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Home My WebLink About01-03826 .-, _''-''"0''<'' ~_ "'~ ,'" '. " , .. ~"" , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARSCO CORPORATION, Plaintiff, Civil Action No.: 0 1- Jf~f.. G~I { T~ v. JL.- SCOTT TECHNOLOGIES, INC. and -.,... TYCO INTERNATIONAL LTD, Defendants. PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: Please issue a Writ of Summons in the above-captioned action. Writ of Summons shall be issued and forward to (X ) Attorney () Sheriff. Respectfully submitted, Bridget SupIerne ourt#56l05 Eckt;Ii Seamans Cherin & Mellott, 213 Market Street, Eighth Floor Harrisburg PA 17101 '., (717) 237-6000 Attotneys for Plaintiff ,~ Date:lo~~\-al _~$~L;g&.llhlill\lia>'t'lbj'tj~,-,-",!:ll:i;Miili,,,,,..~~,,,ld!-"'''\'''''1j,,,, 0 C-, C g S-- ?0 0 ~ -oc::-- '~ rnrc,' ~' 7':::::", N 11:: r ':"\ Zc: C) '!) ,<'~,~ -- 11:.. d c ~(:" -0 ~ ~) G ~ ~~f:: ~_.. vJ V :;:- ~ ~ ~ ~~ 5c: .- ~ --( -, N b /-, ---... :2 :t: 'D ~ +- -T a"",~"",".,y,;~'f_"-i""",,,-,,,"~"'-'tilHili-:!'N'illbJ<iIlII~"-~.~ ~~""'"""tlltill~iMJ'--' -- . ~"-~ r -~ "t ~ "" ~ _-;-[ ~~~r8 t'JIt ~ ~ ~ Ct) f b ,,~ ~ Q ~ r a . ~ F "'{) rn;J,___,J"~JJ~( '. f!!lIF, m1].~ ..~,"~ ,,~''''',W''' '_"""""""= ,=;,<"_V_'_ ,.,'0,'_" '", _ ""'O,1~~~~'__.,-""_',_,",1'j ','''71._"'''..", .,,',., p'. '^ " '" ~, '~'. ,_ '" , ~ ..,,'-- n ",.;-, \ ..-n , ..n'~ ,. . . --:::~~ ('.) "j'" ,'1 "b (j~A .,-\ '2'''' :'2 ). "- " ~ ~" ~ ok, F~Gr J-f ~ r p t "'-" 1~:~ Q f . 'f._-< r 13 ~ OV'~' [\. e :tJ J r '"""' "1 r- ~ .....~,~'"~. .~ '., .~, , ,. . - .~- '~"'";i/' 'i,';'_,i ~r;-' ' 1:", ..". 4 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARSCO CORPORATION, Plaintiff, Civil Action No.: D/ - Y.J..I:, (3e.> /( t~ v. SCOTT TECHNOLOGIES, INC. and TYCO INTERNATIONAL LTD, Defendants. WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT(S): YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU. Date :....... )l.4.\.)e..... J.. J ':l ^ c J , G"p. ~ 4 Prothonotary '-Sy: .aD?, p ~CJ1/H~/ Deputy . ,:.,- . , "'> ""_',c" c ,~ ------------- . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARSCO CORPORATION, Plaintiff, Civil Action No.: 01-3826 Civil Term v. SCOTT TECHNOLOGIES, INC. and TYCO INTERNATIONAL LTD, Defendants. ORDER OF COURT SCHEDULING HEARING ON MOTION FOR PRELIMINARY INJUNCTION AND NOW, this bl day of JU4 ,2001, upon consideration of the Plaintiff's Motion for Preliminary Injunction, a Hearing on this matter is scheduled in Courtroom L on ~ I /7 ,2cd, beginning at /:.3tP 1m. BY THE COURT: John G. Harkins, Jr., Esquire Harkins & Cunningham Suite 2800 2005 Market Street Philadelphia, PA 19103 ~>-< ? 5:' co' J. " ~:; r1' ,0\ \.;<\~ / c.' -'1 -<. "",) (j"j L02397SO.DOC;1 ~~<-::' t '~ (7, :-:--:-l '~,-:J -< .' ~ ,~ ""' ", __ , ",l,__","I'~h'--' , -; :''' .. / JUN 2 8 2001 t/J IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARSCO CORPORATION, Plaintiff, Civil Action No.: 01-3826 Civil Term v. SCOTT TECHNOLOGIES, INC. and TYCO INTERNATIONAL LTD, Defendants. ORDER OF COURT - RULE TO SHOW CAUSE AND NOW, this day of , 200 1, upon consideration of the Plaintiffs Motion for Preliminary Injunction, a Rule is hereby issued upon the defendants to show cause why the requested relief should not be granted. RULE RETURNABLE within _ days of the date of this Order. BY THE COURT: J. John G. Harkins, Jf., Esquire Harkins & Cunningham Suite 2800 2005 Market Street Philadelphia, PA 19103 L023975O.ooC;1 ~ -'," :' ""''''' , , ' t IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARSCO CORPORATION, Plaintiff, Civil Action No.: 01-3826 Civil Term v. SCOTT TECHNOLOGIES, INC. and TYCO INTERNATIONAL LTD, Defendants. ORDER AND NOW, this day of ,2001, upon consideration of the Plaintiff's Motion for Preliminary Injunction, and following a hearing, the Motion is GRANTED, and it is hereby ORDERED, ADJUDGED and DECREED that: (a) Scott Technologies, Inc. and its officers, directors, employees, and agents are enjoined from directly or indirectly breaching the exclusive four-year Purchase Agreement with Harsco Corporation; (b) Scott Technologies, Inc. is directed to comply with all of its obligations under the Purchase Agreement for the duration of the Agreement; L0239721.DOC: 1 . ~'" ~, <" ", . , .', ,,,',1,,,, ", , " I (c) Scott Technologies, Inc. is enjoined from procuring any cylinders and/or types of cylinders covered by the Purchase Agreement from any source other than Harsco; (d) Scott Technologies, Inc. is directed to provide to Harsco a periodic accounting of its requirements for and purchase of the cylinders and/or types of cylinders covered by the Purchase Agreement, and further Scott is directed to certify to the Court subject to the penalties of civil and criminal contempt that its is satisfying those requirements by purchasing exclusively from Harsco pursuant to the Purchase Agreement; (e) Tyco International Ltd., and its officers, directors; employees, and agents are enjoined from directly or indirectly inducing or otherwise causing Scott to breach any of its obligations under the exclusive Purchase Agreement with Harsco Corporation or otherwise interfering with Scott's performance of its obligations under the exclusive Purchase Agreement; (f) Tyco International Ltd. Is directed to comply with any and all obligations that the law would impose upon it in relation to the exclusive Purchase Agreement; and (g) To the extent that such matters are now or in the future may come within Tyco's control, Tyco is directed to provide a periodic accounting of Scott's requirements for and purchases of cylinders and/or types of cylinders covered by the Purchase Agreement, and to certify to the Court L023972l.DOC;l 2 . "--~ '; '> ,. '-"-' . ,,,.,,', ,,,,,', ,. subject to the penalties of civil and criminal contempt that Scott is satisfying those requirements by purchasing exclusively from Harsco pursuant to the Purchase Agreement. It is FURTHER ORDERED that the requirement of a bond is waived as not being necessary because the continued performance of the Purchase Agreement is not detrimental to any party. BY THE COURT: J. L0239721.DOC; 1 3 . ' . ~ ,." ~~^, '-ci_~",,,,,,,,,J IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARSCO CORPORATION, Plaintiff, Civil Action No.: 01-3826 Civil Term v. SCOTT TECHNOLOGIES, INC. and TYCO INTERNATIONAL LTD, Defendants. NOTICE TO PLEAD You are hereby notified to file a written response to Plaintiff s Motion for Preliminary Injunction within twenty (20) days after service hereof, or within such shorter time as ordered by the Court, otherwise a default judgment may be entered against you. Respectfully submitted, ECKERT SEAMANS CHERIN & MELLOTT, LLC Date: b~ ~-O \ ontgomery, Esq ire Supreme . I.D. #56105 Mark E. Gebauer, Esquire Supreme Ct. I.D. #79646 213 Market Street, 8th Floor Harrisburg, PA 17101 (717) 237-6000 Attorneys for Plaintiff, Harsco Corporation {L0239679 ,I} . , ,~ ,..,-., ">""~""7 -~ ~j j' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY , PENNSYLVANIA HARSCO CORPORATION, Plaintiff, Civil Action No.: 01-3826 Civil Term v. SCOTT TECHNOLOGIES, INC. and TYCO INTERNATIONAL LTD, Defendants. MOTION FOR PRELIMINARY INJUNCTION AND NOW, plaintiff Harsco Corporation ("Harsco"), by and through its counsel Eckert Seamans Cherin & Mellott, LLC respectfully moves this Court pursuant to the Pennsylvania Rules of Civil Procedure for a preliminary injunction to remain in place for the duration of this litigation, enjoining defendants Scott Technologies, Inc. ("Scott") and Tyco International Ltd. ("Tyco") from breaching the terms of an exclusive requirements contract and in support states as follows: 1. Harsco has filed a Complaint in this Court against Defendants Scott and Tyco seeking preliminary and permanent injunctive relief and damages related to Scott's repudiation of a four-year exclusive Purchase Agreement for certain merchandise. - ~ " , > ~ ,;, ,j ~ I ,__,' ~~"'~IlI~: 2. Harsco is a single corporate entity with sever~l major business segments, one of which is the Gas and Fluid Control Group, which is headquartered at 4718 Old Gettysburg Road, Mechanicsburg, Pennsylvania 17055. 3. A manufacturing unit of the Harsco Gas and Fluid Control Group, Structural Composite Industries, manufactures high-pressure composite cylinders for use in, among other products, self-contained breathing apparatus and commercial aviation oxygen systems. 4. Defendant Scott designs and manufactures, among other products, self- contained breathing apparatus used in the frrefighting industry, and commercial aviation oxygen systems, into which high-pressure composite cylinders are incorporated. 5. On or about April 1, 1999, Scott entered into an exclusive, four-year Purchase Agreement with Harsco, pursuant to which Harsco agreed to supply, and Scott agreed to purchase exclusively from Harsco, all of Scott's requirements of certain composite cylinders as specified by Scott. A copy of the exclusive Purchase Agreement with list of models, part numbers, and prices is attached hereto as Exhibit "A." 6. From April 1, 1999, to the present, Harsco has substantially and satisfactorily performed all of its obligations under the Purchase Agreement. 7. Scott has paid for the cylinders delivered by Harsco, thereby acknowledging that Harsco has produced commercially acceptable products in fulfillment of Harsco' s obligations under the Purchase Agreement. {L0239681.1} 2 " ,. , -'-' .do ' " ""_.i, " "'ii' , . 8. In or about May 2001, defendant Tyco acquired Scott Technologies, Inc., and its divisions, including Scott Health & Safety and Scott Aviation, and on information and belief, Tyco has or will soon integrate Scott into the segment of Tyco's business known as Tyco Fire and Security Services. 9. On information and belief, as a result of Tyco's acquisition of Scott, Scott's business activities, including the performance of Scott's obligation to purchase its composite cylinder requirements exclusively from Harsco, are subject to the direction and control of Tyco. 10. Despite Harsco' s satisfactory performance under the Purchase Agreement, Scott recently informed Harsco that Scott intends to repudiate the Purchase Agreement and purchase the cylinders covered by the Purchase Agreement from another manufacturer, which on information and belief is a competitor in the composite cylinder manufacturing industry, Luxfer, Inc. 11. Harsco sought from Scott adequate assurances that Scott would continue to perform its obligations under the Purchase Agreement, but Scott has refused to sllpply such assurances. 12. Through written correspondence, Harsco recently confIrmed its understanding that Scott had repudiated the Purchase Agreement, which correspondence Scott has failed to negate or otherwise answer, verbally or in writing. A copy of Harsco's correspondence is attached hereto as Exhibit "B. 13. Scott's repudiation and breach of the Purchase Agreement is wrongful, without justifIcation, and will cause great harm to Harsco. {L0239681.1 } 3 . "ok -"' I,' ,,' _ ,~ -=-,,(. 14. At all relevant times, Tyco was aware of the contractual relations and obligations existing between Harsco and Scott. 15. As stated, Tyco has acquired Scott and has or will integrate Scott into Tyco's Fire and Security Services business. 16. Upon information and belief, at or about the time of Tyco's acquisition of Scott, Tyco intentionally and improperly interfered with the contractual relations between Scott and Harsco by instructing, inducing, or otherwise causing Scott to breach and repudiate the exclusive Purchase Agreement with Harsco. 17. On information and belief, Tyco is seeking to acquire a fmancial interest in a company that supplies cylinders and thus, it is in Tyco's financial interest to cause Scott (now owned by Tyco) to buy cylinders from this competitor of Harsco. 18. From the time of Scott's recent indications that it intended to purchase composite cylinders covered by the Purchase Agreement from another manufacturer, to the present, the volume of orders received from Scott for such composite cylinders has declined, thereby confirming its intentions to repudiate the Purchase Agreement. 19. As a result of the decline in orders from Scott for composite cylinders covered by the Purchase Agreement, Harsco has determined that it will have to layoff skilled production workers and, further, that recent organizational actions taken by Harsco in the belief that the Purchase Agreement would be honored now will result in harm to production and employee arrangements. 20. If the defendants are not enjoined from breaching the Agreement, Harsco will lose not ouly the monetary benefIts of the Purchase Agreement, but will also suffer {L0239681.1} 4 " . , ,_ I ~ _ .,-,,-- >~ ","",,'; , . irreparable harm, including but not limited to harm to its business reputation, harm to its reputation in the investment community, harm to its employee and business operations and harm to its workforce and production effIciency in its composite cylinder manufacturing processes. 21. The immediate and irreparable harm to Harsco cannot be avoided by any other means than preliminarily and permanently enjoining the defendants from breaching the exclusive Purchase Agreement pending the outcome of a fInal hearing on the merits. 22. The threatened harm to Harsco outweighs any possible harm to the defendants from the issuance of a preliminary and permanent injunction because Harsco is capable of and is willing to perform its contractual obligations under the Purchase Agreement. 23. Harsco will present evidence at a hearing on this Motion that it is likely to succeed on the merits, and that it is able to satisfy all other requirements for the entry of a preliminary injunction in this matter. 24. Under the circumstances, any bond required for the issuance of a preliminary injunction should be waived or be minimal because the defendants have an existing obligation to perform the Purchase Agreement, and its purchase of cylinders from Harsco as promised presents no detriment to the defendants. 25. Harsco Corporation respectfully requests that this Court set a hearing date on this matter within the next fourteen (14) days. {L0239681.1} 5 "-'-"-'-'-' ,~" . I, <' ~","""_,,,i' " WHEREFORE, Harsco Corporation respectfully requests this Court to enter its Order: (a) Preliminarily and permanently enjoining Scott Technologies, Inc. and its officers, directors, employees, and agents from directly or indirectly breaching the exclusive four-year Purchase Agreement with Harsco Corporation; (b) Directing Scott Technologies, Inc. to comply with all of its obligations under the Purchase Agreement for the duration of the Agreement; (c) Precluding Scott Technologies, Inc. from procuring any cylinders and/or types of cylinders covered by the Purchase Agreement from any source other than Harsco; (d) Directing Scott Technologies, Inc. to provide to Harsco a periodic accounting of its requirements for and purchase of the cylinders and/or types of cylinders covered by the Purchase Agreement, and further directing Scott to certify to the Court subject to the penalties of civil and criminal contempt that its is satisfying those requirements by purchasing exclusively from Harsco pursuant to the Purchase Agreement; (e) Preliminarily and permanently enjoining Tyco International Ltd., and its offIcers, directors, employees, and agents from directly or indirectly inducing or otherwise causing Scott to breach any of its obligations under the exclusive Purchase Agreement with Harsco Corporation or {L0239681.1 } 6 "". u oj ".,'~ ~____ ~,,: , .. otherwise interfering with Scott's performance of its obligations under the exclusive Purchase Agreement; (1) Directing Tyco International Ltd. to comply with any and all obligations that the law would impose upon it in relation to the exclusive Purchase Agreement; (g) To the extent that such matters are now or in the future may come within Tyco's control, directing Tyco to provide a periodic accounting of Scott's requirements for and purchases of cylinders and/or types of cylinders covered by the Purchase Agreement, and certifying to the Court subject to the penalties of civil and criminal contempt that Scott is satisfying those requirements by purchasing exclusively from Harsco pursuant to the Purchase Agreement; and {L0239681.1} 7 ~ ' I. {L0239681.1} """'~" (h) A warding such further relief as the Court deems just and appropriate. Respectfully submitted, ECKERT SEAMANS CHERlN & MELLOTT, LLC . Montgomery, Suprem t. LD. #56105 Mark E. Gebauer, Esquire Supreme Ct. LD. #79646 One South Market Square Building 213 Market Street Harrisburg, PA 17101 (717) 237-6000 Attorneys for Plaintiff 8 '"--'~" . " ", . < -~--'-"'~" " ,. PURCHA.SE AGREEMENT It has b~~:t <1gred by Scan Aviation and SCI to ence, into <1 supply agre~me:1r for cylinders for a period of four (.+) ye3Is. Scott a~e~s to buy exclusively, and SCl agrees to furn.ish the cylinders which ,,,ill be the models and pa.n: numbers cllrre:tt]v being purchased on Blanke: Orde~ 'i'umbers JS listed on the an<lched matrix. T:1e Ljll<1J1riries shown on rhese (}rders wiiJ be [h~ basis for each of the four (-+) ye::u periods. SCOtt reserves the right TO place orders for the ~;ame type or' cylinde:- from orhe:- ~:,r!inde:- manurj,t.:::ure:-s if SCI fails to perrorm p:e~ i.be requirements of the Jnwing 3!,-"e-saic3!icn ,Jr f.he promiseu jdive::: dnte-, JIIC C;JJU1ot provide Scott 'Nith ,1 re;J.Sonable re:::Jve:-~, ;:;bn ':Q [nee:: 9roduc~ion or eastorner ;equire:n~:Hs. St::ou \:\1111 procure ::he o..{uantir:; cd ..;:.-iince:-s ne:::ded r0r ,hat ,equire:n~m from othe: quaiiiied sources. Th~ prit.::::s IDr (h~se c::iinde:; '."ill oe 3ho\VTI on rh~ bian.k:::~ ,Jr(:~~-;. J11G ',viii '';C: ,ir:n throU!~!l ::he Y~:1r :000 'f':1e:; 7r.c~ ~or ~:1c:' ~:,,'Hnder mode: ;na;.' be in(=-~3$ei ~]~; : '.J,',) .n ~hc ~'e:l1' :00 t, 1)(}';) j,n 200: ,lod :-e':,e',\"e-:: J.g:!in in :oo~ i"o[ yr:c:,; .ld..iuStrn~:1ts basc'~ )r: ,::1172;-::: ~:.;()nomic conditions ,:u ~ha[ :ime. ,-\il c~:ljnde:s will 'Je ~:roduc~:l :n .lc2orci.J.nc::: "\i!t:' he dn\vtng .l11U 5re~:iic.:l{ions ~rov~ded ;)y 5(~:)rt" P3ymt::1t "'::--:TlS I.H' ,.1c.:::;n;1ck :Jr,:,.:t:c: 'vii 1 be ch.'J.I1~es ~rom th~ st::1ndard :1e~ f50 d~:-'s w 71c~ .1: d;:tys. --?~;~:.::i'...'~ ',sirh :h~ ,.:;:l'~\:? ,)( :tl:: .:IgTeem~~L S~ocr A'ibtioo ,-'--'-:?r 0;/ By: JJiJ.....oL~ i S rrJc~llr.1i C \)f!1"ct2.~~tes fndus-r;j'es .-::'"^/' /7" , Bv" ...~7..7' ../7,";""(,~ ; Y .~ ~ . '..... ....., ..-::.--~ (-'~-~..._- Tide: Vice P~eside:tt. Ooerruions Title: ~7tce P::-o!s:.:::ie!lc. G~~:~t"3.':' :-!a.::.ag:e=- Dare: .+-[-90 Date: ~-l-"'? Jb~e..:'':: Purchase ,.1...greement Attac;,menr A STRUCTURAL COMPOSITES INDUSTRIES -,"""'~ -.- ..:;; ~-' '" --:;:=/c::. '-'.::::c:: CCI"ITPACT it I SCi ,'.4GeE!... ;t I _~i" :::; . ",' -.- .r .'::'';! -'-;=:.~ p,aF:7"" ::;. .'c:r..S.:: :;I,_;~ICQ rci',,"'~i 5'::: ::C .s. .::5 :C W-:C6S 'ceo&;; ~ I GiCi55 30 ,',!in, -'see '. -. ..., ... ~...._ w_ ~ . - - _.- . ~. . -. I ! I I iKcvlar :0 ,fin,. 3eee I . ,,;, " .-.-.-----..---..-- iCareen 30 ,fir.. -',:CO i. .;,~: ~COeO! _..._._-_..~_._._----~ lCarccn:O Min., 22~6 c;'-'::'.(_'; 5C~_~.~__. IGiass 10 Min.. 30CC ~.~ . ;occl IGlass 5\ifin..3COO - __ - : GCC I :COI ~.'.35 .:0 :5' ~::::, ;0 I ~JV~ 07S 'N~076 ,'3C,:O, ':'3C.:0 \N1077' i';:C.':C 3-cC,_:C; IN107a .3G2.':C 3:;;~. :0 IN10T9 ssc..:c ,3se.JC: ,... '"""I . ~ ' ,liLT sa; I 1CC105cC ICarcen :0 ,,1in. :ceo I , ',_ :ece I -'ct: :e ,',,8,:0 :- ....J.: ......greement I " _J. __ , /E50" -- ,:e ' ,''',OJ Agreement I AlT 279 I 2~ 5C, ...J2 C,..L In. i<e'jlar. '78':0 , &; J.l S:::::C:,_:G , ~.....v, , - .. ?OJ ,ol.greemenrl Al T 280 I 2~50r...}1 12Ck :"';J In. .~a'/jar. 1850 ! c~1 S..:.' ~: ., :::-::4. .:0 ............ . -'- : ?OJ ,1greementl AL T 281 I 2:507-J3 ' (' :n. Kc"jar. :8501 5~t,;! 5:5a. :0 .3:.3.CO reoa _J. ; ?,O./ Agreement I All 282 I 2~5G/-'J.d. !15CO C-l, :<a'Jlar. :850! i8151 5":'SC ::C 3~6.~C i in. : ? ~.: ,..lgreemenr' ,J,L7 :i: I .....-'...- ....c: i 5 ~ - ......;, In. :-<d'Jtar :a50 i -=ci Z....C..s. :c 3":3..1 :c "'" =UI-,J_ .. '" - ,.lr;r<!er:-:e:it: ;lL - 5:' , '.,0 ~__ .... ,. ,- .- -<e'rcr ~:::2CI :C ~ . - - .~ ...... , .::. ::t... -~:: . .-.... --, " --~ - -- , ~--, ...... --. Sccrt ,.l.'1iaticg] _! ,,' ,: . 6 '1/ ,......' y: .,. /~,~,,-~-,,;<-......!..t..,-- Tiil . .1 ,;,.,-- J e: i/I- c~_'-"'" Date: "":-:"7 -:; ( I ~'ru---U~-I-- ~~~...=" 'rc"~'-'es ....l ....., a >J. '....~...._ "",....u I ~ ./ I"*' / 1,/ _........- o --r- "',, ~~. ~ . ..~. ~ ..... . ~~ lme:/J:.t~~_ ;....:..,:~.) ):,./' ~ . ./1 r',~ / Date: r..., i,~ -. ,>.'1.:. ;"",,:.;'',:,, '-:'-"1iB;' .' " VERIFICATION I, ~"^" \ ~ u. \eo. pI" ..., am the S e . \J. p. of of Harsco Corporation, Inc, I Ol'~l<.a. ,,' 0>1\'> ) hereby verify on behalf of Harsco Corporation that all of the averments of fact contained in the foregoing document are true and correct to the best of my knowledge, information and belief, I understand that false statements herein are made subject to the penalties of 18 Pa, C,S.A. ~4904, relating to unsworn falsification to authorities, {L0239681.1} ~j ~"""''''''' ....... .......... <"'L/ . I' IMILL/l' w"n",u" UL....L.' L,r'I..I.1 I~..I. lJUU lU J~~'U~~J r .~<::.,rI::J'::' , . ' ~"H..I;. ar.sco June 13, 2001 Harseo Corporation 4716 Old Getlystlutg AQad ~. PA 1705$ VSA P.O,6o><fl3'. CAnp I-iIl, PA HOO1-B316\JSA TeIaoI'lone: 717.763.5OGO Fax: 717.731.7Q88 W4b':. www.h:M'$CQ.ccm John McStravick, Vice President and General Manager TYCO/Scott Health & Safety, Scott Technologies, Inc. 309 W. Crowell SI. Monroe, NC 28110 Dear John, This letter will serve to confirm our conversation this afternoon, June 13, 2001, wherein you stated that TYCO/Scott Health &Safety intends to remain on its current path (with Luxfer), thereby intending to breach the existing agreement with SCI, Harsco Corporation, dated April 1, 1999, which sets forth certain exclusivity requirements through the date of April 1, 2003. I can only conclude that either TYCO/Scott: 1) regards the agreement dated April 1, 1999 as unenforceable, or 2) believes that Harsco Corporation will not jeopardize any future business arrangement by enforcing the existing agreement. Please be advised that Harsco construeS the exclusivity requirement of the 1999 agreement as enforceable; accordingly, Harsco will proceed with any and all necessary legal action to enforce the existing agreement I truly regret that Harsco Corporation has been placed in the position of seeking legal redress to enforce the contractual obligations undertaken by Scott prior to the acqUisition by TYCO, Harsco Corporation l1as fully performed its obligations pursuant to the April 1 , 1999 agreement. There has been no notice from Scott of any failure to perform under the agreement to this date. ' At the request of Scott, prior to the acquisition by TYCO, Harseo submitted bid quotes as the basis of a potential award of additional business, In the event that Harsco was awarded that additional business, we were prepared to enter into an agreement that would replace the 1999 agreement This bid process in no way undermined our consistent reference to the requirements of the existing agreement This understanding has been directly stated by me to Mark Kirk and by Ron Eickelman to you, ~~~ S, V. P"Operations ** TOTAL PffiE, 02 ** ~ ,-, ...I ;,; '; ""i;J__:;,_~,',;}_::.:,,'-:-- JUN 15 '01 12:38 FR TAYLOR-WHARTON-GED-EX717 731 7988 TO 92376019 P,02/02 .. 