company Law of 1994, as amended. WHEREFORE, Plaintiff Eby requests that this Honorable Court enter an order dissolving Accents Landscaping, LLC, appointing a liquidating receiver for the Company to determine the 3 `7 y 1 7 distribution of the assets and liabilities equitably to the members, and such other and further relief as this Court shall deem just and equitable under the circumstances. COUNT II—BREACH OF FIDUCIARY DUTY 21. The averments contained in paragraphs one (1) through nineteen (19) are hereby incorporated by reference and are made part of this Count II. 22. Plaintiff Eby seeks damages for the diminution in value to his membership interest of the Company as a result of the Defendant Fureman's fundamentally unfair and destructive conduct. 23. The conduct of Defendant Fureman include his failure to use his best efforts to advance the business of the Company, having his personal credit card linked to and paid by the business account of the Company, and retrieving and accumulating the assets and property of the Company. 24. As a forty percent (40%) Member in the Company, Defendant Fureman owes a fiduciary duty to both the Company and Plaintiff Eby,the sixty percent (60%) Member. 25. The acts and omissions of Defendant Fureman constitute breaches of his fiduciary duties. 26. The acts of the Defendant Fureman are also illegal and oppressive in that Defendant voluntarily walked away from the operation and management of the Company yet Defendant insists on reaping the benefit of the Plaintiff's work, effort, and investments to keep the business running. 27. As a direct and proximate result of Defendant's breaches of fiduciary duties, Plaintiff has suffered and will suffer damages in the nature of diminution in the value of his share 4 s , of the Company, losses of investment income, attorney fees, and court expenses to obtain a break in the deadlock of the members of the Company,the amount of which remains unliquidated. WHEREFORE, Plaintiff Eby respectfully requests that this Honorable Court enter an order dissolving Accents Landscaping, LLC, appointing a liquidating receiver for the Company to determine the distribution of the settlement proceeds and any other remaining assets and/or liabilities equitably to the members, enter judgment in Plaintiff's favor in an amount exceeding the arbitration limit, together with pre judgment interest, the costs of his action, and such other remedies as this Court shall deem just and equitable under the circumstances. Respectfully Submitted, IRWIN & McKNIGHT, P.C. Douglas filler,Esquire Supreme Court I.D.No. 83776 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717)249-2353 Attorneys for Plaintiff Date: 5/14/14 5 VERIFICATION The foregoing document is based upon information which has been gathered by my counsel and myself in the preparation of this action. I have read the statements made in this document and they are true and corn-cct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification lo authorities. MATT I .�W A. EBY - - - ACCENTS LANDSCAPII`vC, LC Date: 1 f .r tr s� i I I: I t I i I I: 1 I i t EXHIBIT "A" s eT e 0 0 OPERATING AGREEMENT OF ACCENTS LANDSCAPING, LLC (A Pennsylvania Limited Liability Company) This Operating Agreement of Accents Landscaping, LLC (the "Company"), dated as of August_, 2011, has been adopted by the Persons who were Members of the Company on that date. This Agreement, as it may be amended from time to time, shall be binding on any person who at the time is a Member, regardless of whether or not the person has executed this Agreement or any amendment hereto. RECITALS The Company has been organized as a Pennsylvania limited liability company by the filing of a certificate of organization with the Department of State of the Commonwealth of Pennsylvania under and pursuant to the Act. NOW,THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and intending to be legally bound hereby, the Members agree as follows: ARTICLE I—DEFINITIONS 1.01. Definitions. In addition to the terms defined in other provisions of this Agreement, the following terms shall have the meanings set forth below unless the context requires otherwise: "Act." The Pennsylvania Limited Liability Company Law of 1994, 15 Pa.C.S. S 8901 et. seq,, and any successor statute, as amended from time to time. "Agreement." This Operating Agreement, as amended, modified, supplemented or restated from time to time. "Capital Account." The individual account maintained by the Company with respect to each Member as provided in Section 4.04. "Capital Contribution." The aggregate amount of cash and the agreed value of any property or services (as determined by the Member and the Company) contributed by each Member to the Company as provided in Section 4.01. In the case of a Member that acquires Units by an assignment or transfer in accordance with the terms of this Agreement, "Capital Contribution" means the Capital Contribution of that Member's predecessor proportionate to the acquired Units. "Certificate." The certificate of organization of the Company and any and all amendments thereto and restatements thereof filed on behalf of the Company with the Department of State of the Commonwealth of Pennsylvania pursuant to the Act. B-I Y ) "Code." The Internal Revenue Code of 1986, as amended from time to time. "Company." See the preamble. "Corporation." See Section 2.03. "Incorporation Plan." See Section 2.03. "Indemnified Capacity." See Section 7.01(d)(1). "Indemnified Representative." See Section 7.01(d)(2). "Member." Any Person who at the time is a record holder or record owner of Units. "Membership Interest." The interest of a Member in the Company, including, without limitation, interests in Profits and Losses, rights to distributions (liquidating or otherwise), allocations, information, and to consent to or approve actions by the Company, all in accordance with the provisions of this Agreement and the Act. "Percentage Interest." The number of Units held at a particular time by a Member, divided by the number of Units then held by all Members, expressed as a percentage. "Person." A natural person, corporation, general or limited partnership, limited liability company,joint venture, trust, estate, association or other legal entity or organization. "Prime Rate." A varying rate per annum that is equal to the interest rate published by The Wall Street Journal from time to time as the prime commercial or similar reference interest rate,with adjustments in that varying rate to be made on the same date as any change in that rate. "Proceeding." See Section 7.01(d)(3). "Representative." See Section 7.01(d)(4). "Treasury Regulations." The income tax regulations, including temporary regulations, promulgated under the Code, as those regulations may be arnended from time to time (including corresponding provisions of succeeding regulations). "Units." See Section 3.02. ARTICLE II -- ORGANIZATION 2.01. Principal Place of Business; Other Offices. The principal place of business of the Company shall be at 1636 Williams Grove Road, Dillsburg, PA 17019 or at such other place as the Members may designate from time to time, which need not be in the Commonwealth of a Pennsylvania. The Company may have such other offices as the Members may designate from time to time. 2.02. Purpose. The object and purpose of, and the nature of the business to be conducted and promoted by, the Company is engaging in any lawful act or activity for which limited liability companies may be organized under the Act and engaging in any and all lawful activities necessary, convenient, desirable or incidental to the foregoing. 2.03. Incorporation. Upon the approval of 75 % of the Members of a plan to incorporate the Company (the"Incorporation Plan"), the Units held by each Member shall be transferred to the corporation formed for that purpose (the "Corporation") in exchange for shares of the Corporation, the Company shall be merged into such a Corporation or the Company shall file an election with the Internal Revenue Service to be classified as a corporation for Federal income tax purposes, in a transaction that qualifies under Section 351 of the Code and that maintains the relative rights and preferences of the Units (the "Section 351 Transaction"). Each Member shall take all actions necessary or desirable in connection with the consummation of the Section 351 Transaction. The Company shall pay all of the organizational, legal and accounting expenses and filing fees incurred in connection with the Section 351 Transaction. In connection with the Incorporation Plan, each Unit shall be converted automatically into common shares (the "Common Shares"). The Common Shares shall have the same rights, privileges, preferences and obligations as the Units immediately before the Section 351 Transaction. ARTICLE III—MEMBERSHIP INTERESTS 3.01. Initial and Subsequent Members. The Members of the Company are the Persons listed on Annex A. A Person who is not already a Member and who acquires a previously outstanding Unit or Units in accordance with this Agreement shall automatically be admitted as a Member; other Persons may be admitted from time to time upon the issuance to them of a Unit or Units on such terms as are fixed by the Members. It shall not be necessary for Persons who are subsequently admitted as Members or who acquire any or all of an existing Member's Units to execute this Agreement either by counterpart or amendment. When any Person is admitted as a Member or ceases to be a Member, the Members shall prepare a revised version of Annex A and distribute it to all the Members. 3.02. Authorized Membership Interests. The aggregate Membership Interest in the Company shall be comprised of 100 Units ("Units"). The rights, preferences, privileges and restrictions granted to and imposed upon the Units are set forth in Annex C. 3.03. Record Holders of Units. The Company shall be entitled to treat the Person in whose name any Units of the Company stand on the books of the Company as the absolute owner thereof, and as a Member of the Company holding the Membership Interest evidenced by those Units. The Company shall not be bound to recognize any equitable or other claim to, or interest in, such Unit or Units on the part of any other Person,whether or not the Company has express or other notice of any such claim. 3.04. Transfers and Assignments of Units. (a) Free Transferability. Except to the extent that transfers or assignments of Units are restricted by agreement, Units and the Membership Interests represented thereby shall be freely transferable and assignable, in whole or in part, and it shall not be necessary to obtain the approval of any of the Members in order to transfer or assign a Unit or any or all of the rights comprising the Membership Interest represented by the Unit. (b) Capital Account of Transferee. Upon the valid transfer of a Unit, the transferee shall succeed to the corresponding portion of the Capital Account of the transferor as provided in Section B.2(b) of Annex B. 3.05. Lack of Authority. A Member in his, her or its capacity as such shall not have the authority or power to act for or on behalf of the Company or otherwise bind the Company in any way. 3.06. No Right of Partition. A Member shall not have the right to seek or obtain partition by court decree or operation of law of any Company property, or the right to own or use particular assets of the Company. 3.07. Distribution Upon Dissociation. (a) General Rule. Except as provided in subsection (b), a Member who is dissociated from the Company shall not have the right under Section 8933 of the Act.to be paid the fair value of the Membership Interest of the Member as a result of the dissociation, unless the dissociation: (1) does not involve the transfer of the Member's Membership Interest to another Person; and (2) occurs after the time when the Members approve a proposal that the Company participate in a merger, consolidation or division, or that the Company sell all or substantially all its assets, and before the time when that transaction is consummated. (b) Exceptions. A Member shall not have the right to be paid the fair value of the Membership Interest of the Member under subsection (a) if: (I) the transaction would not give rise to dissenters rights if the Company were a Pennsylvania corporation; or (2) the transaction is terminated, in which event any Member seeking to be paid the fair value of the Membership Interest of the Member shall be deemed to have remained a Member without interruption. 3.08 Evidence and Transfer of Units. (a) Evidence of Units. The Units shall not be represented by certificates. ti (b) Procedure. Transfers of Units shall be made on the Unit register of the Company. No transfer shall be made inconsistent with the provisions of 13 Pa.C.S. Div. 8 or other applicable provisions of law. ARTICLE IV—FINANCIAL AND TAX MATTERS 4.01. Capital Contributions. The Company shall keep a record of the Capital Contributions made by the Members. A Member shall not be required to make any capital contribution to the Company not specifically agreed to.in writing between the Member and the Company, or be obligated or required under any circumstances to restore any negative balance in his, her or its Capital Account. 4.02. Return of Contributions. A Member is not entitled to the return of any part of the Member's Capital Contribution, or to be paid interest in respect of the Member's Capital Account or Capital Contribution. An unrepaid Capital Contribution is not a liability of the Company or of any Member. A Member is not required to contribute or to lend any cash or property to the Company to enable the Company to return any Member's Capital Contributions. 4.03. Advances by Members. If the Company does not have sufficient cash to pay its obligations, a Member may agree,with the consent of the Members, to advance all or part of the needed funds to or on behalf of the Company. An advance described in this Section 4.03 constitutes a loan from the Member to the Company, bears interest at the Prime Rate from the date of the advance until the date of payment, and is not a Capital Contribution. 4.04. Capital Accounts. At all times while there is more than one Member, a Capital. Account shall be established and maintained for each Member as provided in Annex B. (a) The allocation and capital account maintenance provisions of Treasury Regulations under Section 704 of the Internal Revenue Code are hereby incorporated by reference, including a "qualified income offset" within the meaning of Treas. Reg. Section 1.704-1(b)(2)(ii)(d), the rules regarding allocation of"partner nonrecourse deductions"under Treas. Reg. Section 1.704- 2(1)(1), "minimum gain chargeback"under Treas. Reg. Section 1.704-2(0 and "partner nonrecourse debt minimum gain chargeback" under Treas. Reg. Section 1.704-2(i)(4), and the limitation on allocation of losses to any Member that would cause a deficit capital account in excess of such Member's capital contribution obligations and share of minimum gain and partner nonrecourse debt minimum gain under Treas. Reg. Section 1.704-1(b)(2)(ii)(d) as modified by Treas. Reg. Sections 1.704-2(g)(1) and 1.704-2(i)(5). (b) To the extent contributed property has a fair market value at the time of contribution that differs from the contributing Member's basis in the property, and to the extent the carrying value of property of the Company otherwise differs from the Company's basis in such property, depreciation, gain and loss for capital account purposes shall be computed by reference to such carrying value rather than such tax basis. In accordance with Section 704(c) of the Code, income, gain, loss and deduction with respect to such property shall, solely for tax purposes, be shared among the Members so as to take account of the variation between the basis of the Zr� property to the Company and its fair market value at the time of contribution, or at the time that the carrying value of such property is adjusted under Treas. Reg. Section 1.704-1(b)(2)(iv)(f), as the case may be. 4.05. Profits and Losses. At all times while there is more than one Member, profits and losses shall be allocated to the Members as provided in Annex B. 4.06. Distributions. (a) General Rule. Except as otherwise provided in Article IX, the Members may authorize the Company to make distributions to the Members. All distributions, other than liquidating distributions, shall be made to the Persons shown as holders of record of Units at the time in proportion to their Percentage Interests, except as otherwise provided in Annex C. (b) Minimum distribution. With respect to any taxable year of the Company in which Members are allocated taxable income for Federal income tax purposes (and for this purpose all items of income, gain, loss or deduction required to be separately stated pursuant to Section 703 of the Code shall be included in the calculation of taxable income (other than the amount, if any, by which capital losses exceed capital gains)), the Company shall distribute to the Members, within 90 days after the close of that taxable year, no less than the amount determined by multiplying the Company's taxable income (computed as set forth in this sentence) by the highest composite Federal, state and local income tax rate applicable to any Member. For purposes of the preceding sentence, the Company's taxable income for a year shall be reduced by any net loss of the Company in prior years that has not previously been so taken into account under this Section 4.06(b). Nothing herein shall require the Company to borrow money or reduce its cash flow so as to restrict its ability to operate the day-to-day activities of the business in order to make such distributions. 