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Home My WebLink About99-07616s? I a y^ Vr •'rt lent} t? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SUMMIT MACHINERY SYSTEMS INC., : No. Qn 7 - Ito [(? 1. t u t l ?' L Plaintiff V. POLYMER DYNAMICS, INC., : CIVIL ACTION - LAW Defendant NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator 4u' Floor, Cumberland County Courthouse I Courthouse Square Carlisle, PA 17013-3387 Telephone No. (717) 240-6200 ;sun a AVISO USTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea defenderse de las quejas expuestas en las paginas siguientes, debe tomar acci6n dentro de veinte (20) dias a partir de la fecha en que recibi6 la demanda y el aviso. Usted debe presentar comparecencia escrita en persona o por abogado y presentar en la Corte por escrito sus defensas o sus objeciones a [as demandas en su contra. Se le avisa que si no se defiende, el caso puede proceder sin usted y la Corte puede decidir en su contra sin mas aviso o notificaci6n por cualquier dinero reclamado en la demanda o por cualquier otra queja o compensaci6n reclamados por el Demandante. USTED PUEDE PERDER DINERO, 0 PROPIEDADES U OSTROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI USTED NO TIENE 0 NO CONOCE UN ABOGADO, VAYA 0 LLAME A LA OFICINA EN LA DIRECCION ESCRITA ABAJO PARA AVERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. Court Administrator 4ei Floor, Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013-3387 Telefono No. (717) 240-6200 PEN PLEA NIA CUMBERLAND COUNTY, IN'I'HE COURT OF COMMON SUMMIT MACHINERY SYSTEMS INC., Plaintiff No. V. POLYMER DYNAMICS, INC., Defendant CIVIL ACTION - LAW COMPLAINT Plaintiff, Summit Machinery Systems, Inc., (hereinafter referred to as "Summit") by its attorneys, Countess Gilbert Andrews, alleges for its complaint as follows: I, Summit Machinery Systems, Inc., Plaintiff, is a Pennsylvania corporation located at the Westport Business Park, 4600 Westport Drive, Suite I08, Mechanicsburg, Pennsylvania 17055. 2. On information and belief, Defendant, Polymer Dynamics, Inc., (hereinafter referred to as "Polymer") is a Pennsylvania corporation located at 2200 South le Street, Allentown, Pennsylvania 18103. 3. Summit is in the business of selling machinery systems for industrial and commercial use. q On or about December 10, 1997, Summit and polymer entered into a contract whereby Summit would provide to polymer an Ingersoll FDM machine, with various accessories , for a total price of One Million Two Hundred Twelve Thousand Six Hundred Sixty and options ,212,660.00) Dollars pursuant to Summit Sales Order No. TNG-23401. A true and and 00/100 ($1 correct copy of the Sales Order is attached hereto as Exhibit "A" and incorporated by reference herein. 5. On or about December 10, 1997, Summit and Polymer entered into a second contract whereby Summit world provide to Polymer ten (10) Okada machines, with various accessories and options, for a total price of Five Million Three Hundred Seventy Thousand and 00/100 ($5,370,000.00) Dollars pursuant to Sununit Sales Order No. MC-6087. A true and correct copy of the Sales Order is attached hereto as Exhibit °B" and incorporated by reference herein. 6. The contracts between Summit and Polymer provide that, "Accepted orders are not subject to cancellation unless agreed to by Summit Machinery Systems, Inc. Cancellation terms and conditions shall include, but not be limited to payment of all costs and expenses plus a maximum of fifteen (15%) percent cancellation charge." 7. Defendant Polymer failed to purchase the machines pursuant to Sales Orders ING-23401 and MC-6087 and thereby cancelled its orders. 8. Plaintiff is entitled to cancellation charge as per contract up to One Hundred Eighty One Thousand Eight Hundred Ninety Nine 00/100 ($181,899.00) Dollars for Sales Order ING-23401 and Eight Hundred Five Thousand Five Hundred 00/100 ($805,500.00) Dollars for Sales Order MC-6087, for a total of Nine Flundred Eighty Seven Thousand Three Hundred Ninety Nine 00/100 ($987,399.00) Dollars 9. Plaintifl'Sununit suffered danMuMS in the nature ofcosts and expenses pursuant to negotiating and lidfilling its obligations pursuant to the Sales Orders. 