HomeMy WebLinkAbout95-07244
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REITH A. RENDALL,
Petitioner
VII.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
(0 'I *(
NO. '/'')' '/,;. '/ '-I ("f H' a' .'''In"
REDA CONSTRUCTION, INC. and
DAVID E. BINNER,
Respondents
CIVIL ACTION - EQUITY
'.TITIOW ~OR IHVOLUKTARY DI880LUTIOH O~
KlDA COHSTRUCTIOH. IHC.
1. This Petition is filed pursuant to the provisions ot the
Business Associations Code, 15 Pa.C.S.A. Section 19B1 et. seq.
2. Petitioner is Keith A. Kendall, an adult individual
residing at 639 Lerew Road, Boiling springs, Cumberland County,
Pennsylvania, who is record owner ot 100 shares ot Respondent
Corporation.
Petitioner owns fifty percent (50\) of the
outstanding shares of the corporation.
3. Respondent Keda Construction, Inc. is a corporation
organized and existing under the laws of the Commonwealth of
Pennsylvania,
with
its registered office located
at 66
Schoolhouse Road, Gardners, Cumberland County, Pennsylvania.
4. Respondent David E. Binner is an adult individual
residing at 66 Schoolhouse Road, Gardners, Cumberland County,
Pennsylvania, who is record owner of 100 shares of Respondent
Corporation,
and with Petitioner, is also a director of
Respondent Corporation. Petitioner owns fifty percent (50\) of
the outstanding shares of the corporation.
1
&. The aot. of Re.pondent David E. Binner, a. a direotor of
the oorporation are oppre..ive and fraudulent toward the
corporation .uoh that it is beneficial to the interest. of the
.hareholder. that the oorporation be wound up and dis.olved.
6. Re.pondent David E. Binner, aoting individually and for
his own purposes and benefit, has and continues to perform
construotion and construotion-related work which was originally
or should have been undertaken by Respondent on behalf of the
corporation.
7. The directore are deadlocked in the direction of the
management of the business and affairs of the corporation and the
shareholders are unable to break the deadlock.
8. An irreparable injury to the corporation is being
Buffered or is threatened by reason of this deadlock.
9. Despita various attempts to affect a
dissolution of the corporation, or a buy-out by one
shareholdere, the shareholders have been unable to reach a
satiSfactory agreement for toe same.
10. Through his refusal to accept or respond whatsoever to
a good faith buy-out offer made by Petitioner, Respondent David
E. Binner has oaused the Corporation to lose several construction
jobs, as the corporation is unable to contract for and perform
construotion services as the business affairs currently exist.
voluntary
of the
2
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11. The corporation i. becoming increa.ingly unable to meet
it. financial obligations as a result of the .hareholder
deadlock.
13. As a reeult of the shareholder deadlock, the
corporation has insufficient liquid assets as of December 1995 to
meet it. obligation for repayment on a line of credit secured by
Petitioner through Farmers Bank and Trust company.
13. Such obligation was incurred by the Corporation through
a written agreement dated February 28, 1995 between the
corporation and Petitioner whereby in exchange tor Petitioner
having .ecured said line of credit, the corporation agreed to
make monthly payments thereon. A copy of the Agreement is
attached hereto and incorporated by reference as Exhibit "A".
14. Petitioner has begun to make monthly payments from hi.
own funds, in order to avoid defaulting on the line of credit.
15. The corporation's obligation to Petitioner on the line
of credit is the primary debt of the Corporation.
16. The principal amount of said debt as of the date of
filing of this Petition is $17,209.81.
WHEREFORE, Petitioner respectfully requests that this
Honorable Court:
a) Order the dissolution of Keda construction, Inc.,
the li~idation of its assets and the winding up of its busines.,
b) Hold a hearing on the appointment of a receiver for
that purpo.e, and the proper application and di.tribution of the
corporate assets I
3
AORlIlMIlJrl' fOR, "ORCHAn or 1!0llIPKJlII'T
THIS AGREEMENT, made this .;; ~'I-~ day ot
_r(: U,UJ-.. ' , .1995, between KEITH A, KENDALL (hereinafter
"Kendall") , 6 and KEDA CONSTRUCTION, INC. , a Pennsylvania
cClrporation, (hereinafter "corporation").