4.07. Establishment of Reserves. The Members shall have the right and obligation to establish reasonable reserves for maintenance, improvements, acquisitions, capital expenditures and other contingencies, such reserves to be funded with such portion of the operating revenues of the Company as the Members may deem necessary or appropriate for that purpose. 4.08. Tax Returns. The Members shall arrange for the preparation of all tax returns required to be filed for the Company. Each Member shall be entitled to receive, upon written request, copies of all Federal, state and local income tax returns and information returns, if any, which the Company is required to file. All information needed by the Members and other Persons who were Members during the applicable taxable year for income tax purposes shall be prepared by the Company's accountants and furnished to each such Person after the end of each taxable year of the Company. 4.09. Tax Elections. (a) To the extent permitted by applicable tax law, the Company may make the following elections on the appropriate tax returns: �A Y I (1) to adopt the calendar year as the Company's taxable year; (2) to adopt the cash method of accounting and to keep the Company's books and records on the income-tax method; (3) if a transfer of a Membership Interest as described in Section 743 of the Code occurs, on written request of any transferee Member, or if a distribution of Company property is made on which gain described in Section 734(b)(1)(A) of the Code is recognized or there is an excess of adjusted basis as described in Section 734(b)(1)(B) of the Code, to elect, pursuant to Section 754 of the Code, to adjust the basis of Company properties; (4) to elect to amortize the organizational expenses of the Company and the start-up expenditures of the Company ratably over a period of 60 months as permitted by Sections 195 and 709(b) of the Code; and (5) any other election the Members may deem appropriate and in the best interests of the Members. (b) Neither the Company nor any Member may make an election for the Company to be taxable as a corporation for Federal income tax purposes or to be excluded from the application of the provisions of subchapter K of chapter 1 of subtitle A of the Code or any similar provisions of applicable state law, and no provision of this Agreement shall be construed to sanction or approve such an election. 4.10. Tax Matters Partner. If the Company is subject to the consolidated audit procedures of Sections 6221 to 6234 of the Code, Members shall designate one Member to be the"tax matters partner" of the Company pursuant to Section 6231(a)(7) of the Code Any Member who is designated "tax matters partner" shall take such action as may be necessary to cause each other Member to become a"notice partner" within the meaning of Section 6223 of the Code. Any Member who is designated "tax matters partner" shall inform each other Member of all significant matters that may come to its attention in its capacity as "tax matters partner" by giving notice thereof on or before the fifth Business Day after becoming aware thereof and, within that time, shall forward to each other Member copies of all significant written communications it may receive in that capacity. 4.11. Tax Withholding. Unless treated as a Tax Payment Loan, any amount paid by the Company for or with respect to any Member on account of any withholding tax or other tax payable with respect to the income, profits or distributions of the Company pursuant to the Code, the Treasury Regulations, or any state or local statute, regulation or ordinance requiring such payment (each a "Withholding Tax Act") shall be treated as a distribution to the Member for all purposes of this Agreement. To the extent that the amount required to be remitted by the Company under a Withholding Tax Act exceeds the amount then otherwise distributable to the Member, the excess shall constitute a loan from the Company to the Member (a"Tax Payment Loan"). Each Tax Payment Loan shall be payable upon demand and shall bear interest, from the date that the Company makes the payment to the relevant taxing authority, at the applicable y Federal short-term rate under Section 1274(d)(1) of the Code, determined and compounded semiannually. So long as any Tax Payment Loan or the interest thereon remains unpaid, the Company shall make future distributions due to the Member under this Agreement by applying the amount of any such distribution first to the payment of any unpaid interest on all Tax Payment Loans of the Member and then to the repayment of the principal of all Tax Payment Loans of the Member. The Members shall take all actions necessary to enable the Company to comply with the provisions of any Withholding Tax Act applicable to the Company and to cant' out the provisions of this subsection. ARTICLE V—MANAGEMENT 5.01. Management by Members. (a) Exclusive Responsibility. The management of the business and affairs of the Company shall be the sole and complete responsibility of the Members. The Company may act only by actions taken by or under the direction of the Members in accordance with this Agreement. ARTICLE VI—MEMBERS 6.01. Voting Rights of Members. The voting rights of the Members shall be based on the Units held by each Member as provided in Annex C. 6.02. Action by Members. Except as otherwise provided in the Act, the Certificate or this Agreement, whenever any action is to be taken by vote of the Members, it shall be authorized upon receiving the affirmative vote of a majority of the votes cast by all Members entitled to vote thereon. Recording the fact of abstention does not constitute casting a vote. The purchase or sale of real estate, or the borrowing of funds, shall be permitted only upon an affirmative vote of the majority of the votes cast by all Members, after which affirmative vote, one Member may be authorized to act on behalf of the Company. 6.03. Meetings of Members. (a) Quorum. A meeting of the Members shall not be organized for the transaction of business unless a quorum is present. The presence of Members entitled to cast at least a majority of the votes that all Members are entitled to cast on a particular matter to be acted upon at the meeting shall constitute a quorum for the purposes of consideration and action on the matter. The Members present at a duly organized meeting can continue to do business until adjournment notwithstanding the withdrawal of enough Members to leave less than a quorum. If a meeting cannot be organized because a quorum has not attended, the Members present may adjourn the meeting to such time and place as they may determine. (b) Location. All meetings of the Members shall be held at the principal place of business of the Company or at such other place within or without the Commonwealth of Pennsylvania.as shall be specified or fixed in the notice thereof. r (c) Adjournment. The chairman of the meeting or the Members present and entitled to vote shall have the power to adjourn a meeting from time to time, without any notice other than announcement at the meeting of the time and place at which the adjourned meeting will be held. (d) Annual Meeting. An annual meeting of the Members, for the transaction of such other business as may properly come before the meeting, shall be held on such date and at such time as the Members shall fix and set forth in the notice of the meeting, which date shall be within 13 months subsequent to the date of organization of the Company or the last annual meeting of Members, whichever most recently occurred. If an annual meeting is not called and held within six: months after the time required by the previous sentence, any Member may call the meeting at any time thereafter. (e) Special Meetings. Special meetings of the Members for any proper purpose or purposes may be called at any time by any Member entitled to cast at least 10% of the votes that all Members are entitled to cast at the particular meeting. Only business within the purpose or purposes described in the notice of the meeting may be conducted at a special meeting of the Members. (t) Notices. Notice of a meeting of Members shall be given to the Members either personally or by sending a copy thereof: (1) By first class or express mail, postage prepaid, or courier service, charges prepaid, to the postal address of each Member appearing on the books of the Company. Notice pursuant to this paragraph shall be deemed to have been given when deposited in the United States mail or with the courier service. (2) By facsimile transmission, e-mail or other electronic communication to the facsimile number or address for e-mail or other electronic communications supplied by a Member to the Company for the purpose of notice. Notice pursuant to this paragraph shall be deemed to have been given when sent. (g) Waiver of Notice. A waiver of notice of a meeting signed by the Member entitled to the notice, whether before or after the meeting, shall be deemed equivalent to the giving of the notice. Attendance of a Member at a meeting constitutes a waiver of notice of the meeting, except where a Member attends a meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened. 6.04. Proxies. (a) General Rule. Every Member entitled to vote at a meeting of the Members or to express consent or dissent without a meeting may authorize another Person to act for the Member by proxy. The presence of, or vote or other action at a meeting of Members by, or the expression of consent or dissent by, a proxy of a Member shall constitute the presence of, or vote or action by, or consent or dissent of the Member. q J (b) Minimum Requirements. Every proxy shall be executed by the Member or by the duly authorized attorney-in-fact of the Member and filed with the Members. A telegram, telex, cablegram or other electronic transmission by the Member, or a photographic, photostatic, facsimile or similar reproduction of a writing executed by the Member shall be treated as properly executed for purposes of this section if it sets forth a confidential and unique identification number or other mark furnished by the Company to the Member for the purposes of a particular meeting or transaction. (c) Revocation. A proxy, unless coupled with an interest, shall be revocable at will, notwithstanding any other agreement or any provision in the proxy to the contrary, but the revocation of a proxy shall not be effective until written notice thereof has been given to the Members. An unrevoked proxy shall not be valid after three years from the date of its execution unless a longer time is expressly provided in the proxy. A proxy shall not be revoked by the death or incapacity of the maker unless, before the vote is counted or the authority is exercised, written notice of the death or incapacity is given to the Members. 6.05. Conduct of Meetings. All meetings of the Members shall be presided over by the chairman of the meeting, who shall be designated by the Members. The chairman of any meeting of Members shall determine the order of business and the procedure at the meeting, including such regulation of the manner of voting and the conduct of discussion as seem to him or her in order. 6.06. Action by Consent or Remote Participation. (a) Action by Consent. Any action required or permitted to be taken at a meeting of Members may be taken without a meeting, without prior notice, and without a vote, upon the consent of Members who would have been entitled to cast the minimum number of votes that would be necessary to authorize the action at a meeting at which all Members entitled to vote thereon were present and voting. The consents shall be in writing or in electronic form and shall be filed with the Members. An action taken by less than unanimous consent of the Members shall not become effective until after at least ten days' written notice of the action has been given to each Member entitled to vote thereon who has not consented thereto. (b) Remote Participation. The presence or participation, including voting and taking other action, at a meeting of Members, by conference telephone or other electronic means, including without limitation the Internet, shall constitute the presence of, or vote or action by, the Member. 6.07. Voting by Joint Holders of Units. Where Units are held in any form of joint or common ownership by two or more Persons: (1) if less than all of those Persons are present in person or by proxy at a meeting of the Members, all of the Units held in joint or common ownership shall be deemed to be represented at the meeting and the Company shall accept as the vote of all the Units the vote cast by a majority of those Persons present; and �u r� ti y (2) if the Persons are equally divided upon whether the Units held by them shall be voted or upon the manner of voting the Units, the voting of the Units shall be divided equally among the Persons without prejudice to the rights of those Persons among themselves. 6.08. Liability of Members. The Members, as such, shall not be liable for the debts, obligations or liabilities of the Company except to the extent required by the Act. ARTICLE VII—INDEMNIFICATION OF AUTHORIZED REPRESENTATIVES 7.01. Scope of Indemnification. (a) General Rule. The Company shall indemnify an Indemnified Representative against any liability incurred in connection with any Proceeding in which the Indemnified Representative:may be involved as a party or otherwise by reason of the fact that the Indemnified Representative: is or was serving in an .Indemnified Capacity, including, without limitation, liabilities resuliting from any actual or alleged breach or neglect of duty, error, misstatement or misleading statement, negligence, gross negligence or act giving rise to strict or products liability, except: (1) where the indemnification is expressly prohibited by applicable law; (2) where the conduct of the Indemnified Representative has been finally determined pursuant to Section 7.06 or otherwise: . (i) to constitute willful misconduct or recklessness within the meaning of 1:5 Pa.C.S. § 8945(b) or any superseding provision of law sufficient in the circumstances to bar indemnification against liabilities arising from the conduct; or (ii) to be based upon or attributable to the receipt by the Indemnified Representative from the Company of a personal benefit to which the Indemnified Representative is not legally entitled; or (3) to the extent the indemnification has been finally determined in a final adjudication pursuant to Section 7.06 to be otherwise unlawful. (b) Partial Payment. If an Indemnified Representative is entitled to indemnification in respect of a portion, but not all, of any liabilities to which the Person may be subject, the Company shall indemnify the Indemnified Representative for such portion of the liabilities. (c) Presumption. The termination of a proceeding by judgment, order, settlement or conviction or upon a plea of nolo contendere or its equivalent shall not of itself create a presumption that the Indemnified Representative is not entitled to indemnification. (d) Definitions. For purposes of this Article: x (1) "Indemnified Capacity" means any and all past, present and future service by an Indemnified Representative in one or more capacities as an employee or agent of the Company, or, at the request of the Company, as an employee, agent, fiduciary or trustee of another corporation, partnership,joint venture, limited liability company, trust, employee benefit plan or other entity or enterprise; (2) "Indemnified Representative" means any other person designated as an Indemnified Representative by the Members (which may, but need not, include any Person serving at the request of the Company, as an employee, agent, fiduciary or trustee of the Company or any corporation, partnership,joint venture, limited liability company, trust, employee benefit plan or other entity or enterprise); (3) "Proceeding" means any threatened, pending or completed action, suit, appeal or other proceeding of any nature,whether civil, criminal, administrative or investigative, whether formal or informal, and whether brought by or in the right of the Company, its Members or otherwise; and (4) "Representative" means, with respect to any entity, a person occupying the position or discharging the functions of an employee or agent thereof, regardless of the name or title by which the person may be designated. (c) Covered Liabilities. The liabilities for which indemnification, contribution and advancement of expenses are provided under this Article include any damage,judgment, amount paid in settlement, fine, penalty, punitive damages, excise tax assessed with respect to an employee benefit plan, or cost or expense, of any nature (including, without limitation, attorneys' fees and disbursements). 7.02. Proceedings Initiated By Indemnified Representatives. Notwithstanding any other provision of this Article, the Company shall not indemnify under this Article an Indemnified Representative for any liability incurred in a Proceeding initiated (which shall not be deemed to include counterclaims or affirmative defenses) or participated in as an intervenor or amiczrs curiae by the Person seeking indemnification unless the initiation of or participation in the Proceeding is authorized, either before or after its commencement, by the affirmative vote of a majority of the Members. This section shall not apply to reimbursement of expenses incurred in successfully prosecuting or defending an arbitration under- Section 7.06 or otherwise successfully prosecuting or defending the rights of an Indemnified Representative granted by or pursuant to this Article. 