2 COUN'r 1- BREACH OF CONTRACT 10. Summit repeats and incorporates each of the preceding averments as if fully set forth herein. 11. Summit and Polymer entered into contracts whereby Summit would provide unto Polymer certain machines in exchange for monetary consideration. 12. Summit fully performed all of its obligations under its contracts with Polymer for the provision of the aforementioned goods. 13. Polymer has failed and refused to proceed with its obligations pursuant to said contracts. 14. Summit is entitled to payment of all costs and expenses, plus a maximum of fifteen (15%) percent cancellation charge under each contract. 15. All conditions precedent to recovery by Summit for breach of contract by Polymer have been performed or have occurred. 16. By virtue of the foregoing, Polymer is liable to Summit for breach ofcontract, and Summit is entitled to recover a cancellation charges tip to fifteen (15%) percent, and all costs and expenses, and incidental damages in an amount yet to be determined. WHEREFORE, Summit respectfully requests that this Honorable Court enter judgment in its favor and against Polymer awarding compensatory damages; pre-judgment interest; post- judgment interest; all costs and expenses incurred by Sununit, and such other and further relief as may bejust and appropriate; all in an amount in excess of the minimum mandatory arbitration limits. C011N'r 11 - UNJUST ENRICHMENT 17. Summit repeats and incorporates each of the preceding averments as if filly set forth herein. 18. By virtue of the foregoing, Summit has conferred a benefit on Polymer, said benefit being the sale of certain machines pursuant to the Sales Orders. 19. The fair and reasonable value of the benefits conferred by the services is $987,399.00. 20. It would be unjust and unequitable for Polymer to retain the benefits so conferred without paying full, fair and reasonable value therefore plus incidental damages, expenses, and costs. 21. For the foregoing reasons, Polymer is liable to Summit for unjust enrichment. WHEREFORE, Summit respectfully requests that this Honorable Court enter judgment in its favor and against Polymer awarding restitutionary damages; pre judgment interest; post-judgment interest; all costs and expenses incurred by Summit; and awarding such other and further relief as may be just and appropriate; all in an amount in excess of the minimum mandatory arbitration limits. COUNT III - PROMISSORY ESTOPPEL 22. Summit repeats and incorporates each of the preceding averments as if fully set forth herein. 23. Polymer promised to pay for the goods sold by Summit. 24. in so doing, Polymer intended that Summit rely on Polymer's promise. 25. Summit did in tact reasonably rely on Polymer's promise by providing the goods requested by Polymer. i 26. As a result, Summit has suftcred a detriment in the amount of $987,399.00, plus incidental damages, expenses, and costs. WHEREFORE, Summit respectfully requests that this Honorable Court enterjudgment in its favor and against Polymer awarding reliance damages; pre judgment interest; post- judgment interest; other costs and expenses incurred by Summit; and such other and further relief as may be just and appropriate; all in an amount in excess of the minimum mandatory arbitration limits. Respectfully submitted, Countess Gilbert Andrews ay l/ Je L. mteyer 11 tip eme Court No. 80210 29 North Duke Street York, PA 17401 (717) 848-4900 Attorneys for Plaintiff Dated: December 4-, 1999 5 VERIFICATION I, the undersigned, DAVID R. GOSS, President of Summit Machinery Systems, Inc., hereby affirm that the facts contained in the foregoing Complaint are true and correct to the best of my knowledge, information, and belief. This statement is made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Summit Machinery Systems, Inc. By: Z-L e. David R. Goss, President Dated: December 8 . 