In consideration of KENDALL having secured a line of credit
through Farmers Bank and Trust company for the acquisition of
equipment to be used by the CORPORATION, the CORPORATION hereby
agrees to make monthly payments to Farmers Bank and Trust company
in an amount equal to the monthly indebtedness incurred by
KENDALL upon such line of credit. Such indebtedness relates to
the line credit which was secured by KENDALL on or about the
certain loan
of --..klcn.--X ' 1995, and which is
documents ~ween Farmers Bank and
evidenced
by
~ day
Trust company and
KENDALL.
The CORPORATIOtl shall make all payments under this Agreement
directly to Farmers Sank and Trust company, as indicated in the
above-referenced
loan documents between Farmers and
Keith
Kendall.
All equipment acquired by the CORPORATION as a result of t~e
line of credit secured by KENDALL shall be maintained, serviced
and repaired by the CORPORATION during the life of
indebtedness.
said
The CORPORATION shall be solely responsible for any and all
11abil iti..
with regard to the equipment,
including
all
insurance, repair and maintenance costs, and the like.
1
EXHIBIT "TI"
As a result ot this Aqreement, the CORPORATION shall
the leqal owner ot any such equipment acquired under the
made available through the said line at credit.
In the event ot any circumstances under which the
CORPORATION shall cease to eKist, the shareholders ot the
CORPORATION shall be liable in proportion to their ownership
interest, on the obligation set torth in this Agreement. Such
re.ponsibility shall constitute personal liability on each
shareholder tor his proportionate share ot the total payott ot
the loan at the time ot dissolution.
The equipment acquired by means ot the line ot credit
reterred to in this Agreement shall not be liquidated, sold or
otherwise disposed ot prio~ to the complete sat is taction ot the
underlying indebtedness without the prior written consent ot
KENDALL, his heirs or assigns.
The obligations set torth in this Agreement $hall continue
tor so long as the underlying line at credit indebtedness
continue. to eKist.
This instrument constitutes the entire Agreement between the
parties hereto and shall be binding on their heirs, eKecutors,
administrators and their legal representatives, successors and
assigns. This Agreement may not be amended or altered in any
manner eKcept in writing signed by both partie., or
rcprRNentatives theroot.
Thi. Agreement shall be interpreted under and governed by
the laws ot the Commonwealth ot Pennsylvania.
become
tunds
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KEITH A KENDAl.l.,
Pl:llllonl:r
IN TIlE couln OF COMMON PLEAS OF
CUMBERl.AND ('OUNTY, I)ENNSYL VANIA
NO 95.7244 EQUITY TEI~M
V.
CIVIl. ACTION. EQUITY
KEDA CONSTRUCTION, INC, and
DAVID E BINNER,
Rl:spondl:nls
ANSWF.R 010' KEDA CONSTRlJC'I'ION, INC. AND J)A VID It:, DINNER TO PETITION FOR
INVOl"lJN'fARY J)JSI:iQI,lJTION pI<' KEOA CONSTRUCTION,INC.
I. No response rl:quired
2. Admitted
3. Admitted
4. Admlttl:d.
5. Denied It is dl:nil:d thatlhl: acls of Rl:spondl:nl as Dirl:Clor oflhl: Corporal ion arl: opprl:sslve and
fraudulent loward Ihl: corporation. It is denied Ihalll is bem:licialto Ihe inlereslof the shareholdl:rs that the
corporation be wound up and dissolved To the contrary, it is averred thatlhe Petitioner, Keith A Kendall, has
committed acts in his capacity as President and material participant in the operations of Keda Construction, Inc.