7.03. Advancing Expenses. (a) General Rule. The Company shall pay the expenses (including attorneys' fees and disbursements) incurred in good faith by an Indemnified Representative in advance of the final disposition of a Proceeding described in Section 7.01 or the initiation of or participation in which is authorized pursuant to Section 7.02 upon receipt of an undertaking by or on behalf of the Indemnified Representative to repay the amount if it is ultimately determined pursuant to '+ r Section 7.06 or by a court of competent jurisdiction that the Indemnified Representative is not entitled to be indemnified by the Company pursuant to this Article. The financial ability of an Indemnified Representative to repay an advance shall not be a prerequisite to the making of the advance. Excerpt as provided in subsection (b), advancement of expenses shall be automatic upon receipt ofthe undertaking to repay the amount advanced and shall not require approval of the Members. Advancement of expenses shall not of itself give the Company the right to select, or participate in the selection of, counsel for the Indemnified Representative. (b) Exception. Subsection (a) shall not apply to a Proceeding in which an Indemnified Representative is a defendant if the initiation of the Proceeding is authorized by the affirmative vote of a majority of the Members. 7.04. Securing of Indemnification Obligations. To further effect, satisfy or secure the indemnification obligations provided herein or otherwise, the Company may maintain insurance, obtain a letter of credit, act as self-insurer, create a reserve,trust, escrow, cash collateral or other fund or account, enter into indemnification agreements, pledge or grant a security interest in any assets or properties of the Company, or use any other mechanism or arrangement whatsoever in such amounts, at such costs, and upon such other terms and conditions as the Members shall approve. Absent fraud, the determination of the Members with respect to such amounts, costs, terms and conditions shall be conclusive against all Members and shall not be subject to voidability. 7.05. Time for Payment.Hent. An Indemnified Representative shall be entitled to indemnification, contribution or advancement of expenses within 30 days after a written request for indemnification or advancement of expenses has been delivered to the Members. 7.06. Arbitration. (a) General rule. Any dispute related to the right to indemnification, contribution or advancement of expenses as provided under this Article, shall be decided only by arbitration in the metropolitan area in which the principal executive offices of the Company are located at the time, in accordance with the commercial arbitration rules then in effect of the American Arbitration Association, before a panel of three arbitrators, one of whom shall be selected by the Company, the: second of whom shall be selected by the Representative and the third of whom shall be selected by the other two arbitrators. In the absence of the American Arbitration Association, if for any reason arbitration under the arbitration rules of the American Arbitration Association cannot be initiated, or if one of the parties fails or refuses to select an arbitrator or if the arbitrators selected by the Company and the Representative cannot agree on the selection of the third arbitrator within 30 days after such time as the Company and the Representative have each been notified of the selection of the other's arbitrator, the necessary arbitrator or arbitrators shall be selected by the presiding judge of the court of general jurisdiction in such metropolitan area. (b) Burden of Proof. The party or parties challenging the right of a Representative to the benefits of this Article shall have the burden of proof. 4 , (c) Expenses. The Company shall reimburse a Representative for the expenses (including attorneys' fees and disbursements) incurred in successfully prosecuting or defending an arbitration tinder this section. (d) Effect. Any award entered by the arbitrators shall be final, binding and nonappealable and judgment may be entered thereon by any party in accordance with applicable law in any court of competent jurisdiction, except that the Company shall be entitled to interpose as a defense in any such judicial enforcement proceeding any prior final judicial determination adverse to the.Representative under Section 7.01(a)(2) in a proceeding not directly involving indemnification under this Article. This arbitration provision shall be specifically enforceable. 7.07. Contribution. If the indemnification provided for in this Article or otherwise is unavailable for any reason in respect of any liability or portion thereof, the Company shall contribute to the liabilities to which the Indemnified Representative may be subject in such proportion as is appropriate to reflect the intent of this Article or otherwise. 7.08. Mandatoia Indemnification. To the extent that a Representative of the Company has been successful on the merits or otherwise in defense of any action or proceeding relating to the Person's service as a Representative of the Company or in defense of any claim, issue or matter therein., the Person shall be indemnified against expenses (including attorneys' fees and disbursements) actually and reasonably incurred by the Person in connection therewith. 7.09. Contract Rights; Amendment or Repeal. Any rights under this Article shall be deemed a contract between the Company and each Indemnified Representative, or Representative with a claim for indemnification under Section 7.08, pursuant to which the Company and each such Indemnified Representative or Representative intend to be legally bound. Any repeal, amendment or modification hereof that reduces the indemnification or advancement of expenses provided hereby shall be prospective only and shall not affect any rights or obligations then existing, except as may be agreed in writing by the affected Indemnified Representative or Representative. If the Act is amended to permit a Pennsylvania limited liability company to provide greater rights to indemnification and advancement of expenses for Indemnified Representatives than the express terms of this Article VII, this Article VII shall be construed to provide for such greater rights. 7.10. Scope of Article. The rights granted by this Article shall not be deemed exclusive of any other rights to which those seeking indemnification, contribution or advancement of expenses may be entitled under any statute, agreement, vote of Members or otherwise both as to action in an indemnified capacity and as to action in any other capacity. The indemnification, contribution and advancement of expenses provided by, or granted pursuant to, this Article shall continue as to a Person who has ceased to be an Indemnified Representative in respect of matters arising prior to such time, and shall inure to the benefit of the heirs and personal representatives of such a Person. 7.11. Reliance on Provisions. Each Person who shall act as an Indemnified Representative of the Company shall be deemed to be doing so in reliance upon the rights provided by this Article. 7.12. Interpretation. The provisions of this Article are adopted pursuant to the authority set forth in 15 Pa.C.S. § 8945 and are intended to fall within the scope of the permissible provisions of an operating agreement authorized by that section. ARTICLE VIII -- BOOKS, RECORDS, REPORTS, AND BANK ACCOUNTS 8.01. Maintenance of Books. (a) Financial Records. The Company shall keep books and records of accounts which shall be maintained on a cash basis, or such other method.as is required for Federal income tax purposes, in accordance with the terms of this Agreement, except that the Capital Accounts of the Members shall be maintained in accordance with Section 4.08. (b) Company Records. In addition to the financial records required to be maintained under subsection (a), the Company shall keep the following records: (1) A list setting forth the full name and last known mailing address of each Member. (2) A copy of the Certificate and all amendments thereto. (3) Copies of all of the Company's Federal, state and local income tax returns and annual financial statements. (4) Copies of the currently effective written Operating Agreement, and all amendments thereto, and copies of any operating agreements no longer in effect. (5) Minutes of the proceedings of the Members. 8.02. Reports. The Company shall furnish to its Members annual financial statements, including at least a balance sheet as of the end of each fiscal year and a statement of income and expenses for the fiscal year. The financial statements shall be prepared on the basis of generally accepted accounting principles,.if the Company prepares financial statements for the fiscal year on that basis for any purpose. The financial statements shall be mailed by the Company to each of the Members within 120 days after the close of each fiscal year. Statements that are not audited or reviewed by a public accountant shall be accompanied by a statement of the person in charge of the Company's financial records: (1) Stating his reasonable belief as to whether or not the financial statements were prepared in accordance with generally accepted accounting principles and, if not, describing the basis of presentation. (2) Describing any material respects in which the financial statements were not prepared on a basis consistent with those of the previous year. �1 tY 8.03. Financial Accounts. The Members shall establish and maintain one or more separate bank and investment accounts in the Company name with financial institutions and firms that the Members determines. The Members may not commingle the Company's funds with the funds of any Member; however, Company funds may be invested in a manner the same as or similar to the Members' investment of their own funds or investments by their affiliates. ARTICLE IX -- DISSOLUTION, LIQUIDATION, AND TERMINATION 9.01. Dissolution. The Company shall dissolve, and its affairs shall be wound up, upon the first to occur of the following: (1) the affirmative vote of the Members holding at least 75% of the outstanding Units; or (2) the entry of an order of judicial dissolution of the Company under Section 8972 of the Act. 9.02. Liquidation and Termination. (a) Procedure. On dissolution of the Company, the Members shall act as liquidator or may appoint one or more representatives or Members as liquidator. The liquidator shall proceed diligently to wind up the affairs of the Company and make final distributions as provided herein and in the Act. The costs of liquidation shall be borne as a Company expense. Until final distribution, the liquidator shall continue to operate the Company properties with all of the power and authority of the Members. The steps to be accomplished by the liquidator are as follows: (l) as promptly as possible after dissolution and again after final liquidation, the liquidator shall cause a proper accounting to be made by a recognized firm of certified public accountants of the Company's assets, liabilities, and operations through the last day of the calendar month in which the dissolution occurs or the final liquidation is completed, as applicable; (2) the liquidator shall first pay, satisfy or discharge from Company funds all of the debts, liabilities and obligations of the Company to its creditors (including, without limitation, all expenses incurred in liquidation and any advances described in Section 4.03) or othervyise make adequate provision for payment and discharge thereof (including, without limitation, the establishment of a cash escrow fund for contingent liabilities in such amount and for such term as the liquidator may reasonably determine), all in accordance with the provisions of the Act as may be applicable; (3) after all of the payments required by paragraph (2) have been made, any remaining assets of the Company shall be distributed to the holders of Units as follows: y� t' e (i) the liquidator may sell any or all Company property, including to Members, and any resulting gain or loss from each sale shall be computed and allocated to the Capital Accounts of the holders of Units; (ii) with respect to all Company property that has not been sold, the fair market value of that property shall be determined and the Capital Accounts of the Members shall be adjusted to reflect the manner in which the unrealized income, gain, loss, and deduction inherent in property that has not been reflected in the Capital Accounts previously would be allocated among the Members if there were a taxable disposition of that property for the fair market value of that property on the date of distribution; and (iii) after completion of the steps in subparagraphs (i) and (ii), the remaining assets shall be distributed to the Members in an amount equal to the credit balance in each of their Capital Accounts, after giving effect to all contributions, distributions and allocations for all periods. (b) Distributions. All distributions in kind to the Members shall be made subject to the liability of each distributee for costs, expenses, and liabilities relating to the assets distributed in kind theretofore incurred or for which the Company has committed prior to the date of termination and those costs, expenses, and liabilities shall be allocated to the distributees pursuant to this section. The distribution of cash and/or property to a Member in accordance with the provisions of this section constitutes a complete return to the Member of its Capital Contributions and a complete distribution to the Member-of its Membership Interest in all the Company's property. To the extent that a Member returns funds to the Company, it has no claim against any other Member for those funds. 9.03. Deficit Coital Accounts. Notwithstanding anything to the contrary contained in this Agreement, and notwithstanding any custom or rule of law to the contrary, to the extent that the deficit, if any, in the Capital Account of any Member results from or is attributable to deductions and losses of the Company (including non-cash items such as depreciation), or distributions of money pursuant to this Agreement to all Members in proportion to their respective Percentage Interests, upon dissolution of the Company such deficit shall not be an asset of the Company and such Members shall not be obligated to contribute such amount to the Company to bring the balance of such Member's Capital Account to zero. 9.04. Certificate of Dissolution. On completion of the liquidation of Company assets as provided herein, the Company is terminated, the Members (or such other person or persons as the Act may require or permit) shall file a Certificate of Dissolution with the Department of State of the Commonwealth of Pennsylvania and take such other actions as may be necessary to terminate the existence of the Company. ARTICLE X -- GENERAL, PROVISIONS 10.01,. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original as against any party whose %.5 Ito signature appears thereon, and all of which shall together constitute one and the same instrument. If executed in multiple counterparts, this Agreement shall become binding when any counterpart or counterparty, individually or taken together, bear the signatures of all of the initial Members. 10.02. Notices. (a) To Members. Any notice required to be given individually or to a Member under the provisions of this Agreement or by the Act shall be given either personally or by sending a copy thereof: (1) By first class or express mail, postage prepaid, or courier service, charges prepaid,, to the postal address of the Person appearing on the books of the Company. Notice pursuant to this paragraph shall be deemed to have been given to the Person entitled)thereto when deposited in the United States mail or with a courier service for delivery to that Person. (2) By facsimile transmission, e-mail or other electronic communication to the Person's facsimile number or address for e-►nail or other electronic communications supplied by the Person to the Company for the purpose of notice. Notice pursuant to this paragraph shall be deemed to have been given to the Person entitled thereto when sent. (b) To the Company. Any notice to the Company must be given at the following address: 1701 Spring Road, Carlisle, Pennsylvania. 10.03. Entire Agreement. This Agreement constitutes the entire agreement among the Members with respect to the subject matter hereof and supersedes all prior agreements, express or implied, oral or written, with respect thereto. The express terms of this Agreement control and supersede any course of performance or usage of trade inconsistent with any of the terms hereof. 10.04. Effect of Waiver or Consent. A waiver or consent, express or implied, to or of any breach or default by any Person in the performance by that Person of its obligations with respect to the Company is not a consent or waiver to or of any other breach or default in the performance by that Person of the same or any other obligations of that Person with respect to the Company. Failure on the part of a Person to complain of any act of any Person or to declare any Person in default with respect to the Company, irrespective of how long that failure continues, does not constitute a waiver by that Person of its rights with respect to that default until the period of the applicable statute of limitations has run. 10.05. Amendment. This Agreement or the Certificate may be amended from time to time only by vote of both the Members at any annual or special meeting of the Members. All amendments must be in writing and shall take effect when furnished to the Members pursuant to Section 10.02. An amendment to Annex A shall not be considered an amendment requiring a vote. 10.06. Binding Effect and Rights of Third Parties. This Agreement has been adopted to govern the operation of the Company, and shall be binding on and inure to the benefit of the Members and their respective heirs, personal representatives, successors and assigns. This Agreement is expressly not intended for the benefit of any creditor of the Company or any other Person, except a Person entitled to indemnification, contribution or advancement of expenses under Article VII. Except and only to the extent provided by applicable statute no such creditor or other Person shall have any rights under this Agreement. 