1999 Summit Machine Westport Business Park 4600 Westport Drive • Suite 108 Mechanicsburg, PA 17055 SOLDTO: POLYMER DYNAMICS, INC. P.O.BOX 4400 Allentown, PA 18105-4400 SHIP TO: POLYMER DYNAMICS, INC. 2200 S. 12th Street Allentown, PA CONTACT: Brad Jacoby PHONE: 610-798-2200 Systems, Inc. • 717/ 766-5546 fax 717 / 766-6054 Page 1 of 2 ` MS NDING-23401 DATE:12/1D/97 SALESMAN_j .MCCloSkev CUSTOMER P.O. N: VOLTAGE: TERMS: See Page 2 SHIP VIA: Best Way RIGGING F.O.B.: Port of Baltimore, MD SMSOUOTEO:Ref proposal # 97-SMS-5522 FAX: 61 0-798-2222 1 --- 1 ---- Ingersoll 1300 CNC EDM System ------------------------------------------------------------------ $540,700. - ---------- $540-700. - ------------- __1 Optional -- PF1 - - 312 - - Pap er Filter System ------------- $ 26500_ $ 26,500_ 3_ _ 1 Optional System 3R Macro Chuck ------------------------------------------- $ 2,500- $ 2,500_ 1 4_ __1___ Optional C02 Fire Extinguisher $ 9,000_ $ 9,000_ 5 - - 1 -- --- Ingersoll 1 300 CNC EDM System - ---------------------------------------------------------------- $_54.0_ ,7- 0.0_. ------- $_ 5 4 0 ,70 0. - 6 - - 1 ----- Optional FP200 Power Sup - ---------------- --- --- --P Supply -------- ---------------- - --- 000- - - - - - - ------ 000 ------------- 7 - - - 1 stem_................ Optional - PF13 -2 Paper 12 _ i -l-t-e--r--- Sy_ . $ 26,_500,_ $__26,500 _ 8_ Optional_System_3R-Macro.Chuck------------------------ $_ 2,509. 9 1 Optional_CO2__Fire ExtLnguisher______ _ ______ 9,000__ $ 9,000: 10 2 System 3R 628.31-S Starter Kit/EDM____ - $ 2,900: $ 5,800_ Macro Drawbars/EDM ________________ - wb s/ ro $ 575. ---------- ___ 1 , 150__ $___ Macro Adaptors/EDM-------------- - $ 750__ $ 7,500c 13 8 Systen 3R 751 01..C uc)cs/EDM--------------------------- $---1.795_- $ 1 Q, 36P _ 14 2 System 3R 461.E Electrode- Holders/EDM------------------ - $ 225_ 450 _ -------------------------------------- --------------'------------------------ ------------- --- -- ----- ------------- ------------- IF?c?,_C?._2?,y ?_Cr cr ----------- ------------- ------------- --- ------- 1_?F_- Fd_fi_(?O _w =1cy?tc4a------- ----------------- ----------------------------------------------- ------------- -------------- SIDE. THIS ORDER SHALL NOT BE VALID AND .ND CONDITIONS ON THE REVERSE SUBTOTAL DING UNTIL ACCEPTED BY SELLER. i 1.212,660 _ %SALES TAX BUYER: 0 ER: SUB TOTAL 1 21 2 660 Summit Ma hi S ste I , , c nery y nc. ms, 10% DEPOSIT B 121 266 Y: 1,091,394 TOTAL Summit Machinery S Westport Business Park 4600 Westport Drive • Suite 108 Mechanicsburg, PA 17055 SOLD TO: POLYMER DYNAMICS, INC. P.O.BOX 4400 Allentown, PA 18105-4400 SHIP TO: POLYMER DYNAMICS, INC. 2200 S. 12th Street ms, Inc. • 717 / 766-5546 fax 717 / 766-6054 Page 2 of 2 W-11 14 =g-jg] if !] g sND.TN(;-77dn1 DATE: 12/10/97 SALESMAN J.MCCloskey CUSTOMER P.O. #: VOLTAGE: TERMS: See Below SHIPVIA: Best Way RIGGING Allentown, PA F.O.B.: Port of Baltimore, MD CONTACT: Brad Jacoby SMSOUOTEIRef proposal N 97-SMS-5522 PHONE: 610-798-2200 FAX: 610-798-2222 --- --- --- --- --- --- --- --- --- --- --- --- --- --- --- --- ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ DELIVERY _ Shipment_ from factory McgIy ------------------------------------------------------------------- INSTALLATION June 1998 --------------------T--------------------------------------------- ------------------------------------------------------------------- TERMS - (1) 108 downpayment with P.O. ? ------------------------------------------------------------------- (2) Balance Net 30 days from completio ------------------------------°----------------------------------- ------------------------------------------------------------------- ------------------------------------------------------------------ ------------------------------------------------------------------- ------------------------------------------------------------------- ------------------------------------------------------------------- ------------------------------------------------------------------- ------------------------------------------------------------------- ------------------------------------------------------------------- ------------------------------------------------------------------- ----------------------------------------------------------------- ------------------------------------------------------------------- --------- --------------------------------------------------------- ------------------------------------------------------------------- ------------- ------------- ------------- ------------- n of inst ------------- ------------- ------------- ------------- ------------- ------------- ------------- ------------- ------------- -------------- ------------- ------------- ------------- ------------- ------------- ------------- ------------- ------------- llation ------------- ------------- ------------- ------------- ------------- ------------- ------------- -------------- ------------- -------------- ------------- ------------- -------------- -------------- THE ABOVE ORDER IS SUBJECT TO THE TERMS AND CONDITIONS ON THE REVERSE SIDE. THIS ORDER SHALL NOT BE VALID AND BINDING UNTIL ACCEPTED BY SELLER SUB TOTAL . % SALES TAX BUYER: SELLER: SUB TOTAL Summit Machinery Systems, Inc. DEPOSIT B BY ? TOTAL Rnmmit - Whit. e"?.r?...,,... V„11-. Q..I__ 1!_1. Conditions of Sale PRICES AND TERMS: are suolect to cnange .wihout notice until accepted ,if prces and terms and acknowledged by Summit Machinery Systems, Inc. ci p:i:es do not include sales, use. excise or similar taxes. Any sucn tax trial is required w ce collected or paid by Surnm:t Macmnery Systems. Inc., is ccns!dereC :ne Buyer's resoorsimlay and as sucn may ce adden to :ca ;nvoce. or .nvc,P:7later. as a seaarate charge to ce paid by rite Euyer, unless :he E•.ryor has furri5ned Sumn:d M3elvnery Systems. Inc.. with an applicable exemctrn cernicate. Standard terms of payment are net upon receipt. All sales are ` SuDject to crecit appfdyal. In the event the Buyer enters into a security agreement, lease or otner form of payment schedule with Summit Machinery Systems. Inc., there may pe addillenal terms and ccnoiuons supplemental to these -Conditions of Sale". A jar .ce charge of one and one•nad 0 percent per monin •.v,il oe payable on any balance past due and unpaid. DELIVERY: at Prices are F.O.B. factory unless otherwise noted on the proposal. Claims against the carrier for damage caused during shipment must . be made by the Buyer. of Scheduled delivery is approximate and is subjec: to cnange. OSHA AND ELECTRICAL CODES: ' of The egwoment covered odes net necessarily comely erne an•; or stanaaros unless speeficaily quoted, orderea and 50 I=Octe^ of When compliance veto CSHA is provided, it is Dowd Pr our understanding ai the construction stdnaards in effect at ire tuna acceptance only. cl Complete comD!:once •.vitn OSHA, and part::uiC.r!w regarC.r r•, c operation guarding. is is resocins-t:My of the a,ryer 3rd : ,-• 3' hat of Summit t.lacmnery Systems. Inc.. a the cuiicer +r equipment. o) Wtrng and protective conduit from the maen,re to a ccrrr^I ?a.^`-'• mounted oil me machine is not included in this prec05er SHIPMENT AND RISK OF LOSS: 3) Risk and joss and title snail =ass I•o ;he Buyer aper, carrier by Summit Macn,nM Systems, Inc.. consignee n Buyer o: Buyer's designated consignee. Risk of loss passes is Buyer whether or not sn!pment is made prepaid. b) Buyer's or designated consignee's acceptance of delivery from the carrier shall constitute a waiver of any claim for de13y or damages the equipment. WARRANTY; LIMIT OF LIABILITY: a) Summit Machinery Systems. Inc., warrants the products listed In ir. proposal to be free from defects in materials and workmansnic under normal and proper usage when owned by the crigirat purchaser. b) Buyer's sole remedy under this warranty and any other claim including without limitation negligence, with respect to products