'I ~ Har.sco IIamco Ootpollltlon 4718 Old Gell\'SllUl'\l Road MaohanioItlurg, PA 1 70SS USA PO, 80><83'8 ConlP ftm, PA 17oo1oll318 USA TIlIephono: 717.783.5Ol!O Fo>c: 717.731,7988 YVIb: WWW'.harsa>.oom June 15, 2001 John McStravick, Vice President and General Manager TYeo/scott Health & Safety, Scott Technologies, Inc, 309 W, Crowell St. Monroe, NC 28110 Dear John, This letter confirms that you Informed me that you Intend to breach our exclusive contract for the supply of certain composite cylinders, Further, you told me that you Intend to take the business away from Harsco and give it to Luxfer despite the fact that the contract does not expire for two more years, Harsco Corporation will suffer damages that far exceed the monetary concerns which are significant in and of themselves, The harm to our business arrangements and to our reputation, to name a few, are of great concern to Harsco, Nonetheless, you have apparently made your final decision and we must go forward from here, My attempts to resolve the intended breach on behalf of Harsco Corporation have been unsuccessful, You should contact me directly If you have anything further to report to Harsco, J)~rt, ~j(~ S, V. p" Operations ** TOTAL Pl'(JE,02 ** i,. ." ~"_,"".lJ~1 '" ! J jo. CERTIFICATE OF SERVICE I, Bridget E, Montgomery, Esquire, hereby certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage prepaid, as follows: John G, Harkins, Jr., Esquire Harkins & Cunningham Suite 2800 2005 Market Street Philadelphia, PA 19103 Mark Belnick, Esquire Tyco International, Ltd, 9 West 57th Street, 43rd Floor New York, NY 10019 ~10~~~ Date:~~~ 9" 01 {L0239681.l} 10 ~'''''~loifi.lJji!!<J~~it<li&'-lliV,'i!l','~lIiii~;,i&M:!W<lf'''':l'J'kk~i;,M'''~',"''",:!,'M',\;,. . W,'_ ~'"""""'M _~" =~,_ '''''"'''"'''N'",' ','O"-,J!k ,-,",,',:+:'i,I1~,-t"n"'i;e;;iM;!&:ltiii~~~!lIl~t-le_'IM~Ki. .<-e_,--,,, . ._ ",~.' ,,',,", ,,,.,,~ ",,,",'"''''''''''"' ~> ,e.""'.>"_ ~;,~ '<"',," - ~,..,",.= ~ .","''-'''. ~,' "~. ~, ," o :~; ~.:." IWbllIiI ~ t .. '" o D " '- " ,-~" _.,~, '-=.J ....J . r--:J .'" ~ "n .~ ;;r~ ~.;! jJ -~ ~ '",,'-"""'" .,~~ ~';"___,,,;i . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARSCO CORPORATION Plaintiff, v. Civil Action No. 01-3826 Civil Term SCOTT TECHNOLOGIES, INC. and TYCO INTERNATIONAL LTD. Defendants. : ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance as attorneys for defendants Scott Technologies, Inc, and Tyco International Ltd, with respect to the above matter, BY: G, Harkins, Jr" Esquire (04441) ara Brigham Denys, Esquire (78562) 2800 One Commerce Square 2005 Market Street Philadelphia, PA 19103 (215) 851-6700 BY: George ,Faller, Jr., Esquire (4 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: ,\ (1(0\ Attorneys for Defendants cn'~" ~-" . . , , CERTIFICATE OF SERVICE i . """"'"~,), I, George B, Faller, Jr" Esquire, hereby certify that a true and correct copy of the 7((8/0( on counsel listed below: foregoing Entry of Appearance was served via United States First Class Mail, postage pre-paid, {(lifo, on Dated: Bridget E, Montgomery, Esquire Echert Seamans Cherin & Mellott, LLC 213 Market Street, Eighth Floor Harrisburg, P A 17101 Ge rge B, Faller, Jr" Esqui Attorney for Defendants ", '~' _ " ' 'J. ;1,';" ~.; I .'. , .", IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY , PENNSYLVANIA HARSCO CORPORATION, Plaintiff, Civil Action No,: 01-3826 Civil Term v, SCOTT TECHNOLOGIES, INC. and TYCO INTERNATIONAL LTD, Defendants, STIPULATION TO AMEND CAPTION TO THE PROTHONOTARY: Defendants have represented, without admitting any liability in connection with this matter, that if any act, or failure to act, or event has occurred that in any ways involves a Tyco entity in connection with this matter, that entity would be Tyco International (US), Inc, Accordingly, the parties to the above-captioned matter stipulate to amend the caption and the content of the Complaint to remove "Tyco International Ltd," as a defendant and to replace "Tyco International Ltd," with "Tyco International (US) Inc," {L0240425.1} '>,<' ,',;,.c"" ""11~!': .. ECKERT SEAMANS CHERIN & MELLOTT, LLC HARKINS CUNNINGHAM ridget E, Montgome ,Es Supre Ct. LD, #561 Mark E, Gebauer, Esquire Supreme Ct, LD, #79646 213 Market Street, 8th Floor Harrisburg, PA 17101 (717) 237-6000 Attorneys for Plaintiff, Harsco Corporation By: John G, Harkins, Esquire (04441) Barbara Brigham Denys, Esquire (78562) 2800 One Commerce Square 2005 Market Street Philadelphia, PA 19103 By: George B. Faller, Jr., Esquir MARTSON DEARDORFF WIL AMS & OTTO, P.C. George B, Faller, JI., Esquire (49813) Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendants Dated.1:J8" 0 1 {L0240425.1} " i-'~' ~' . "'~ __<s!-_,j I Created: 017/19/01 09:04:42 AM Revised: 07/19/01 09:04:48 AM CERTIFICATE OF SERVICE I, Nichole L. Myers, an authorized agent of Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Stipulation to Amend Caption was served this date by depositing same in the Post OffIce at Carlisle, P A, first class mail, postage prepaid, addressed as follows: Bridget E, Montgomery, Esquire ECKERT SEAMANS CHERIN & MELLOTT, LLC 213 Market Street, 8th Floor Harrisburg, P A 17101 MARTS ON DEARDORFF WILLIAMS & OTTO By '- J\r;; JuJ-tl ~ -1YWjJl.!J- Nichole L. Myers ~ Ten East High Street Carlisle, P A 17013 (717) 243-3341 Dated: '7llg 10 I - - >~ ~ ~ L , ~" ............",,@ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA HARSCO CORPORATION Plaintiff, v, Civil Action No,: 01-3826 Civil Term SCOTT TECHNOLOGIES, INC. and TYCO INTERNATIONAL (US) INC. Defendants. DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION Defendants, by their undersigned counsel, hereby respond to plaintiffs Motion for Preliminary Injunction as follows: 1, Admitted in part and denied in part. It is admitted only that plaintiff filed a Complaint in this Court against Defendant Scott Technologies, Inc. ("Scott"). It is specifically denied that Tyco International Ltd, is a defendant in this action, By stipulation, a true and correct copy of which is attached hereto as Exhibit 1, the parties have agreed to amend the caption and the Complaint in this matter to remove Tyco International Ltd, as a defendant and to replace Tyco International Ltd. with Tyco International (US) Inc, Therefore, any references to Tyco International Ltd, in plaintiffs Complaint and in plaintiffs Motion for Preliminary Injunction will be construed to reference Tyco International (US) Inc, ("Tyco"), By way offurther answer, although defendants admit that plaintiff filed a Complaint seeking preliminary and permanent injunctive relief and damages related to an alleged purchase agreement, attached to plaintiffs "', '"' Complaint and to plaintiffs Motion for Preliminary Injunction as Exhibit "A," Exhibit "A" is a writing, the terms of which speak for themselves, and any characterization thereof by plaintiff is denied, The remainder of the averments contained in this paragraph are conclusions oflaw to which no response is required by the Pennsylvania Rules of Civil Procedure and they are deemed denied. 2, Admitted, 3. Admitted, and defendants further aver that plaintiffs Structural Composite Industries business unit ("SCI") is located in California and that Scott has dealt and deals with SCI through SCI's place of business in California. 4. Admitted, 5. Admitted in part and denied in part, It is admitted only that Scott and SCI each executed the document dated April I, 1999, a copy of which is attached to plaintiffs Motion for Preliminary Injunction as Exhibit "A." Exhibit "A" is a writing, the terms of which speak for themselves, and any characterization thereof by plaintiff is denied. The remainder ofthe averments contained in this paragraph are conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure and they are deemed denied, 6, To the extent the averments contained in this paragraph are conclusions oflaw, no response is required by the Peunsylvania Rules of Civil Procedure and they are deemed denied. By way of further answer, Exhibit "A" is a writing, the terms of which speak for themselves, and any characterization thereof by plaintiff is denied, To the extent paragraph 6 contains factual averments, defendants deny that plaintiff (through SCI) has at all times met specification, delivery and other terms in response to cylinder purchase orders from Scott. 7, To the extent the averments contained in this paragraph are conclusions oflaw, no 2 ~ i - - H"'~Ji response is required by the Pennsylvania Rules of Civil Procedure and they are deemed denied. By way of further answer, Exhibit "A" is a writing, the terms of which speak for themselves, any characterization thereof by plaintiff is denied, To the extent paragraph 7 contains factual averments, it is specifically denied that Scott has acknowledged that plaintiff (through SCI) has consistently provided commercially acceptable products in fulfillment of the purchase orders placed with it by Scott, but admitted that Scott has paid for all acceptable cylinders purchased by it at the prices agreed upon by the parties, 8, Admitted, 9, Admitted in part and denied in part, It is admitted only that certain of Scott's business activities are subject to review by Tyco since the May 3,2001 acquisition of Scott by Tyco, It is specifically denied that Tyco has directed or controlled the manner in which, or the extent to which, Scott has or will acquire cylinders from SCI, and on the contrary, defendants aver that such decisions are made by Scott management. 10, Admitted in part and denied in part. It is admitted only that Scott recently informed plaintiffthat it had concluded that it would award Luxfer a contract for the supply of additional cylinders, but defendants aver that no such contract has been awarded to Luxfer. By way of further answer, defendants deny that SCI's performance has been satisfactory and aver that SCI has not consistently met specifIcations, delivery and other terms of orders placed with it by Scott. 11. Admitted in part and denied in part, It is admitted only that Scott has not supplied plaintiff with assurances that it would continue to purchase cylinders from it. By way of further answer, Exhibit "A" is a writing, the terms of which speak for themselves, and any characterization thereof by plaintiff is denied. 12. Admitted in part and denied in part. It is admitted only that plaintiff sent and Scott 3 l." --w,.". received the correspondence attached as Exhibit "B" to plaintiffs Motion for Preliminary Injunction and that Scott has not responded to that correspondence; but defendants deny that the letters accurately reflect communications with Scott and aver, on the contrary, that they are self- serving efforts by plaintiff to support its view of the relations between Scott and SCI. With regard to the averment concerning plaintiff's "understanding," after reasonable investigation, defendants are without suffIcient knowledge or information to form a belief as to the truth of such an averment. Therefore, it is denied and strict proof is demanded at the time of hearing, 13, The averments contained in this paragraph are conclusions oflaw to which no response is required by the Pennsylvania Rules of Civil Procedure and they are deemed denied. 14, Admitted in part and denied in part. It is admitted only that Tyco became aware of the writing attached to plaintiffs Motion for Preliminary Injunction as Exhibit "A" at or about the time of its acquisition of Scott. By way of further answer, Exhibit "A" is a writing, the terms of which speak for themselves, and any characterization thereof by plaintiff is denied, With regard to any remaining factual allegations contained in this paragraph, after reasonable investigation, defendants are without suffIcient knowledge or information to form a belief as to the truth of those averments. Therefore, they are denied and strict proof is demanded at the time of hearing. 15, Admitted. 16. Admitted in part and denied in part, It is admitted only that Scott, beginning in late 2000, negotiated with SCI, among others, for the supply of most of Scott's cylinder needs, which negotiations went forward on the assumption that SCI could demonstrate that it could become a more responsive and effIcient supplier to Scott; and defendants further aver that Scott concluded that it could not gain sufficient comfort with respect to SCI's responsiveness. By way of further 4 ~,~.- ~ .il',i, answer, defendants specifically deny that Scott has been satisfied with its dealings with plaintiff under the agreement at issue in this action, and, on the contrary, aver that SCI has not consistently met specifications, delivery and other terms of orders placed with it by Scott; and by way of further answer, defendants deny that negotiations between Scott and SCI ceased due, in any part, to Tyco, and on the contrary, that they ceased because of Scott's assessment of SCI's inability to satisfactorily supply all of Scott's cylinder needs in the future. 17. Denied, It is specifically denied that Tyco is seeking to acquire a financial interest in a company, competing with plaintiff, that supplies cylinders, 18, Denied, Contrary to the averments of paragraph 18, Scott has continued to purchase all of its needs of cylinders from SCI which are referenced in the schedule attached to Exhibit "A." 19. Denied, Contrary to the inference in the averments of paragraph 19 of any perceived "decline" in orders of cylinders referenced in the schedule attached to Exhibit "A," Scott has continued to purchase all of its needs for such cylinders from SCI. With regard to the remaining averments contained in this paragraph, defendants are without sufficient knowledge or information to form a belief as to the truth of such averments. Therefore, they are denied and strict proof is demanded at the time of hearing, 20, To the extent the averments contained in this paragraph are conclusions oflaw, no response is required by the Pennsylvania Rules of Civil Procedure and they are deemed denied. By way of further answer, Exhibit "A" is a writing, the terms of which speak for themselves, and any characterization thereofby plaintiff is denied, To the extent that paragraph 20 might be deemed to contain factual averments, after reasonable investigation, defendants are without sufficient knowledge or information to form a belief as to the truth of those averments. 5 - - ~~"" Therefore, they are denied and strict proof is demanded at the time of hearing, 21. To the extent the averments contained in this paragraph are conclusions oflaw, no response is required by the Pennsylvania Rules of Civil Procedure and they are deemed denied. By way of further answer, Exhibit "A" is a writing, the terms of which speak for themselves, and any characterization thereof by plaintiff is denied. To the extent that paragraph 21 might be deemed to contain factual averments, after reasonable investigation, defendants are without sufficient knowledge or information to form a belief as to the truth ofthose averments, Therefore, they are denied and strict proof is demanded at the time of hearing, 22. To the extent the averments coIltained in this paragraph are conclusions of law, no response is required by the Pennsylvania Rules of Civil Procedure and they are deemed denied, Exhibit "A" is a writing, the terms of which speak for themselves, and any characterization thereof by plaintiff is denied, By way of further answer, it is specifically denied that the alleged hann to plaintiff outweighs the hann that Scott and Tyco would suffer by the imposition of the preliminary and permanent injunctive relief plaintiff seeks, With regard to any remaining factual allegations contained in this paragraph, after reasonable investigation, defendants are without sufficient knowledge or information to form a belief as to the truth of those averments. Therefore, they are denied and strict proof is demanded at the time of hearing, 23, The averments contained in this paragraph are conclusions oflaw to which no response is required by the Pennsylvania Rules of Civil Procedure and they are deemed denied. 24, To the extent the averments contained in this paragraph are conclusions oflaw, no response is required by the Pennsylvania Rules of Civil Procedure and they are deemed denied. Exhibit "A" is a writing, the terms of which speak for themselves, and any characterization thereof by plaintiff is denied, By way of further answer, it is specifically denied that plaintiffs 6 - ",'hi<, obligation to post a bond or to deposit legal tender under Pennsylvania Rule of Civil Procedure 1531 (b) may be waived under any circumstances, It is also specifically denied that the imposition of the preliminary and permanent injunctive relief sought by plaintiff would not present detriment to Scott and to Tyco, With regard to any remaining factual allegations contained in this paragraph, after reasonable investigation, defendants are without sufficient knowledge or information to form a belief as to the truth of those averments, Therefore, they are denied and strict proof is demanded at the time of hearing. 25, The averments contained in this paragraph do not call for a response, By way of further response, the Court has set a hearing for this matter on August 17,2001 at 1:30 p.m, WHEREFORE, defendants Scott and Tyco respectfully request that the Court deny plaintiffs Motion for Preliminary Injunction, Respectfully submitted, HARKINS CUNNINGHAM John G. Harkins, Jr., Esquire (04441) Barbara Brigham Denys, Esquire (78562) 2800 One Commerce Square 2005 Market Street Philadelphia, PA 19103-7042 (215) 851-6700 - and- 7 Dated; 1 \ Iq~~1 , "'" MARTSON DEARDORFF WILLIAMS & OTTO, p,c. BY: George aller, Ir., Esquire 3) Ten East High Street Carlisle, PA 17013-3341 (717) 243-3341 Attorneys for Defendants 8 .. VERJflCA nON ,,' -"'-,, .. 1, JOl)n p, Mc$t\1lvick, Vice Pre$ident ~ GeneralM;ulllger ofSc()tt Technologies' Hi;\alth ~ Safety }'!roducts Gr!ll.lP' am authorized to make ~ verificatio'Q on behalf of defendant Scott Technologies and verilY that the facts set forth in the foregoing Response to Plaintiff's Motion for Preliminary Injunctipn arc true a]ld correct to the best of my information, knowledge;ml! belief, This v,,"rificatipn is xnlide subject tp tbl.' penaltil.'s of 18 Pa. C,g,A. * 4904 relatitl.g to . - . unsworn f;Usi:li~tion to auth,.,. ()n. ".ties. , . ;Jt- ~~,..r' . llAA j:!,1'4Q~tr~vic ... . '.' Date: "7~ /7- Of - ,,- ... ~ ~~ -..,;-\ VE1Uflc:;A T!()l~ 1, Karl Kinkead, Sepior Vice Presid~t pfTy!'p S'tPPr~&i()p S~, am a~t!lo~ to makl; thi~ verification on beb~f of def~ndanf. Tyeo Int!lfll~tiona1 (US) Inc. and verify that the facts set forth in the foregoing Rel\ponse to Plaintiff"~ s MotiQ1l for preJiroinm:y Injunction lITO tree and , , ' " " , ' - , ' ' correct to tlle best of my informa1iC!1l, knowledge and belief. This verification is made subjec;t 10 the p~es of 1 $ Fa. e.S.A. ~, 4904 rel~g to unsworn falsification to 8llthOrities. .;A~&L - ,,' ,n Date: "'-12~~.1 , ,"'- . , "~ CERTIFICATE OF SERVICE I, George B, Faller, Jr., Esquire, hereby certify that a true and correct copy of the foregoing was served via United States First Class Mail, postage pre-paid, on 7(fl(/C ( ( on counsel listed below: Dated: 4k- Bridget E, Montgomery, Esquire Echert Seamans Cherin & Mellott, LLC 213 Market Street, Eighth Floor Harrisburg, P A 17101 c;];6 Attorney for Defendants I 1 ' "'*' """ . . TO: Plaintiff Harsco Corooration YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED NEW MA ITER WITHIN TWENTY (20) DAYS FROM THE SERVICE HEREOF OR A DEF AUL T JUDGMENT MAY BE ENTERED AGAINST YOU IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARSCO CORPORATION Plail\tiff, v, Civil Action No,: 01-3826 Civil Term SCOTT TECHNOLOGIES, INC. and TYCO INTERNATIONAL (US) INC, Defendants. ANSWER TO COMPLAINT WITH NEW MATTER Defendants, by their undersigned counsel, hereby answer plaintiffs Complaint as follows: PARTIES }, Admitted on information and belief. 2. Admitted that Scott Technologies, Ine, ("Scott") is a Delaware corporation and further admit the remaining averments of paragraph 2, 3, Admitted, " d" ,'"L"-: ,~" -,-, , ~, .. . 4, Denied. It is specifically denied that Tyco International Ltd. is a defendant in this action. By stipulation, a true and correct copy of which is attached hereto as Exhibit I, the parties have agreed to amend the caption and the Complaint in this matter to remove Tyco International Ltd. as a defendant and to replace Tyco International Ltd. with Tyco International (US) Inc. Therefore, any references in plaintiffs Complaint to Tyco International Ltd. will be construed to reference Tyco International (US) Inc, ("Tyco"), By way offurther answer, Tyco is a corporation with a place of business and service address in Exeter, New Hampshire, 5, Admitted and defendants aver by way offurther answer that the acquisition was effective May 3, 2001. JURISDICTION AND VENUE 6. The averments contained in this paragraph are conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure and they are deemed denied, By way of further answer, to the extent that paragraph 6 might be deemed to contain averments of fact, defendants deny that plaintiff is entitled to any equitable relief or that it has been damaged, but defendants do not contest the Court's jurisdiction, 7, The averments contained in this paragraph are conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure and they are deemed denied. By way of further answer, to the extent that paragraph 7 might be deemed to contain averments of fact, defendants deny that Scott regularly conducts business in Cumberland County, but do not contest venue in this Court, 2 ",->I "'-' FACTUAL BACKGROUND 8, Admitted, 9, Admitted, and defendants further aver that plaintiffs Structural Composite Industries business unit ("SCI") is located in California and that Scott has dealt and deals with SCI through SCI's place of business in California. 