which substantially Interfered with the company's business operations
6. Denied. It Is denil:d that the Respondent has pertbnned construction and construction related work
whieh originally should have been undertaken by the corporation. To the contrary, it is averred that the
Respondent has been denied access to Keda Construction, Inc equipment and has been unable to pertbrm work
for the corporation
7. Admitted
R. Admitted in part and denied in part It is admitted that an injury to the corporation Is being sutTered by
reason of the deadlock It is denied that said injury is irreparable
9 Admitted
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1)8111: 2
10 Admitted in pl1l1 and denicd In pllll It is adlllittl:d Illitllhc corporation hils lost scverlll constl1lction
jobs. It is avcrred thatlhe loss oflhl: conslnll'llon jobs Is duc lothc I)ctltiollcr's rclusllllo II110w Respondent
accesa to the conslrucllon cqulpmcnl so thc jobs nlllY bc pcrlbrmcd
II. Admittl:d in parI and dl:nied In plln II Is adllllttl:d Ihatthl: corpollltlon hilS bel:n unabll: 10 meel its
oblillations due 10 Ihe currcnt state ofllllillrs It is dl:nicd lhllllhls is cntlrely lhc rl:suh oflhe shareholder
deadlock To Ihe conlrary, It is avcrrcd thlltthe corporution's Il1llbilily to llIel:tlhc Iillllncilll obllllatlons has been
caused primarily by I)etitloner's rl:lusalto Illlow Rcspondcnt acccss 10 compllllY cqulpmcnl so thaI work may be
perlorml:d. Additionally, it Is believed and averrcd Ihall)l:titloncr has ullli7.ed company cqulpmcnt in order 10
raise funds 10 salisly certain of the l:orporAll: debts Ilnd Ibr his own indivldulll prollt
12 Admitted In pllrt and denil:d in pllrt It IS Ildlllitted thatthl: corporlltion hilS Insullicicntllquid assets as
of December 1995 10 meelthl: obligalion lill'repaymcnt of the Iinc of credit sccurl:d by the Petllloner Ihrough
Farmer's Bank and Trust Company It Is denied that this stnte ofallilirs hns bccn soldy caused by the shnreholdcr
deadlock To Ihe contrary, it is averrcd that the corporation's Inck of liquid Ilssets Is the direcl resuh of
Petitioner's conduct. It is believed Ilnd avcrrl:\Itha\ the Petitioner has becn paying the pllyments on the IInl: of
credil by performing work with the corpolllte Ilssets
13 . Admitted.
14. Aller reasonllble invcstiglllion Respondent Is without knowledgc or inlbnnlltion sulliclent to li>rln a
belief as 10 the truth of the Ilverments contnine,J In this pllrllgruph and Iherelbrl: these Illlegations are specifically
denied. To the contrl\ry, it Is averrcd that Pctltionl:l' hilS raiscd Ilmds by performing work with the corporate
equipment and may be utilizing thosc funds to mllkl: the payments duc on the line of credit
15. Admitted.
16. Denied. Allcr rellsonable inwstigntion Respondent is without knowlcdgc or inlbrmlltion suflicient to
lorm a belief lit to the truth ofthl: averments contained inlhls pllrllgraph Ilnd therelilrl: these Illlcglltions are
speclllcally denied.
WHEREFORE, Respondent rcspcctlully requl:sts that judgl1lcnt be entcred in his favor and allainslthe
Petitioner.
N.:W MATn:R
lenllth.
17. The Rvennents contained in Pllragraphs 1-17 are incorporated hcrein by reference as If set forth at
18. Petitioner, Kcith ^ Kendall, is in possl:ssion of nil of the construction equipment owned by Keda
Construction, Inc.
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KElnI A, KENDALL,
Petitioner
IN niB COURT OF COMMON PLEAS
CUMBBRLAND COUNTY
NO. 95-7244
EQUITY TBRM
v.
KBDA CONSTRUCTION, INC. and
DAVID B. BINNBR,
Respondents
ORDER
.)(J/f
AND NOW, thls.i.L day of April, 1996, upon consideration of the Petition for
Continuance, It Is hereby ORDERED that the hearing scheduled In this matter for April 29,
, fI, '
1996, Is CONTINUED until the .!:!- day of < /lIll 0 ,1996, at /Ood o'clock,
ij
,L....m., In Court Room number -2-,
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VERIFICATION
I verify lhat Ihe slatemenls made in the foregoing Requesl for Continuance are tnle
and corm:1 to the besl of my knowledge. I underslJlnd Ihal false slalements made herein are
subject to Ihe penalties of 18 Pa.C.S, 04904 relallng 10 unsworn falsltlcallon to aUlhorltles,
2J:~~~~
Keith A. en 11 -.
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KEITH A. KlNDALL,
Petitioner
I IN THE COURT or COMMON PL!AS or
I CUMBERLAND COUNTY, PENNSYLVANIA
I
I NO, 915-7244
I
I EQUITY TERM
v.