covered by this proposal (and their design. manufacture, sale. delivery, resale, installation, inspection, repair, operation. and use-: shall ti limited to repair or replacement of parts determined to oe detective by Summit Machinery Systems. Inc., during the warrant r period as specified in this proposal. c) This warranty is in lieu of any other warranty, whether express :r implied, including any warranty of merchantability or fitness':: purpose other than a warranty of title. e) Summit Machinery Systems, Inc., SHALL NOT BE RESFONSiE_iE under any warramy obligations or otherwise, FOR ANY INDIIZE•_'. INCIDENTAL CP. CONSEQUENTIAL DAMAGES of this Sup-n connection hemwith, such as loss of production, loss of anticicaieu savings or anticipated profits, or damages of any third parry - asserted against the Buyer. Summit Machinery Systems. Inc.. r in no event and for no cause whatsoever, including any breach or default by Summit Machinery Systems. Inc.. have any monetary liability to the Buyer in excess of the contract price C1 the per:irer+ items Of equipment. INVOICING: 3) Invoices to Buyer will be issued at time of shipment or 35 soon as practicable thereafter, except as ctnerwise provided in the oroposal or acknowledged order. ej Partial invoices may be issued for partial shipments. ACCEPTANCE OF ORDER: a) Buyer's offer to purchase shall not constitute an order until accepted by summit Machinery Systems. Inc., INSTALLATION AND ACCEPTANCE OF GOODS: a) Installation of machinery and equipment will be at Buyer's cost and just be performed strictly in accordance with manuals and instruction sheets furnished. Except as othenvisa expressly provided in this proposal, Summit Machinery Systems. Inc., will not be obligated to furnish personnel or other on-site assistance for installation. of Buyer's acceptance of machinery and equipment snail be deemed to occur no later than the initial successful run of a standard test part, or use of the equipment for production purposes by the Buyer shall be conclusive evidence of acceptance. Buyer shall provide material and tooling at its expense to run a test part. CANCELLATION/RETURNED GOODS POLICY: ai Accepted orders are not suoject to cancellaticn -unless agreed to Dy Summit f,lachlnefy Systems. Inc. Cancella icn terms and conditions snail include, but not or, limned :c payment of all costs and expenses "I'Js 3 Maximum of fll:_en if 5",) percent caner:lai.dn ci:a:ge. Nd goods will be 3ccep:ed fcr retu'? -witho u cr r,virmen a p^enza`J ti•,,n Ircm Summit Liacmrery cyst:r cn Damaged or used material. ci All goods authorized for return are :o Oe snip'.cac prepaiC to Sum":-t rAacnmery Systenis. Ir:. Gated sn:pmen:s vial o•: refused unless v.!:cen authorization has been g::dn prier a sniem.=ri. TITLE AND LIEN RIGHTS: i Title to the equipment shall rema:n ,:nth Summit \lacmnery Systems. Inc., until the purchase price, including any taxes or late charges are paid in full. cl Buyer agrees to permit Summit Machinery Systems, Inc.. at their option, to file security interest, in compliance with Uniform Commer- ,tai Gale ftlcc•f.i :arrn} an ire ? crasuu " Ar:a,t „M.1 payment :n !all has been received by Summit MacninerJ ;va+ems. Inc. c) The equipment snail remain personal property regaraless of now affixed to any realty or structure. SAFETY: - -. a; Summit M3cnmery Systems. Inc.. assumes ro :espcns,oJ^; . .. damages. 'mutes, cr 3cc!dens caused oy w.prooer m rcr-'a•. this or any related edulp-em. O) Suyer unit .`.did ::arr-:ess. in?e.^.ndy an o ee'end Summit trtaa".. ; stems. Inc.. aya,nst an'J and all cla .ms. s'Jns, losses. aD5 .5 Ti expenses arising dn; of injury. death or damages to cerson cr Property caused dr aj'e gechy caused airecay oy Operation cf equipment described herein. GOVERNING LAW: a) This proposal and any order placed pursuant herelo shall be governed by and construed in accordance with the laws of the State of CLERICAL ERRORS: ' 3) Clerical errors are sub:ec,, to correction. Errors noted by Buyer -,.c' oe Drought to the attention of summit Machinery Systems. Inc., a. soon as noted or suspected. •. 