10.07. Governing Law. This Agreement shall be governed by and interpreted and enforced in accordance with the substantive laws of the Commonwealth of Pennsylvania (including, without limitation, provisions concerning limitations of actions), without reference to the conflicts of laws rules of that or any other jurisdiction, except that Federal law shall also apply to the extent relevant. 10.08. Severability. If any provision of this Agreement or the application thereof to any Person or circurnstance is held invalid or unenforceable to any extent, the remainder of this Agreement and the application of that provision to other Persons or circumstances shall not be affected thereby and that provision shall be enforced to the greatest extent permitted by law. 10.09. Arbitration. All disputes arising under this Agreement shall promptly be submitted to arbitration in Cumberland County, before one arbitrator in accordance with the rules of the American Arbitration Association. The arbitrator may assess costs, including counsel fees, in such manner as the arbitrator deems fair and equitable. The award of the arbitrator shall be final and binding upon all parties, and judgment upon the award may be entered in any court of competent jurisdiction. 10.10. Construction. Whenever the context requires, the gender of any word used in this Agreement includes the masculine, feminine or neuter, and the number of any word includes the singular or plural. All references to articles and sections refer to articles and sections of this Agreement, and all references to annexes are to annexes attached hereto, each of which is made a part hereof for all purposes. The headings in this Agreement are for convenience only; they do not form a part of this Agreement and shall not affect its interpretation. TN WITNESS WHEREOF, the initial Members of the Company have caused this Agreement to be executed as of the day and year first above written. MEMBERS: 17-1 David E. Furema Matthew A. Eby ;'` k r Annex A Date: Name and Address of Each Member Units Owned David E. Purernan 40 Matthew A. Eby 60 Annex B FINANCIAL AND TAX MATTERS B.1. Definitions. In addition to the terms defined in other provisions of this Agreement, including without limitation Section 1.01, the following terms shall have the meanings set firth below: "Adjusted Capital Account Deficit" shall mean with respect to any Member, the deficit balance, if any, in the Member's Capital Account as of the end of the relevant taxable year, after giving effect to the following adjustments (i) increasing the Capital Account by any amounts that the Member is obligated to restore or is deemed to be obligated to restore pursuant to Treas. Reg. Sections 1.704-1(b)(2)(ii)(c), 1.704-2(g)(1) and 1.704-2(i)(5); and (ii) reducing the Capital Account by the items described in Treas. Reg. Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6). The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the provisions of Treas. Reg. Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith. "Business Day" means any day other than a Saturday, a Sunday, or a holiday on which national banking associations in the Commonwealth of Pennsylvania are closed. "Company Minimum Gain"has the same meaning as "partnership minimum gain" set forth in Treas. Reg. Sections 1.704-2(b)(2) and 1.704-2(d). "Depreciation" shall mean for each taxable year or other period, an amount equal to the depreciation, amortization or other cost recovery deduction allowable with respect to an asset for such year or other period, except that if the Gross Asset Value of an asset differs from its adjusted basis for Federal income tax purposes at the beginning of such year or other period, Depreciation shall be an amount which bears the same ratio to such beginning Gross Asset Value as the Federal income tax depreciation, amortization or other cost recovery deduction for such year or other period bears to such beginning adjusted tax basis; provided, however, that if the Federal income tax depreciation, amortization, or other cost recovery deduction for such year is zero, Depreciation shall be determined with reference to such beginning Gross Asset Value using any reasonable method selected by the Members, and if the Company uses the "remedial allocation method" under Treas. Reg. Section 1.704-3(d) with respect to any asset, Depreciation for that asset shall be computed in accordance with Treas. Reg. Section 1.704-3(d)(2). "Excess Nonrecourse Liabilities" has the same meaning as set forth in Treas. Reg. Section 1.752-3(a)(3). "Gross Asset Value" with respect to any asset shall mean the asset's adjusted basis for Federal income tax purposes, except as follows: (1) The initial Gross Asset Value of any asset contributed by a Member to the Company shall be the gross fair market value of the asset, as determined by the contributing Member and the Company. r a , a (2) The Gross Asset Values of all Company assets shall be adjusted to equal their respective gross fair market values, as determined by the Members, as of the following times: (i) the acquisition of an additional interest in the Company by any new or existing Member in exchange for more than a de minimis contribution of money or other property; (ii) the distribution by the Company to a Member of more than a de minimis amount of money or other property as consideration for an interest in the Company; (iii) the liquidation of the Company for Federal income tax purposes within the meaning of Treas. Reg. Section 1.704-1(b)(2)(ii)(g); except that the adjustments pursuant to clauses (i) and (ii) above shall be made only if the Members reasonably determine that such adjustments are necessary or appropriate to reflect the relative economic interests of the Members in the Company. (3) The Gross Asset Value of any Company asset distributed to any Member shall be the gross fair market value of such asset on the date of distribution. (4) The Gross Asset Values of Company assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of those assets pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent that the adjustments are taken into account in determining Capital Accounts pursuant to Treas. Reg. Section 1.704-1(b)(2)(iv)(m) and Section B.2, except that Gross Asset Values shall not be adjusted pursuant to this paragraph (4)to the extent the Members determine that an adjustment pursuant to paragraph (2) is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this paragraph (4).. (5) If the Gross Asset Value of an asset has been determined pursuant to paragraphs (1), (2), or(4), that Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to that asset for purposes of computing Profits and Losses. "Mem:ber Nonrecourse Debt" has the same meaning as "partner nonrecourse debt" set forth in Treas. Reg. Sections 1.704-2(b)(4) and 1.704-2(i). "Mernber Nonrecourse Debt Minimum Gain" shall have the same meaning as "partner nonrecourse debt minimum gain" set forth in Treas. Reg, Section 1.704-2(i) and shall be determined in accordance with the principles of that Section. "Member Nonrecourse Deductions" has the same meaning as "partner nonrecourse deductions" sect forth in Treas. Reg. Sections 1.704-2(i)(1) and 1.704-2(i)(2). "Nonrecourse Deductions" are deductions having the meaning set forth in Treas. Reg. Sections 1.704-2(b)(1) and 1.704-2(c). "Profits and Losses" shall mean for each taxable year or other period, an amount equal to the Company's taxable income or loss for that year or period, determined in accordance with Code Section 703(x) (for these purposes, all items of income, gain, loss, or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss),with the following adjustments: (1) Any income of the Company that is exempt from Federal income tax and not otherwise taken into account in computing Profits or Losses pursuant to the foregoing shall be added to such taxable income or loss. (2) Any expenditures of the Company described in Code Section 705(a)(2)(B) or that are treated as Code Section 705(a)(2)(B) expenditures pursuant to Treas. Reg. Section 1.704-1(b)(2)(iv)(i) and not otherwise taken into account in computing Profits or Losses pursuant to the foregoing shall be subtracted from such taxable income or loss. (3) In the event the Gross Asset Value of any Company asset is adjusted pursuant to paragraph (2), (3) or (4) of the definition of Gross Asset Value, the amount of the adjustment shall be taken into account as gain or loss from the disposition of the asset for purposes of computing Profits or Losses. (4) Gain or loss resulting from any disposition of Company property with respect to which gain or loss is recognized for Federal income tax purposes shall.be computed by reference to the Gross Asset Value of the property disposed of, notwithstanding that the adjusted tax basis of the property differs from its Gross Asset Value. (5) In lieu of the depreciation, amortization, and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken .into account Depreciation for the taxable year or other period, computed in accordance with the definition of Depreciation under this Agreement. (6) Notwithstanding the above, any items that are specially allocated pursuant to Sections B.5, B.6 or B.7 shall not be taken into account in computing Profits and Losses. B.2. Preparation and Maintenance of Capital Accounts. (a) The Capital Account for each Member shall: (1) be increased by (i)the amount of money contributed by that Member to the Company, (ii) the fair market value of property contributed by that Member to the Company(net of liabilities secured by the contributed property that the Company is considered to assume or take subject to under Section 752 of the Code), and (iii) allocations to that Member of Profits and any other Company income and gain (or items thereof), including income and gain exempt from tax and income and gain described in Treas. Reg. Section 1.704-1(b)(2)(iv)(g), and (2) be decreased by (i) the amount of money distributed to that Member by the Company, (ii) the fair market value of property distributed to that Member by the Company (net of liabilities secured by the distributed property that the Member is considered to assume or take subject to under Section 752 of the Code), and (iii) allocations of Losses and any other Company loss and deduction (or items thereof), including loss and deduction described in Treas. Reg. Section 1.704-1(b)(2)(iv)(g). (b) The Members' Capital Accounts also shall be maintained and adjusted as permitted by the provisions of Treas. Reg. Section 1.704-1(b)(2)(iv)(f) and as required by the other provisions of Treas. Reg. Sections 1.704-1(b)(2)(iv) and 1.704-1(b)(4), including adjustments to,reflect the allocations to the Members of depreciation, depletion, amortization, and gain of loss as computed for book put-poses rather than the allocation of the corresponding items as computed.for tax purposes, as required by Treas. Reg. Section 1.704-1(b)(2)(iv)(g). On the transfer or all or part of a Membership Interest, the Capital Account of the transferor that is attributable to the transferred Membership Interest or part thereof shall cavy over to the transferee Member in accordance with the provisions of Treas. Reg. Section 1.704-1(b)(2)(iv)(l). B.3. Profits. After giving effect to the special allocations set forth in Sections B.5 and B.6, Profits for any taxable year shall be allocated to the Members in proportion to their Percentage Interests. B.4. Losses. After giving effect to the special allocations set forth in Sections B.5 and B.6, Losses for any taxable year shall be allocated as set forth in paragraph (1) below, subject to the limitation in paragraph (2) below. (1) Losses for any taxable year shall be allocated to the Members in proportion to their Percentage Interests. (2) The Losses allocated pursuant to paragraph (1) shall not exceed the maximum amount of Losses that can be so allocated without causing any Member to have an Adjusted Capital Account Deficit at the end of any taxable year. In the event some but not all of the Members would have Adjusted Capital Account Deficits as a consequence of an allocation of Losses pursuant to paragraph (I), the limitation set forth in this.paragraph (2) shall be applied on a Member by Member basis so as to allocate the maximum permissible Losses to each Member under Treas. Reg. Section 1.704- I(b)(1:)(ii)(d). B.S. Special Allocations. The following special allocations shall be made in the following order: (1) Minimum Gain Char eg back. Notwithstanding any other provision of this Annex B, if there is a net decrease in Company Minimum Gain during any Company taxable; year, each Member shall be specially allocated items of Company income and gain for such year (and, if necessary, subsequent years) in accordance with Treas. Reg. Section 1.704-2(f). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. This Section B.5(1) is intended to comply with the minimum gain chargeback requirement in Treas. Reg. Section 1.704-2(f) and shall be interpreted consistently therewith. (2) Member.Minimum Gain Char eback. Notwithstanding any other provision of this Agreement except Section B.5(1), if there is a net decrease in Member Nonrecourse Debt Minimum Gain attributable to a Member Nonrecourse Debt during any Company taxable year, each Member who has a share of the Member Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Treas. Reg. Section 1.704-2(i)(5), shall be specially allocated items of Company income and gain for such year(and, if necessary, subsequent years) in accordance with Treas. Reg. Section 1.704-2(i)(4). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Treas. Reg. Section 1.704-2(i)(4). This Section B.5(2) is intended to comply with the minimum gain chargeback requirement in Treas. Reg. Section 1.704- 2(i)(4) and shall be interpreted consistently therewith. (3) Qualified Income Offset. I.n the event any Member unexpectedly receives any adjustments, allocations, or distributions described in Treas. Reg. Section 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6) that would create an Adjusted Capital Account Deficit for such Member, items of Company income and gain shall be specially allocated to each such Member in an amount and manner sufficient to eliminate, to the extent required by the Treasury Regulations, the Adjusted Capital Account Deficit of such Member as quickly as possible, provided that an allocation pursuant to this Section B.5(3) shall be made if and only to the extent that such Member would have an Adjusted Capital Account Deficit after all other allocations provided for in this Agreement have been tentatively made as if this Section B.5(3) were not in the Agreement. (4) Gross Income Allocation. In the event any Member has an Adjusted Capital Account Deficit at the end of any Company taxable year, each such Member shall be specially allocated items of Company income and gain in the amount of such excess as quickly as possible, provided that an allocation pursuant to this Section B.5(4) shall be made if and only to the extent that such Member would have an Adjusted Capital Account Deficit after all other allocations provided for in this Agreement have been tentatively made as if Section B.5(3) and this Section B.5(4) were not in the Agreement. (5) Nonrecourse Deductions. Nonrecourse Deductions for any taxable year or other period shall be allocated among the Members in proportion to their respective Percentage Interests. (6) Member Nonrecourse Deductions. Any Member Nonrecourse Deductions for any taxable year or other period shall be specially allocated to the Member who bears the economic risk of loss with respect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable in accordance with Treas. Reg. Section 1.704-2(i). (7) Excess Nonrecourse Liabilities. The Excess Nonrecourse Liabilities of the Company shall be allocated among the Members in accordance with their respective Percentage Interests. B.6. Curative Allocations. The allocations set forth in Section B.4(2) and in Section B.5 (the "Regulatory Allocations") are intended to comply with certain requirements of Treas. Reg. Section 1.704-1(b). Notwithstanding any other provisions of this Agreement (other than the Regulatory Allocations), the Regulatory Allocations shall be taken into account in allocating Profits, Losses, and items of income, gain, loss, and deduction among the Members so that, to the extent possible, the net amount of such allocations of Profits, Losses and other items and the Regulatory Allocations to each Member shall be equal to the net amount that would have been allocated to each such Member if the Regulatory Allocations had not occurred. Notwithstanding the preceding sentence, Regulatory Allocations relating to (i)Nonrecourse Deductions shall not be taken into account except to the extent that there has been a reduction in Company Minimum Gain, and (ii)Member Nonrecourse