KEDA CONSTRUCTION, INC. and
DAVID E. BINNER/
Re.pondent.
,
.
OIlD..
AND NOW / this -B- day of -Ut..., ,
/ 1996/ upon
pre.entation and consideration of the within Petition a Rule is
hereby i.sued upon the Potitioner, Keith A, Kendall, and upon the
Respondent., Keda Construction, Inc, and David E, Binner, by and
throuqh their attorney of record, Keith B, DeArmond, Esquire, to
show cause/ if any they have, as to why the Petitioner in this
matter, Nichelle R. calvert, Esquire, should not be permitted to
withdraw as COUnsel for Petitioner, Keith A. Kendall, in the
above-captioned action,
\L, L/AN~ "'1~\~
RUle returnable ten (10) days after service~~'~ ____{ ~~~
~ /Q.Q. ''P ..(,c.
vlA1 At. //.M),
t'k Q~
BY THE COURT,;,
U....///
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Edqar B. Bayley, J.
./
KIITH A. KINDALL/
Petitioner
I IN THE COURT OF coMMON PLEAS OF
I CUMBERLAND COUNTY/ PENNSYLVANIA
I
I NO, 9~-72H
I
I EQUITY TERM
I
I
v.
KEDA CONSTRUCTION/ INC. and
DAVID E. BINNIR/
Re.pondents
..'1'1'1'10. '1'0 .I'IIOD. U COUII..L
AND NOW, comes Michelle R, Calvert, Esquire, coun.el of
record for the above-named Petitioner, Keith A, Kendall, and
petitions the Court as followSI
1. Your petitioner is Michelle R, Calvert/ Esquire, an
attorney wh~ practices law in the commonwealth of Pennsylvania
and who is counsel of record for the above-named Petitioner/
Keith A. Kendall, in 95-1244 Equity Term.
2. Petitioner has represented Keith A. KlOndall. since
approximatelY september 15/ 1995/ prior to the filing of the
petition For Involuntary Dissolution of Keds construction, Inc.
3. Prior to representing Keith A, Kendall, Petitioner had
represented Keda construction, Inc. during the process of its
incorporation and in subsequent business matters prior to any
dissolution of the corporation.
4, Petitioner did not represent Keda construction, Inc. at
any time during the process of dissolution, and in fact obtained
the express consent of Respondent, David E. Binner, prior to
representing Keith A, Kendall in the dissolution proceedings.
5. Petitioner has provided a variety of services for
Defendant/ inCluding office conferences/ correspondence/ contacts
with Respondents and their various legal representatives, and the
tiling of the petition For Involuntary Dissolution. A hearing on
1
the Petition For Involuntary Dissolution is ourrently soheduled
tor April 2~, 1996 at 1130 p.m, betore this Honorable Court,
atter. having been oontinued, upon agreement ot oounsel, from
February 1, 1996,
6, During the oourse ot Petitioner's repres~ntation ot Keda
construotion, Inc., prior to the filing ot dissolution
prooeedings, Petitioner's billings to Keda construction, Ino.
were paid in a t!msly tashion.
7. since Petitioner's representation solely ot Keith A.
Kendall, however, Petitioner has been made aware in conversations
with Keith A. Kendall that due to his own individual financial
constraints, and due to the limited income he is now experiencing
as a result of the dissolution of Keda construction, Inc" tIe
would have difficulty paying all billings in full, when received.
8, At the time of the said conversation or converations
with Keith A. Kendall, which took place in approximately
September and October 1995, Petitioner indicated to Keith A.
Kendall that so long as he was making some effort to pay the
billings generated by petitioner's work on his behalf, Petitioner
could continue to represent Keith A. Kendall in the diswolution
proceedings,
9, To Petitioner's knowledge and recollection, Keith A.
Kendall indicated that although he could not make payment in
full, .s expenses for the legal services were incurred, he would
make every attempt to maKe periodic payments toward the total
bill.
2
10. since the beqinning of Petitioner's representation of
Reith A. Rendall, he has made no paymonts whatsoever toward hi.
billinq.