10, Admitted. 11, Admitted in part and denied in part, It is admitted only that Scott and SCI each executed the document dated April 1, 1999, a copy of which is attached to plaintiffs Complaint as Exhibit "A." Exhibit "A" is a writing, the terms of which speak for themselves, and any characterization thereof by plaintiff is denied. The remainder of the averments contained in this paragraph are conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure and they are deemed denied. 12, The averments contained in this paragraph are conclusions oflaw to which no response is required by the Pennsylvania Rules of Civil Procedure and they are deemed denied, By way of further answer, Exhibit "A" is a writing, the terms of which speak for themselves, and any characterization thereof by plaintiff is denied, To the extent that paragraph 12 might be deemed to contain factual averments, after reasonab Ie investigation, defendants are without sufficient knowledge or information to form a belief as to the truth of those averments, Therefore, they are denied and strict proof is demanded at the time of trial. 13, The averments contained in this paragraph are conclusions oflaw to which no response is required by the Pennsylvania Rules of Civil Procedure and they are deemed denied. By way of further answer, Exhibit "A" is a writing, the terms of which speak for themselves, and 3 ~, , .. ;';"""."-'l any characterization thereofby plaintiff is denied, 14, To the extent the averments contained in this paragraph are conclusions oflaw, no response is required by the Peunsylvania Rules of Civil Procedure and they are deemed denied. By way of further answer, Exhibit "A" is a writing, the terms of which speak for themselves, and any characterization thereof by plaintiff is denied. To the extent paragraph 14 contains factual averments, defendants deny that SCI has at all times met specification, delivery and other terms in response to cylinder purchase orders from Scott, but admit that SCI has substantially performed under such purchase orders, including the pricing terms thereof, 15, To the extent the averments contained in this paragraph are conclusions oflaw, no response is required by the Pennsylvania Rules of Civil Procedure and they are deemed denied, By way of further answer, Exhibit "A" is a writing, the terms of which speak for themselves, any characterization thereofby plaintiff is denied. To the extent paragraph 15 contains factual averments, it is specifically denied that Scott has acknowledged that plaintiff (through SCI) has consistently provided commercially acceptable products in fulfillment of the purchase orders placed with it by Scott, but admitted that Scott has paid for aU acceptable cylinders purchased by it at the prices agreed upon by the parties, 16, Admitted in part and denied in part, It is admitted only that Scott, beginning in late 2000, negotiated with SCI, among others, for the supply of most of Scott's cylinder needs, which negotiations went forward on the assumption that SCI could demonstrate that it could become a more responsive and efficient supplier to Scott; and defendants further aver that Scott concluded that it could not gain sufficient comfort with respect to SCI's responsiveness. By way of further answer, defendants specificaUy deny that Scott has been satisfied with its dealings with plaintiff, and, on the contrary, aver that SCI has not consistently met specifications, delivery and other 4 '--[ ""'''''-'-''"..' . terms of orders placed with it by Scott; and by way of further answer, defendants deny that negotiations between Scott and SCI ceased due, in any part, to Tyco, and on the contrary, aver that they ceased because of Scott's assessment ofSCI's inability to satisfactorily supply all of Scott's cylinder needs in the future, 17, Admitted. 18, Admitted in part and denied in part. It is admitted only that certain of Scott's business activities are subject to review by Tyco since the May 3,2001 acquisition of Scott by Tyco. It is specifically denied that Tyco has directed or controlled the manner in which, or the extent to which, Scott has or will acquire cylinders from SCI, and on the contrary, defendants aver that such decisions are made by Scott management. 19, Admitted in part and denied in part, It is admitted only that Scott recently informed plaintiff that it had concluded that it would award another company a contract for the supply of additional cylinders, but defendants aver that no such contract has been awarded, By way of further answer, defendants deny that SCI's performance has been satisfactory and aver that SCI has not consistently met specifications, delivery and other terms of orders placed with it by Scott. 20, Admitted in part and denied in part. It is admitted only that Scott has not supplied plaintiff with assurances that it would continue to purchase cylinders from it. By way of further answer, Exhibit "A" is a writing, the terms of which speak for themselves, and any characterization thereof by plaintiff is denied. 21. Admitted in part and denied in part, It is admitted only that plaintiff sent and Scott received the correspondence attached as Exhibit "B" to plaintiffs Complaint and that Scott has not responded to that correspondence; but defendants deny that the letters accurately reflect communications with Scott and aver, on the contrary, that they are self-serving efforts by 5 ^ ;~~,j plaintiff to support its view of the relations between Scott and SCI. With regard to the averment concerning plaintiffs "understanding," after reasonable investigation, defendants are without sufficient knowledge or information to form a belief as to the truth of such an averment. Therefore, it is denied and strict proof is demanded at the time oftrial. 22, Denied, Contrary to the averments of paragraph 22, Scott has continued to purchase all of its needs of cylinders from SCI which are referenced in the schedule attached to Exhibit "A." 23, Denied, Contrary to the inference in the averments of paragraph 23 of any perceived "decline" in orders of cylinders referenced in the schedule attached to Exhibit "A," Scott has continued to purchase all of its needs for such cylinders from SCI. With regard to the remaining averments contained in this paragraph, defendants are without sufficient knowledge or information to form a belief as to the truth of such averments, Therefore, they are denied and strict proof is demanded at the time of trial. 24, The averments contained in this paragraph are conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure and they are deemed denied, 25, The averments contained in this paragraph are conclusions oflaw to which no response is required by the Pennsylvania Rules of Civil Procedure and they are deemed denied. 6 ~~ -~ ",:', .L'- ;,-,-""~':~;,,.,-- '_.;;.'~_ Count I - Breach of Contract (Harsco v. Scott) 26. Defendants hereby incorporate by reference their answers to paragraphs I through 25 of plaintiffs Complaint as if fully set forth at length, 27, Admitted in part and denied in part. It is admitted only that Scott and SCI each executed the document dated April I, 1999, a copy of which is attached to plaintiffs Complaint as Exhibit "A." Exhibit "A" is a writing, the terms of which speak for themselves, and any characterization thereof by plaintiff is denied, The remainder of the averments contained in this paragraph are conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure and they are deemed denied. 28, To the extent the averments contained in paragraph 28 are conclusions of law, no response is required by the Pennsylvania Rules of Civil Procedure and they are deemed denied, By way of further answer, Exhibit "A" is a writing, the terms of which speak for themselves, and any characterization thereofby plaintiff is denied. With regard to any factual averments contained in this paragraph, after reasonable investigation, defendants are without sufficient knowledge or information to form a belief as to the truth of those allegations, Therefore, they are denied and strict proof is demanded at the time of trial. 29, To the extent the averments contained in this paragraph are conclusions of law, no response is required by the Pennsylvania Rules of Civil Procedure and they are deemed denied. By way of further answer, Exhibit "A" is a writing, the terms of which speak for themselves, and any characterization thereofby plaintiff is denied, To the extent paragraph 29 contains factual averments, defendants deny that Scott has discontinued the purchase from plaintiff of all its needs for cylinders referenced in the schedule attached to Exhibit "A." On the contrary, 7 " ." ,~ ~" ',J, ,,:,,' , ' '" " defendants aver that Scott has continued to purchase all of its needs of cylinders from SCI which are referenced in the schedule attached to Exhibit "A." 30. To the extent the averments contained in this paragraph are conclusions oflaw, no response is required by the Pennsylvania Rules of Civil Procedure and they are deemed denied. By way of further answer, Exhibit "A" is a writing, the terms of which speak for themselves, and any characterization thereof by plaintiff is denied. To the extent paragraph 30 contains factual averments, it is specifically denied that Scott has acknowledged that plaintiff (through SCI) has consistently provided commercially acceptable products in fulfillment of the purchase orders placed with it by Scott, but admitted that Scott has paid for all acceptable cylinders purchased by it at the prices agreed upon by the parties, 31. The averments contained in this paragraph are conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure and they are deemed denied. By way of further answer, Exhibit "A" is a writing, the terms of which speak for themselves, and any characterization thereof by plaintiff is denied, 32, To the extent the averments contained in this paragraph are conclusions oflaw, no response is required by the Pennsylvania Rules of Civil Procedure and they are deemed denied. By way of further answer, Exhibit "A" is a writing, the terms of which speak for themselves, and any characterization thereof by plaintiff is denied. To the extent paragraph 32 contains factual averments, defendants admit only that Scott has not supplied plaintiff with assurances that it would continue to purchase cylinders from it. By way of further answer, Scott recently informed plaintiff that it had concluded that it would award Luxfer a contract for the supply of additional cylinders, but defendants aver that no such contract has been awarded to Luxfer. 33, Admitted in part and denied in part, It is admitted only that Scott has not supplied 8 ~~ - , c" ~ ,~< <~,! plaintiff with assurances that it would continue to purchase cylinders from it. By way of further answer, Exhibit "A" is a writing, the terms of which speak for themselves, and any characterization thereof by plaintiff is denied, 34, Admitted in part and denied in part, It is admitted only that Scott has not supplied plaintiff with assurances that it would continue to purchase cylinders from it. By way of further answer, Exhibit "A" is a writing, the terms of which speak for themselves, and any characterization thereof by plaintiff is denied; and defendants further aver that Scott is continuing to purchase from SCI those cylinders referenced in the schedule attached to Exhibit "A." 35, The averments contained in this paragraph are conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure and they are deemed denied, To the extent that paragraph 35 might be deemed to contain factual averments, after reasonable investigation, defendants are without sufficient knowledge or information to form a belief as to the truth of those averments, Therefore, they are denied and strict proof is demanded at the time oftrial. 36. To the extent the averments contained in this paragraph are conclusions oflaw, no response is required by the Pennsylvania Rules of Civil Procedure and they are deemed denied. By way of further answer, Exhibit "A" is a writing, the terms of which speak for themselves, and any characterization thereof by plaintiff is denied, To the extent that paragraph 36 might be deemed to contain factual averments, defendants deny that Scott has ceased to purchase cylinders from SCI referenced in the schedule attached to Exhibit "A," and, on the contrary, aver that Scott has continued to do so, By way of further answer, after reasonable investigation, defendants are without sufficient knowledge or information to form a belief as to the truth of the remaining averments concerning "estimates" by plaintiff, Therefore, they are denied and strict proof is 9 . ~-J -,-^'i'; demanded at the time of trial. 37, To the extent the averments contained in this paragraph are conclusions oflaw, no response is required by the Pennsylvania Rules of Civil Procedure and they are deemed denied, By way of further answer, Exhibit "A" is a writing, the terms of which speak for themselves, and any characterization thereof by plaintiff is denied, To the extent that paragraph 37 might be deemed to contain factual averments, after reasonable investigation, defendants are without sufficient knowledge or information to form a belief as to the truth of those averments. Therefore, they are denied and strict proof is demanded at the time oftrial. 38. To the extent the averments contained in this paragraph are conclusions oflaw, no response is required by the Pennsylvania Rules of Civil Procedure and they are deemed denied, By way of further answer, Exhibit "A" is a writing, the terms of which speak for themselves, and any characterization thereof by plaintiff is denied, To the extent that paragraph 38 might be deemed to contain factual averments, after reasonable investigation, defendants are without sufficient know ledge or information to form a belief as to the truth of those avelments, Therefore, they are denied and strict proof is demanded at the time oftrial. 39, To the extent the averments contained in this paragraph are conclusions oflaw, no response is required by the Pennsylvania Rules of Civil Procedure and they are deemed denied. Exhibit "A" is a writing, the terms of which speak for themselves, and any characterization thereof by plaintiff is denied. By way offurther answer, it is specifically denied that the alleged harm to plaintiff outweighs the harm that Scott and Tyco would suffer by the imposition of the preliminary and permanent injunctive relief plaintiff seeks, With regard to any remaining factual allegations contained in this paragraph, after reasonable investigation, defendants are without sufficient knowledge or information to form a belief as to the truth of those averments, 10 ~, I > ~ I. ,';,'C", Therefore, they are denied and strict proof is demanded at the time of trial. 40. To the extent the averments contained in this paragraph are conclusions oflaw, no response is required by the Pennsylvania Rules of Civil Procedure and they are deemed denied. Exhibit "A" is a writing, the terms of which speak for themselves, and any characterization thereof by plaintiff is denied, By way of further answer, it is specifically denied that plaintiffs obligation to post a bond or to deposit legal tender under Pennsylvania Rule of Civil Procedure 1531 (b) may be waived under any circumstances, It is also specifically denied that the imposition of the preliminary and permanent injunctive relief sought by plaintiff would not present detriment to Scott and to Tyco, With regard to any remaining factual allegations contained in this paragraph, after reasonable investigation, defendants are without sufficient knowledge or information to form a belief as to the truth of those averments, Therefore, they are denied and strict proof is demanded at the time of trial. Count II - Interference with Contractual Relations (Harsco v. Tyco) 41. Defendants hereby incorporate by reference their answers to paragraphs 1 through 40 of plaintiff s Complaint as if fully set forth at length. 42, The averments contained in this paragraph are conclusions oflaw to which no response is required by the Pennsylvania Rules of Civil Procedure and they are deemed denied. By way of further answer, Exhibit "A" is a writing, the terms of which speak for themselves, and any characterization thereof by plaintiff is denied. 43, Admitted. 44, Admitted in part and denied in part, It is admitted only that certain of Scott's 11 - - '., '"k:;,,:< ,,' .". ~&:i business activities are subject to review by Tyco since the May 3, 2001 acquisition of Scott by Tyco. It is specifically denied that Tyco has directed or controlled the manner in which, or the extent to which, Scott has or will acquire cylinders from SCI, and on the contrary, defendants aver that such decisions are made by Scott management. 45, Admitted in part and denied in part, It is admitted only that Tyco became aware of the writing attached to plaintiffs Complaint as Exhibit "An at or about the time of its acquisition of Scott. By way offurther answer, Exhibit "An is a writing, the terms ofwmch speak for themselves, and any characterization thereof by plaintiff is denied, With regard to any remaining factual allegations contained in this paragraph, after reasonable investigation, defendants are without sufficient knowledge or information to form a belief as to the truth ofthose averments, Therefore, they are denied and strict proof is demanded at the time of trial. 46, Admitted in part and denied in part. It is admitted only that Scott, beginning in late 2000, negotiated with SCI, among others, for the supply of most of Scott's cylinder needs, which negotiations went forward on the assumption that SCI could demonstrate that it could become a more responsive and efficient supplier to Scott; and defendants further aver that Scott concluded that it could not gain sufficient comfort with respect to SCI's responsiveness. By way of further answer, defendants specifically deny that Scott has been satisfied with its dealings with plaintiff nnder the agreement at issue in this action, and, on the contrary, aver that SCI has not consistently met specifications, delivery and other terms of orders placed with it by Scott; and by way of further answer, defendants deny that negotiations between Scott and SCI ceased due, in any part, to Tyco, and on the contrary, aver that they ceased because of Scott's assessment of SCI's inability to satisfactorily supply all of Scott's cylinder needs in the future, 47, To the extent the averments contained in paragraph 47 are conclusions of law, no 12 .' ,.:1__-, " """'~i response is required by the Pennsylvania Rules of Civil Procedure and they are deemed denied. By way of further answer, Exhibit "A" is a writing, the terms of which speak for themselves, and any characterization thereof by plaintiff is denied, To the extent paragraph 47 contains factual averments, it is specifically denied that Tyco has directed or controlled the manner in which, or the extent to which, Scott has or will acquire cylinders from SCI, and on the contrary, defendants aver that such decisions are made by Scott management, 48. Denied, It is specifically denied that Tyco has a financial interest to cause Scott to buy cylinders from any of plaint iff's competitors as a result of any objective to acquire a financial interest in a company that supplies cylinders. 49, The averments contained in this paragraph are conclusions oflaw to which no response is required by the Pennsylvania Rules of Civil procedure and they are deemed denied. By way of further answer, it is specifically denied that Tyco has engaged in any wrongful acts whatsoever. 50, The averments contained in this paragraph are conclusions oflaw to which no response is required by the Peunsylvania Rules of Civil procedure and they are deemed denied. By way of further answer, it is specifically denied that Tyco has engaged in any wrongful acts whatsoever. 51. The averments contained in this paragraph are conclusions oflaw to which no response is required by the Pennsylvania Rules of Civil procedure and they are deemed denied. By way of further answer, it is specifically denied that Tyco has engaged in any wrongful acts whatsoever and it is further denied that Tyco has caused plaintiff to suffer any loss or damage of any kind or nature; and by way of further answer, Tyco incorporates herein by reference the answers to paragraphs 23 and 36 through 40 of the Complaint. 13 , '," J'," ' ,,-,'c ~ "~'" -ii, NEW MATTER 52, Plaintiffs Complaint fails to set forth a cause of action for breach of contract upon which relief can be granted. 53, Plaintiffs Complaint fails to set forth a cause of action for interference with contractual relations upon which relief can be granted, 54. Plaintiff has failed to mitigate damages, 55, If plaintiff sustained danlages as alleged in its Complaint, such damages being expressly denied, then the damages were not proximately caused by any act or failure to act on the part of Scott or Tyco, 56, If plaintiff sustained damages as alleged in its Complaint, such damages being expressly denied, then the plaintiff, by its conduct, assumed the risk of those damages. 57, Each of the claims set forth in plaintiffs Complaint are barred in whole or in part by the Pennsylvania Commercial Code, the California Uniform Commercial Code and/or the North Carolina Uniform Commercial Code, 58. Plaintiffs claim for preliminary injunctive relief is barred by plaintiffs failure to file a bond or legal tender under Pennsylvania Rule of Civil Procedure 153l(b). WHEREFORE, defendants Scott and Tyco request that Counts I and II ofplaintiffs Complaint be dismissed with prejudice. HARKINS CUNNINGHAM John G, Harkins, Jr., Esquire (04441) Barbara Brigham Denys, Esquire (78562) 2800 One Commerce Square 2005 Market Street Philadelphia, PA 19103-7042 (215) 851"6700 14 , ' Dated: 7~ - and- i ..,: '- ~ ,", MARTS ON DEARDORFF WILLIAMS & OTTO, P.c. BY: George B, Faller, Jr., Esquir (49813) Ten East High Street Carlisle, PA 17013-3341 (717) 243-3341 Attorneys for Defendants 15 ~T,,'.,' , ''''',''':::i "~<'I !~ -::-'~.,~'- ~ . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARSCO CORPORATION, Plaintiff, Civil Action No,: 01-3826 Civil Term v, SCOTT TECHNOLOGIES, INC, and TYCO INTERNATIONAL LTD, Defendants. ~ (Qb (f2) ~ STIPULATION TO AMEND CAPTION TO THE PROTHONOTARY: Defendants have represented, without admitting any liability in connection with this miltter, that if any act, or failure to act, or event has occurred that in any ways involves a Tyco entity in connection with this matter, that entity would be Tyco International (US), mc, Accordingly, the parties to the above-captioned matter stipulate to amend the caption and the content of the Complaint to remove "Tyco International Ltd," as a defendant and to replace "Tyco International Ltd," with "Tyco International (US) Inc," EXHIBIT ~ i !l {L0240425.1} .Ii ,'0' ECKERT SEAMANS CHERIN & MELLO'IT, LLC ridget E. Montgom Supr Ct. I,D. #561 Mark E. Gebauer, Esquire Supreme Ct. J.D. #79646 213 Market Street, 80h Floor Harrisburg, PA 17101 (717) 237-6000 Attorneys for Plaintiff, Harsco Corporation Dated..1:J8" 0 1 {L0240425.1 } . . .. . i ~" ',~ HARKINS CUNNINGHAM By: John G. Harkins, Esquire (04441) Barbara Brigham Denys, Esquire (78562) 2800 One Commerce Square 2005 Market Street Philadelphia, PA 19103 By: George B. aller, Jr., Esquir MARTSON DEARDORFF WIL & OTTO, P.C. George B. Faller, Jr" Esquire (49813) Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendants f; , , Cnalctl Ui'/19!OI 09:04:42 AM RevisCll: 07fl9101 09:04:48 AM . .' CERTIFICATE OF SERVICE I, Nichole 1. Myers, an authorized agent of Martson Deardorff Williams & Otto, hereby certify that a copy ofthe foregoing Stipulation to Amend Caption was served this date by depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as follows: Bridget E, Montgomery, Esquire ECKERT SEAMANS CHERIN & MELLOTT, LLC 213 Market Street, 8th Floor Harrisburg, P A 171 0 I MARTSON DEARDORFF WILLIAMS & OTTO By ~ _lO-tJ.. ct- ----r'RM.( J'lJ(- Nichole 1. Myers ~ Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: 1!lq/o I ... - '"",~<., , , .' . . .' ,. VERIFICATION 1, John p, McStravick, Vice President HL Gell!lIlil Manager of Scott Techllologies' Health & Safet:Y Products Group, am authorizlXl to m;1ke this verification on behalf ()f ciefemlilIlt Scott Technologies and verify that the facts s~t forth ill tlJc foregoing Answer to CornpJllint witl1 J.iew Ma. Iter are. tru. . e a.nd COlT. cet to theoost of my 4tforJ11ation, knowJelige and be qef , , " ,_ , ' " 0,' This veriticl',tion is made subject to the Ilell~ties of 18 I"a, C,S,A, ~ 4904 relati:qg to unSWOHl falsificatioll W authorities, ~ AJ~-.<<t!~"..~~ .o)lb 0: McS~yick oOc ....... .0 Pate: 7- /7-a/ . 10 '~j "" _:. *- . " . . .' . VERlF!C~ TI()N -- , - I, Kar1 Kinkell!i. SeniQr Vice Pre!;i41Ylt 9fTYW ~HJlH!l:Sg()1l Sy~, lllI1l1UtlIorize4 to mak!J this verification (In beh!l1f of defeI19<mt Tyco IIlt!lfIlatio11ll1 (J.J~) Ine, llJld v~ th"t ~l1e fa,ct~ set forth in the (or~Qing Allswer to COI]1!l~nt wjt~ NllW Mll1:ter ~ trIl~ ~a C()JT!:Ct tp t1ie b~ of lIlY informatj9!l, !ci1()wle!i~~ ami belief, 'I11is Y~~#-ol' is malieSlJ.bjlWt to tl1ll pel1,*ti~ of 181'~ C.s,.1\,. ~9()4 rel~fiJlg tp Ul!sw()rn fa}smCll,tioll tQ @utl1oriti..s. ~ ,~, , , - ,',- - - - -- ~ , ,'. ,- - - ,~'" ' --,-"~-~,,-"~": ----,',""",- - - , -, - - - - , '" :Kwi ~c_'~""~ _.--- ~-- . Rli1!l: 1- ,.{ - ~I , . I',,,;;,,,,, h' ~, . ., . . . I . CERTIFICATE OF SERVICE I, George B, Faller, Ir., Esquire, hereby certify that a true and correct copy ofthe foregoing was served via United States First Class Mail, postage pre-paid, on 7 (/1 (() ) on counsel listed below: Bridget E, Montgomery, Esquire Echert Seamans Cherin & Mellott, LLC 213 Market Street, Eighth Floor Harrisburg, P A 17101 ~, George B, Faller, Ir" Esquire Attorney for Defendants Dated: 1\tq(D\ ~ '. , " ~ -"';',', , ',-", ''it, A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARSCO CORPORATION, Plaintiff, Civil Action No,: 01-3826 Civil Term v, SCOTT TECHNOLOGIES, INC, and TYCO INTERNATIONAL LTD, Defendants, 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 ALA WYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP, Lawyers Reference Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 800-990-9108 {L0239700.1} , " -~ ',' " ,,",~ ,^',,"'<-'.. - ,'--.1-. '~' 'bir IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARSCO CORPORATION, Plaintiff, Civil Action No,: 01-3826 Civil Term v, SCOTT TECHNOLOGIES, INC. and TYCO INTERNATIONAL LTD, Defendants, NOTICIA Le han demandado a usted en la corte, Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notifIcacion, Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objeciones alas demandas en contra de su persona, Sea avisado que si usted no se defIende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso 0 notificacion y pOI cualqnier queja 0 alivio que es pedido en la peticion de demanda, Usted puede perder dinero 0 sus propiedades o otros derechos importantes para usted, LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE, SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, V A Y A EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUY A DIRECCION SE ENCUENTRA ESCRlTA ABAJO PARA A VERlGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Lawyers Reference Service Cumberland County ,Bar Association Carlisle, PA 17013 800-990-9108 {L0239700.1} .. '~ ~ ~ll ~" _0 ," "~"'i, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY , PENNSYLVANIA HARSCO CORPORATION, Plaintiff, Civil Action No,: 01-3826 Civil Term v, SCOTT TECHNOLOGIES, INC, and TYCO INTERNATIONAL LTD, Defendants, COMPLAINT AND NOW, Plaintiff, Harsco Corporation by and through its counsel Eckert Seamans Cherin & Mellott, LLC, files this Complaint in Breach of Contract and Interference with Contractual Relations against Defendants, Scott Technologies, Inc, and Tyco International Ltd" seeking preliminary and permanent injunctive relief and damages, arising from Scott Technologies, Inc, 's wrongful repudiation of a four year exclusive requirements Purchase Agreement for the purchase of certain composite cylinders from Harsco Corporation, and in support thereof states as follows: PARTIES 1. Plaintiff Harsco Corporation ("Harsco") is a corporation organized and operating under the laws of the State of Delaware, with its principal place of business in Cumberland County, Pennsylvania, ~ 1 ' ,,'" ""~;i 2, Defendant Scott Technologies, Inc, ("Scott") is a Delaware corporation, which is registered to conduct business in the Commonwealth of Pennsylvania, and has a principal place of business in Ohio, and other facilities in New York and North Carolina, 3, Scott maintains business divisions referred to as Scott Health & Safety (which manufactures and supplies self-contained breathing apparatus) and Scott Aviation (which manufactures and supplies commercial aviation oxygen systems), 4, Defendant Tyco International Limited ("Tyco") is a corporation organized under the laws of Bermuda and/or the State of Massachusetts, with a place of business and service address at One Tyco Park, Exeter, New Hampshire, 03833, 5, On information and belief, Tyco recently acquired Scott, including the Scott Health & Safety and Aviation divisions, JURISDICTION AND VENUE 6, This action for equitable relief and damages is between parties subject to this Court's jurisdiction, and the damages sought are in excess of the arbitration limits of the Court. 7, Venue is proper in this Court pursuant to Pennsylvania Rule of Civil Procedure 2179, in that Scott regularly conducts business in Cumberland County, and a transaction or occurrence took place in Cumberland County out of which the cause of action arose, L0239603 2 '~.'~'~ "", ,"," .' . '0 ' L ,,~ FACTUAL BACKGROUND 8, Harsco is a single corporate entity with several major business segments, one of which is the Gas and Fluid Control Group, which is headquartered at 4718 Old Gettysburg Road, Mechanicsburg, Pennsylvania 17055, 9, A manufacturing unit of the Harsco Gas and Fluid Control Group, Structural Composite Industries, manufactures high-pressure composite cylinders for use in, among other products, self-contained breathing apparatus and commercial aviation oxygen systems, 10, Scott designs and manufactures, among other products, self-contained breathing apparatus used in the firefIghting industry, and commercial aviation oxygen systems, into which high-pressure composite cylinders are incorporated, 11. On or about April 1, 1999, prior to Tyco's acquisition of Scott, Scott entered into an exclusive, four-year Purchase Agreement with Harsco, pursuant to which Harsco agreed to supply, and Scott agreed to purchase exclusively from Harsco, all of Scott's requirements of certain composite cylinders as specified by Scott, A copy of the exclusive Purchase Agreement with list of models, part numbers, and prices is attached hereto as Exhibit "A", in accordance with Pa, R. Civ, p, 1019(i), 12, In consideration of Scott's promise under the Purchase Agreement to purchase from Harsco all of its requirements of certain cylinders for a period of four years, Harsco agreed to provide the cylinders at reduced prices, 13, Under the terms of the Purchase Agreement, Scott is prohibited from purchasing any of the cylinders specified in the Purchase Agreement from any source L0239603 3 " . ,-"~,,, ..'~<<:,i other than Harsco unless Harsco is unable to satisfy a particular order and is unable to provide a reasonable plan of recovery related to such order, in which case Scott may purchase from an alternative source only the type and quantity of cylinders that Harsco is unable to supply, 14, From April 1, 1999, to the present, Harsco has substantially and satisfactorily performed all of its obligations under the Purchase Agreement, and has provided Scott the cylinders it has ordered, at the reduced prices agreed upon in consideration of Scott's promise to exclusively purchase from Harsco all composite cylinders covered by the Purchase Agreement, 15, Scott has paid consistently for the cylinders delivered by Harsco, thereby acknowledging that Harsco has produced commercially acceptable products in fulfillment of Harsco' s obligations under the Purchase Agreement, 16, Harsco's performance, including the quality, quantity, and delivery of the cylinders delivered to Scott, satisfied Scott to such a degree that prior to Tyco's acquisition of Scott, Scott negotiated with Harsco to expand the models and quantities of cylinders exclusively supplied by Harsco but, upon information and belief, Tyco demanded that said negotiations come to a halt at or about the time of its acquisition of Scott, 17, In or about May 2001, Tyco acquired Scott Technologies, Inc" and its divisions, including Scott Health & Safety and Scott Aviation, and on information and belief, Tyco has or will soon integrate Scott into the segment of Tyco's business known as Tyco Fire and Security Services, L0239603 4 ~ ;''P.ll',j,',"' 18, On information and belief, as a result of Tyco's acquisition of Scott, Scott's business activities, including the performance of Scott's obligation to purchase its composite cylinder requirements exclusively from Harsco, are subject to the direction and control of Tyco, 19, Despite Harsco's satisfactory performance under the Purchase Agreement, Scott recently informed Harsco that Scott intends to purchase the cylinders covered by the Purchase Agreement from another manufacturer, which on information and belief is a competitor in the composite cylinder manufacturing industry, Luxfer, Inc, 20, Harsco sought from Scott adequate assurances that Scott would continue to perform its obligations under the Purchase Agreement, but Scott has refused to supply such assurances, 21. Through written correspondence, Harsco recently confIrmed its understanding that Scott had repudiated the Purchase Agreement, which correspondence Scott has failed to negate or otherwise answer, verbally or in writing, A copy of Harsco's correspondence is attached hereto as Exhibit "B, 22, From the time of Scott's recent indications that it intended to purchase composite cylinders covered by the Purchase Agreement from another manufacturer, to the present, the volume of orders received from Scott for such composite cylinders has declined, thereby confIrming its intentions to repudiate the Purchase Agreement, 23, As a result of the decline in orders from Scott for composite cylinders covered by the Purchase Agreement, Harsco has determined that it will have to layoff L0239603 5 , ~'o,"L' , " , ~'''''%!Jr", skilled production workers and, further, that recent organizational actions taken by Harsco in the belief that the Purchase Agreement would be honored now will result in harm to production and employee arrangements, 24, Scott's repudiation and breach of the Purchase Agreement is wrongful, without justification, and will cause great harm to Harsco, 25, All conditions precedent to Harsco' s right to seek relief have been performed or have otherwise occurred, Count I - Breach of Contract (Harsco v. Scott) 26, Paragraphs 1 through 25, above, are incorporated herein by reference in their entireties, and are made a material part of this Count I. 27, Harsco and Scott entered into a valid and enforceable contract whereby Scott agreed to, among other things, exclusively purchase all of is requirements for specified composite cylinders from Harsco, See Exhibit A, attached hereto, 28, In consideration of Scott's promise to purchase such cylinders exclusively from Harsco and the payment of Scott for the purchased cylinders, Harsco agreed to satisfy Scott's cylinder requirements at a reduced price per cylinder. 29, Harsco and Scott performed under the Purchase Agreement for more than two years, from the April 1, 1999 date of execution until Scott's recent repudiation of the Agreement, L0239603 6 -,~ ~" 30, Harsco has substantially complied with all of its obligations under the Purchase Agreement and has faithfully supplied, at reduced prices, cylinders to meet Scott's requirements, 31. No event has occurred that would permit Scott to purchase a type of cylinder covered by the Purchase Agreement from any source other than Harsco, 32, In breach of its obligations under the Purchase Agreement, including but not limited to the duty of good faith and fair dealing, Scott has wrongfully and without justifIcation decided to purchase cylinders covered by the Purchase Agreement from a source other than Harsco, 33, Harsco has sought from Scott adequate assurances of continued performance under the Purchase Agreement, which assurances Scott has failed to provide, 34, Harsco has urged Scott to retract its repudiation of the Purchase Agreement, but Scott has wrongfully failed to do so, 35, All conditions precedent have been performed or have otherwise occurred, 36, Based upon the quantities and prices of orders placed by Scott from April 1, 1999 to its recent repudiation of the exclusive Purchase Agreement, Harsco estimates that it will lose approximately $10 million ($10,000,00,00) as a result of Scott's breach, 37, In addition to the monetary losses that Harsco will suffer as a result of Scott's breach, if Scott is not preliminarily and permanently enjoined from any further L0239603 7 ~ - ~"' ","",~ --".-"-~' """'''''', breach of the exclusive Purchase Agreement, Harsco will suffer immediate and irreparable harm, including but not limited to harm to its business reputation, business structures and operations, workforce, production effIciency, and reputation in the investment community, 38, The immediate and irreparable harm to Harsco cannot be avoided by any other means than preliminarily and permanently enjoining Scott from breaching the exclusive Purchase Agreement pending the outcome of a fmal hearing on the merits, 39, The threatened harm to Harsco outweighs any possible harm to Scott from the issuance of a preliminary and permanent injunction because Harsco is capable of and is willing to perform its contractual obligations under the Purchase Agreement, 40, Under the circumstances, any bond required for the issuance of a preliminary injunction should be waived or be minimal because Scott has an existing obligation to perform the Purchase Agreement, and its purchase of cylinders from Harsco as promised presents no detriment to Scott, Wherefore, Harsco Corporation respectfully requests that this Court enter Orders: (a) Preliminarily and permanently enjoining Scott Technologies, Inc, and its officers, directors, employees, and agents from directly or indirectly breaching the exclusive four-year Purchase Agreement with Harsco Corporation; (b) Directing Scott Technologies, Inc, to comply with all of its obligations under the Purchase Agreement for the duration of the Agreement; L0239603 8 ~ ~ - . ',-- ~' , '" ~, '",,,-, ""'~'#f (c) Precluding Scott Technologies, Inc, from procuring any cylinders and/or types of cylinders covered by the Purchase Agreement from any source other than Harsco; (d) Directing Scott Technologies, Inc, to provide to Harsco a periodic accounting of its requirements for and purchase of the cylinders and/or types of cylinders covered by the Purchase Agreement, and further directing Scott to certify to the Court subject to the penalties of civil and criminal contempt that its is satisfying those requirements by purchasing exclusively from Harsco pursuant to the Purchase Agreement; ( e) Awarding Harsco all damages, fees, and costs incurred as a result of Scott Technologies, Inc, 's breach of the Purchase Agreement; and (1) A warding such further relief as the Court deems just and appropriate, Count II - Interference with Contractual Relations (Harsco v. Tyco) 41. Paragraphs 1 though 40, above, are incorporated herein by reference in their entireties, and are made a material part of this Count II, 42, The Purchase Agreement constitutes a valid and enforceable contract between Harsco and Scott, 43, In or about May 2001, Tyco acquired Scott Technologies, Inc, , and its divisions, including Scott Health & Safety and Scott Aviation, and on information and belief, Tyco has or will soon integrate Scott into the segment of Tyco's business known as Tyco Fire and Security Services, L0239603 9 , .,~' .:..~ _....''"~ 44, On information and belief, as a result of Tyco's acquisition of Scott, Scott's business activities, including the performance of Scott's obligation to purchase its composite cylinder requirements exclusively from Harsco, are subject to the direction and control of Tyco, 45, At aU relevant times, Tyco was aware of the contractual relations and obligations existing between Harsco and Scott, 46, Upon information and belief, at or about the time of Tyco's acquisition of Scott, Tyco directed that Scott cease negotiations with Harsco for an expansion of the exclusive requirements dealings between Harsco and Scott, 47, Upon information and belief, at or about the time of Tyco's acquisition of Scott, Tyco intentionally and improperly interfered with the contractual relations between Scott and Harsco by instructing, inducing, or otherwise causing Scott to breach the existing and valid exclusive Purchase Agreement with Harsco, 48, On information and belief, Tyco is seeking to acquire a financial interest in a company that supplies composite cylinders and thus, it is in Tyco's fmancial interest to cause Scott (now owned by Tyco) to buy cylinders from this competitor of Harsco, 49, Tyco' s wrongful acts were unprivileged and improper and were not taken to protect legitimate business concerns, 50, Tyco's wrongful acts were intentional and outrageous, taken to further its own pecuniary interests, with wanton disregard for the interests and rights of L0239603 10 ,""" '.., ,,'.~,~ it," Harsco, and without due regard for the contractual obligations Scott was obligated to perform, 51. As a direct and proximate result of Tyco's wrongful acts, Harsco has suffered and will continue to suffer monetary losses, and is entitled to preliminary and permanent injunctive relief, for the reasons set forth more fully in Paragraphs 23 and 36 through 40, above, which are incorporated herein by reference in their entireties, Wherefore, Harsco Corporation respectfully requests that this Court enter Orders: (a) Preliminarily and permanently enjoining Tyco International Ltd" and its officers, directors, employees, and agents from directly or indirectly inducing or otherwise causing Scott to breach any of its obligations under the exclusive Purchase Agreement with Harsco Corporation or otherwise interfering with Scott's performance of its obligations under the exclusive Purchase Agreement; (b) Directing Tyco International Ltd, to comply with any and all obligations that the law would impose upon it in relation to the exclusive Purchase Agreement; (c) To the extent that such matters are now or in the future may come within Tyco's control, directing Tyco to provide a periodic accounting of Scott's requirements for and purchases of cylinders and/or types of cylinders covered by the Purchase Agreement, and certifying to the Court subject to the penalties of civil and criminal contempt that Scott is L0239603 11 " ~ ." ., - .- ~~"'"W;;"~-,-,i\; satisfying those requirements by purchasing exclusively from Harsco pursuant to the Purchase Agreement; (d) Awarding Harsco all damages, fees, and costs incurred as a result of Tyco's wrongful actions; and (e) A warding such further relief as the Court deems just and appropriate, WHEREFORE Harsco Corporation prays for judgment in its favor in this action, and for an Order from the Court as follows: (a) Declaring Scott Technologies, Inc, to be in breach of its obligations under the Purchase Agreement; (b) Declaring Tyco International, Ltd, liable for interfering with the contractual relations between Harsco Corporation and Scott Technologies, Inc; (c) Awarding Harsco all of the injunctive and other equitable relief requested under Counts One and Two in this action; (d) Awarding Harsco damages caused by the conduct complained of under Counts One and Two in this action; (e) Awarding Harsco its costs of suit and fees incurred; (1) Awarding Harsco punitive and/or exemplary damages to the extent allowed by applicable law; and L0239603 12 (g) Awarding Harsco such further relief as the Court deems just and appropriate, DATED: b,~Q<J-Dl L0239603 Respectfully submitted, ECKERT SEAMANS CHERIN & MELLOTT, LLC Bridget ontgomery, Esq e Supreme Ct, I.D, #56105 One South Market Square Building 213 Market Street Harrisburg, PA 17101 (717) 237-6000 13 .--," <,;.." ,~, '.' , ""~"',"~ " ," .' ''''~'" L' ~~ , ' VERIFICATION I, ~<:>""'\~ U, \c"pl"", am theSg.V, p, at' of Harsco Corporation, Inc, I OI'...