Deductions shall not be taken into account except to the extent that there has been a reduction in Member Nonrecourse Debt Minimum Gain. B.7. Tax Allocations: Code Section 704(c). (a) In accordance with Code Section 704(c) and the Treasury Regulations thereunder, income, gain, loss and deduction with respect to any property contributed to the capital of the Company shall, solely for tax purposes, be allocated among the Members so as to take account of any variation between the adjusted basis of such property to the Company for Federal income tax purposes and its initial Gross Asset Value. (b) In the event the Gross Asset Value of any Company asset is adjusted pursuant to paragraph (2) of the definition of Gross Asset Value, subsequent allocations of income, gain, loss and deduction with respect to such asset shall take account of any variation between the adjusted basis of such asset for Federal income tax purposes and its Gross Asset Value in the same manner as under Code Section 704(c) and the Treasury Regulations thereunder. (c) Any elections or other decisions relating to allocations pursuant to this Section B.7 shall be made by the Members in any manner that reasonably reflects the purpose and intention of this Agreement. Allocations pursuant to this Section B.7 are solely for purposes of Federal, state„ and local taxes and shall not affect, or in any way be taken into account in 3 ( y computing, an.y Member's Capital Account or share of Profits, Losses, other items or distributions pursuant to any provision of this Agreement. B.8. Miscellaneous Allocation Provisions. (a) For purposes of determining the Profits, bosses or any other items allocable to any period, Profits, Losses and any such other items shall be determined on a daily, monthly or other basis, as determined by the Members using any permissible method under Code Section 706 and the Treasury Regulations promulgated thereunder. (b) Except as otherwise provided in this Agreement, all items of Company income gain, loss, deduction, and any other allocations not otherwise provided .for shall be divided among the Members in the same proportions as they share Profits or Losses, as the case may be, for the year. B.9. Allocations on Dissolution. Notwithstanding any other provision of this Agreement to the contrary, in the event of a dissolution of the Company, a sale or exchange of all or substantially a.11 of its assets, or a conversion of the Company to a corporation, Profits and Losses for the taxable: year that includes such event shall be allocated among the Members in such manner as to cause their Capital Accounts, as closely as possible, to be proportionate to their Percentage Interests. ' l 7 Annex C RIGHTS, DESIGNATIONS, PREFERENCES AND LIMITATIONS OF UNITS The rights, preferences, privileges and restrictions granted to and imposed upon the Units are set forth in this Annex C. C.1. Dividend Provisions. The holders of Units shall be entitled to receive, when, as and if declared by the Members, out of any assets of the Company legally available therefore, such dividends. or other distributions as may be declared frorn time to time by the Members. C.2. Voting Rights. Each outstanding Unit shall entitle the holder thereof to one vote on each action. C-1 EXHIBIT "B" SEPARATION AGREEMENT OF THE MEMBERS ACCENTS LANDSCAPING, LLC AND NOW, this day of March, 2014, this Separation Agreement (hereinafter "Agreement") is made between David E. Fureman and Matthew A. Eby, the sole members of Accents Landscaping, LLC, a Pennsylvania limited liability company, with a principal address of 1636 Williams Grove Road, Dillsburg, Pennsylvania 17019. WHEREAS, the parties, David E. Fureman (hereinafter"Fureman") and Matthew A. Eby(hereinafter"Eby") have collectively agreed that Fureman shall withdraw from Accents Landscaping, LLC (hereinafter"Accents"); WHEREAS, the parties have agreed to the distribution of certain assets to Fureman and desire to specify certain assets that shall remain with Accents; WHEREAS, the parties now desire to enter into this Agreement to set forth their full and complete understanding with respect to the transactions described herein. NOW THEREFORE, in consideration of the mutual covenants and promises contained herein, and intending to be legally bound hereby, the parties do covenant and agree as follows: 1. Entity History. Accents was originally organized upon filing its Certificate of Organization on or about March 26, 2009 as Accents Hardscaping, LLC. The Members voted to Amend the name of the LLC to Accents Landscaping, LLC, with the appropriate Certificate of Amendment being filed on or about September 6, 2011. 2. Effective Date. The effective date of this Agreement shall be the date of execution. 3. Members. A true and complete list of all members of Accents and their mailing addresses is set forth in Exhibit A attached hereto and incorporated herein. 4. Assets and Liabilities. Accents shall pay to Fureman the sum of$6,000 in addition to distributing certain assets to hien. Said assets of Accents shall be distributed to Fureman in addition to a cash payment of$6,000, the total distribution representing Fureman's entire ownership interest in Accents. A. Assets to Fureman. The following assets shall be distributed to Fureman: 1. Kubota backhoe; 2. 1994 Ford F-250; 3. 1997 dumptruck; 4. 2000 Express Van; 5. 1998 Ringo equipment trailer. 1 personal delivery or by depositing the same in the United States mail, properly addressed, postage prepaid and registered or certified with return receipt requested. A notice given by personal delivery shall be effective upon delivery and a notice given by registered or certified mail shall be deemed effective on the second day after such deposit. For purposes of notice,the addresses of the parties shall be, until changed by a notice given in accordance herewith, as follows: If to Accents: If to Fureman: 8. Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with,the laws of the Commonwealth of Pennsylvania, without regard to choice of law provisions. 9. Entire Agreement and Amendment. This document contains the entire agreement between the parties as stated herein and supersedes all prior or contemporaneous agreements, understandings, representations and warranties between the parties, and may not be amended except by written instrument executed by the duly authorized officers of the parties hereto. 10. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute an original agreement but all of which together shall constitute one and the same instrument. Facsimile versions of signatures shall be acceptable as originals. 3 IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first written. Witness: David E. Fureman Matthew A. Eby 4 Exhibit A Members: Percentage Interest: David E. Fureman 40% Matthew A. Eby 60% 5 Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY HO3 20 14 t1AY 28 P11 2: 56 CUMBERLAND COUNTY PENNSYLVANIA Matthew A Eby, An Individual and Members of Accents Landscaping, LLC vs. David E Fureman Case Number 2014 -2972 SHERIFF'S RETURN OF SERVICE 05/20/2014 10:19 AM - Deputy Jeff Kolodzi, being duly sworn according to law, served the requested Complaint & Notice by handing a true copy to a person representing themselves to be Delbert Fureman, father, who accepted as "Adult Person in Charge" for David E Fureman at 1636 Williams Grove Road, Monroe Township, Dillsburg, PA 17019. JEOODZI, DEPUTY S// SHERIFF COST: $39.79 SO ANSWERS, May 21, 2014 RONNY R ANDERSON, SHERIFF Charles O. Beckley, II, Esquire Thomas S. Beckley, Esquire Beckley & Madden 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108-1998 (717) 233-7691 Attorneys for Defendant David E. Fureman MATTHEW A. EBY, an Individual and Member of Accents Landscaping, LLC, Plaintiff v. ILLD O r CE OF THE PROTHONOTARY 7.014 OCT 10 All 10: 16 CUMBERLAND COUNTY PENNSYLVANIA : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA : NO. 14-2972 — CIVIL TERM DAVID E. FUREMAN, an Individual and : CIVIL ACTION — LAW Member of Accents Landscaping, LLC : Defendant NOTICE TO PLEAD You are hereby notified to file a written response to Defendant's Counterclaim within twenty (20) days from service hereof or a judgment may be entered against you. DATED: October 9, 2014 Thomas S. Beckley, Esquire BECKLEY & MADDEN 212 North Third Street, Suite 301 Post Office Box 11998 Harrisburg, PA 17108 (717) 233-7691 Attorney for Defendant David E. Fureman MATTHEW A. EBY, an Individual and : IN THE COURT OF COMMON PLEAS Member of Accents Landscaping, LLC, : OF CUMBERLAND COUNTY, Plaintiff : PENNSYLVANIA v. : NO. 14-2972 — CIVIL TERM DAVID E. FUREMAN, an Individual and : CIVIL ACTION — LAW Member of Accents Landscaping, LLC : Defendant ANSWER TO COMPLAINT WITH COUNTERCLAIM AND NOW comes the Defendant, David E. Fureman, who, by and through his attorneys, Charles O. Beckley, II, Esquire, Thomas S. Beckley, Esquire, and Beckley & Madden, of Counsel, files this Answer with Counterclaim in response to the Complaint filed by Plaintiff, Matthew A. Eby, and, in support thereof, avers as follows: 1. Admitted in part and denied in part. It is admitted that Plaintiff is Matthew A. Eby and that he is an adult individual. It is denied that Mr. Eby is residing at 2714 Cedar Street, Mechanicsburg, Pennsylvania 17055. To the contrary, upon information and belief, Mr. Eby is residing at 435 Town Hill Road, York Springs, Pennsylvania. 2. Admitted. 3. Admitted in part and denied in part. It is admitted that Defendant is David E. Fureman, that he is an adult individual, and that he used to reside at 435 Town Hill Road, York Springs, Pennsylvania. It is denied that Mr. Fureman currently resides at 435 Town Hill Road, York Springs, Pennsylvania. 4. Admitted. 5. It is admitted that the intent in forming the Company was to operate a landscaping business which Mr. Fureman had developed over the years. The remaining allegations reference a written document which speaks for itself. 6. Admitted, upon information and belief. 7. Admitted. By way of further response, the parties did not contribute amounts equal to their ownership in the Company. To the contrary, most of the equipment used by the Company is owned by Mr. Fureman, and Mr. Fureman started the business years before the limited liability company was formed. It is admitted that Mr. Eby contributed to the Company after it was formed. 8. The allegations contained in paragraph 8 of Mr. Eby's Complaint reference a written document which speaks for itself. 9. Mr. Fureman hereby incorporates his response in paragraph 7 of this Answer as though set forth here at length. With response to the remaining allegations, it is admitted, upon information and belief, that Mr. Eby no longer wishes to operate the business with Mr. Fureman. 10. Admitted in part in denied in part. It is admitted that Mr. Fureman has possession of several vehicles and other equipment that were used by the Company. By way of further response, the vehicles and other equipment were and are owned by, and titled in, Mr. Fureman's name. Mr. Fureman never transferred the vehicles to the Company. 11. Denied as stated. Mr. Fureman has negotiated with Mr. Eby and even provided a draft of a written agreement regarding how to dissolve the Company, but the parties were unable to reach an agreement. By way of further response, Mr. Eby has denied Mr. Fureman access to the Company's financial statement and tax returns which is a violation of the Operating Agreement. Despite his refusal to provide the financial records, Mr. Eby has demanded that Mr. Fureman sign a settlement agreement without knowing key financial information. COUNT I — CORPORATE DISSOLUTION 12. Mr. Fureman hereby incorporates the preceding paragraphs as though set forth here at length. 13. Admitted in part and denied in part. It is admitted that the parties have attempted to reach a resolution, but it is denied that the parties' failure to reach an agreement have been caused solely by Mr. Fureman's refusal to agree to a plan of distribution. To the contrary, both parties have attempted to reach an agreement, but, to date, have been unable to do so. 14. The allegations contained in paragraph 14 of Mr. Eby's Complaint reference a written document which speaks for itself. By way of further response, the parties exchanged different agreements between them but were unable to reach a resolution. 15. Admitted in part and denied in part. It is admitted that Mr. Fureman did not sign the document attached as Exhibit "B" to the Complaint. It is denied that Mr. Fureman has taken possession of "business assets and equipment of the Company." To the contrary, the equipment which Mr. Fureman has is owned by Mr. Fureman personally and was never owned by the Company. By way of further response, Mr. Fureman is unable to agree to a plan of dissolution because Mr. Eby will not provide Mr. Fureman with copies of the Company's financial statements and/or tax returns. 16. It is admitted that the parties have been unable to reach an agreement regarding dissolution. 17. It is admitted that communication between the parties' themselves has ceased. 18. It is admitted that the Company has not completed the winding up process yet. Upon information and belief, the Company is no longer operating and Mr. Eby has formed a new company offering the same services which the Company had offered (i.e., it would be competing with the Company if the Company was still operating). 19. Admitted in part and denied in part. It is admitted that the parties have been unable to reach an agreement on the dissolution of the Company. It is denied that the company is suffering irreparable injury. To the contrary, upon information and belief, Mr. Eby is no longer operating the Company because he formed a new company which provides the same services as the Company had performed. 20. No response required. WHEREFORE, Defendant, David E. Fureman requests the Court to enter an order dissolving the Company and directing the distribution of the Company's assets. COUNT II — BREACH OF FIDUCIARY DUTY 21. Mr. Fureman hereby incorporates the preceding paragraphs as though set forth here at length. 22. It is denied that Mr. Fureman has caused the diminution in value of the Company. To the contrary, Mr. Eby has run the Company for several years, and Mr. Fureman contributed countless hours of labor to the Company for which he was not paid, and provided his equipment to the Company. By way of further response, it is believed and therefore averred that Mr. Eby has formed a new company offering the same services 4 that the Company had offered, and Mr. Eby has even used pictures of the Company's projects in Mr. Eby's literature advertising his new company. 23. Denied as stated. Mr. Fureman held a minority interest in the Company. He lent his equipment to the Company and provided hours of free labor to the Company. By way of further response, Mr. Eby has denied Mr. Fureman access to the Company's financial records and to the Company's tax returns. 24. The allegations contained in paragraph 24 of Mr. Eby's Complaint constitute legal conclusions to which no response is required. 25. The allegations contained in paragraph 25 of Mr. Eby's Complaint constitute legal conclusions to which no response is required. By way of further response, it is denied that Mr. Fureman has breached any fiduciary duty to the Company. 26. Denied as stated. Mr. Fureman provided his equipment and labor to the Company in an effort to make it successful. 27. The allegations contained in paragraph 27 of Mr. Eby's Complaint constitute legal conclusions to which no response is required. WHEREFORE, Defendant, David E. Fureman, respectfully requests the Court to enter an order dismissing Count II of the Complaint. COUNTERCLAIM — BREACH OF FIDUCIARY DUTY 28. Mr. Fureman hereby incorporates paragraphs 1 through 27 of his Answer to the Complaint as though set forth here at length. 5 29. Mr. Eby owns and controls 60% of the Company which constitutes a majority ownership. 30. Since its formation, Mr. Eby operated the Company on a day-to-day basis. 31. From 2011 through part of 2013, Mr. Fureman had a full-time job unrelated to the Company, but he worked at the Company on a part-time basis without compensation. Mr. Eby worked at the Company on a full-time basis during that same time period but he received compensation from the Company. 32. Article 8.01(b)(3) of the Company's Operating Agreement requires the Company to prepare and maintain all of the Company's federal, state and local income tax returns. 33. Article 8.02 of the Company's Operating Agreement requires the Company to prepare annual financial statements and to mail the financial statements to the Members (i.e., Mr. Eby and Mr. Fureman). 33. Mr. Eby engaged an accountant (who was related to him) to prepare financial statements and the Company's income tax returns. 34. Mr. Fureman requested Mr. Eby to provide copies of the Company's income tax returns and financial statements, however, Mr. Eby refused to provide them. 35. As a result of Mr. Eby's refusal to provide the financial records to Mr. Fureman, Mr. Fureman was unable to proceed to closing on a house he had contracted to purchase. Mr. Eby was aware that Mr. Fureman needed copies of the Company's tax returns to obtain financing to purchase the house, but Mr. Eby refused to provide them. 37. The following pieces of equipment are titled in Mr. Fureman's name: 6 compactor; a. 2006 Ford F250 truck and truck cap; b. Kubota backhoe; c. 1997 Ford F450 dump truck; d. 1998 Ringo equipment trailer with bed edger and stone plate e. 2013 Freedom enclosed trailer; f. 2004 Bobcat S220. 