11. In addition to Reith A, Rendall's lack of payment and
despite rep~ated representation that tho same would be
forthcoming, Mr, Rendall has refused or neqlected to provide to
Petitioner various documentation r~latinq to the dissolution of
Keda construction, Inc. which was requested by Petitioner,
.13. Despite Reith A, Kendall's refusal to provide such
documentation and information, or despite his inability to
provide the same, Reith A, Kendall has continued to insist on
frequent and excessive telephone contacts with Petitioner
reqarding the case, and has continued to make unreasonable
demands with reqard to settlement neqotiations.
13, A. a result of Reith A, Kendall's refusal or inability
to provide the requested information, Petitioner's efforts to
negotiate a settlement of this matter short of a court hearinq as
urqed by Mr. Kendall, have been fruntrated to such an extent that
the position of Reith A, Kendall with reqard to the pendinq
litigation has been jeopardized.
14. On or about March 26, 1996, Petitioner indicated to
Keith A. Kendall, by written correspondenoe, that ehe intended to
petition to withdraw as his counsel unless arranqements were to
pay the outstanding bill for leqal services in full, and unless
the reque.ted information conoerning Keith A, Kendall'. ca.e was
provided in a timely fashion.
3
15. In re.pon.e to Petitioner'. oorre.pondenoe, Keith A.
Jandall notitied petitioner by telephone that he intendad to piok
up hi. tile trom Petitioner'B offioe, in order to Beek alternate
leqal repre.entation,
WHEREFORE, Petitioner reque.t. thiB Honorable Court to enter
a Rule to Show Cau.e upon the Petitioner in the above-oaptioned
action, Keith A. Kendall, and upon the Respondente, Keda
con.truotion, Ino, and David E. Binner, through their attorney,
Keith B. DeArmond, Esquire, as to why Petitioner should not be
permitted to withdraw as oounBel for Keith A, Kendall.
Respeotfully submitted,
GRIFFIE & ASSOCIATES
BY~ ~ C~
M ohelle R. Calvert, Eequire
200 North Hanover Street
Carlisle, PA 17013
(717) 243-5551
,.
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KEITH A. J<ENDAl,L,
Petitioner
v,
IN TilE COUR1' Of' COMMON rL,f:As OF
CUMDERLAND COUN'I'Y, PENNSYLVANIA
NO. 95-7244
I
.~
KEDA CONS'L'RUC1'ION, INC, and
DAVID E, DINNER,
Respondents
EQUI'rY TERM
'.TITIOM TO WITHDRAW AB COUMBIL
AND NOW, comes Michelle R. Calvert, Esquire, counsel of
reoord for the above-named Petitioner, Keith A, Kendall, and
petitions the Court as follows:
1. Your Petitioner is Michelle R, Calvert, Esquire, an
attorney who practices law in the Commonwealth of Pennsylvania
and who is counsel of record for the above-named Petitioner,
Keith A. Kendall, in 95-7244 Equity Term,
2. Petitioner has represented Keith A, J<endall since
approximately September 15, 1995, prior to the filing of the
Petition For Involuntary Dissolution of Keda Construction, Inc.
3, Prior to representing Keith A. Kendall, Petitioner had
represented Keda Construction, Inc, during the process of its
incorporation and in subsequent business matters prior to any
dissolution of the corporation.
4. Petitioner did not represent Keda Construction, Inc, at
any time during the process of diSSOlution, and in fact obtained
the express conse~t of Respondent, David E. Binner, prior to
representing Keith A, Kendall in the dissolution proceedings,
5, Petitioner has provided a variety of services for
Defendant, including office conferences, correspondence, contacts
with Respondents and their various legal representatives, and the
filing of the Petition For Involuntary DiSSOlution, A hearing on
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~!ITH A. ~ENDALL,
Petitioner
I IN THE COURT OF CQMMON PLEAS OF
I CUMBERLAND COUNTY, PENNSYLVANIA
I
I 95"7244 EQUITY TERM
I
I
I CIVIL ACTION " EQUITY
I
v.,
KEDA CONSTRUCTION, INC, and
DAVID E. BINNER,
Respondents
'.T1T10M TO MAX. RUL. ABBOLUT.