'j..rh41:. i I i Y Summit Machinery Systems, Inc. Westport Business Park 4600 Westport Drive • Suite 108 Mechanicsburg, PA 17055 SOLO TO: POLYMER DYNAMICS INC. P.O.BOX 4400 Allentown, PA 18105-4400 SHIP TO: POLYMER DYNAMICS INC 2200 S. 12th Street Allentown, PA CONTACT: Brad Jacoby PHONE: 610-798-2200 • 717 / 766-5546 0 fax 717 / 766-6054 0 ?-U m NG•MC-6087 DATE] 2/10/97 SALESMAN J. McCloskey CUSTOMER P.O. N: VOLTAGE: TERMS: SP?ges 7 R I SHIP VIA: riesu way RIGGING F.O.B.: Polymer Dynamics Plant SMS QUOTE N: FAX: 610-798-2222 1_ 10 Okada MM_1814_ZS--UH--5-Axi-s Mill - - ------------------------------ -------- $490,000. - ------------ $4,900,0 - -2_ _10 40-Position Automatic Tool_Changer $ 34,000_ - ----------- - $ 340,00 ------- 3 _ 10 Automatic Tool Length measurement --- $ 4,000. ------------- $ 40,00 ------ - 4 --- --- --- --- --- --- --- --- --- - --- - --- - - - --- - --- - -- - 10 ------ ------ ------ ------ ------ ------ ------ ------ ----- ----- ----- ----- ----- ----- ----- Probe System --------- ---------------------------------------------------------- ----------------------------------------------------------- ----------------------------------------------------------- ----------------------------------------------------------- ----------------------------------------------------------- ----------------------------------------------------------- ----------------------------------------------------------- ----------------------------------------------------------- ----------------------------------------------------------- ----------------------------------------------------------- ----------------------------------------------------------- ----------------------------------------------------------- ------------------------------------------------------------ ------------------ ----------------------------------------- ------------------------------------------------------------ --------- --------- -------- -----•-- -------- -------- -------- -------- -------- -------- -------- -------- -------- ------- ------- ------- $ 9,000. ------------- ------------- ------------- ------------- ------------ -------------- ------------- ------------- ------------- ------------- ------------- ------------- ------------- ------------- - ------------- - ------------- - ------------ $ 90,00 ------------- ------------- ------------- ------------- ------------- ------------- ------------ ------------- ------------- ------------- ------------- ------------- ------------- ------------ ------------ ------------- THE ABOVE ORDER IS SUBJECT TO THE TERMS AND CONDITIONS ON THE REVERSE SIDE. THIS ORDER SHALL NOT BE VALID AND BINDING UNTIL ACCEPTED BY SELLER. BUYER: SELLER: Summit Machinery Systems, Inc. BY: BY: SUBTOTAL $5,370,000 %SALES TAX -0- SUB TOTAL 5,370,000 DEPOSIT - - ,. TOTAL CI Immit -Whit. !"n r,.....n• V'If...., n.i.. I--. y• ? may."-1'• ..%: .. Summit Machinery Systems, inc. Westport Business Park 4600 Westport Drive • Suite 108 Mechanicsburg, PA 17055 SOLD TO: POLYMER DYNAMICS, -INC. P.O.BOX 4400 Allentown, PA 18105-4400 SHIP TO: POLYMER DYNAMICS, INC. 2200 S. 12th Street Allentown, PA CONTACT: Brad Jacoby PHONE. fit n-7QR_22nn • 717/766-5546 fax 717/766-6054 Pa e 2 of 3 ® ? No. Z DATE:12/10/97 SALESMANJ. McCloskey CUSTOMER P.O. t: VOLTAGE: TERMS; See pages 2 & 3 SHIP VIA: Best Way RIGGING F.O.B.: Polymer Dynamics Plant SMS QUOTE 1: FAX: 61 0-798-2222 . DELIVERY- __f 2?