38. Mr. Fureman never transferred any of the assets identified in the preceding paragraph to the Company and/or to Mr. Eby. 39. Mr. Fureman worked for the Company for approximately 18 months without receiving any compensation from the Company. 40. Upon information and belief, Mr. Eby has received compensation and/or distributions from the Company without providing Mr. Fureman his proportionate share. 41. Upon information and belief, Mr. Eby formed a new limited liability company known as Keystone Hardscape & Construction, LLC ("Keystone"), on or about April 4, 2014. 42. Upon information and belief, Mr. Eby owns some or all of Keystone. 43. Upon information and belief, Keystone offers essentially the same services that the Company offered. 44. In its advertisements, Keystone has used pictures of projects that the Company actually did and not Keystone. 7 45. Upon information and belief, Mr. Eby has shut down the Company and now works exclusively for his new company, Keystone. 46. Mr. Eby's failure to provide copies of the Company's financial statements and tax returns to Mr. Fureman caused Mr. Fureman to lose a contract on a house he attempted to purchase. 47. Mr. Eby's decision to abandon the Company and start a new company performing the same tasks as the Company has caused a significant diminution in the value of Mr. Fureman's investment in the Company. 49. Mr. Eby's actions constituted a breach of his fiduciary duties he owed to the Company. WHEREFORE, Defendant, David E. Fureman, respectfully requests the Court to enter judgment in favor of himself and against the Plaintiff, Matthew Eby, in an amount to be determined by the Court. DATED: October 9, 2014 Respectfully submitted, Of Counsel BECKLEY & MADDEN 212 North Third Street, Suite 301 Post Office Box 11998 Harrisburg, PA 17108-1998 (717) 233-7691 8 aries 0. Beckley, I Thomas S. Beckley Attorneys for Defendant, David E. Fureman OCT-09-2014(THU) 13:47 BOB RUTH FORD `VER 1 N"iC 4Tl:il:t (FR?.) t 1' t.:1! 0109 °. 1 )i_ni(i5 1, David E. Furcman, hereby verify that I am an adult individual, Ilia li ha'; ;read the foregoing document, and that the facts set forth 'ill Ulu i b; c quint. doc.urr,cnt are true to the best of my knowledge, or information and belief: I understand that fiJ.,e st.a.ts;n.lc:ats herein' are •made subject to the penalties of 18 Pa.C.S. § 4904 reiati:tg to unsworn falsification to authorities. rr QQ q�j �rypyl�i David, E. Eureraaa. 9 CERTIFICATE OF SERVICE I, Thomas S. Beckley, Esquire, hereby certify that on this day a true and correct copy of the foregoing document was served upon the person and in the manner indicated below: SERVICE BY FIRST CLASS MAIL Douglas G. Miller, Esquire Irwin & McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 DATED: October 9, 2014 Thomas S. Beckley, Esquire MATTHEW A. EBY, an Individual and : THE COURT OF COMMON PLEAS OF Member of Accents Landscaping, LLC, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. : NO. 14 — 2972 CIVIL TERM el .t DAVID E. FUREMAN, an Individual and: CIVIL ACTION — LAW rn t-Y,to -o Member of Accents Landscaping, LLC Z w CD ' Defendant. -c 5: "`, Z. CDC. N .tet PLAINTIFF'S ANSWER3 CD 23 TO DEFENDANT'S COUNTERCLAIM `' AND NOW this 31St day of October, 2014, comes the Plaintiff, Matthew A. Eby, by and through his attorneys, Irwin & McKnight, P.C., and respectfully files this Answer to the Defendant's Counterclaim, and in support thereof avers as follows: COUNTERCLAIM 28. The averments contained in the Plaintiff's Complaint in paragraphs one (1) through twenty-seven (27) are hereby incorporated by reference as if fully set forth below. 29. The averments of fact contained in paragraph twenty-nine (29) of the Defendant's Counterclaim are admitted. 30. The averments contained in paragraph thirty (30) are denied as stated. It is admitted that for some time Plaintiff has primarily handled both the workload and operations of the Company. The remaining averments in paragraph thirty (30), including any inference that Defendant did not have input into or unilaterally take action with regard to the Company, sometimes to its detriment, are specifically denied and strict proof thereof is demanded at trial. 31. The averments contained in paragraph thirty-one (31) are denied as stated. It is admitted that generally during the period of time referenced, Defendant worked primarily at another job, and Plaintiff worked full-time for the Company. The remaining averments in paragraph thirty-one (31), including any inference that any compensation was done improperly by Plaintiff or that Defendant did not have input into or unilaterally take action with regard to the Company, sometimes to its detriment, are specifically denied and strict proof thereof is demanded at trial. By way of further answer, in the past Defendant himself has requested that he not be paid compensation by the Company. 32. The Operating Agreement referenced by Defendant in paragraph thirty-two (32) speaks for itself and therefore no response is required. In the event that a response is required, any inference that income tax returns have not been prepared and maintained, as well as the remaining averments contained in paragraph thirty-two (32), are specifically denied and strict proof thereof is demanded at trial. 33. The Operating Agreement referenced by Defendant in paragraph thirty-three (33) speaks for itself and therefore no response is required. In the event that a response is required, any inference that financial information and statements have not been prepared and maintained, as well as the remaining averments contained in paragraph thirty-three (33), are specifically denied and strict proof thereof is demanded at trial. 33. [sic] The averments contained in paragraph thirty-three (33) [sic] are denied as stated. It is admitted that Plaintiff has received assistance from an accountant for certain financial and tax issues regarding the Company. The remaining averments in paragraph thirty- three (33) [sic] are specifically denied and strict proof thereof is demanded at trial. 34. [sic] The averments contained in paragraph thirty-four (34) [sic] are specifically denied and strict proof thereof is demanded at trial. By way of further answer, while Plaintiff did request an extension for the filing of the 2013 tax return information, the tax returns were timely filed and copies were provided to Defendant. 35. [sic] After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph thirty-five (35) [sic] so they are therefore specifically denied and strict proof thereof is demanded at trial. By way of further answer, and upon information and belief, any problems of Defendant 2 in closing on a house are unrelated to either this litigation or the extension in filing Company tax returns. 37. The averments contained in paragraph thirty-seven (37) and all of its subparts are denied as stated. It is admitted that certain pieces of equipment owned by the Company are technically titled in Defendant's individual name. However, the remaining averments in paragraph thirty-seven (37) and all of its subparts are specifically denied and strict proof thereof is demanded at trial. By way of further answer, all of the items listed in paragraph thirty-seven (37) are consistently reported as assets of, with associated loans paid by, and the equipment depreciated through the Company on its financial reports and tax returns, and certain items were in fact titled in Defendant's name solely as a favor to enable him to repair some of his past credit problems. 38. The averments contained in paragraph thirty-eight (38) are specifically denied and strict proof thereof is demanded at trial. By way of further answer, all of the items listed in the preceding paragraph are consistently reported as assets of, with associated loans paid by, and the equipment depreciated through the Company on its financial reports and tax returns, and certain items were in fact titled in Defendant's name solely as a favor to enable him to repair some of his past credit problems. 39. The averments contained in paragraph thirty-nine (39) are denied as stated. It is admitted that generally during the period of time referenced, Defendant did not receive typical compensation, partly because Defendant was not working very much for the Company because he had a separate, full-time job, partly because Defendant requested that he not be paid compensation, and partly because Defendant had received and was continuing to receive other financial benefit from the Company. Any remaining averments in paragraph thirty-nine (39) are specifically denied and strict proof thereof is demanded at trial. By way of further answer, in the past Defendant himself has requested that he not be paid compensation by the Company. 3 40. The averments contained in paragraph forty (40) are specifically denied and strict proof thereof is demanded at trial. 41. The averments of fact contained in paragraph forty-one (41) are admitted. 42. The averments of fact contained in paragraph forty-two (42) are admitted. 43. The averments contained in paragraph forty-three (43) are specifically denied and strict proof thereof is demanded at trial. 44. The averments contained in paragraph forty-four (44) are denied as stated. It is admitted that Plaintiff has used pictures of projects that he either worked on directly or for which he has permission. Any remaining averments in paragraph forty-four (44) are specifically denied and strict proof thereof is demanded at trial. 45. The averments contained in paragraph forty-five (45) are denied as stated. It is admitted that Plaintiff and Defendant previously agreed to cease the operation of the Company, and that Defendant has reneged on multiple agreements to either be purchased out of the Company or wind up and dissolve the Company. Any remaining averments in paragraph forty- five (45) are specifically denied and strict proof thereof is demanded at trial. 46. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph forty-six (46) so they are therefore specifically denied and strict proof thereof is demanded at trial. By way of further answer, and upon information and belief, any problems of Defendant in purchasing a house are unrelated to either this litigation or the extension in filing Company tax returns. 47. The averments contained in paragraph forty-seven (47) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. By way of further answer, it was Defendant who decided and agreed to wrap up the business of the Company, only to continue to frustrate and delay the process at every opportunity. 4 49. [sic] The averments contained in paragraph forty-nine (49) [sic] are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter a judgment in his favor and against Defendant in this matter, and award Plaintiff the relief requested in his Complaint. Dated: October 31, 2014 By: 5 Respectfully Submitted, IRWIN & McKNIGHT, P.C. Dou`ras GMiller, squire Supreme Court ID No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Plaintiff, Matthew A. Eby VERIFICATION The foregoing document on behalf of the Plaintiff is based upon information which has been gathered by counsel for the Plaintiff in the preparation of this document. The statements made in this document are true and correct to the best of the counsel's knowledge, information and belief. The Plaintiff's verification cannot be obtained within the time allowed for filing the pleading. The undersigned is therefore verifying on behalf of the Plaintiff according to 42 Pa.C.S.A. § 1024(c)(2). The undersigned understands that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. Doug as G ✓ iller, Esquire Date: 10/31/14 CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: Thomas S. Beckly, Esquire Beckley & Madden 212 North Third Street, Suite 301 Harrisburg, PA 17101 (Attorney for Defendant) Date: October 31, 2014 IRWIN & McKNIGHT, P.C. Ate(,. Doug as G/Miller, Esquire Supreme Court ID No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Attorney for Plaintiff MATTHEW A. EBY, an Individual and : THE COURT OF COMMON PLEAS OF Member of Accents Landscaping, LLC, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. : NO. 14-2972 CIVIL TERM �- DAVID E. FUREMAN, an Individual and: CIVIL ACTION-LAW N =Y; Member of Accents Landscaping, LLC may-; ;'.` Defendant. -o c v;d PETITION TO ENFORCE SETTLEMENT AGREEMENT AND NOW this 21st day of November, 2014, comes the Plaintiff, Matthew A. Eby, by and through his attorneys, Irwin & McKnight, P.C., and respectfully files this Petition to Enforce Settlement Agreement and in support thereof avers as follows: 1. On May 16, 2014, a Complaint for Dissolution of Corporation was filed in this matter by the Plaintiff. 2. As part of Plaintiff's Complaint, it was alleged that the parties had previously negotiated a plan of dissolution that Defendant subsequently refused to sign. 3. According to the Sheriffs Return of Service filed in this matter, personal service was made on an adult member of Defendant's residence on May 20, 2014. 4. On May 27, 2014, the undersigned counsel was contacted both by telephone and email by Attorney Heather Z. Kelly of the law firm of Mette, Evans & Woodside who stated that she was representing the Defendant in this matter. 5. Over the course of the next several months, various documents, correspondence, and emails were exchanged between Plaintiff's counsel and Attorney Kelly on behalf of the Defendant. 6. During this period of time, at the request of Defendant's counsel, the undersigned counsel agreed not to require that a formal Answer be filed or otherwise advance the litigation while the parties explored the possibility of a negotiated settlement. 7. Ultimately, legal counsel and the parties agreed to meet at the offices of Mette, Evans & Woodside in Harrisburg on September 11, 2014, in order to conduct a settlement conference. 8. On September 11, 2014, the parties and their counsel met and ultimately agreed to a comprehensive settlement of the instant litigation. 9. The settlement agreement between the parties provided for the following: a. A division of the assets of the Corporation, including the identification of certain items in the possession of the opposing party that would be exchanged; b. A division of the responsibilities between the parties for the payment of the debts of the Corporation, some of which were technically in the name of Defendant; c. The completion and filing of the 2013 tax returns for the Corporation by Plaintiff on or before the extended tax filing deadline; d. An assumption by Plaintiff of the responsibility and cost of formally dissolving the Corporation; e. A release by Defendant to any claim of any remaining funds, accounts receivable, or refunds of the Corporation; and f. Preparation of a written document confirming the parties' agreement on September 11, 2014, by Attorney Kelly. 10. Prior to the conclusion of the meeting on September 11 t", Attorney Kelly explicitly stated that even though no written document was yet prepared and signed that the parties had reached a binding agreement and resolution of this litigation. 11. On September 12, an initial draft of the terms of the parties' agreement reached the day before was emailed to Plaintiff's counsel. A true and correct copy of the draft agreement prepared by Attorney Kelly is attached hereto and incorporated herein as Exhibit"A." 12. The draft agreement included all of the essential terms set forth above and agreed to by the parties, but fundamentally was structured as a purchase by Plaintiff of Defendant's 2 minority share of the Corporation, rather than strictly as a dissolution of the Corporation to be completed and paid for by Plaintiff. 13. After follow up email correspondence between counsel, Attorney Kelly stated that additional revisions to the draft Agreement would need to be prepared and completed by the undersigned. 14. On September 24, 2014, a revised Agreement was emailed to Attorney Kelly that removed the language regarding a purchase of the Defendant's ownership interest, set forth a location for the parties to exchange certain agreed upon business property, and modifying certain legal language in the original draft. A true and correct copy of the revised agreement prepared by the undersigned is attached hereto and incorporated herein as Exhibit"B." 15. Defendant, however, refused to sign the revised Agreement, or otherwise respond with any other changes or revisions. 16. Instead, Defendant through Attorney Kelly stated that he first needed to have copies of the 2013 tax returns and associated filings. 17. Believing that Defendant was instead attempting to once again attempt to back out of his agreement, Plaintiff instead proposed to meet with Defendant in order to simultaneously provide the relevant tax documentation and sign the revised Agreement. 18. Ultimately on October 6, 2014, Attorney Kelly sent an email advising that her firm was no longer representing the Defendant. 19. On or about October 9, 2014, new counsel for Defendant filed an Answer with Counterclaim to the original Complaint. 20. Petitioner is of the belief and therefore avers that a full, complete, and global settlement of the outstanding issued raised in his Complaint were agreed upon by the parties when they and their respective attorneys at the time met on September 11, 2014. 3 21. Petitioner has remained ready, willing, and able to perform the obligations under that agreement and Respondent has refused to comply with the terms and conditions of yet another settlement agreement. 22. Petitioner, through his legal counsel, even sent directly to the Defendant the relevant 2013 corporate tax information with regard to the tax return that was timely filed by the Petitioner. 