~,,'o,^'S ) hereby verify on behalf of Harsco Corporation that all of the averments of fact contained in the foregoing document are true and correct to the best of my knowledge, information and belief, I understand that false statements herein are made subject to the penalties of 18 Pa, C,S,A, ~4904, relating to unsworn falsifIcation to authorities, {L023%Sl.l} 4( ! PURC!-L-",SE AGREEi\IEH It has b~~n agreed by Scan Aviation and SCI to enter into a supply agre~mem for cylinders tar a period of four (+) years. Scott agrees to buy exclusively, and SC! agrees to furnish the cvlinders which ",iJJ be the models md pa.n: numbers curre:ttlv being purchased on Blanke: Order '<1.lIT1bers as listed on the att<lched matrix. The quanti[i~s shown on r.h~se orders ",ii! be the basis for each of the four (--+) ye::u periods, SCOtt rese.::'/es ~he righr TO place orders for the same rype or" cytinde:- frorn orhe:- ~:y!inde:- manurb.c:1.1re:s If SCI rails to perrorm pc: the requiremen[$ l)r" the jnwing S'ge::iric::uioG oJr che promisei de!ive:y dare. IDd cnnno( provide St,;oa wirh J ce:.l5onable recov~~:~. plan ~o meet produc:ion or customer require:ne::Jrs. Scoa 'Nill procure ~he quanur.:;-(~r' ..::::iince:s needed [or that requirem~nt tram other qualiii.ed sources, The pric~s tor these cy1inde:-s '.viII be .:;no\vrr lJn ;:he biank~~ vrc:e:-s. .l11U ':...ti! ']e jr:71 through. i:he ;-'c:.:JI :000. T~e :Jrice ~or ~:J.C:t c:.:!inder i:llodei :n<J.;.' be- :nc;-e::1::led ~:' i'L" ,n ~nc y~ 201) I. 1)0'1) ttl 200: and re',~lt::"ves ;1gnin in ::003 i"or 9r:c~ .ll.iiusrmc:1ts ~Ja:5c,::~ .H': ,':~r.-::::;: economIC ~ondi[ions a[ -.::hm :im~. ,.l.ll c:~'[inde=-s will Je ;:rociuc~:.i :n .lccorC.:l11C~ ,V"1f.h :h.c dhl\ving mG :ir-t.::~:rlc3rions provide:: :;:r St:on. P:1ymc:1r ~e~s dt' .1c:::-;:Haoic )rC'c~L:C' viii be chan!?ed ~rom the standard :1e~ 61) (l::1Ys :0 J.~~ .1~ ;j.J.~J'5.. ~(i~,::i'..c ..vlrh :h::: ,:.J.lC .}r' ,:ti~ ag:ree~C:::1L S.;O[[ ...\';i:1[100 /'t 07 /' jltL. .A ~ Cr''' <<~ , ~ t Strl.lC01r31 C l)ffiCnSlres fndT"!S~;-:cs '-~./' ...:-,p? ; B ~..J~' ';-f...,- .,.. ,~./~,;:':"/'I" '~.-=', ""'--~-~-_._~"--"'---==--.' By: Title: Vice P~eside:!t. Ooerarions Title: :li.ce ?:--!s:.denc. G-=~C!=-:!':" :'!.a~ag~= Dare: +- 1-99 Date: ,~-l-"?9 ~'" ~~ ~'" . ~, "'~ ,'" --, "~""""~_,..r,,,," ",'" ,@ Jb!e.:r: Purchase Agreement Attachment A STRUCTURAL COMPOSITES INDUSTRIES i , -=!C~ =r.::.IC~ r I ,JNNC-,JL -! ... ~- ~ ,. .. ~.- I.':::: .~I /~::.- _,-ro_ I ,=C:CE':-:-=: -:-=1 "::::1...---. . - CCNT.::::ACT '" SC; MCCE!.. '" P,a.P7'" :;. CESC.=iP,;'CN CUAN-:-iT/ i !G/,',Sf ~/:~(CO ._~ -~~- .."....... r-~~ W1Cea I AL T 671 I 1CCCaS73 /G;ass 30 .\Air... 2:~e /7'6 ZIJcci 5' == ~C 5' :: = ~C ~ -'- ~ W1Ce9 I AL T 29415 I 10CC8E7~ /Giass 30.....tir... .!5CC :CCCi 5' ::'::.2= -. -- -- '.' . -, .... - ~"._~ X 'N~ 070 I AL:- YCa I ~ CCCSE:'": lGiass .1': \t1ir... .l~CC :CCC! -.,....- -^ :C , -' - - *1 l"r07~ I ),l"7" 2953 I ;CCC8E7: IGi2SS :0 '-Ai...:.. ..15:':C ~ :CCI 3:.!( -r ~- ,r \ ~--.~. -" W~07'2 I ;1L7' :a5 ! ~CCC8EaZ ! Ka'/iar 30 ,"!ir." ..15CC ..~ 'cce; ---- -- -- - ~ .- .::.:..::...., _.~ ----_._~ 'N~0/3 , AL T 363 i 7CCC8E8E iK.e'/iar ;C ,"Iir... IC;;~'"' ; -: _ :;CCCI - - -- -- =, ~c I -~:"'l., , - , - ~ - -',-- 'N107.t I ALT 38'; I :CCC8;-:.; i Kc'llar .15 "fir. .:5CC =-r: --. - .- :2 .3. ~O -" - ....'--;1 ..::-- ';,-'- 'IV; 075 j ;1Ll36= , ;C009280 /K.ev,ar ::OWn.. ::CCC ! =eol S~35,~G , 5- .::::C ,~~ , 'N~Oi6 I AL T 339 , JOCOSE;; jCarcon 30 ,"!ir... J.5CC , - ,- ZeGCC! .:-3C,~C 3- 3C.:0 ,. - ' 'N10, , I All 502 I ,CO,CCE2 !Carccn 30 ;\Air... ....-..,- I - ;-, 5CCOI ,3~aC":G .:' ac,:c 4.:...:: , .- '( i 'N10T8 I AL T 398 I 10010408 'Glass 10 Mili.. 3000 <t,' 1cccI -c,,:, ...,.. ,,,,,-..0 -'" .:1__....... I W10T9 I ALT 697 , ,OO:04C9 IGlass 5 ,\Ain.. 3COO ,GOCI S9C~C 390. JC I P .J.! Agreement i AL T 367 I 10C10520 ICar::cn 30 ,"'in.. 30ce -;-~ ~_3CCCI 3~95.:C 5:96.:0 , PO.i ,"'greement I ALl 279 I 2:5C7.J2 IE50 C~, In. ((e'/iar. ,850 .:17..1/ S::C~,~C ,"-:C. cO , ?OJ Agreement I ALl 280 I 2~ 50T ...J~ I-c~ Cu. In. :<a'/lar. 1850 eel 3~~~.:C 329"-:0 <--- : ?,OJ .Agreement I ALTZ81 I 1-::07-')3 '.C ,.. in. :<c'liar, :8501 5201 3396. :C :::;'73.:0 I. OG~~, I ? 0./ Agreement I All 282 I !15COC", ,850! i8/Sf 5~SC. :C 3":;:c.~c ; ~~5Q,-'J~ In. :<a'llar. : ; ? C.: ,.l.greement I AL -:- 37: I -..-"- "'c: j5-; ~ ~ In. :<e'lIar. ~a=0 9€i ;..1C..1 ~C 3:~.l. :0 " . :u I -J_ '.....:. - ~ ..1~r-=e~enr ; ;1L75:' -. -...- ...... i6 .- - <a'm::r .-::.::.; :.;Z::. -. -- -- .~ - _.. .::. :t..t. -6:: , .-4 --, r:. .-- ;, :::,..l. :: :::....... Sc::rt ..l'Jiaticry"l _ i ..,: .- . /.// '.'.""'.' By. ~ /~'_--';"~'-/'7'~""""I..,-- TIt! ' ..1 ':...-- I e: i/ r (;10.: - &-.... -~L-o"'" Date: -i -i. 7 -5 j ~'ruC.U~-"I;'''''' "'<::S~L=~ .rr"c:riies ....l , ........ ....- .--- ~"~'_/ C _ fE---"_ - ~ ~' . <1.- .: . _. ,~/~ T~: / j~/._; - .~, :;:.,/ / . '-r 1,1. ,..;- /' Date: ....,.. ,<.. -, "''-'"...-' ........ "''''''-L.-U '" 'MIL-WI' W"M"'U" .....l-JJ LAlil '~i '~UU IW ~~~jU~~~ , .~.c:./l::J.c :..../ Har.sco June 13, 2001 Harseo Corporation 41718 Old GGttySburg Road ~. PA 170SS \JSA P.O, 60>< 6318 Camp I-Wl, PA. 17001-8316 USA T~ 717.763.5060 Fax: 717.i31.7Q88 W&b'.. ~.ha<'SCo.com John MeStraviek, Viee President and General Manager TYCO/Scott Health & Safety. Scott Technologies, Jne, 309 W. Crowell 51. Monroe, NC 28110 Dear John, This letter will selVe to confirm our conversation this afternoon, June 13,2001, wherein you stated that TYCO/Scott Health &Safety intends to remain on its current path (with Luxfer), thereby intending to breach the existing agreement with SCI, Harsco Corporation, dated April 1, 1999, which sets forth certain exclusivity requirements through the date of April 1. 2003. I can only conclude that either TYCO/Scott: 1) regards the agreement dated April 1, 1999 as unenforceable, or 2) believes that Harsco Corporation will not jeopardize any future business arrangement by enforcing the existing agreement. Please be advised that Harsco construes the exclusivity requirement of the 1999 agreement as enforceable; accordingly, Harsco will proceed with any and all necessary legal action to enforce the existing agreement I truly regret that Harsco Corporation has been placed in the position of seeking legal redress to enforce the contractual obligations undertaken by Scott prior to the acquisition by TYCO, Harsco Corporation has fully performed its obligations pursuant to the April 1, 1999 agreement. There has been no notice from Scott of any failure to perform under the agreement to this date" At the request of Scott, prior to the acquisition by TYCO, Harsco submitted bid quotes as the basis of a potential award of additional business, In the event that Harscq was awarded that additional business, we were prepared to enter into an agreement that would replace the 1999 agreement. This bid process in no way undermined our consistent reference to the requirements of the existing agreement This understanding has been directly stated by me to Mark Kirk and by Ron Eickelman to you. ~~ S, V, P,.Operations ** TOTAL PAGE,I2I2 ** * ^ , J'._''-'" " . ; ,I :; ,,~,., ~ ~'" '11< JUN 15 '01 12:38 FR TAYLOR-WHARTON-GED-EX717 731 7988 TO 92376019 P,02/02 Har.sco Haraco Cotporat/on 47'8 Old GellySllUrg Rood Mechenicsburg. PA 17055 us.o. P.O,Ilo<<83'& Cernp lim. PA '100' -83'6 USA 'l'!IIophone: 1'1.783.5Ol1O Fox: 717,73',798$ WOb: WVM'.Nw8co.oom June 15, 2001 John McStravick, Vice President and General Manager TYCO/Scott Health & Safety, Scott Technologies, Inc, 309 W, Crowell St. Monroe, NC 28110 Dear John, This letter confirms that you informed me that you Intend to breach our exclusive contract for the supply of certain composite cylinders, Further, you told me that you intend to take the business away from Harsco and give it to Luxfer despite the fact that the contract does not expire for two more years, Harsco Corporation will suffer damages that far exceed the monetary concerns which are significant in and of themselves. The harm to our business arrangements and to our reputation, to name a few, are of great concern to Harsco. Nonetheless, you have apparently made your final decision and we must go forward from here, My attempts to resolve the intended breach on behalf of Harsco Corporation have been unsuccessful, You should contact me directly if you have anything further to report to Harsco, d)~ri'Y' ~t(~ S, V, p" Operations ** TOTAL PffiE, 02 ** ,;;;;.~"w ~. ;~~lIlMliliWJi~~~ti@Jilliilk~w'.~B"~"',!J~-",,i;<i:,:1liFlJ1:l~~."'" .iiiiliit""""""~'~~~'^"~--. ", '''.,.-r."",,,,",' ,"" ,."." ,"I.,,,, > d~ ~~~""'~Y~'""'C'=_' ", ", _',,",'0, ",. ~""=""'~.'~'~'"' ~.'~. '" ...,,~ ""',""'.'" ,. ~"~ ,v "".''-~,<' ,_ ',_~,__L~< ,,' __ _ ....~ ~_~,~~,,_~, ~__, ---~~ :::~ -< '" , ,',"" ,~,~ "" n 1'-) , "; -,-~ ::1. ,j ,---" . =..J - , ' ~ <,'/ U: .:::u -< ,I 1 " , '" i '< .',,' , "',: F:\fILES\DA TAFrLE\Gendoc.curII0391-pra.2/nlm Cn;:aled: 07/20/0] OI:18:42PM Re>'ised: 07120/01 01:38:10 PM 105911 ' HARSCO CORPORATION, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 01-3826 CIVIL ACTION-LAW SCOTT TECHNOLOGIES, INC, and TYCO INTERNATIONAl (US) INe., Defendants PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please substitute the attached Verifications for the ones originally filed on July 19, 2001 ,with Defendants' Response to Plaintiffs Motion for Preliminary Injunction in the above matter. MARTS ON DEARDORFF WILLIAMS & OTTO By Georg B. Faller, Jr., I.D, Number 49813 Ten East High Street Carlisle, P A 17013 (717) 243-3341 Attorneys for Defendants Dated: July 20,2001 y~>-" - " , ~". ,~~"; VERIFICATION I, John D, McStravick, Vice President & General Manager of Scott Technologies' Health & Safety Products Group, am authorized to make this verification on behalf of defendant Scott Technologies and verify that the facts set forth in the foregoing Response to Plaintiffs Motion for Preliminary Injunction are true and correct to the best of my information, knowledge and belief, This verifIcation is made subject to the penalties of 18 Pa, C,S,A, S 4904 relating to unsworn falsification to authorities, 52f. P#.dP.-d ohn D, McStravick Date: '7- /7- CJ/ ~ ,', , ", Co', 'L':~ . ,,~ ",,",,0", ' VERIFICATION I, Karl Kinkead, Senior Vice President ofTyco Suppression Systems, am authorized to make this verification on behalf of defendant Tyco International (US) Inc. and verify that the facts set forth in the foregoing Response to Plaint~s Motion for Preliminary Injunction are true and correct to the best of my information, knowledge and belief This verification is made subject to the penalties of18 Pa. C.S.A. fJ 4904 relating to unsworn falsification to authorities. ff#4/ Karl Date: ,-I}?-j.t1e1.1 ". " "d CERTIFICATE OF SERVICE I, Nichole 1. Myers, an authorized agent of Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as follows: Bridget E, Montgomery, Esquire ECKERT SEAMANS CHERlN & MELLOTT, LLC 213 Market Street, 8th Floor Harrisburg, PA 17101 MARTSON DEARDORFF WILLIAMS & OTTO By 0VlcJtwa ~ ~ Nichole 1. Myers Ten East High Street Carlisle, P A 17013 (717) 243-3341 Dated: July 20,2001 ~,,;""" 'l."~ ~~~~!Il1I~~A~,a1~~>l"l,T~i~gl~j1j~lIIrlIi!il:iii;":" '-~lBitiJj" MIi' "JJp;_lk ',. jtJJ.~m,[,.."~,, ,.~ _,,, '",....,"','"",~''''',_'''''',~o"~.,--''<~~'''~,'';,'''_,,,o~,<,'~~,_..:<,',?'"O~<' 0' .',.." ',,'" "'~'"'''<;''.''' .~~ ,'.'> .',O""~ "" .,,~ " ~'" .",,,__,~, ';,r ""~''',,''^'''c>, ',,~,"~~" ~.... " ~- -." -<: I....) '-~', (",.J (:.: i'~,; - (j i' ., "' ~ '" ,,:,.~J-:' , 0' " ,.;, F:\FILESIDA T AFILEIGendoc.curl]0391_pra, ]/nlm Createq: 07/20/0]01:18:42PM Revised; 07120/01 01:31:55 PM 1039]1 HARSCO CORPORATION, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v, NO, 01-3826 CIVIL ACTION-LAW SCOTT TECHNOLOGIES, INC, and TYCO INTERNATIONAL (US) INC" Defendants PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: ! Please substitute the attached Verifications for the ones originally filed on July 19, 2001, with ~-~''A.I!swer to Complaint with New Matter on behalf of Defendants in the above matter. MARTS ON DEARDORFF WILLIAMS & OTTO By George B, Faller, Jr., Esq e I.D. Number 49813 Ten East High Street Carlisle, P A 17013 (717) 243-3341 Attorneys for Defendants Dated: July 20,2001 ',.;;;- " ~" . <-"';-iW, VERIFICATION I, John D, McStravick, Vice President & General Manager of Scott Technologies' Health & Safety Products Group, am authorized to make this verifIcation on behalf of defendant Scott Technologies and verify that the facts set forth in the foregoing Answer to Complaint with New Matter are true and correct to the best of my information, knowledge and belief, This verifIcation is made subject to the penalties of 18 Pa, C,S,A, ~ 4904 relating to unsworn falsifIcation to authorities, ~ t9~~/~---~~ ohn D, McStravick Date: 7- /7-0/ VERIFICATION I, Karl Kinkead, Senior Vice President of Tyco Suppression Systems, am authorized to make this verification on behalf of defendant Tyco International (US) Inc. and verify that the facts set forth in the foregoing Answer to Complaint with New Matter are true and correct to the best of my information, knowledge and belief This verification is made subject to the penalties of 18 Pa. C,S.A. A 4904 relating to unsworn falsification to authorities. , Date: j- 1.2 - 0/ ''',;>1': ."~'-': CERTIFICATE OF SERVICE I, Nichole L. Myers, an authorized agent of Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as follows: Bridget E. Montgomery, Esquire ECKERT SEAMANS CHERlN & MELLOTT, LLC 213 Market Street, 8th Floor Harrisburg, PA 17101 MARTS ON DEARDORFF WILLIAMS & OTTO BY~~yer:~ Ten East High Street Carlisle,PA 17013 (717) 243-3341 Dated: July 20, 2001 ...;;. ~. ~ "-, ,: " ,~ " ,'- ,~' ;,~ ., , ~."~g;, t ~ , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARSCO CORPORATION, Plaintiff, Civil Action No,: 01-3826 Civil Term v, SCOTT TECHNOLOGIES, INC, and TYCO INTERNATIONAL (US) INC, Defendants, CERTIFICATE PREREOUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009,22, Plaintiff, Harsco Corporation, certifies that 1, A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, 2, A copy of the notice of intent, including the proposed subpoena, is attached to this certificate, 3, No objection to the subpoena has been received, and 4, The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena, ECKERT SEAMANS CHERlN & MELWTT, LLC ontgomery, Es I.D, No, 105 213 Market Street, Eighth Floor Harrisburg, Pennsylvania 17101 (717) 237-6000 Dated: October 1, 2001 Attorneys for Plaintiff ( JIlt' ),4' " , C ' 'i ., li'~", CERTIFICATE OF SERVICE Qc lube,- I certify that on II ~t71 I served a copy of the foregoing document / via D,S, Mail upon counsel for Defendants, addressed as follows: John G, Harkins, Jr., Esquire Harkins & Cunningham Suite 2800, 2005 Market Street Philadelphia, Pennsylvania 19103 George B. Faller, Jr" Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, Pennsylvania 17013 ~#mf~~~~iWAlM!lti;l;r~iii:i~I!ai~lWI!ili;j~'>'''''''ill'.>b:,fd',i",,-;."'d''-'">i''~"~j-t;;j",,,-,'~~;~,;;Ii\!.I!:,"'"'''''~i.liJ -lIWil~~iOO~~ ~<l! ".,........ l~,,~.~.~_"'", ~,""'"',"'^"",,.,..,,~~. ,,,,,,,"",,,, , ,~,', "c'" i';r "...,.~ ',",~ "~"_ ,,<,,' ~" ".,.,,-,-,~, ~%,~, ~""-"T Iillildllllt Q G;; ~i[~~c -7 '-_ m' \~ , ~ !llIllIlilIIl_ t:-:::~ ';?:,C ~Y' L;-, :'::\ ~ n ~-:,) -:..-\ ~ ~ ~ .fI' r (7' :. ~ ' , ",,' 'I' MI'~ 'oi' , ,'-~ ~Ii' , I OCT 11 2001 ;..). IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARSCO CORPORATION, Plaintiff, Civil Action No,; 01-3826 Civil Term v, SCOTT TECHNOLOGIES, INC, and TYCO INTERNATIONAL (US) INC, Defendants, ORDER AND NOW, this II tL day of October 2001, upon consideration of Harsco Corporations' Petition for the Issuance of a Letter Rogatory, it is hereby ORDERED that the Petition is GRANTED, The Prothonotary is directed to issue the Letter Rogatory submitted with the Petition, BY THE COURT: . ~ _ ' . _, -><"c. '. " ( . , .... I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARSCO CORPORATION, Plaintiff, Civil Action No,; 01-3826 Civil Term v, SCOTT TECHNOLOGIES, INC, and TYCO INTERNATIONAL (US) INC, Defendants, PLAINTIFF HARSCO CORPORATION'S PETITION FOR THE ISSUANCE OF A LETTER ROGATORY Plaintiff, Harsco Corporation ("Harsco"), by its attorneys, Eckert Seamans Cherin & Mellott, LLC, hereby petitions this Court pursuant to Pa, R.C,P. 4015(b) and 42 Pa, C,S,A, S 5325 for the issuance of a Letter Rogatory: I, Harsco desires to production of documents and things pursuant to a subpoena from Luxfer Gas Cylinders (USA), a corporation located at 3016 Kansas Avenue, Riverside, California, 92507, 2, Attached hereto as Exhibit A is a copy of the proposed subpoena directed to Luxfer, along with a description of the categories of documents and things to be produced, The subpoena complies with the notice requirements ofPa, R.C,P, 4009,21. A copy of the CertifIcate Prerequisite to Service of a Subpoena is attached hereto as Exhibit B. 3, In order for Harsco to obtain the documents and things from Luxfer pursuant to the subpoena, a Letter Rogatory should be issued to the appropriate authority in California, 4, A proposed Order and a proposed Letter Rogatory is attached, - "" . . 1. , . . . WHEREFORE, plaintiff Harsco Corporation respectfully requests that this Court authorize the issuance of a Letter Rogatory to the appropriate authority in California to compel the production of documents and things from Luxfer Gas Cylinders (USA) in the above- captioned action, Respectfully submitted, ECKERT SEAMANS CHERIN & MELLOTT, LLC Date: !O/II/f}OO ( ri et E, ontgomery, Esq, ,No, 56105 Mark E, Gebauer, Esq, I.D, No, 79646 213 Market Street 8th Floor Harrisburg, P A 17101 717,237,6000 Attorneys for Plaintiff Harsco Corporation 2 .- ~ ,- ..;..;;" '. ~~l 'J;,_"c '-"<~' lI:9llll ; K . CERTIFICATE OF SERVICE I certify that on ()(~b& 1/ ,f)cJC/ , I served a copy ofHarsco's Petition for / ' Issuance of a Letter Rogatory via U.S, Mail upon counsel for Defendants, addressed as follows: John G. Harkins, JI., Esquire Harkins & Cunningham Suite 2800, 2005 Market Street Philadelphia, Pennsylvania 19103 George B. Faller, Jr" Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, Pennsylvania 17013 .. '"o"M,~,",,!,Il!lIMl\.~,,""~". . ...' ..............,....... ,""'"'i\Wi,tl<:,;iibilli,-ut,~t!il~BlIiilI__lti1!tlll!jj~ "^lIiT'""l ~.~ .~" ~,',' e-" ~ <"., , ~o ,= "'[1'" C~,\~_ . --/, r~:~ :~ ~,,:.' ..-' ~ . (j c::: c'~-' ,~ -, ~-l 0..,' ,; _-c~ tD .. '. ,; J <, "J^ "",,'~; O'~", ," '--:i,' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY , PENNSYLVANIA HARSCO CORPORATION, Plaintiff, Civil Action No,: 01-3826 Civil Term v, SCOTT TECHNOLOGIES, INC, and Tyeo INTERNATIONAL LTD, Defendants, HARSCO CORPORATION'S RESPONSE TO NEW MATTER For its Response to the New Matter of Defendants, Harsco Corporation, by its counsel, Eckert Seamans Cherin & Mellott, LLC, states: 52, Paragraph 52 states a conclusion of law to which no response is required, and, accordingly, it is deemed denied, 53, Paragraph 53 states a conclusion of law to which no response is required, and, accordingly, it is deemed denied, 54, Paragraph 54 states a conclusion of law to which no response is required, and, accordingly, it is deemed denied, 55, Paragraph 55 states a conclusion of law to which no response is required, and, accordingly, it is deemed denied, 56, Paragraph 56 states a conclusion of law to which no response is required, and, accordingly, it is deemed denied, {L0241117.1 } , , '" ~' , 'Ji, '"_._,, -, '^J~.'-'< , ",.' ~: 57, Paragraph 57 states a conclusion of law to which no response is required, and, accordingly, it is deemed denied, 58, Paragraph 58 states a conclusion of law to which no response is required, and, accordingly, it is deemed denied, WHEREFORE, Harsco Corporation respectfully requests that this Court enter judgement in its favor in this matter as set forth in the Complaint and Motion for Preliminary Injunction, Respectfully submitted, BY:?!!:~~~ ~-:f~~- Bridget E, ntgomery, Esqu Supreme Court I.D, # 56105 Mark E, Gebauer, Esquire Supreme Court I.D, # 79646 213 Market Street Harrisburg, PA 17101 717,237,6000 Dated: August 8, 2001 2 . i ,",,-, ~, ~, ,-" ' , b c, >l'" -, '6" '-, ~" ;"~j CERTIFICATE OF SERVICE I, Bridget E, Montgomery, Esquire, certify that I served a copy of the Harsco Corporation's Response to New Matter via U,S, Mail upon counsel for Defendants, addressed as follows: John G, Harkins, Jr., Esquire Harkins & Cunningham Suite 2800, 2005 Market Street Philadelphia, Pennsylvania 19103 George B. Faller, Jr., Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, Pennsylvania 17013 Dated: August 8, 2001 ~r~- ridget E, ontgo ery, Esq re 3 1~~I&d",&1iI>\;l.v~,.""~itflilli!!iftwM'~"'i:i,",IiA"I>!<liJl"il>."!.Nj~;{",,~.j,,'~\I'",,; ,,'j,k;,;-,""',;"'-;-,' "_"&b,.,,,,,"~\;,:",,,,,,,*~lIi_~l!!!i!I~~~~~-- o c -~ ,,""- rn FT9 :?:,j.' ZC CD, ' -<' ":; r:=C -~ -"'C- 2:' .,) =C ~'c: 2: -j -<, . ...---- CJ ~ ~i-1 ",. c:: C') I Co hl ,;0 , ' , ~~~1 t~i t~~ ::::--! 11 --<: :3? ...s'.. S;? ::;;, '-.J ~:,~J-"AJ~UPJml~l LJJ~'MC.. ",-,l',.~:;,l;,_J ,J_..,,,vlj,J~,~lti}):2);;.J,~,)~i..Jty .,', " ,,, ,0 ,'"",,, _'," _:> ".' "0' c, .; ~., \ <''''''-',. ^ ~., ,,~ ,",_ _' _"",,",', ".' ,~~ ',~",_"'"'' "".~T,"'" ;>"," ,,~ _'~,,,,;<",_",.<.. ,'~ . ,~W ~ " ~~ .-, H ,'- "< '~,.c,' -" , ~ :' _^,,", --C~ , HARSCO CORPORATION, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v, CIVIL ACTION - LAW SCOTT TECHNOLOGIES, INC" and TYCO INlERNATIONAL, LID" Defendants NO, 01-3826 CIVIL lERM ORDER OF COURT AND NOW, this 27th day of August, 2001, upon consideration of the attached letter from Bridget E, Montgomery, Esq" attorney for Plaintiff, the hearing previously scheduled for August 17,2001, is rescheduled to Wednesday, November 28,2001, and Thursday, November 29,2001, commencing each day at 9:30 a,m" in Courtroom No, 1, Cumberland County Courthouse, Carlisle, Permsylvania, BY THE COURT, Bridget E, Montgomery, Esq, 213 Market Street Eighth Floor Harrisburg, PA 17101 Attorney for Plaintiff o c~ .,..- c '; John G, Harkins, Jr" Esq, Suite 2800 2005 Market Street Philadelphia, PA 19103 Attorney for Defendant Scott Technologies, Inc, 1'_.1~_OI '~n ~ --r' ~i~r~ 7!.~ en,,"- -~ r:: ., :~~-1 ~~2 z ::;! ()': _'.f :c.,.. '- .,., :'-' ;~) 5~ _".I -< , ,',L" '" '= "~" Mark Belnick, Esq, Tyco International Ltd, 9 West 57th Street, 43rd Floor New York, NY 10019 Attorney for Defendant Tyco International, Ltd, :rc - 213 Market Street Eighth Floor Hardsburg, PA 17101 Address correspondence to: Post Office Box 1248 HarrisbU1g, PA 17108-1248 Telephone: 717.237,6000 Facsimile: 717.237.6019 www.escm.com Boston Fort Lauderdale Haddonfield, NJ Harrisburg Philadelphia Pittsburgh Washington, D. C. ECKERT SEAMANS ATTORNEYS AT LAW ,~ .. ^ ._-. "~. ,~,~, - -,. ,"-' > . -.'