_ Machines_ leaying_dock_from_Japa_ _each_mon h ___________ -------------- beginning_,7une_ 199@----------------------- ------------- ------------ (2) Machines shipping_ to_ Poly_mer fo_ installa ion ------ each month beginning guljy_1998 ---------------- - ---------------- ------------- ------------- --- - INSTALLATION _ (2) Okada Mechanical Engineers ______ --- ------ )_ Okada _Electrical Engineer ___ (1-- ------------------------ _____________ ------------- --------------------(--1_)_Okada-Trainer--------------- ---- ------------- ------------- TERMS - (1) $500,000. cash downpayment with P. -------------------- ------------------- -------------- ------------- (2) Letter of Irrevocable Credit issue --------------------------- on or ab ut - --- --- ------ ------ --------------- ------------ January Sr_ 7998 for $2,198000:_ applie _to--f i-nal (4)_________ machines delivered -------------------------------- ------------- ___ --- --- ------ ---- (3) $500,000. down a ment returned upo ----------------------------------------------------------- n issue of Letter of Credit ----------------------------------------------- -------- -------------- ____ -------- --- ------ ------------ S9?_Payment_due at 1 _on__ _& ---PP_ g _____________ --- --- --- --- --- --- ------ ------ ------- ------ ------ I ------ ---------- -- 2/3 on completion of installation --------------------- ---------------------- ---------------------- ------------------------------------------------------------------- ----------------------------------------- ------------------------- --------------------------------------------------------------•--- --------------------•--------------------------------------------- -------------- -------------- -------------- ------------- ------------- -------------- -------------- --------------- ------------- ------------ THE ABOVE ORDER IS SUBJECT TO THE TERMS AND CONDITIONS ON THE REVERSE SUB TOTAL SIDE. THIS ORDER SHALL NOT BE VALID AND BINDING UNTIL ACCEPTED BY SELLER. % SALES TAX BUYER: SELLER: SUB TOTAL Summit Machinery Systems, Inc. DEPOSIT BY: w . BY(1 A TOTAL Summit - White RAIP.C - Pink Customer -Yellow . Summit Machin Systems, Inc. Westport Business Park 4600 Westport Drive • Suite 108 Mechanicsburg, PA 17055 SOLD TO: POLYMER DYNAMICS, INC. P.O. BOX 4400 Allentown, PA 18105-4400 SHIP TO: POLYMER DYNAMICS, INC. 2200 S. 12th Street Allentown, PA CONTACT: Brad Jacoby PHONE: 610-798-2200 • 717/766-5546 lax 717/766-6054 Pa e 3 of 3 DATER /10/97 SALESMAN J. McCloskey CUSTOMER P.O. III: VOLTAGE: TERMS: See pages 2 & 3 SHIPVIA: Best Way RIGGING F.O.B.: Polymer Dynamics Plant SMS QUOTE/: PAX: 61 0-798-2222 ___ _____ PAYMENT SCHEDULE - - --------------------- - (a) 1st, 2nd, 3rd, 4th, 5th & 6th machine - -- -- -------------------------------------------- --- ______ -------------- ___$178?_999,__due_ within__5_ cj?y6__4_F@S ___ ______ _____ documents from Japam per machine ------------------------------------- --------- ,__ ______ _ _ - $358,001 due upon completion of - ----------------358, --------------------------------- machine -- --------------- -------------------------------------- (b)7th? SthL9th & 10th machine paid_on_ Letter stallatio per ---- ------------- -------------+------------- ----- WARRANTY-_ - (-1)--Okada ----------------------------- toprovide(1)year parts & labor arantee - ------- ------ on each machine commencing on date f complet on of -- - - --------------- - - -- ------- ------------- installation --------------------------------------- ------------- ------------- ------ ___ (2) Okada to provide (2) year warra t -- on Fan c Control ------- --------- ------------ - ___ CANCELLATION_PENALTY____Okada_will_b@_??_i,?3__ --------------------------------- a!1X-m4c4ine_658_ com ------------------------------------------------------------- f__the__eal d &_cance led. ------------ r----------- ------------- r ------------- ------------- -------- THE ABOVE ORDER IS SUBJECT TO THE TERMS AND CONDITIONS ON THE REVERSE SIDE. THIS ORDEP SHALL NOT BE VALID AND BINDING UNTIL ACCEPTED BY SELLER. BUYER: SELLER: Summit Machinery Systems, Inc. BY: BY W 0.4 %M Summit - White Customer-Yellow SUB TOTAL SALES TAX SUB TOTAL DEPOSIT ?t l TOTAL SS Sales - Pink y _ 1 I a. ?. X4.4- .1ft+ NPt Conditions of Sale r i •. PRICES AND TERMS: 31 Prices and terms are subject to change without notice until accepted and acknowledged by Summit Machinery Systems, Inc. pi prices do not include sales, use. excise or similar