AND NOW, comes Michelle R. Calvert, Esquire, oounsel of
record for the above-namod Petitioner, Keith A. Kendall, and
petitions the Court as follows I
1. on or about April 4, 1996, petitioner filed a Petition
por Rule to Show Cause in this action, seeking leave to withdraw
as counsel for Keith A, Kendall,
2. pursuant to Order of Court dated April 9, 1996, a Rule
was
is.ued upon Petitioner, Keith A, Kendall,
and
upon
Re.pondent., Keda construction, Inc. and David E. Binner, through
their attorney of record, Keith B. DeArmond, Esquire, to show
cause why Petitioner should not be granted leave to withdraw.
3. Pursuant to the same Order of court, the Rule was mado
returnable ten (10) days aftar set~ice.
4.
On or about April 10, 1996,
Respondents,
Ked a
construction, Inc. and David E, Binner, were served with a oopy
of the petition, by first class mail, postage prepaid to their
attorney of record, Keith B. DeAxmond, Esquire,
5. On or about April 11, 1996, petitioner, Keith A.
Kendall, was mailed a copy of the Petition, by certified mail,
return reoeipt requested,
Servioe ot the petition was made
oomplete upon Mr. Kendall on April 17, 1996, when he pioked up
the oertitied letter.
6. On or about April 16, 1996, Petitioner, Keith A,
Kendall, was also served with a oopy ot the Petition by tirst
olass
mail, postage prepaid, at his last known
addr...,
7. Petitioner, Keith A, Kendall, was tirst made aware ot
Miohelle R. Calvert's intention to petition the oourt to withdraw
as oounsel on or about March 26, 1996, and disoussed the matter
at length in a telephone conversation on Maroh 28, 1996,
8. Thereatter, Petitioner, Keith A. Kendall, expressed his
intention to either obtain the services ot another attorney, or
to represent himself in this matter,
9. More than ten (10) days has passed since the Rule was
served upon both Respondents, Keda Construction, Ino, and David
E. Binner, and upon Petitioner, Keith A, Kendall, and no
objections to the Petition have been tiled,
WHEREFORE, Petitioner requests this Honorable Court to make
the atoresaid Rule absolute and to enter an Order allowing
Petitioner, Michelle R. CalVert, Esquire, to withdraw as counsel
tor Keith A. Kendall, in the above-captioned action,
Respectfully submitted,
GRIFFIE & ASSOCIATES
By YYl \ r JqJlt R. CA. LU-t\ +
1MIChe11e R. CalVert, Esquire
200 North Hanover street
CarliSle, PA 17013
(717) 243-5551
KE ITH A, KENDALl..
Peti tioner
IN THE COURT OF COMMON PLEAS OF
CUMBERI.ANO COUNTY, PENNSYLVANIA
CIVIL ACTION - EOUITY
V.
KEDA CONSTRUCTION. INC.
and DAVID E. BINNER,
Respondents
NO. 95-7244 EOUITY TERM
QRDEROf COURT
AND NOW, this 6th day of June. 1996, the .parties
hoving appeared ot a heoring on a petition for involuntary
dissolution of Kedo Construction, Inc., and having ogreed to 0
final resolution, IT IS ORDERED:
1.. Wi thin 20 doys of this date. David E. Binner may
issue 0 certified check payable to Keith A. Kendoll in the
amount of $12,150.00. If such payment is made, Binner sholl
become the sole owner of the stock and ossets of Kedo
Construction, Inc, Kendall will assign all his stack to Binner
and turn over to him all corporate rncords, documents, and
ossets. Kendall and Binner will split the remaining tax
liability and all non-Former's Bonk debt,
2. If on the 21st daY after this date Binner has not
bought out Kendoll's interest in Keela ConstructIon, Inc., undpr
paragraph one herein:
(0) Kendall shall become the sole owner of the
stock and assets of Keda Construction. Inc.:
(bl Binner will osslgn all his stock to Kendall
and turn over to him all corporate records. documents, and
assets. Kendall and Binner will split the remaining tax
liability and 011 other non-Former's Bank debt.
(c) Binner will sign 0 Judgment note to Kendall
with 0 confession of Judgment clouse in the amount of $4,150,00
payable 51 cloys after .June 6, B96, Binner will not transfer
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any assets to ovoid attachment for the payment of the note,
Anthony J. Nestlco, ESQ~llre
For Pell t10ner
Ke1th B, DeArmond, ESQuire
For Respondent
:prs
...,----~--