23. Petitioner is also concerned that Respondent will attempt to convey assets of the Corporation that are titled in the name of Respondent without intervention and direction by this Court. WHEREFORE, Petitioner respectfully requests that the Court enter an Order directing Respondent to comply with the terms and conditions of the settlement agreement lawfully entered into and agreed to by the said parties, or in the alternative enter an Order accepting the terms of the settlement agreement reached by the parties and enabling Petitioner to proceed with the dissolution and wrapping up of the business of the Corporation and preventing Respondent from selling any of the assets of the Corporation listed in the settlement agreement, together with an award of Petitioner's counsel fees in obtaining such a directive and such other an further relief as this Court deems just and appropriate under the circumstances. Respectfully Submitted, IRWIN & McKNIGHT, P.C. By: ' 4114A Doug as G;Miller, Esquire Supreme Court ID No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Plaintiff, Dated: November 21, 2014 Matthew A. Eby 4 VERIFICATION The foregoing document is based upon information which has been gathered by my counsel and myself in the preparation of this action. I havc read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. h'ITTIIi;W A. EBY ACCEN'T'S i:;\NDSCA ING, LTC Date: November 21, 2014 EXHIBIT 66A" • SETTLEMENT AND MEMBERSHIP TRANSFER AGREEMENT This Settlement and Membership Transfer Agreement (this "Agreement") is entered into and effective as of September , 2014 (the "Effective Date") by and between MATTHEW A. EBY, an Individual and Member of Accents Landscaping, LLC ("Eby") and DAVID E. FUREMAN, an Individual and Member of Accents Landscaping, LLC ("Fureman"). Eby and Fureman may be referred to in this Agreement individually as a"Party"or collectively as the "Parties." RECITALS WHEREAS, Eby owns a sixty percent (60%) membership interest in Accents Landscaping, LLC ("Accents") and Fureman owns a forty percent (40%) membership interest in Accents ("Fureman's Interest"). WHEREAS, for several years, Eby has exercised exclusive control over the day-to-day operations and management of Accents. WHEREAS, on or about May 16, 2014, Eby filed a lawsuit against Fureman in the Court of Common Pleas of Cumberland County, which is docketed at 14-2972 (the "Lawsuit"). WHEREAS, the Lawsuit arises out of a dispute related to the dissolution of Accents. WHEREAS, Eby desires to acquire all of Fureman's Interest and proceed to dissolve Accents. WHEREAS, Fureman desires to transfer all of Fureman's Interest to Eby. WHEREAS, the Parties desire to settle and resolve any and all claims, disputes and obligations between and among them arising out of the foregoing, including the Lawsuit. NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the parties agree as follows: 1 AGREEMENT 1. Recitals. The recitals set forth above are true and correct and are incorporated herein by reference. 2. Agreement to Transfer Fureman's Interest. Subject to and in accordance with all the terms and conditions of this Agreement, at the Closing (as hereinafter defined) Fureman shall transfer to Eby, and Eby shall acquire, Fureman's Interest. 3. The Closing. The closing of the transfer described in Section 2 (the "Closing") shall occur concurrently with the execution of this Agreement. At the Closing, Fureman's Interest shall be transferred to Purchaser. The Parties need not be present in the same location for Closing. 4. Assets. As consideration for the promises contained herein, as well as the transfer of Fureman's membership interest in Accents to Eby, the parties hereby agree that Fureman shall receive and or retain the following (collectively, the "Assets"): 2.1. Assets to Fureman a. 2006 Ford F250 (subject to Fureman's agreement to continue making debt service on the same) b. 2000 Chevrolet Express van c. Kubota backhoe d. 1997 Ford F450 dump truck As consideration for the promises contained herein, as well as the acceptance of the transfer of Fureman's membership interest in Accents by Eby, the Parties agree that Eby shall receive and/or retain the following: 2.2. Assets to Eby a. 1998 Ringo equipment trailer with bed edger and stone plate compactor 2 b. 2012 Freedom enclosed trailer c. 2004 Bobcat S220 d. Any cash on hand or revenues received by Accents at the time and subsequent to the execution of this Agreement, subject to such cash being placed in an attorney escrow account with Eby/Accent's counsel pending dissolution of Accents. The Parties agree to take all necessary steps to effectuate the foregoing distribution of the Assets, including, but not limited to, signing over any title to such Assets within five (5) days of the date that this Agreement is executed. 5. Filing of Tax Returns. Eby shall file any and all tax returns of Accents required to be filed by Accents on or before September 15, 2014 and shall provide Foreman with a copy of such filings and proof of filing the same. Eby hereby acknowledges and represents that he has been responsible for any and all tax returns filed by Accents during the years that Eby has been exclusively responsible for the day-to-day operations and management of Accents. 6. Payment of Liabilities. Eby acknowledges and agrees that the existing liabilities of Accents do not exceed the amount of cash-on-hand or revenue anticipated within the next 30 days. Eby further acknowledges and agrees that he is solely aware of the liabilities of Accents, which include only legal fees owed to Attorney Andrew Shaw totaling $595.00 and an amount due to Capital Hardscaping in the approximate amount of$600.00. Upon transfer of Fureman's membership interest in Accents to Eby, Eby shall become the sole owner of Accents and shall utilize cash on hand or any other Assets retained by Eby and/or Accents to satisfy all liabilities of Accents. 7. Dissolution of Accents. Eby will dissolve Accents following Closing. Eby acknowledges and agrees that he will be solely responsible for any and all fees and costs (including reasonable attorneys' fees) associated with such dissolution. 3 8. Discontinuance of the Lawsuit. Within five (5) business days of execution of this Agreement, Eby shall discontinue the Lawsuit with prejudice. 9. Photographs. Eby agrees not to utilize any photographs, videos, client testimonials or other marketing materials from projects completed by Accents (or its predecessor Accents Hardscaping) or Fureman unless Eby made a material contribution to the work performed to advertise Accents or any other entity in which Eby has an ownership or other interest. 10. Confidentiality/Non-Disparagement. The Parties agree to keep the fact and terms of this Agreement confidential, except to the extent disclosure is necessary to accountants, attorneys, immediate family members or by order of Court or as required by law. The Parties further agree not to make any negative or disparaging comments or statements (whether written or oral) about any other Party in public or private at any time following the execution of this Agreement, except to the extent necessary and relevant in connection with a formal legal proceeding necessary to enforce this Agreement or in connection with any other dispute between or among the Parties. The Parties agree that a violation of this Confidentiality/Non- Disparagement provision shall subject the breaching Party to damages, plus any attorneys' fees and other costs incurred by the non-breaching Party in enforcing this provision. 11. Mutual Release of Claims. For and in consideration of the obligations set forth herein, each Party, in both their individual capacities and as members of Accents, together with their heirs, successors, assigns, agents, representatives, attorneys, insurers, and any other entity or person claiming by or through any of the foregoing, does hereby fully release and forever discharge the other Party of and from any and all obligations, claims,judgments, debts, dues, demands, accounts, actions, and/or causes of action, known or unknown, arising out of or in any 4 way related to the events set forth in the Recitals above. Except that, to the extent that Fureman is found liable to any individual, business, governmental entity, or other party as a result of actions taken by Eby during the period when Fureman was not directly involved in the management and control of Accents, Fureman will have the right to seek indemnification from Eby for the same, including, but not limited to, reasonable attorneys' fees and costs associated with such matters. 12. Binding Effect. Each of the Parties to this Agreement intends to be legally bound hereby, and the terms, provisions and conditions of this Agreement shall be binding upon any and all heirs, executors, administrators, successors, and/or assigns of the Parties. 13. Entire Agreement. This Agreement, together with the Membership Interest Purchase Agreement, represents the complete agreement between the Parties with respect to the subject matter set forth herein and supersedes all prior and contemporary agreements and understandings, inducements, or other conditions pertaining thereto, expressed or implied, oral or written. This Agreement shall not be modified except by writing duly executed by or on behalf of the Parties. 14. Severability. If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any law or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transaction contemplated hereby is not affected in any manner materially adverse to any of the Parties. Upon such determination, that any term or other provision is invalid, illegal, or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible and in an 5 acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible. 15. Governing Law; Consent to Jurisdiction. This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania. Any dispute arising out of this Agreement shall be filed in the Court of Common Pleas of Cumberland County, Pennsylvania, and the Parties hereby consent to the jurisdiction of such Courts for the purpose of enforcement of this Agreement. The prevailing Party in any action to enforce this Agreement shall be entitled to recover its attorneys' fees and costs of such action. 16. Execution and Counterparts. This Agreement may be executed and delivered in any number of counterparts, each of which shall be regarded for all purposes as an original; all counterparts shall constitute but one and the same legal instrument. A photocopy, facsimile, PDF or other electronic copy of this Agreement shall have the same force and effect as an original. Notwithstanding the foregoing, this Agreement shall not be effective unless and until original signature pages are received by each of the respective Parties. 17. Future Actions. The Parties agree to take such further action as may be reasonable and necessary at any time in the future to implement and to give proper effect to the terms and conditions of this Agreement. 18. Representation of Authority of Parties/Signatories. Each Party signing this Agreement represents and warrants that he, she or it is duly authorized and has legal capacity to execute and deliver this Agreement. Each Party represents and warrants to the other that the execution and delivery of this Agreement and the performance of such Party's obligations set forth herein have been duly authorized and that this Agreement is a valid and legal agreement binding on the Parties and enforceable according to its terms. 6 SIGNATURE PAGE FOR MEMBERSHIP TRANSFER AND SETTLEMENT AGREEMENT IN WITNESS WHEREOF AND INTENDING TO BE LEGALLY BOUND HEREBY, the Parties have hereunto set their hands and seals as of the date, month and year first above written. MATTHEW A. EBY DAVID M. FUREMAN 7 EXHIBIT "B" SETTLEMENT AND DISSOLUTION AGREEMENT This Settlement and Dissolution Agreement (this "Agreement") is entered into and effective as of September , 2014 (the "Effective Date") by and between MATTHEW A. EBY, an Individual and Member of Accents Landscaping, LLC ("Eby") and DAVID E. FUREMAN, an Individual and Member of Accents Landscaping, LLC ("Fureman"). Eby and Fureman may be referred to in this Agreement individually as a "Party" or collectively as the "Parties." RECITALS WHEREAS, Eby owns a sixty percent (60%) membership interest in Accents Landscaping, LLC ("Accents") and Fureman owns a forty percent (40%) membership interest in Accents. WHEREAS, for several years, Eby has exercised exclusive control over the day-to-day operations and management of Accents. WHEREAS, on or about May 16, 2014, Eby filed a lawsuit against Fureman in the Court of Common Pleas of Cumberland County, which is docketed at 2014-2972 (the "Lawsuit"). WHEREAS, the Lawsuit arises out of a dispute related to the dissolution of Accents. WHEREAS, the parties have agreed to dissolve Accents and cease operating the business. WHEREAS, the Parties desire to settle and resolve any and all claims, disputes, and obligations between and among them arising out of the foregoing, including the Lawsuit. NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the parties agree as follows: 1 AGREEMENT 1. Recitals. The preambles and recitals set forth above are incorporated by reference as if fully set forth at length herein. 2. Agreement to Dissolve. Subject to and in accordance with all the terms and conditions of this Agreement, the parties agree to divide the remaining asset and liabilities of Accents, and dissolve the limited liability company. 3. Assets. As consideration for the promises contained herein, as well as to effectuate the dissolution of Accents, the Parties hereby agree that Fureman shall receive and or retain the following assets and equipment(collectively the "Assets"): 2.1. Assets to Fureman a. 2006 Ford F250 (subject to Fureman's agreement to be solely responsible for and continue making debt service payments on the loan secured by the vehicle); b. 2000 Chevrolet Express van; c. Kubota backhoe; and d. 1997 Ford F450 dump truck& trailer cab. As consideration for the promises contained herein, as well as to effectuate the dissolution of Accents, the Parties agree that Eby shall receive and/or retain the following: 2.2. Assets to Eby a. 1998 Ringo equipment trailer with bed edger and stone plate compactor; b. 2012 Freedom enclosed trailer; c. 2004 Bobcat S220 (subject to Eby's continuation and completion of payments to the lending company and agreement to be solely responsible for the payments, as well as Furemen's agreement to forward to Eby any paperwork received from the lending company); 2 d. Any cash on hand or revenues received by Accents at the time and subsequent to the execution of this Agreement, subject to such cash being placed in an attorney escrow account with Eby/Accent's counsel pending the transfer of assets to Fureman; e. All client files and records of Accents. The Parties agree to take all necessary steps to effectuate the foregoing distribution of the Assets, including, but not limited to, signing over any title to such Assets within five (5) days of the date that this Agreement is executed. Also within five (5) days of the execution of this Agreement, the Parties agree to transfer possession of any Assets in the possession of the other Party at the cul-de-sac in front of 2714 Cedar Street, Mechanicsburg, Cumberland County, Pennsylvania. Each Party transferring possession of any Assets to the other Party shall ensure that the exchanged Assets are in the same, operable condition as when the transferring Party acquired possession, reasonable wear and tear excepted. 4. Filing of Tax Returns. Eby shall file any and all tax returns of Accents required to be filed by Accents on or before September 15, 2014 and shall provide Fureman with a copy of such filings and proof of filing the same. In the event that any future tax returns are required to be filed by Accents, Eby shall promptly prepare and timely file any and all such tax returns and provide Fureman with a copy of such filing and proof of filing the same. 5. Payment of Liabilities. Eby acknowledges and agrees that the existing liabilities of Accents do not exceed the amount of cash on hand or revenue anticipated within the next thirty (30) days. Eby further acknowledges and agrees that to the best of his knowledge, information, and belief, the sole liabilities of Accents include only legal fees owed to Attorney Andrew Shaw totaling $595.00 and an amount due to Capital Hardscaping in the approximate amount of$600.00. As part of the dissolution, Eby shall utilize cash on hand or any other Assets retained by Eby and/or Accents to satisfy all liabilities and debts of Accents. Both Parties further 3 represent that other than the Lawsuit referenced above, there are no actions or proceedings pending against Accents in any court or jurisdiction. Any funds or cash on hand remaining after the payment of the liabilities of Accents and the dissolution of the entity, shall be an Asset of Eby. 6. Dissolution of Accents. Following the execution of this Agreement, Eby will dissolve Accents and is authorized to and shall take all action necessary and proper to effect the liquidation and dissolution of Accents, including but not limited to the execution and filing of the certificate of dissolution, and compliance with applicable governmental reporting requirements. Eby acknowledges and agrees that he will be solely responsible for any and all fees and costs (including reasonable attorneys' fees) associated with such dissolution. 7. Discontinuance of the Lawsuit. Within five (5) business days of execution of this Agreement, Eby shall discontinue the Lawsuit with prejudice. 