. '~"" "", > '~". ,-., ~ '...;.,j":;;"",,.-,:,,~",:j,' " ,~.-" ?-'; ECKERT SEAMANS CHERIN & MELLOTT, LLC August 24, 2001 The Honorable J, Wesley Oler, Jr. Cumberland County Court of Common Pleas One Courthouse Square Carlisle, PA 17013-387 Attention: Ruth Coulson Re: Harsco Corporation v, Tyco International (US), Jnc, Civil Action No,: 01-3826 Civil Term Dear Ms, Coulson: This will confirm our conversation today, in which J informed you that November 28'" and 29th are dates that all parties agreed are suitable for a hearing in this matter in the event that it does not settle, As we discussed, J asked that both dates be held in the event that the hearing cannot be completed in one day, Thank you for your courtesy and cooperation, Very truly yours, [, BEM,jah cc: John G, Harkins, Jr., Esquire AUG 2 l 2001 {L0241753.1 } Bridget E. Montgomery 717,237.6054 bxm@escm.com " , HARSCO CORPORATION, Plaintiff v, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW SCOTT TECHNOLOGIES, INC" and TYCO INTERNATIONAL, LTD" Defendants NO, 01-3826 CIVIL TERM ORDER OF COURT AND NOW, this 15th day of October, 2001, upon consideration of Plaintiffs Motion for Status Conference and for Scheduling Order, a Rule is hereby issued upon Defendants to show cause why the relief requested should not be granted, RULE RETURNABLE within 15 days of service, BY THE COURT, Bridget E, Montgomery, Esq, 213 Market Street Eighth Floor Harrisburg, PA 17101 Attorney for Plaintiff John G, Harkins, Jr" Esq, Suite 2800 2005 Market Street Philadelphia, PA 19103 Attorney for Defendant Scott Technologies, Inc, '~ ~ 10_1&_01 ~. V1NV^lASNN3d J.J.NnOO GN'f1\:Eti'fllfY) 1"'0 I" ., \ :2 Wd S \ ,j . u ',"'00'," -,,': .n ^\:l'11ONU"i~'Ju(i,..:,J'-\-'- "''', 'J:')j...jJiJ".{I,j ld ..1...1,..._..... -' ',.~" ,,~""' "v'~"'''''' __ '1~ George B, Faller, Jr" Esq, 10 East High Street Carlisle, P A 17013 Attorney for Defendants :rc , ~.', ~ '" , .. -__J' < ,," . ",~' c ~_,' " --..: 0;;;,;.>, " OCT~OO1 0, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARSCO CORPORATION, Plaintiff, Civil Action No,: 01-3826 Civil Term v, SCOTT TECHNOLOGIES, INC. and TYCO INTERNATIONAL (US) INC, Defendants, ORDER AND NOW, upon consideration of Harsco's Motion for Discovery and Trial Scheduling Order, IT IS HEREBY ORDERED that the Motion is GRANTED, The parties shall exchange discovery and conduct all depositions by November 15, 2001, and the hearing on the merits of Harsco Corporation's claims shall be held on November 28 and 29,2001, and shall be continued as may be necessary, A status conference will be conducted on ,2001, at_ ,m, Oler, J, {L0242572.! } " , "" ",' ~ ,," '"'''' ' 2.3,' o. . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARSCO CORPORATION, Plaintiff, Civil Action No,: 01-3826 Civil Term v, SCOTT TECHNOLOGIES, INC, and TYCO INTERNATIONAL (US) INC, Defendants, MOTION FOR STATUS CONFERENCE AND FOR SCHEDULING ORDER AND NOW, Harsco Corporation, by and through its counsel, Eckert Seamans Cherin & Mellott, LLC, hereby moves this Court for a status conference 'and for an order scheduling discovery and a hearing in this matter, and states the following in support thereof: 1. On or about June 26,2001, Harsco Corporation ("Harsco") initiated the captioned action against Scott Technologies, Inc, ("Scott") and Tyco International (US) Inc, ("Tyco,,)l, arising out of Scott's alleged breach of an exclusive purchasing agreement, For the convenience of the Court, a copy of the Complaint and exhibits thereto is attached to this Motion as Exhibit A, 2, In addition to other relief, Harsco requested preliminary injunctive relief and the Court scheduled a preliminary injunction hearing for August 17, 2001. 1 Initially, Harsco had named a different Tyco entity but by Stipulation dated July 19, 2001, requested that the caption be amended to name Tyco International (US) Inc, {L0242572.1} , ,. ,~ '.- , '~ ,-, ~--'-' ,,,",~~-,, """, . - ~ "'~-~'; 3. By agreement of the parties, Harsco requested that the Court vacate the August 17, 2001, hearing date because the parties had agreed to stay litigation and utiliz.e a 90- day period to attempt to reach a business resolution of their dispute. Accordingly, the Court rescheduled the hearing to November 28 and 29,2001, in the event that the parties were unable to reach a business resolution of their dispute. 4. Harsco has determined that Scott and Tyco are not genuinely interested in reaching a business solution but, rather, are utilizing the 90-day period to buy time to "build a case" against Harsco rather than make a good-faith attempt to identify problems in the parties' business relationship and allow Harsco to correct any actual problems. 5. Harsco now believes that it is in the best interest of all parties to engage in discovery and to utilize the November 28 and 29,2001 scheduled hearing dates for a hearing on the parties' rights and obligations under the exclusive purchasing agreement, and any breaches and any and all relief appropriate as of the date of the hearing. Harsco believes that the information pertinent to the parties' contractual rights and obligations and existence of any breaches to date can be obtained through relatively limited discovery, provided all parties engage in good-faith, non-obstructive discovery conduct. 6. Harsco, therefore, requests that this Court issue an order requiring the parties to complete discovery by November 15, 2001, and converting the November 28 29, 2001 hearing to one for a declaration of the parties' rights and obligations under the exclusive purchasing agreement, and of any breaches and relief appropriate as of the date of the hearing. Harsco further requests a status conference so that the parties may discuss with the Court the expedited treatment requested herein. {L0242572.1} 2 .. '4 . ," - ~., 1_, ,L; -;'..~..".' ~ .......-...,.;t!C 7. Harsco is available for a conference with the Court at the Court's convenience, and if so directed will contact counsel for Scott and Tyco to arrange such a conference. WHEREFORE, Harsco Corporation respectfully requests that this Court issue ail order directing that the parties engage in expedited discovery from now until November 15, 2001, and converting the hearing for November 28,29,2001, to one for a declaration of the parties' rights and obligations under the exclusive purchasing agreement, and of any breaches and relief appropriate as of the date of the hearing. Harsco Corporation further requests the Court to schedule a telephone or in-person status conference to discuss the expedited treatment requested herein. Respectfully submitted, ECKERT SEAMANS CHERlN & MELLOTT, LLC E. Montgome I.D. . 56105 Mark E. Gebauer, Esquire I.D. No. 79646 213 Market Street Eighth Floor Harrisburg, Pennsylvania 17101 (717) 237-6000 Dated: October 9, 2001 Attorneys for Plaintiff {L0242572.1} 3 :jlu~I"*:li~ji"~ili~~...lli:\!;~,",~liliJi.zil;l'~~."-'i"""'-<",tj~d'ri,,.,'t.:,,_;,;L.' "~-","""",,,"., ;_f."i~~,"".>;5;i:k;-~cw;>[\li;~~~ J 0(;3 ,~L ',,', Jl!I,"'~, JlU~JJ1~~n.~,~_;,.",J:;,I:,-"-,,,,\lLU" ",,__,~,_, ".~(,,,,)~,J,JliJ,!,;;, ~<'''''/~''-'''_''~,'':t'''',,, ~~,~~_ ~ ~_. _ ~~" """"""~-", "'_c,''''' '_ --r" ",-"",'.<. ?C'"" _ >_~,. _ ,0'. .' <~". _ ""_"h""''<.''_~ ~, ,,_ ,,~~~_<" '1.\ '- . = Iii 0 =r- a- =r- c '" '" l'- ::r n 0 0 c c ::r fT1 a- IT" c l'- II -go $ i i I I I f Recipient's Name (Please Print C/ear1y) (to be completed by mailer) ! ~t:.&-ft~~-~~I1.---JOOn..Mcst.~awiGk...m........... I ~~~.Cr0l0le1Lstr~t._..___..__.___...._........._._...._.. Certified Fee Return Receipt Fee (Endorsement Required) . Restricted Delivery Fee (Endorsement Requimd) Postmark H,,. Total Postage & Fees $ ...:", ,-...:..........,;--'-'.. ';_'::'''__<';'b''''~'' ", ;;r fT1 '" c '" '" l'- Postage $ Certified Fee ::r n c o Return Receipt Fee (Endorsement RequirOO) Restricted Deflvery Fee (Endorsement Required) Postmark Here c c =r- fT1 TotaI_&.... $ ~ Name (Pfease Prmt Clearly) (to be completed by mailer} 's;;oe;;~PMi?-oi-PO'of-}J.;~.~L.!!.~~L-~ih~'--"'h..m.m-- -cw.~;&d.et--.st.~eet.,...St-e-....2800-.....----....----.. Phflade:tphia, PA 19103 .a- a- '0 l'- . . ""' ru U1 n 0 f'-- M f'-- LrJ f'-- ru C! c I c C! ..JJ I c I C! I c c::i l'- I ~~"_"t-' ji l'- 'LrJ 'a- =r- c '" LrJ l'- P- $ Certified Fee ::r n o c Postmark H~ c C '.=J 'Im . Aeturn Receipt Fee (Endorsement ReQuired) . Restricted Delivery Fee (EndOJSement Required) Total Postage & Fees $ ~~'r~rogcre~~O"in'c.""edbym~1&) -r6~~fn"Wr~i~;;&_hmhn--._m-__'----h..n--m.m.n.n ~cii;:Siiiii,-zjp:;;'-------U_-----.'._---_.'._-"----'----.'---..'------.--------..------.. IT" a- C! l'- 'I ;,-. .....,:.;:-. .;-. p .:;._cJ..::.;.-.,:;'~.:I':~.:<::- ;:";''';'' -~~ ~"_'-';~_' .,. .....,.,,-,"... _. .";-' ,,-_._,-j~.;;i:::i:..:.:~i:'_-...:.~:;;..':;:;.,.j;:,.:,:..:.~~. ;,",:,. :;:,...:,..' :,~ ";;';~.J:~~_ -~--:...;.:....,,---.- ":-" POS".age S CertiflE:cFee Return RQCeJP'! Fee (Endorsement ReQuired} Rest.rictedDelivery-Fee (Endorsement Requited) Postmark He,. Total Postage & Feet $ Reclp/enf's Name (Pfease Print Cfe8rly) (to be completed by mailer1 ~.N~Ai.i~J:~td.:m.---...nm.mm..nm-... -Ci~StlIleM4.57t11nSEreet.i---43ronFIr.;m..n.---. .-...:,.-o-,.~.-"'"o~....c,,"'~"'.'._.,. .,~ .i'~,->.~--. _-:_~;"~..-"..,:~,~~~~<<~.~~~~~-~~y. ,: :~:~~~~;~:::t~~t::~-:~~~~i2i~::~~~.~;-~tc-. . -~; i ,- ",;I1!w:."lkikI.""..,,:- " . Complete item$ 1, 2, and 3. Also (;Omplete ~em 4 ~ R8$tricled Delivery is desired. . Print your name and address on the reverse so that we can retum the card to you. . Attach this card to the back of the mailpiece. 1 or on the front if space permits. ,: 1. Article Addressed to: D. Is delil1ery ress i:tifferent from item 1? If YES, enter delivery address below: . Tyeo International One Tyee Park Exeter, New Hampshire 03833 j 1 3. S ice Type Certified Mail 0 Ejpress Mail o Registered l2"Retum Receipt for Merchandise o Insured Mall 0 C.O.D. 4. Restricted Delivery? (ExtIa Fee) 0 Yes f' . 2. N.709~urn~OO'144~33beQ , ] PS Form 3811, July 1999 ., Domestic Return Receipt 102595-99-M-1789 ~.-" t- --'F"~,:'" '-. .+ '.-,co,_". _-:~__ ,_,;__,'C',y :~ ~: -:.,;;.-~ ._,,; ,;: .,"-_....~.. - ',- --~....._-,.-....'",. - ,.'. :".'. . Complete items 1, 2, and 3. Also complete item 4 ~ R8$lricted Delivery is d8$ired. . Print your name and address on the reverse so that we can return the card to you. . Attach this card to the back of the mailpiece, or on the front if space permits. 1. Atticfe Addressed to: C. Signature 0, Is delivery address from item 1? If YES, enter delivery address below: o Agent o Addressee DYes ONo x Mark Belnick, Esquire Tyee International, Ltd. 9 West 57th Street, 43rd Floor NeW York, NY 10019 ., i 3. Servige Type l16.tmed Mail 0 Express Mail i [] Reg_ fl"'Retum Receipt for Men:handise i [] Insured Mall [] C.O.D. 4. Restricted Delivery? (ExtIa Fee) [] Yes -..... 'i-- "~ 2. J , PS !. 102595-99-M-1789 ':~~~~-:;': _t~:~_ ~: -:.. "-.-- ,"" .'.~;"'co-':--'-"'~-:""';'~~":"~~-.""_4""'_-'9:.~~~:;.~~~j~,~~~,.~~; ~~"~-":"''''r':~~:'-'''';&-;''''__'~;'';''''~..'''"''';''_-'7''"-''._~'^-'.; -. ""':-"':'<'-':;_,'";'0-.>1'" ..,,_._..:.-.."...... <"_""".,;;:.-....,.;;.,._...~-,,...o---.;__u:.,.:;..~=--:!;..~.,,..~.,;..'-. , I . Complete items 1, 2, and 3.Ai$O complete nem 4 n Restricted Dellv8fY is desired. . Print your name and address on the reverse $0 that we can return the card to you. . Attach this card to the back of the mail piece, or on the front n space pennils.. 1. A1tIcI.Addressed to: jQhn G. Harkins, Jr., Esquire Harkins. & CUnningham . 2005 Market Street, Ste. 2800 .;. Philadelphia,' PA 19103 i j 2. A1tIcl. Number (Copy from SOIVice IabeJ) 7099 34000014. 7580 5343 ., PS Fonn 3811. July 1999 , "-1. ~ , ,"'- ~.f~.tri!!li!!!l,;;j;$W"-": t-.. 3. ~ce Type t:r Certified Mail 0 Express Mail o Registered ld"FfErtum Receipt for Merchandise o Insured Mail 0 C.O.D. . 4. Resbicteel Deliveoy? (Exf1a Fee) 0 Ves ~. Domestic Return Receipt 1Q2595.99-M-1189 t.: ,. ',.~. ':'.'-~-." . ,. . Complete nems 1, 2, and 3. A1$O complete item 4 if Restricted Delivery is desired. . Print your name and address on the reverse so that we can return the card to you. . Attach this card to the back of the mailpiece, or on the front if space permits. . 1. Article Addressed to: Scott Technologies, Inc. 1 Chagrin Highlands ~chwood, OH 44122 2. Article Number (Copy from service label) C. Signature x ~~ o Agent o Add...... OVes .DNa O. Is delivery address different from item 1? If YES. enter delivery address below: . Type Certified Mail 0 ~ Mail o Registered ~etum Receipt for Merchandise o Insured Mail 0 C.O.D. i . 4. Restricted Delivety? (Exf1a Fee) ..,~,.- OVes . ~9 :Mea e~ i PS Fonn 3811, July 19 I ~pt 102595-99-M-1789 _____.t:. . ..~ .. .;;.';.:..::,:::.;;.;,.::;;;.;;.:::::..;;.,,:;..,___-:::::~..,?f~,:~~~;~~'f~';:'fi~~~~P~;;::~::;;,';.' .v..,~";..~..~<:,-<",,,,",,,,...._....;.;...;.,:,.... ~, , ". , ". ~-,. '1 .", '. '"' d'~'----' ',-. ~;k~' . . . Complete nems 1, 2. and3:AiSo Complet~ nem 4 if Restricted Delivery is desired. . Print your name and address on the reverse so that we can retum the card to you. . . Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addres&ed to: x o Agent o Add...... OVes DNa D. Is delivElfY add different from item 1? If YES. enter delivery address below= Scott Aviation John McStravick 309 West Crowell Street Monroe, NC 28112 > t.: 3. ice Type Certified Mail _~ Mail . o Registered' .~. 'i...... jJ Return Receipt tor Merchandise o Insured MaiL" 0 C.O.D. 4. RestrlcteJlj;"iverY? (ExUa Fee) 0 Ves i. 2. Article Number (Copy from service label) 70QQ ':lAm tVIJ A 7'5eO 4giQ : PS Form 3811. July 1999 Domestic Return Receipt 102595-99-M-1769 I . ~':~"'-.' ',' .:..,.,--:;-,... ---,-~. . V~> -"-.:,<,.-: c ,'-'.-' - - '-' - ~-,:~,,'''';'''.:.~-~.'.--. ".;:o:.-.,~,V'.' ;~;:,:~x:::x;~:;,:~~~~:?:~~'t~:'~:;'-:~7:'-:-;";::':~;:'~":. '. . -. '. -. ...,.' .-,.-....-. .-~ . ~-. . -~<., . ...-..N..'.'._._....-......v...._._.._.. ...,'"~.~_J~~~~.:.-~.;;..:.~--~...O'.~"~..~.~~=~;~.~~~4! ~. t::~~:~~~~~~7T~-:~~~;~~,~o_~~. i ~' ..I,., . ~! .' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARSCO CORPORATION, Plaintiff, Civil Action No.: 01-3826 Civil Term Y. SCOTT TECHNOLOGIES, INC, and TYCO INTERNATIONAL LTD. Defendants. ("") r--, C ~:" \")i":: [I;: , , L:~ " :-.) ~<' NOTICE TO DEFEND ) j> <. , ::,:,J <J I 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyers Reference Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 800-990-9108 TRUE COPY FROM RECORD In Testimony wl1ereof, I here unro set my hand and the seal aI said ~r1lsle. Pa. This :J. ~~ .2w1 J-J. I . ~J~:'. .~-~ Prothonotary {L0239700.1} ,-- ~ ,l-" -;,;~--, H~ - ~.Ji, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARSCO CORPORATION, Plaintiff, Civil Action No.: 01-3826 Civil Term v. SCOTT TECHNOLOGIES, INC. and TYCO INTERNATIONAL LTD, Defendants. NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas.demandas . expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentaruna apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objeCiones alas demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar nna orden contra usted sin previo aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO lMMEDlATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFlCIENTE DE PAGAR TAL SERVICIO, VA Y A EN PERSONA 0 LLAME POR TELEFONO A LA OFlCINA CUY A DlRECCION SE ENCUENTRA ESCRlT A ABAJO PARA A VERlGUAR DONDE SE PUEDE CONSEGUlR ASISTENCIA LEGAL. Lawyers Reference Service Cumberland Connty Bar Association Carlisle, PA 17013 800-990-9108 {L0239700.1} . . I "'i;:.;~-'-',,-, "-"-<"!i~jl IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARSCO CORPORATION, Plaintiff, Civil Action No.: 01-3826 Civil Term v. SCOTT TECHNOLOGIES, INC. and TYCO INTERNATIONAL LTD, Defendants, COMPLAINT AND NOW, Plaintiff, Harsco Corporation by and through its counsel Eckert Seamans Cherin & Mellott, LLC, files this Complaint in Breach of Contract and Interference with Contractual Relations against Defendants, Scott Technologies, Inc. and Tyco International Ltd., seeking preliminary and permanent injunctive relief and damages, arising from Scott Technologies, Inc. 's wrongful repudiation of a four year exclusive requirements Purchase Agreement for the purchase of certain composite cylinders from Harsco Corporation, and in support thereof states as follows: PARTIES 1. Plaintiff Harsco Corporation ("Harsco") is a corporation organized and operating nnder the laws of the State of Delaware, with its principal place of business in Cumberland Connty, Pennsylvania. " --, ~ ~-, " ~fLi 2. Defendant Scott Technologies, Inc. ("Scott") is a Delaware corporation, which is registered to conduct business in the Commonwealth of Pennsylvania, and has a principal place of business in Ohio, and other facilities in New York and North Carolina. 3. Scott maintains business divisions referred to as Scott Health & Safety (which manufactures and supplies self-contained breathing apparatus) and Scott Aviation (which manufactures and supplies commercial aviation oxygen systems). 4. Defendant Tyco International Limited ("Tyco") is a corporation organized under the laws of Bermuda and/or the State of Massachusetts, with a place of business and service address at One Tyco Park, Exeter, New Hampshire, 03833. 5. On information and belief, Tyco recently acquired Scott, including the Scott Health & Safety and Aviation divisions. JURISDICTION AND VENUE 6. This action for equitable relief and damages is between parties subject to this Court's jurisdiction, and the damages sought are in excess of the arbitration limits of the Court, 7. Venue is proper in this Court pursuant to Pennsylvania Rule of Civil Procedure 2179, in that Scott regularly conducts business in Cumberland County, and a transaction or occurrence took place in Cumberland County out of which the cause of action arose. L0239603 2 "" ,_~ '~,,~- I FACTUAL BACKGROUND 8. Harsco is a single corporate entity with several major business segments, one of which is the Gas and Fluid Control Group, which is headquartered at 4718 Old Gettysburg Road, Mechanicsburg, Pennsylvania 17055. 9, A manufacturing unit of the Harsco Gas and Fluid Control Group, Structural Composite Industries, manufactures high-pressure composite cylinders for use in, among other products, self-contained breathing apparatus and commercial aviation oxygen systems. 10. Scott designs and manufactures, among other products, self-contained breathing apparatus used in the frrefighting industry, and commercial aviation oxygen systems, into which high-pressure composite cylinders are incorporated. 11. On or about April 1, 1999, prior to Tyco's acquisition of Scott, Scott entered into an exclusive, four-year Purchase Agreement with Harsco, pursuant to which Harsco agreed to supply, and Scott agreed to purchase exclusively from Harsco, all of Scott's requirements of certain composite cylinders as specified by Scott, A copy of the exclusive Purchase Agreement with list of moqels, part numbers, and prices is attached hereto as Exhibit" A", in accordance with Pa. R. Civ, p, 1019(i). 12. In consideration of Scott's promise under the Purchase Agreement to purchase from Harsco all of its requirements of certain cylinders for a period of four years, Harsco agreed to provide the cylinders at reduced prices. 13. Under the terms of the Purchase Agreement, Scott is prohibited from purchasing any of the cylinders specified in the Purchase Agreement from any source 1.0239603 3 "1_, ,-' ~""i;;;'_; ,- "' .1_ . I, i~ -~ 'J~ ';"';"'-'~'I~iD@md_- other than Harsco unless Harsco is unable to satisfy a particular order and is unable to provide a reasonable plan of recovery related to such order, in which case Scott may purchase from an alternative source only the type and quantity of cylinders that Harsco is unable to supply. 14. From April 1, 1999, to the present, Harsco has substantially and satisfactorily performed all of its obligations under the Purchase Agreement, and has provided Scott the cylinders it has ordered, at the reduced prices agreed upon in consideration of Scott's promise to exclusively purchase from Harsco all composite cylinders covered by the Purchase Agreement. 15. Scott has paid consistently for the cylinders delivered by Harsco, thereby acknowledging that Harsco has produced commercially acceptable products in fulfillment of Harsco' s obligations under the Purchase Agreement. 16. Harsco's performance, including the quality, quantity, and delivery of the cylinders delivered to Scott, satisfied Scott to such a degree that prior to Tyco's acquisition of Scott, Scott negotiated with Harsco to expand the models and quantities of cylinders exclusively supplied by Harsco but, upon information and belief, Tyco demanded that said negotiations come to a halt at or about the time of its acquisition of Scott. 17, In or about May 2001, Tyco acquired Scott Technologies, Inc., and its divisions, including Scott Health & Safety and Scott Aviation, and on information and belief, Tyco has or will soon integrate Scott into the segment of Tyco's business known as Tyco Fire and Security Services, L0239603 4 . ~~.--, ~ . . 18. On information and belief, as a result ofTyco's acquisition of Scott, Scott's business activities, including the performance of Scott's obligation to purchase its composite cylinder requirements exclusively from Harsco, are subject to the direction and control of Tyco. 19. Despite Harsco's satisfactory performance under the Purchase Agreement, Scott recently informed Harsco that Scott intends to purchase the cylinders covered by the Purchase Agreement from another manufacturer, which on information and belief is a competitor in the composite cylinder manufacturing industry, Luxfer, Inc. 20. Harsco sought from Scott adequate assurances that Scott would continue to perform its obligations under the Purchase Agreement, but Scott has refused to supply such assurances. 21. Through written correspondence, Harsco recently confirmed its understanding that Scott had repudiated the Purchase Agreement, which correspondence Scott has failed to negate or otherwise answer, verbally or in writing. A copy of Harsco's correspondence is attached hereto as Exhibit "B. 22. From the time of Scott's recent indications that it intended to purchase composite cylinders covered by the Purchase Agreement from another manufacturer, to the present, the volume of orders received from Scott for such composite cylinders has declined, thereby confirming its intentions to repudiate the Purchase Agreement. 