8. Photographs. Eby agrees not to utilize any photographs, videos, client testimonials or other marketing materials from projects completed by Accents (including projects completed by Accents Hardscaping, the predecessor to Accents) or Fureman, unless Eby made a material contribution to the work performed or otherwise has appropriate authorization to advertise Accents or any other entity in which Eby has an ownership or other controlling interest. 9. Confidentiality/Non-Disparagement. The Parties agree to keep the fact and terms of this Agreement confidential, except to the extent disclosure is necessary to accountants, attorneys, financial advisors, immediate family members, or by order of Court or as required by law. The Parties further agree not to make any negative or disparaging comments or statements (whether written or oral) about any other Party in public or private at any time following the execution of this Agreement, except to the extent necessary and relevant in connection with a 4 formal legal proceeding necessary to enforce this Agreement or in connection with any other dispute between or among the Parties. The Parties agree that a violation of this Confidentiality/Non-Disparagement provision shall subject the breaching Party to damages, plus any attorneys' fees and other costs incurred by the non-breaching Party in enforcing this provision. 10. Mutual Release of Claims. For and in consideration of the obligations set forth herein, each Party, in both their individual capacities and as members of Accents, together with their heirs, successors, assigns, agents, representatives, attorneys, insurers, and any other entity or person claiming by or through any of the foregoing, does hereby fully release and forever discharge the other Party of and from any and all obligations, claims, judgments, debts, dues, demands, accounts, actions, and/or causes of action, known or unknown, arising out of or in any way related to the events set forth in the Recitals above. 11. Binding Effect. Each of the Parties to this Agreement intends to be legally bound hereby, and the terms, provisions and conditions of this Agreement shall be binding upon any and all heirs, executors, administrators, successors, and/or assigns of the Parties. 12. Entire Agreement. This Agreement represents the complete agreement between the Parties with respect to the subject matter set forth herein and supersedes all prior and contemporary agreements and understandings, inducements, or other conditions pertaining thereto, expressed or implied, oral or written. This Agreement shall not be modified except by writing duly executed by or on behalf of the Parties. 13. Severability. If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any law or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal 5 substance of the transaction contemplated hereby is not affected in any manner materially adverse to any of the Parties. Upon such determination, that any term or other provision is invalid, illegal, or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible and in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible. 14. Governing Law; Consent to Jurisdiction. This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania. Any dispute arising out of this Agreement shall be filed in the Court of Common Pleas of Cumberland County, Pennsylvania, and the Parties hereby consent to the jurisdiction of such Courts for the purpose of enforcement of this Agreement. The prevailing Party in any action to enforce this Agreement shall be entitled to recover its attorneys' fees and costs of such action. 15. Execution and Counterparts. This Agreement may be executed and delivered in any number of counterparts, each of which shall be regarded for all purposes as an original; all counterparts shall constitute but one and the same legal instrument. A photocopy, facsimile, PDF or other electronic copy of this Agreement shall have the same force and effect as an original. Notwithstanding the foregoing, this Agreement shall not be effective unless and until original signature pages are received by each of the respective Parties. 16. Future Actions. The Parties agree to take such further action as may be reasonable and necessary at any time in the future to implement and to give proper effect to the terms and conditions of this Agreement, including the signing of any necessary vehicle or equipment titles to effectuate the transfer of Assets set forth above. 6 17. Representation of Authority of Parties/Signatories. Each Party signing this Agreement represents and warrants that he, she or it is duly authorized and has legal capacity to execute and deliver this Agreement. Each Party represents and warrants to the other that the execution and delivery of this Agreement and the performance of such Party's obligations set forth herein have been duly authorized and that this Agreement is a valid and legal agreement binding on the Parties and enforceable according to its terms. SIGNATURE PAGE FOR SETTLEMENT AGREEMENT IN WITNESS WHEREOF AND INTENDING TO BE LEGALLY BOUND HEREBY, the Parties have hereunto set their hands and seals as of the date, month and year first above written. MATTHEW A. EBY DAVID M. FUREMAN 7 CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: Thomas S. Beckly, Esquire Beckley& Madden 212 North Third Street, Suite 301 Harrisburg, PA 17101 (Attorney for Defendant) Date: November 21, 2014 IRWIN & McKNIGHT, P.C. c '/ i Dou• s . Miller, Esquire Supreme Court ID No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Attorney for Plaintiff MATTHEW A. EBY, An Individual Member Landscaping, LLC, Plaintiff v. r*!LE!3-ULrir';� uiT THE P tOT HO O A.D, 4 DEC -3 MI: : O0 CUMBERLAND COUNTY PENNSYLVANIA of Accents DAVID E. FUREMAN, An Individual Member of Accents Landscaping, LLC, Defendant Coo* of QCumber1nnb IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 14-2972 CIVIL ACTION IN RE: PETITION TO ENFORCE SETTLEMENT AGREEMENT ORDER OF COURT AND NOW, this3day of December 2014, upon consideration of the Petition to Enforce Settlement Agreement, a RULE is issued upon Defendant to show cause the requested relief should not be granted. PLAINTIFF shall effectuate service of this Order of Court upon Defendant and shall file proof of service. Response by Defendant shall contain a proposed order. RULE RETURNABLE twenty (20) days from the date of service. BYE} -I --GOR-JR-T, Thomas A. Placey D' ribution: glas G. Miller, Esq. Thomas S. Beckly, Esq. tE.s , t LL 1a._py C.P.J. 1 MATTHEW A. EBY, an Individual and : IN THE COURT OF COMMON PLEAS Member of Accents Landscaping, LLC, : OF CUMBERLAND COUNTY, Plaintiff : PENNSYLVANIA v. : NO. 14-2972 — CIVIL TERM DAVID E. FUREMAN, an Individual and : CIVIL ACTION — LAW Member of Accents Landscaping, LLC : Defendant DEFENDANT'S ANSWER TO PLAINTIFF'S PETITION TO ENFORCE SETTLEMENT AGREEMENT AND NOW comes the Defendant, David E. Fureman, who, by and through his attorneys, Charles O. Beckley, II, Esquire, Thomas S. Beckley, Esquire, and Beckley & Madden, of Counsel, files this Answer to Plaintiffs Petition to Enforce Settlement Agreement, and, in support thereof, avers as follows: 1. It is admitted that Plaintiff, Matthew A. Eby ("Eby") filed a Complaint in the above captioned action on May 16, 2014. By way of further response, Eby's Complaint is a written document which speaks for itself. 2. Denied. Eby's Complaint is a written document which speaks for itself. By way of further response, the parties have had settlement negotiations, but those negotiations did not result in a final agreement. 3. Admitted. 4. It is admitted that Defendant, David Fureman, was originally represented by Heather Z. Kelly with the firm of Mette, Evans & Woodside. By way of further response, Ms. Kelly is no longer in the case and Mr. Fureman is represented by the undersigned. 0 4 5. It is admitted that Ms. Kelly and counsel for Eby exchanged correspondence and emails. 6. It is admitted that the parties attempted to resolve the matter between themselves, but were unable to do so. Mr. Fureman filed an Answer with Counterclaim to Mr. Eby's Complaint on October 10, 2014. 7. It is admitted that the parties and counsel met on or about September 11, 2014, to explore the possibility of settling the case. 8. It is denied that the parties reached a settlement on September 11, 2014, or at any other time. It is admitted that the parties met and discussed settlement proposals, but the parties were unable to agreement upon the terms of a settlement. By way of further response, the parties exchanged several proposed draft agreements, but could not agree upon the final terms. 9. It is denied that there was a settlement agreement between the parties. a -e. It is admitted that the issues raised in subparagraphs a through e were discussed, but it is denied that any agreement was reached regarding division of assets and liabilities as set forth in the Complaint. 10. Denied as stated. It is denied that Ms. Kelly stated that the parties had reached an agreement. To the contrary, it was Mr. Fureman's understanding that Ms. Kelly had agreed to draft a proposed settlement agreement incorporating the terms the parties had discussed during their meeting on September 11, 2014. 11. It is admitted that Ms. Kelly prepared a proposed draft settlement agreement and emailed it to Mr. Eby's counsel on or about September 12, 2014. By way of further response, Mr. Eby rejected Ms. Kelly's proposed draft thereby evidencing the lack of any settlement agreement between the parties. 12. The allegations contained in paragraph 12 of Mr. Eby's Petition reference a written document which speaks for itself. By way of further response, Mr. Eby rejected the proposed settlement agreement that Ms. Kelly had prepared. Therefore, there never was a settlement agreement between the parties. 13. It is admitted that counsel for the parties had discussions about Ms. Kelly's draft, but it is denied that there was ever a settlement agreement between the parties. By way of further response, the fact that counsel for Mr. Eby had to make "additional revisions to the draft Agreement" is proof that there never was an agreement, there was only talk of a proposed agreement. 14. It is admitted that counsel for Mr. Eby submitted a revised proposal to Ms. Kelly which significantly changed Ms. Kelly's draft. It is denied that Mr. Fureman ever accepted Mr. Eby's proposal. 15. It is admitted that Mr. Fureman refused to sign Mr. Eby's revised draft. By way of further response, Mr. Fureman had no duty to sign the revised proposal. Finally, Mr. Eby served a default notice on Mr. Fureman, therefore, Mr. Fureman had no choice but to file a response to Mr. Eby's Complaint which he did on October 10, 2014. 16. It is admitted that Mr. Fureman requested copies of the 2013 tax returns and associated financial documents. By way of further response, Mr. Eby had originally refused to provide copies to Mr. Fureman unless Mr. Fureman signed Mr. Eby's 3 1 settlement proposal. The company's governing documents required Mr. Eby to furnish Mr. Fureman with copies of the financial documents which Mr. Eby had refused to do. 17. Denied as stated. After reasonable investigation, Mr. Fureman is without information or knowledge sufficient to form a belief as to what Mr. Eby believed or did not believe. By way of further response, there was never an agreement reached between the parties as evidenced by the multiple drafts which neither party ever signed. While the parties tried to reach a settlement agreement, they never did. 18. Admitted. 19. Admitted. By way of further response, Mr. Eby served Mr. Fureman with a default notice thereby requiring Mr. Fureman to file a response to the Complaint. 20. Denied as stated. The parties never reached a global settlement. Indeed, several proposed drafts of the agreement have circulated between the parties and neither draft has been signed because the parties cannot agree upon terms. 21. Denied as stated. In his Petition, Mr. Eby referenced at least three different versions of a settlement agreement. Paragraph 2 references an agreement made prior to the filing of the Complaint; paragraph 11 and Exhibit "A" reference a draft Ms. Kelly prepared; and paragraph 14 and Exhibit "B" reference a draft Mr. Eby's counsel prepared. Given that Mr. Eby alleged the existence of at least three different versions of the purported settlement agreement, Mr. Fureman is not aware which "agreement" Mr. Matthews is referring to, therefore, the allegations contained in paragraph 21 are denied. By way of further response, Mr. Eby has failed to identify which version of the purported settlement agreement he is seeking to have enforced. 22. It is admitted that Mr. Eby's counsel mailed some 2013 corporate tax information to Mr. Fureman. By way of further response, Mr. Eby had originally refused to provide the corporate tax information to Mr. Fureman even though Mr. Eby had an independent duty to provide the information. Indeed, Mr. Fureman was forced to include this in his Counterclaim against Mr. Eby. 23. Denied as stated. Mr. Fureman owns a minority interest in the limited liability company and he is not an officer of the company, therefore, he cannot convey assets owned by the company. WHEREFORE, Defendant, David E. Fureman, respectfully requests the Court to deny the relief requested in Plaintiff's Petition to Enforce a Settlement Agreement because the parties never reached a settlement agreement. DATED: December 19, 2014 Respectfully submitted, Of Counsel BECKLEY & MADDEN 212 North Third Street, Suite 301 Post Office Box 11998 Harrisburg, PA 17108-1998 (717) 233-7691 5 > Charles O. Beckley, II Thomas Beckley Attorneys for Defendant, David E. Fureman VERIFICATION I, David E. Fureman, hereby verify that I am an adult individual, that I have read the foregoing document, and that the facts set forth in the foregoing document are true to the best of my knowledge, or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. ZOO/ZOO 'd 8£0LZ05LIL(XVd) BY nO ji► 1 � David E. Fureman paoj qoq b£:£i tIOZ/81/ZI CERTIFICATE OF SERVICE I, Thomas S. Beckley, Esquire, hereby certify that on this day a true and correct copy of the foregoing document was served upon the person and in the manner indicated below: SERVICE BY FIRST CLASS MAIL Douglas G. Miller, Esquire Irwin & McKnight, P.C. West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 DATED: December 19, 2014 Thomas S. Beckley, Esquire MATTHEW A. EBY, an Individual and : THE COURT OF COMMON PLEAS OF Member of Accents Landscaping, LLC, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. : NO. 14 — 2972 CIVIL TERM DAVID E. FUREMAN, an Individual and: CIVIL ACTION — LAW r (23 Member of Accents Landscaping, LLC Defendant. .<> .r� C PETITION FOR HEARING 772% AND NOW, this 8th day of January, 2015, comes the Plaintiff, MATTHEW A. EBY, by and through his attorneys, Irwin & McKnight, P.C., and files this Petition for Hearing, averring as follows: 1. On or about May 16, 2014, Plaintiff filed a Complaint against Defendant with regard to the dissolution of Accents Landscaping, LLC. 2. Over the course of the next several months, the parties with their counsel, negotiated settlement terms and on September 11, 2014, the parties met with legal counsel present and agreed to a comprehensive settlement of this litigation. 3. Defendant subsequently refused to sign the final written settlement agreement, his original legal counsel withdrew her representation, and Plaintiff compelled Defendant to file a formal response to the Complaint. 4. On or about November 24, 2014, Plaintiff then also filed a Petition to Enforce Settlement Agreement. 5. A Rule to Show Cause was issued by the Honorable Thomas A. Placey, to which Defendant responded on or about December 22, 2014. 6. Defendant, through his new counsel, denies that the parties reached a comprehensive settlement agreement. 7. Plaintiff hereby petitions this Court for a hearing to enforce the settlement agreement entered into by the parties, which includes the dissolution of the limited liability company and termination of the instant litigation. 8. Based upon the issues, Plaintiff believes and therefore represents that the parties will require approximately one-half day to conduct said hearing. WHEREFORE, Plaintiffs respectfully request that this Court enter an order setting a date and time for a hearing to determine the Plaintiff's request to enforce the settlement agreement in this matter. Respectfully Submitted, IRWIN& McKNIGHT, P.C. Douglas, . Miller, Esquire Supreme Court I.D. No. 83776 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Plaintiff Matthew A. Eby Date: January 8, 2015 CERTIFICATE OF SERVICE 1, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: Date: January 8, 2015 THOMAS S. BECKLEY, ESQUIRE BECKLEY & MADDEN 212 NORTH THIRD STREET SUITE 301 HARRISBURG, PA 17101 IRWIN & McKNICHT, P.C. Douglas E'. Miller, Esquire Supreme Court I.D. No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Attorney for Plaintiff Matthew A. Eby MATTHEW A. EBY, An Individual Member of Accents Landscaping, LLC, Plaintiff v. DAVID E. FUREMAN, An Individual Member of Accents Landscaping, LLC, Defendant E' iL i i"L.[3'GIIf. i� F v.. THE PROTHONO Tt 2015JAN 114 PII1:23 • OUMBERLANO COUNTY PENNSYLVANIA Count of dumberIsnb IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 14-2972 CIVIL ACTION IN RE: PETITION FOR HEARING ORDER OF COURT AND NOW, this 14th day of January 2015, upon consideration of the Petition for Hearing, a HEARING is hereby scheduled for 2 March 2015 at 9:30 a.m. in Courtroom Number Six of the Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT Thomas A. Placey C.P.J. Distribution: L/Pouglas G. Miller, Esq. ./Thomas S. Beckley, Esq. SEs1 is