23. As a result of the decline in orders from Scott for composite cylinders covered by the Purchase Agreement, Harsco has determined that it will have to layoff l1l239603 5 "~"-.owL -.~ .~",,- o&""".,..,,,,,,,~,,' skilled production workers and, further, that recent organizational actions taken by Harsco in the belief that the Purchase Agreement would be honored now will result in harm to production and employee arrangements. 24. Scott's repudiation and breach of the Purchase Agreement is wrongful, without justification, and will cause great harm to Harsco, 25. All conditions precedent to Harsco' s right to seek relief have been performed or have otherwise occurred. Count I - Breach of Contract (Harsco v. Scott) 26. Paragraphs 1 through 25, above, are incorporated herein by reference in their entireties, and are made a material part of this Count I. 27. Harsco and Scott entered into a valid and enforceable contract whereby Scott agreed to, among other things, exclusively purchase all of is requirements for specified composite cylinders from Harsco. See Exhibit A, attached hereto. 28. In consideration of Scott's promise to purchase such cylinders exclusively from Harsco and the payment of Scott for the purchased cylinders, Harsco agreed to satisfy Scott's cylinder requirements at a reduced price per cylinder. 29. Harsco and Scott performed under the Purchase Agreement for more than two years, from the April 1, 1999 date of execution until Scott's recent repudiation of the Agreement. L0239603 6 . '~ , . 01' 1-;' / ,. ,- >"';'d 30, Harsco has substantially complied with aU of its obligations under the Purchase Agreement and has faithfully supplied, at reduced prices, cylinders to meet Scott's requirements. 31. No event has occurred that would permit Scott to purchase a type of cylinder covered by the Purchase Agreement from any source other than Harsco. 32. In breach of its obligations under the Purchase Agreement, including but not limited to the duty of good faith and fair dealing, Scott has wrongfully and without justification decided to purchase cylinders covered by the Purchase Agreement from a source other than Harsco, 33. Harsco has sought from Scott adequate assurances of continued performance under the Purchase Agreement, which assurances Scott has failed to provide. 34. Harsco has urged Scott to retract its repudiation of the Purchase Agreement, but Scott has wrongfully failed to do so. 35. All conditions precedent have been performed or have otherwise occurred. 36. Based upon the quantities and prices of orders placed by Scott from April 1 , 1999 to its recent repudiation of the exclusive Purchase Agreement, Harsco estimates that it will lose approximately $10 million ($10,000,00.00) as a result of Scott's breach. 37. In addition to the monetary losses that Harsco will suffer as a result of Scott's breach, if Scott is not preliminarily and permanently enjoined from any further L02~9603 7 .. " , J,. ~"'"';~"""".._I, ..M,-~,M;~.....,-j breach of the exclusive Purchase Agreement, Harsco will suffer inunediate and irreparable harm, including but not limited to harm to its business reputation, business structures and operations, workforce, production efficiency, and reputation in the investment community. 38. The inunediate and irreparable harm to Harsco cannot be avoided by any other means than preliminarily and permanently enjoining Scott from breaching the exclusive Purchase Agreement pending the outcome of a final hearing on the merits. 39. The threatened harm to Harsco outweighs any possible harm to Scott from the issuance of a preliminary and permanent injunction because Harsco is capable of and is willing to perform its contractual obligations under the Purchase Agreement. 40. Under the circumstances, any bond required for the issuance of a preliminary injunction should be waived or be minimal because Scott has an existing obligation to perform the Purchase Agreement, and its purchase of cylinders from Harsco as promised presents no detriment to Scott. Wherefore, Harsco Corporation respectfully requests that this Court enter Orders: (a) Preliminarily and permanently enjoiuing Scott Technologies, Inc. and its officers, directors, employees, and agents from directly or indirectly breaching the exclusive four-year Purchase Agreement with Harsco Corporation; Directing Scott Technologies, Inc. to comply with all of its obligations under the Purchase Agreement for the duration of the Agreement; (b) L0239603 8 -~ .....- , I ,-";l-,...- J..~, ~-",,;.,jj (c) Precluding Scott Technologies, hie. from procuring any cylinders and/or types of cylinders covered by the Purchase Agreement from any source other than Harsco; (d) Directing Scott Technologies, Inc. to provide to Harsco a periodic accounting of its requirements for and purchase of the cylinders and/or types of cylinders covered by the Purchase Agreement, and further directing Scott to certify to the Court subject to the penalties of civil and criminal contempt that its is satisfying those requirements by purchasing exclusively from Harsco pursuant to the Purchase Agreement; (e) Awarding Harsco all damages, fees, and costs incurred as a result of Scott Technologies, Inc.'s breach of the Purchase Agreement; and (f) A warding such further relief as the Court deems just and appropriate, Count II - Interference with Contractual Relations (Harsco v. Tyco) 41. Paragraphs 1 though 40, above, are incorporated herein by reference in their entireties, and are made a material part of this Count 11, 42. The Purchase Agreement constitutes a valid and enforceable contract between Harsco and Scott. 43. In or about May 2001, Tyco acquired Scott Technologies, Inc., and its divisions, including Scott Health & Safety and Scott Aviation, and on information and belief, Tyco has or will soon integrate Scott into the segment of Tyco's business known as Tyco Fire and Security Services. L0239603 9 ~' , -- . i:',_~ ,L ," -. ',.-' ~".1' =" ~,-,d-; 44. On information and belief, as a result ofTyco's acquisition of Scott, Scott's business activities, including the performance of Scott's obligation to purchase its composite cylinder requirements exclusively from Harsco, are subject to the direction and control of Tyco. 45. At all relevant times, Tyco was aware of the contractual relations and obligations existing between Harsco and Scott. 46. Upon information and belief, at or about the time of Tyco's acquisition of Scott, Tyco directed that Scott cease negotiations with Harsco for an expansion of the exclusive requirements dealings between Harsco and Scott. 47. Upon information and belief, at or about the time of Tyco's acquisition of Scott, Tyco intentionally and improperly interfered with the contractual relations between Scott and Harsco by instructing, inducing, or otherwise causing Scott to breach the existing and valid exclusive Purchase Agreement with Harsco. 48. On information and belief, Tyco is seeking to acquire a financial interest in a company that supplies composite cylinders and thus, it is in Tyco's financial interest to cause Scott (now owned by Tyco) to buy cylinders from this competitor of Harsco. 49. Tyco's wrongful acts were unprivileged and improper and were not taken to protect legitimate business concerns. 50. Tyco's wrongful acts were intentional and outrageous, taken to further its own pecuniary interests, with wanton disregard for the interests and rights of L0239603 10 " ~^-,-""'~, J1i:ij '. Harsco, and without due regard for the contractual obligations Scott was obligated to perform. 51. As a direct and proximate result of Tyco's wrongful acts, Harsco has suffered and will continue to suffer monetary losses, and is entitled to preliminary and permanent injunctive relief, for the reasons set forth more fully in Paragraphs 23 and 36 through 40, above, which are incorporated herein by reference in their entireties. Wherefore, Harsco Corporation respectfully requests that this Court enter Orders: (a) Preliminarily and permanently enjoining Tyco International Ltd., and its officers, directors, employees, and agents from directly or indirectly inducing or otherwise causing Scott to breach any of its obligations under the exclusive Purchase Agreement with Harsco Corporation or otherwise interfering with Scott's performance of its obligations under the exclusive Purchase Agreement; (b) Directing Tyco International Ltd. to comply with any and all obligations that the law would impose upon it in relation to the exclusive Purchase Agreement; (c) To the extent that such matters are now or in the future may come within Tyco's control, directing Tyco to provide a periodic accounting of Scott's requirements for and purchases of cylinders and/or types of cylinders covered by the Purchase Agreement, and certifying to the Court subject to the penalties of civil and criminal contempt that Scott is L023l)(j()3 11 . . ~~ ,,~, ~ "r'i,~' satisfying those requirements by purchasing exclusively from Harsco pursuant to the Purchase Agreement; (d) Awarding Harsco all damages, fees, and costs incurred as a result of Tyco's wrongful actions; and (e) A warding such further relief as the Court deems just and appropriate. WHEREFORE Harsco Corporation prays for judgment in its favor in this action, and for an Order from the Court as follows: (a) Declaring Scott Technologies, Inc. to be in breach of its obligations under the Purchase Agreement; (b) Declaring Tyco International, Ltd. liable for interfering with the contractual relations between Harsco Corporation and Scott Technologies, Inc; (c) A warding Harsco all of the injunctive and other equitable relief requested under Counts One and Two in this action; (d) Awarding Harsco damages caused by the conduct complained of under Counts One and Two in this action; (e) Awarding Harsco its costs of suit and fees incurred; (f) Awarding Harsco punitive and/or exemplary damages to the extent allowed by applicable law; and L0239603 12 , ,& ~, ".,," ,,"t (g) A warding Harsco such further relief as the Court deems just and appropriate. DATED: ~-Q~-Dl L023%03 Respectfully submitted, ECKERT SEAMANS CHERIN & MELLOTT, LLC Bridget , ontgomery, Esq Supreme Ct. I.D. #56105 One South Market Square Building 213 Market Street Harrisburg, PA 17101 (717) 237-6000 13 , "~ " - '^ - J ~-"";'l;".....'>>' ,,' ~- .It., VERIFICATION I, ~""'-'\~ \.,), \~p\"..., am theSe.V. p. of of Harsco Corporation, Inc. I o I'zRa. "To' o'^"> . J hereby verify on behalf of Harsco Corporation that all of the averments of fact contained in the foregoing document are true and correct to the best of my knowledge, information and belief. 1 understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. ~4904, relating to unsworn falsification to authorities. ---------- {L0239681.1 } 4: PCRCHASE AGREEl\IlENT It has been agreed by Scon Aviation and SCI to enter into a supply agreement for cylinders for a period of four (~) years. Scon agrees to buy exclusively, and SCI agrees to furnish the cylinders which ",ill be the models and parr numbers curre:ltJy being purchased on Blanket Order :--;umbers as lisled on the anached matrix. The quanlities shown on these orders ",iil be the basis for e:lch of the four (4) year periods. Score reserves me right to place orders for the same type or' cylinder from orhe c:-'!inde manur";}c:urers if SCl tillls 1O perform per me requirements of rhe dr:lwing spec:ric:lricG .Jr the promised delivery dare. and c:umot provide Scan wirh .l re:lScnable recave:-:, pian '0 meet produdon or customer requireme:lrs. Scan ",ill procure ,he quanri,; or" <~jjnde~s needed tar mat requirement from other qualiiied sources. The prices for rhese cylinders will be sho\',n on me bianket orcers. :1m] '.vi:! se ,1= through ;he year :000, The :Jtice for eacl1 cylinder mode: :nay be :nc:e:l5e:1 jv : 0',. :n :h" year 2001. no,. in :00: and re':ie',ved :lgain in :003 ;or ~)[:ce .ldjustme:us base:::: Jr.2ur:-e:-c: economic condirions at chat :ime. All c::linders will be produced ;n :lccorcanc".v;th :he dr~\\iing J-nG sFc:.::iic.:ltions ~ro",-ided ~y Searl. PJ.ymc:u ~e:7!1.s or" Jc:~?r2iJic ?rocl.:c~ <,vid be changeG. :Tom the :St:J.ndard J.er ,,0 d;1YS :0 :1cr ~~ d~ys. ~~'fc-::i';e '.,\i\!h :h~ ':~le >")( :tis agree:n~:1f_ Scott .--\'iiation /f 0 // By: jlLi..J< ~lc 11 (! ~ i Struc~r:tl C omn~)Si{e5 fndusfe5 / . B::_--"",,~Z:~e)'- Tide: Vice P.esidetl[. Ooer.uions Tide: Vice ?=:s~de~c.Ge~~~~: :1a~age= Date: ~-1-9Q Date: ~-l-~9 . Jb!e.:-;: Purchase Agreement Attac' -:nt A CCNT,~.AeT ;t. STRUCTURAL COMPOSITES INDUSTRIES se: MCCe. it ------ .::\.,......... PAF:7" :;. CESC.=fP,:C'\! ~.' ~."'-~ If< X "*, W1cea W1 CES W~07C 'N~O( ~ W~O(= 'N~ 073 i '1'/107..1 I t/V~07.: j W~O,6 I 'N1077 I W1073 I I Wl0,9 I I ? .:J.f Agreement i .~Oj ."'greement I ?OJ Agreement I ?OJ ,\greement I ?OJ Agreement I ? 0.: ,l.greement I ~- ..l~r.:er:-:ent ; I I , I I ALTa,! 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'-''-''--' ''--' -'~-"'-".J..l.-' , .t..JL_ U",- .~ Har.sco June 13, 2001 H.arsco Co~n 4718 Old GH~ Road ~.PA 17055 USA P.O.Ilo>c(J316 Camo t'iII, PA 17001-8316 USA T.".."..",., 711.763.SOSO F~: 717.1'31_7968 W.rr.. WWW.NrKo.ctrn . John McStravick, Vice President and General Manager TYeo/scott Health & Safety, Scott Technologies, Inc. 309 W Crowell St. Monroe, NC 28110 Dear John, This letter will selVe to confirm our conversation this afternoon, June 13,2001, wherein you stated that TYeo/scott Health &Safety intends to remain on its current path (with Luxfer), thereby intending to breach the existing agreement with SCI. Harseo Corporation, dated April 1 , 1999, whieh sets forth certain exclusivity requirements through the date of April 1, 2003. I can only conclude that either TYCO/Scott; 1) regards the agreement dated April 1, 1999 as unenforceable, or 2) believes that Harsco Corporation will not jeopardize any future business arrangement by enforcing the existing agreement Please be advised that Harsco construes the exclusivity requirement of the 1999 agreement as enforceable; accordingly, Harsco will proceed with any and all necessary legal action to enforce the existing agreement I truly regret that Harsco Corporation has been placed in the position of seeking legal redress to enforce the contractual obligations undertaken by Scott prior to the acquisition by TYCO. Harsco Corporation has fully performed its obligations pursuant to the April 1. 1999 agreement. There has been no notice from Scott of any failure to perform under the agreement to this date. At the request of Scott, prior to the acquisition by TYCO, Harseo submitted bid quotes as the basis of a potential award of additional business. In the event that Harscq was awarded that additional business, we were prepared to enter into an agreement that would replace the 1999 agreement This bid process in no way undermined our consistent reference to the requirements of the existing agreement This understanding nas been directly stated by me to Mark Kirk and by Ron Eickelman to you. ~~ S, V. P.,Operations ** TOTAL PR:iE .02 ** " ~ I _ ~ ~--- = . ji,j, -JUN 15 '01 12:38 FR TAYl~n~WHARTON-GED-EX717 731 7988 TO 92376019 P.02/02 . . Har.sco Hanoco CorpoI8tlon 4718 Old GtIIySllllO Roa<l ~ PA 170SS us;. PO, eox &3'& Comp HII, PA 17001.e3'8l.lSA T/lIophono; 717,7&3.50&0 Fa><: 717.731.7988 'Nab; www.hdtaco.oom June 15, 2001 John McStravick, Vice President and General Manager TYeo/scott Health & Safety, Scott Technologies, Inc. 309 W. Crowell St. Monroe, NC 28110 Dear John, This letter confirms that you informed me that you Intend to breach our exclusive contract for the supply of certain composite cylinders. Further, you told me that you intend to take the business away from Harsco and give it to Luxfer despite the fact that the contract does not expire for two more years. Harsco Corporation will suffer damages that far exceed the monetary concerns which are significant in and of themselves. The harm to our business arrangements and to our reputation, to name a few, are of great concern to Harsco. Nonetheless, you have apparently made your final decision and we must go forward from here, My attempts to resolve the intended breach on behalf of Harsee Corporation have been unsuccessful. Yoil should contact me directly If you have anything further to report to Harsco. J)~r;IY, ~~~ s. V. P., Operations ** TOTF'L Pl={;E. 02 ** ~~ oT' 0 C\ 0 i ., (, ~ .' {wi ~ . CERTIFICATE OF SERVICE I, Bridget E, Montgomery, Esquire, certify that I served a copy of the foregoing document via U.S. Mail upon counsel for Defendants, addressed as follows: John G. Harkins, Jr., Esquire Harkins & Cunningham Suite 2800, 2005 Market Street Philadelphia, Pennsylvania 19103 George B. Faller, Jr., Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, Pennsylvania 17013 Dated: October 9, 2001 Bridget E. Montgomery, Esqu' e {L0242572.1} 4 . " .. . .wo_' ~ ,., ,-~' " iM~~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARSCO CORPORATION, Plaintiff, Civil Action No.: 01-3826 Civil Term v. SCOTT TECHNOLOGIES, INC. and TYCO INTERNATIONAL (US) INC. Defendants. ORDER AND NOW, this ~ ~ay of October 2001, upon consideration of Harsco Corporations' Petition for the Issuance of Letters Rogatory, it is hereby ORDERED that the Petition is GRANTED. The Prothonotary is directed to issue Letters Rogatory submitted with the Petition. BY THE COURT: Cory PenOllQ/~ 3'''€-V1f6/o11 {!h/IY/t{ CO!,' /fIa.lledto Jdhl7 G, //tu-k ~ (I J .j J f'". rt;Je 8i4lkr Gc;Py;W?llb'l f"o Of 0 (/ " ,~~~> c ..',",'.. ~,,",~,'-__.M ',,"-';;"'~*""' ""-"'" kt *""'- ,__,~,:, --. !.at<>"-'-., '-'';' \')iu'o,,~._,;i'-'Cj .~'-~ -~ .'e 0.,-,;, "'-~-- + ;c.;,;"'-, ." '. -,~",,,," \;. ':J",s ;,;,' ;''''-,ji;;~ij(>''iJ'' "'--;--F'~'lt~t'!nii':'~-~t"'~~I:_ti~''')iI:''/m'~{\ill1~'j{'lJ1-\-''tl1milt~ r:' [: rT~li1't: ~'~f"''',1TI~~I'''~' (". Jr i=:tED-.OfTICE -, .~ '''''n'n '~I "~tARY ! -~I'- ':,,'1-.'; l,r1:: \1]; . . __ '_, I ,,', ,~, ~'J Oi OCT 15 ArHI:45 CUMBERU~\jD COUNTY PENNSYLVANIA :'i ,I I I I i i I -"'_. -~ illllIl2'_,'l'\!l__~~~_?Jll""~",i-"'""""j']""""<"'-"C;'l'''-V.1;i",~~~$;!lIJi!!l~~ll~I!l!~:~V"'1:'l$(~~ - .-~- ~ ' ,~ - """'1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARSCO CORPORATION, Plaintiff, Civil Action No.: 01-3826 Civil Term v. SCOTT TECHNOLOGIES, INC. and TYCO INTERNATIONAL (US) INC. Defendants. PLAINTIFF HARSCO CORPORATION'S PETITION FOR THE ISSUANCE OF LETTERS ROGATORY Plaintiff, Harsco Corporation ("Harsco"), by its attorneys, Eckert Seamans Cherin & Mellott, LLC, hereby petitions this Court pursuant to Pa. R.C,P. 4015(b) and 42 Pa. C.S.A. S 5325 for the issuance of Letters Rogatory: 1. Harsco desires to take the oral deposition of Donald W. Clervi and Edgar E. Morris of Luxfer Gas Cylinders (USA), a corporation located at 3016 Kansas Avenue, Riverside, California, 92507, pursuant to a subpoena issued by an appropriate authority in California to testify on the behalf of Luxfer Gas Cylinders (USA), on the following matters: any agreements, contracts, or understanding between Luxfer Gas Cylinders and/or Luxfor Group, Ltd., including all subsidiary or affiliate corporations or entities, and Scott Teclmologies, Inc., Tyco International (US) Inc. and lor Tyeo International, Ltd., or any of their subsidiary or affiliate corporations or entities, for the purchase or sale of gas cylinders from January 1, 1999 to the present and including any agreements for future purchases. 2. The depositions will take place before a court reporter duly authorized to administer oath and will be conducted at a mutually convenient location, in Riverside, California, on the following dates and times: . " ~- 'Lt'ifl.,: " '""C", 'J' "'i:iii; Denonent Date/Time Donald W. Clervi November 15, 2001, 9:00 A.M. Edgar E. Morris November 15, 2001, 2:00 P.M. 3. In order for Harsco to secure the desired testimony, Letters Rogatory should be issued to the appropriate authority in California for purposes of issuing subpoenas for the deponents to appear and testify. 4. A proposed Order and proposed Letters Rogatory are attached. WHEREFORE, plaintiffHarsco Corporation respectfully requests that this Court authorize the issuance of Letters Rogatory to the appropriate authority in California to compel the deponents to appear at a mutually convenient court reporting facility and give testimony under oath. Respectfully submitted, ECKERT SEAMANS CHERIN & MELLOTT, LLC Date: 10115 I 0 I BriM~ I.D, No. 56105 Mark E. Gebauer, Esq. LD. No, 79646 Ron S. Chima, Esq. LD. No. 81916 213 Market Street 8th Floor Harrisburg, P A 17101 717.237.6000 Attorneys for PlaintiffHarsco Corporation L0243331 2 ,:. . . oj- -. ,. c-~ . 6-~''''ol ;' '.J1;t! , ' -,_. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARSCO CORPORATION, Plaintiff, Civil Action No.: 01-3826 Civil Term v. SCOTT TECHNOLOGIES, INC. and TYCO INTERNATIONAL (US) INC. Defendants, LETTER ROGATORY The Court of Common Pleas of Cumberland County, Pennsylvania to any Judge of the Superior Conrt of California in and for the County of Riverside: The above-captioned action was filed in the Court of Common Pleas of Cumberland County on June 21,2001. Plaintiff Harsco Corporation is entitled to take appropriate action in the prosecution of this matter pursuant to Pennsylvania law. Counsel for Harsco has advised this Court that they desire to take the following non-party, oral depositions to obtain relevant information: Deponent Date/Time Donald W, Clervi November 15, 2001, 9:00 AM. The depositions will take place at a mutually convenient location in Riverside, California. If the selected date and time is not available, the deposition will take place no later than seven (7) days from November 15, 2001. Under 42 Pa.C.S.A. ~ 5325, a deposition to obtain testimony or documents in this matter may be taken outside of Pennsylvania pursuant to a Letter Rogatory issued by this Court. Additionally, the deponent is requested to bring any and all documents described in attached Exhibit "A" . L0243334 >, "_ _J . ~ '" I C___ , ""'it On the basis of the above, I request you, by the proper and usual process of your Court, to authorize the issuance and service of a subpoena compelling the deponents to attend the depositions and to provide testimony under oath for use in this matter. Dated: /~oe:r()1 on Pleas of " ", - ~ -~ " t ~, ,""-,,, _,,~ ....i1 EXIDBIT "A" ANY AND ALL documents, as that term is hereinafter defined, that constitute or refer in any way to any contract, agreement, or understanding between Luxfer Gas Cylinders and/or Luxfer Group, Ltd" including all subsidiary or affiliate corporations or entities, and Scott Technologies, Inc., Tyco International, LTD and/or Tyco International (US) Inc., or any of their subsidiary or affiliate corporations or entities, for the purchase or sale of gas cylinders from January 1, 1999 to the present and including any agreements for future purchases. As used in this Subpoena, the term document shall mean: (A) A description of the document, including the form of document (e.g., letter, facsimile, memorandum), the date of the document, the subject of the document, any identifying numbers or other codes on the document, and any other information that may be relevant to identifying the document; (B) The identity of each creator or contributor to the document; (C) The identity of each and every recipient of the document, including cc: recipients and bee: recipients; (D) The basis on which privilege is claimed; (E) If privilege is claimed on the basis of trade secret or other competitive sensitivity claims, provide the basis for your claim that the information contained therein is competitively sensitive; (F) The location and custodian of the document. L0243331 - ~ ,--~ T' CERTIFICATE OF SERVICE I certify that on 0 (' ~ \ 1 ~ ( , I served a copy of the foregoing document via U.S. Mail upon counsel for Defendants, addressed as follows: John G. Harkins, Jr., Esquire Harkins & Cunningham Suite 2800, 2005 Market Street Philadelphia, Pennsylvania 19103 George B. Faller, Jr., Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, Pennsylvania 17013 N?~ Ron S. Chima, Esq. . . ,~ ,-_ >'"'>>--"". ,.Ok",), IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARSCO CORPORATION, Plaintiff, Civil Action No.: 01-3826 Civil Term v. SCOTT TECHNOLOGIES, INC. and TYCO INTERNATIONAL (US) INC. Defendants. LETTER ROGATORY The Court of Common Pleas of Cumberland Connty, Pennsylvania to any Judge of the Superior Court of California in and for the County of Riverside: The above-captioned action was filed in the Court of Common Pleas of Cumberland County on June 21, 2001. Plaintiff Harsco Corporation is entitled to take appropriate action in the prosecution of this matter pursuant to Pennsylvania law. Counsel for Harsco has advised this Court that they desire to take the following non-party, oral depositions to obtain relevant information: Denonent Date/Time Edgar E. Morris November 15, 2001, 2:00 PM. The depositions will take place at a mutually convenient location in Riverside, California. If the selected date and time is not available, the deposition will take place no later than seven (7) days from November 15,2001. Under 42 Pa.C.S.A. ~ 5325, a deposition to obtain testimony or documents in this matter may be taken outside of Pennsylvania pursuant to a Letter Rogatory issued by this Court. Additionally, the deponent is requested to bring any and all documents described in attached Exhibit "A" . ., 1. '. . "~ 1, "," ,~ '_' " - - - '<'''';~ On the basis of the above, I request you, by the proper and usual process of your Court, to authorize the issuance and service of a subpoena compelling the deponents to attend the depositions and to provide testimony under oath for use in this matter, Dated: l~ot:.."ol , .--..- 'b"-~-_"'~ -'~"- -, - ----'-'<\t . EXIDBIT "A" ANY AND ALL documents, as that term is hereinafter defined, that constitute or refer in any way toany contract, agreement, or understanding between Luxfer Gas Cylinders and/or Luxfer Group, Ltd., including all subsidiary or affiliate corporations or entities, and Scott Teclmologies, Inc., Tyco International, LTD and/or Tyco International (US) Inc., or any of their subsidiary or affiliate. corporations or entities, for the purchase or sale of gas cylinders from January 1, 1999 to the present and including any agreements for future purchases. As used in this Subpoena, the term document shall mean: (A) A description of the document, including the form of document (e.g., letter, facsimile, memorandum), the date of the document, the subject of the document, any identifying numbers or other codes on the document, and any other information that may be relevant to identifying the document; (B) The identity of each creator or contributor to the document; (C) The identity of each and every recipient of the document, including cc: recipients and bcc: recipients; (D) The basis on which privilege is claimed; (E) If privilege is claimed on the basis of trade secret or other competitive sensitivity claims, provide the basis for your claim that the information contained therein is competitively sensitive; (F) The location and custodian of the document. L0243331 '"~ --'~~ ,. ~ ~ ,- ,- - . t"_ . CERTIFICATE OF SERVICE I certify that on {JrtiJ...)QA If ~I , I served a copy ofthe foregoing document via U.S. Mail upon connsel for Defendants, addressed as follows: John G. Harkins, Jr., Esquire Harkins & Cunningham Suite 2800, 2005 Market Street Philadelphia, Pennsylvania 19103 George B. Faller, Jr., Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, Pennsylvania 17013 RDn~Pk ~ -I....'" 'C' .--; ,,'-"~ ,.', ,.- '-'" ,- ~ i iW.ill:ic; . CERTIFICATE OF SERVICE I certify that on 0( ~~ '~d-Doi , I served a copy of the foregoing document via U.S. Mail upon counsel for Defendants, addressed as follows: John G. Harkins, Jr., Esquire Harkins & Cunningham Suite 2800, 2005 Market Street Philadelphia, Pennsylvania 19103 George B. Faller, Jr., Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, pennsylvania 17013 nJ~ Ro#l. Chima, Esq. ) &'W~fi~~"ij;?"1~'kl,W,g:{jfr(1i3j,~f4~ih':f1:M:R"Z(;tlB'~;':f~:N2]!~ . I n... ...-tc..... 1111 IU " ..,. '" 0- N"! 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HARSCO CORPORATION, Plaintiff v, SCOTT TECHNOLOGIES, INC., and TYCO INTERNATIONAL, LTD., Defendants ,.,. , ", ~,":.,..;~.;;.u; IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW NO, 01-3826 CIVIL TERM ORDER OF COURT AND NOW, this 2ih day of August, 2001, upon consideration of the attached letter from Bridget E. Montgomery, Esq., attorney for Plaintiff, the hearing previously scheduled for August 17, 2001, is rescheduled to Wednesday, November 28, 2001, and Th~rsday, NovembeL29, 2001, commencing each day at 9:30 a.m., in Courtroom No.1, CUlllbetJandCounty Courthouse, Carlisle, Pennsylvania. " ,'f Bridget E. Montgomery, Esq. 213 Market Street Eighth Floor Harrisburg, PA 17101 Attorney for Plaintiff John G, Harkins, Jr., Esq. Suite 2800 2005 Market Street PhihideJphia;PAI9I03' . . ... Attorney for Defendant .ScotfTechnologies,. Inc. BY THE COURT, TRUE COPY FROM RECORD In Testimony whereof, I here unto set my hand andthE!~IOf sa.ldC!l~.~;.t. :~Sle. h Thl~dah, ~~)t~tI,:1~ ~I Prothonotarf ~ Mark Belnick, Esq. ~y International Ltd. West sih Street, 43rd Floor .. New York, NY 10019 Attorney for Defendant Tyco International, Ltd. . :rc r 'i 213 A[(lrkct Street E~I?"tfl Floor Harrisblil:,<?, E"I 17101 Addres.,' wrrcspolldcl/u: [0: PM[ Q[fi(t' }3,lX 12';'8 Harnsllll!:~, [}{ 17108-12-18 7t'fcp/llllle: 717.237.6000 F.lt-silllilc: 717.237.6019 H'1l'll'.CSOII.(\lfll Hl'S[{l1! Fort LlIIdcrd,lIc HaddtJ/!f/cld, t\] Hlrrisbw:1? Pllilddc!pllia Jlifl~'IIlIiXh rr:dlill,>;[[lll, DC. ECKERT SEAMANS ATTORNEYS AT LAW '"'" h,~,-:'; _ -, 10'" ifill" ^"5 ECKERT SEAMANS CHERIN & MELLOTT, LLC August 24, 2001 The Honorable J. Wesley Oler, Jr. Cumberland County Court of Common Pleas One Courthouse Square Carlisle, PA 17013-387 Attention: Ruth Coulson Re: Harsco Corporation v. Tyco International (US), Inc. Civil Action No.: 01-3826 Civil Term Dear Ms. Coulson: This will confirm our conversation today, in which I informed you that November 28'h and 29" are dates that all parties agreed are suitable for a hearing in this matter in the event that it does not settle. As we discussed, I asked that both dates be held in the event that the hearing cannot be completed in one day. Thank you for your courtesy and cooperation. Very truly yours, C, BEM:jah cc: John G. Harkins, Jr., Esquire ;jUe 27 c <00; {L0241753.1} BridgetE.kfon~omery 717.237.6054 bxm@escm.com ., ~;: ~. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA HARSCO CORPORATION Plaintiff, v. Civil Action No. 01-3826 Civil Term SCOTT TECHNOLOGIES, INC. and TYCO INTERNATIONAL (US) INC. Defendants. DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR STATUS CONFERENCE AND FOR SCHEDULING ORDER Defendants Scott Technologies, Inc. and Tyco International (US) Inc. ("defendants"), by their undersigned counsel, hereby respond to PlaintiffHarsco Corporation's ("plaintiff') Motion for Status Conference and For Scheduling Order as follows: I. Admitted in part and denied in part. It is admitted only that plaintiff initiated the captioned action against defendants arising out of an alleged breach of contract. By way of further response, the "Purchasing Agreement" at issue in this matter, attached as Exhibit "A" to plaintiffs complaint, is a writing, the terms of which speak for themselves. Any characterization thereof by plaintiff is denied. It is also denied that plaintiff initiated this action against defendants on June 26, 200 I. Rather, this action was initiated by writ of snnnnons issued on June 21, 2001, and plaintiffs complaint was filed on June 27, 2001. 2. Admitted. 3. Admitted, ~! " . L "'~ 1 .- I.~_l -", "- ~'- ., 4. Denied. It is specifically denied that defendants are using the ninety (90) day stay of this litigation "to 'build a case' against Harsco" and that defendants are not genuinely interested in reaching a business solution. As plaintiff is well aware, defendants are actively pursuing a business resolution. 5. Admitted in part and denied in part. The "Purchasing Agreement" at issue in this matter, attached as Exhibit "A" to plaintiffs complaint, is a writing, the terms of which speak for themselves. Any characterization thereof by plaintiff is denied. By way of further response, defendants do not oppose plaintiffs suggestion that all parties engage in discovery and appear for the November 28-29, 2001 scheduled hearing on plaintiffs request for preliminary injunctive relief as originally scheduled. However, defendants are opposed to a hearing on the merits in the event that discovery is not complete by November 15, 2001. Defendants have responded to all olltst~ding discovery served by plaintiff, Defendants' written discovery directed to plaintiffreinains outstanding and depositions of plaintiff have been scheduled to take place the week of November 12, 2001. In addition, plaintiff has served a subpoena on a third party with a return date of November 2,2001, and has scheduled depositions of a third party to take place on November 15, 2001. 6. Admitted in part and denied in part. Defendants do not oppose plaintiffs request for a status conference to discuss this matter with the Court, and counsel for defendants will make themselves available for such a conference. Defendants are also not opposed to the Court's issuance of an orderrequiring the parties to complete discovery by November 15, 2001. Defendants are opposed, however, to a hearing on the merits in the event that discovery is not complete by November 15, 2001. 7. Plaintiffs averments in this paragraph do not call for an admission or denial. '" 1-..'': , -I. .- _ "l ~ " "11, , By way of further response, defendants will also make themselves available for the conference requested by plaintiff, WHEREFORE, defendants object to plaintiffs representations regarding defendants alleged failure to seek a resolution of this matter is good faith and to any of plaintiff s characterizations of the "Purchase Agreement" at issue in this litigation. Defendants do not oppose the status conference plaintiff requests, but oppose a hearing on the merits on November 28-29,2001, in the event that discovery is not complete by November 15, 2001. Respectfully submitted, HARKINS CUNNINGHAM BY:_ i- --<~_J --:h^~ Wt:llill G. Mkins, Jr., Esquire (04441) Barbara Brigham Denys, Esquire (78562) 2800 One Commerce Square 2005 Market Street Philadelphia, PA 19103-7042 (215) 851-6700 ~TSONDEARDORFF~LL~S & OTTO, P.C. George B. Faller, Jr., Esquire (49813) Ten East High Street Carlisle, PA 17013-3341 (717) 243-3341 Attorneys for Defendants Dated: October 25, 2001 . ~ "-, I _.'~ _ " ~I - , ~ -~ -" CERTIFICATE OF SERVICE 1, Barbara Brigham Denys, Esquire, hereby certify that a true and correct copy of the foregoing response to plaintiffs motion for status conference and for scheduling order was served via United States First Class Mail, postage prepaid, on October 25, 2001 on counsel listed below: Bridget E, Montgomery, Esquire Echert Seamans Cherin & Mellott, LLC 213 Market Street, Eighth Floor Harrisburg, P A 17101 George B. Faller, Jr., Esquire Ten East High Street Carlisle, PA 17013-3341 ~L~.~ t:..Barbara Brigham Denys, Esquire Attorney for Defendants Dated: October 25, 2001 ~;i;!""&1lJ~"""~'"'II\l~~Md:iffij<t",'ill:Iii[j,~;~~v.;alli"W"';"'_""j~ II I., ,LL,.",,,,_ ih,"'__ ",;_""__";'_",~",,,rl,,*~.ji;ili~i:i'" ""'1Iil!llli'illr~' ~~'.II''i'''i'''-~'~ ~. c'^,,"c. " '"' < ~-~ , , -"" 'Ji!liIill' ~, ~ ~~"""'-- ("'; c: <" -0 OS rnQ~ Zx ZC ~~; r:: l; >c'^ "Z' , c 5>~~ ~ c;- .........1 , o C) -l N ,,;:; :,-;!~~I ~'U :;~~7\ ~, ::;:.:-: 5J -< '-,.: ": ... -; -...~', .. . < HARSCO CORPORATION, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW SCOTT TECHNOLOGIES, INC" and TYCO INTERNATIONAL, LTD., Defendants NO. 01-3826 CIVIL TERM ORDER OF COURT AND NOW, this 2nd day of November, 2001, upon consideration of Plaintiffs Motion for Status Conference and for Scheduling Order, and of Defendants' Response to Plaintiff's Motion for Status Conference and for Scheduling Order, a status conference is scheduled in chambers of the undersigned judge for Monday, December 3, 2001, at 3:30 p.m. BY THE COURT, John G. Harkins, Jr" Esq. Suite 2800 2005 Market Street Philadelphia, PA 19103 Attorney for Defendant Scott Technologies, Inc. . ~~ ~'). n r,c f> Bridget E. Montgomery, Esq. 213 Market Street Eighth Floor Harrisburg, P A 17101 Attorney for Plaintiff '"1"J,{; E24~ -:;0' ;-_: ~ Si? ;~:~ ~i'-c,c-_ ~,,-_.' ):-"'r-> ~fi ~ J f"_.~ . ) -~) - ~> y! c; :::.~:.: :D -< 0:) .. George B. Faller, Jr., Esq. 10 East High Street Carlisle, PA 17013 Attorney for Defendants :rc - ~ NOV 1 5 2001 ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARSCO CORPORATION, Plaintiff, Civil Action No,: 01-3826 Civil Term v, SCOTT TECHNOLOGIES, INC. and TYCO INTERNATIONAL (US) INC. Defendants, STIPULATION TO DISCONTINUE AND DISMISS ACTION WITHOUT PREJUDICE AND NOW, Harsco Corporation ("Harsco") and Scott Technologies, Inc. ("Scott") and Tyco International (US) Inc. ("Tyco"), having resolved the above-captioned action by Agreement dated November -1-,2001, hereby stipulate to discontinue and dismiss the captioned action without prejudice. The parties therefore respectfully request that the Court enter this Stipulation upon the record and dismiss the captioned action without prejudice. {L0243952.1} . ,~. Eckert Seamans Cherin & Mellott, LLC By: I Bridget E. Attorney fo laintiff Harsco Corporation Harkins Cunningham B~oL--;-:) I~_ J G. Harkms, Jr., EsqUIre Attorney for Defendants: Scott Technology, Inc. and Tyco International (US) Inc. {L0243952.1} " " ~ I . ___ A', lit }I.l) 7) J 2 ~~~~"jillm1lw~~l\1\,i.!la,';;;'""Zb"""-"~~:"",'Xii';,;~':"';i;.ill,.;...i;t'~~lW""_~.tM~I,,,~itiI!i~tQil~~ - ~~-~,-~ ~~ > ~ r ~- () C- ~;: ~Ef;' :;e:-" Cljt;: -~:: ~~"'~, "'S:CJ ~() j;: C.) ~ ~ O:l :y, Q Cl ""Fj - ;;e Q "'C :r'...... 'I' 'I 'I~ :'F?,r':T .ow ""\1.. ---::'(.J :}~c .:r {)..a >() (srll i1 -.:: .1:;- 'O:; -,,.. -",,- ~) "'"" ," ~~~"' -~ ,-"" " . '_~,_'" CO' ,'''',,' ~_ , ","" "'''' ,,,,.,,~- '''_''''!,.~~,>''-;,~'''' ,..." "''' . _''''''~~''''''''''''' "'171"1',',"" ......(~, ,-~ ,Jr..,_,' 213 l\1arket Street Eighth Floor Harrisburg, PA 17101 Address correspondence to: Post Office Box 1248 Harrisburg, PA 17108-1248 Telephone: 717.237.6000 Facsimile: 717.237.6019 U'wU'.escm.com Bpston FiJft Lauderdale Haddonfield, NJ Harrisburg Philadelphia Pittsburgh M:ashingtotl, D. C. ECKERT SEAMANS ATTORNEYS AT LAW NOV 15 2001t ECKERT SEAMANS CHERIN & MELLOTT, LLC November 14, 2001 Office of the Prothonotary Court of Common Pleas Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Attention: "Becky" Re: Harsco Corporation v. Scott Technologies, Inc. and Tyco International(US) Inc, Civil Action No.: 01-3826 Dear Becky: Pursuant to my telephone conversation with your office of this afternoon, enclosed you will find three copies of the proposed Order to dismiss the above-captioned action without prejudice pursuant to a Stipulation we filed today, as well as stamped, addressed envelopes for all counsel ofrecord. Apparently, the extra copies of the Order and the envelopes were inadvertently omitted from the package we sent with our messenger today, which contained the Stipulation. We nnderstand the Stipulation has been docketed already. Thank you for your continued courtesy and assistance. Very truly yours, ~~~ Enclosures BEM:jah {L0244740.1} Bridget E. Montgomery 717.237.6054 bxm.@escm.com - L' ~=, "_ ( j I. ",L ' -<. ~,-,,-, NOV 1 5 2001~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARSCO CORPORATION, . Plaintiff, Civil Action No.: 01-3826 Civil Term v. , SCOTT TECHNOLOGIES, INC. and TYCO INTERNATIONAL (US) INC. (Oler, J.) Defendants. ORDER AND NOW, this _ day of November, 2001, the Court having been informed that the parties to the captioned action have. resolved it by Agreement, and upon consideration of the parties' executed Stipulation To C:scontinue and Dismiss Action Without Prejudice. IT IS HEREBY ORDERED THAT the action is Dismissed Without Prejudice. Oler, J. ,;: "~ - . ., ~- ."-.-,~,~ -I. ,.~ i~,,'.-" "--k;r~ ;.' NOV 15 2001y- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARSCO CORPORATION, Plaintiff, Civil Action No.: 01.3826 Civil Term v. SCOTT TECHNOLOGIES, INC. and TYCO INTERNATIONAL (US) INC. (Oler, J.) Defendants. ORDER AND NOW, this _ day of November, 2001, the Court having been informed that the parties. to the captioned action have resolved it by Agreement, and upon consideration of the parties' executed Stipulati!>n To Discontinue and Dismiss Action Without Prejudice, IT IS HEREBY ORDERED THAT the action is Dismissed Without Prejudice, Oler, J. ~. - -': _" I. "." " - - ~-'" m .;,.",.: NOV 1 5 2001 ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARSCO CORPORATION, Plaintiff, Civil Action No.: 01.3826 Civil Term v. SCOTT TECHNOLOGIES, INC. and TYCO INTERNATIONAL (US) INC. (Oler, J.) Defendants. ORDER AND NOW, this _ day of November, 2001, the Court having been informed that the parties to the captioned action have resolved it by Agreement, and upon consideration of the parties' executed Stipulation To Discontinue and Dismiss Action Without Prejudice, IT IS HEREBY ORDERED THAT the action is Dismissed Without Prejudice. Oler, J. =- ,,,,,-. -~I .0,' ~ . ~ ,_,'~" -~~'---';i NOV 1 5 2001 ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARSCO CORPORATION, . . Plaintiff, Civil Action No.: 01-3826 Civil Term v. SCOTT TECHNOLOGIES, INC. and TYCO INTERNATIONAL (US) INC. (Oler, J.) Defendants. ORDER AND NOW, this _ day of November, 2001, the Court having been informed that the parties to the captioned acdon hav.:. resolved it by Agreement, and upon consideration of the parties' executed Stipalat::;:; To I:::continue and Dismiss Action Witholit Pi,-]:.ciicc, IT IS HEREBY ORDERED THAT theac,;on is Dismissed Without Prejudice. Oler, J. {,~~J'~'~-~'~ :~-~:~~ ",1"'1'11'-" i.~! :~_~ ~ r c-:'~; i :N. ~ "'_'JI' ,r" :;;.' ;1, ~a e,':), ..... ^ ;~,i,~ ~f ,I" !j(~~'-" i ,<:;~~, n.-~~"'fr;-,u c"'~" , :~J ,. IVlI Z I_i -<:1 " ;i '. I::q .. '. r " .' " :; ~I ~ <.C: ,- I I ~ , ,~ " u (. 1- j: " .,c 1f;J < ., . i_~ c ul I~ " ~ .~ I.ll P S .-" .:::"" . .~ ~ 5 ~U P::olJg . ~ 00 O.S N l=l~ ll..l .:::: fa .t:: .Q~~ '" o --< ~'" ,,--< 1:l-< Vl"'- ~ - " " ... .- ~.;;; ".=:-< :;;: " "t:l It) " 0:= ~~ .~, ;..i';o\l:l::.?.;",.q.",,<io+,'i< ;'~)t.-.".~,,:"~~ ,-.-. "_.-' ill ~';:,i t::,{tt ~::;.:;i .',- ~ ~" , ''''::' ; .', ,t,f;, ',it ~~ i ......-~--.; CO;, 'l~~:".~ "" ~ ~ ~ ::;~ ::;~:;:Il ~ 0': l~-~\';" "''',::i::;~ u(,~' ~\~~:,,', Lh ',; ~ ~ a .- - &lU ~n ~ '""" ~~~ t'",p., <'!) .c: -6 ......-l So>ooO o..c: ...;-~ 0/) U i1J .-< <:i~;g-< ~E~~ gj ~ ~ >::!Vl1;:l2 Q) ~ ~ _:1:1 bO .... ~ .- :g~tf)l-! ;..... U E;:j o:l'-"NiJ:: ',' 1:21 .:'~ ". -.~ ,,> ~ 1::;1 , , ".) ,. ~I - ,.~ I~I " ". " ~:- " ;.;; ~ > -<' c::'; ~i , .;:: '" . ~ " [:J! t ," ~ C'.. ~ &]1 '. ,~ '-' ,~, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARSCO CORPORATION, Plaintiff, Civil Action No.: 01-3826 Civil Term v. SCOTT TECHNOLOGIES, INC. and TYCO INTERNATIONAL (US) INC. (Oler, J.) Defendants. ORDER AND NOW, this ~ day of November, 2001, the Court having been informed that the parties to the captioned action have resolved it by Agreement, and upon consideration of the parties' executed Stipulation To Discontinue and Dismiss Action Without Prejudice, IT IS HEREBY ORDERED THAT the action is Dismissed Without Prejudice. Oler, J. ~1:lf\ (") 0 0 C "TJ ~ ;g: Z ---I ""OeD 0 T q;rT~ <<::: ~171 .c- .T: z~ "'1nl 0' ""? ~~: ?3~: ~o -0 J>c 3 C)_:....! Z J 2:~~ :>0 r:'i' 0' c: ::;~ Z .{)'1 :;,! :D --J -< mn - "'" ., , .~ .' "\i,' HARSCO CORPORATION, Plaintiff v, IN THE COURT OF CO.MM:ON PLEAS OF CUMBERLAND COUNTY, PENNSYL V ANlA CIVIL ACTION - LAW SCOTT TECHNOLOGIES, INC., and TYCO INTERNATIONAL, LTD" Defendants NO. 01-3826 CIVIL TERM ORDER OF COURT AND NOW, this 16th day of November, 2001, upon consideration of the Stipulation To Discontinue and Dismiss Action without Prejudice recently filed in the above matter, the hearing previously scheduled in this matter for November 28, 2001, and November 29, 2001, and the status conference previously scheduled for December 3, 2001, are cancelled. BY THE COURT, Bridget E. Montgomery, Esq. 213 Market Street Eighth Floor Harrisburg, P A 17101 ~ ,..4..1 Attorney for Plaintiff I ~ John G. Harkins, Jr., Esq. Suite 2800 2005 Market Street Philadelphia, PA 19103 Attorney for Defendant Scott Technologies, Inc. /1_ J-o-o/ L). , VfN'i~1)'8NN::!rI J "'0"1' ~'" . , '::e" I\l.I -or ,,_ v' Ui\:frk'-IQ''''n'' '._,_,,7\' Iv 8S:F; Hd 61 ^ON lO IlJ\J'1.~' ,,' 110'/ l:/\!(.)[--! !'...:~ ':,,! -' --'J..!' '~.." 30L-I~Jc.):I,;J~;"C,j :1. :;'.,) ,~ ,., ::iC:,: , George B. Faller, Jr., Esq. 10 East High Street Carlisle, PA 17013 Attorney for Defendants :rc