taxes. Any such tax :hat is required to be collected or pad by Summit Machinery Systems. Inc., is considered the Buyer's responsibility and as such me. be audec to the invoice. or mvo,cea later, as a separate charge to cc paid by me Buyer. amess the Buyer has furnished Summit Mrcninery Systems. Inc.. aith an applicable exemption certificate. P) Standard terms of payment are net upon receipt. All sales are subject to credit approval. In the event me Buyer enters into a security agreement, lease or other form of payment schedule with Summit Macninery Systems. Inc.. there may be additional terms and conditions supplemental to these 'Conditions of Sale'. A ;ethos charge of one and ine•hall (1 1/2%) percent per month vn9 oe payable on any balance past due and unpaid. DELIVERY: a) Prices are F.O.B. factory unless otherwise noted on the proposal. Claims against the carrier for damage caused during shipment must be made by the Buyer. OI Scheduled delivery is approximate and is subject to change. INVOICING: 31 Invoices to Buyer will be issued at time of shipment or as soon as practicable thereafter, except as otherwise provided in the proposal or acknowledged order. a) Partial invoices may be issued for partial shipments. • ACCEPTANCE OF ORDER: a) Buyer's offer to purchase shall not constitute an order until accepted by Summit Machinery Systems, Inc.. INSTALLATION AND ACCEPTANCE OF GOODS: a) Installation of machinery and equipment will be at Buyer's cost and just be performed strictly in accordance with manuals and instruction sheets furnished. Except as otherwise expressly provided in this proposal. Summit Machinery Systems, Inc.. will not be obligated to furnish personnel or other on-site assistance for installation. of Buyer's acceptance of machinery and equipment shall be deemed to occur no later than the initial successful run of a standard test part, or use of the equipment for production purposes by the Buyer shall be conclusive evidence of acceptance. Buyer shall provide material and tooling at its expense to run a test part. CANCELLATION/RETURNED GOODS POLICY: a) Accepted orders are not subject to cancellation unless agreed to by Summit Machinery Sys:ams, Inc. Cancellation terms and conditions snail include, but not be limited :o payment of all costs and expenses plus a maximum of fifteen (151") percent cancellation charge. ci No quads will be accepted !cr return vnthcut onor •wrigen auincriza• lion from Summit Machinery Systems, Inc. Crea:t'+nll not oe allowec on damaged or used material. c) All goods authorized for return are to ce snipped prepaid to Summa Macnmery Systems, Inc. Collect shipments mil be refused unless .ncen authorization has ceen given prior to shipment. TITLE AND LIEN RIGHTS: of Title to the equipment shall remain with Summit Macninery Systems. Inc.. until the purchase price, including any taxes cr late charges are paid in full. c) Buyer agrees to permit Summit Machinery Systems, Inc., at their option, to file security interest, in compliance wrilh Uniform Commer- cial Code (UCC•M form) on tha _urchased equipment until payment in lull has been :dcar:od :y SurCrL Systems, .r' •.) The equipment shall remain personal property regardless of now a"ixad:o any really or structure. OSHA AND ELECTRICAL CODES: 3i The equipment covered does not necessarily bomply with any Cabe% or standards inless specifically quoted. ordered and so accep:eo. bl 'Nhen ccmoi:ance with OSHA is provided, ::.s based or, our understanding of the construction standards m effect at the tihfe acceoance only. c. Comcle:e :an•ohanca vntn OSHA, and pan:zu!arly regardir3:c -.• 3peraticn ;carding, is the resconsibiiitr :f :re Buyer and !,sir not of Summit t.tac:tinery Systems. Inc.. er :he buuieer :I Ire - equipmerr. :i Wiring ana crctective conduit from the maMra :c.3 control Fact' mounted Cif the macnln is not included in Ims proposal. SHIPMENT AND RISK OF LOSS: a) Risk and loss and title shall bass 0 the Buver uczr. delivery of carrier by Summa Macnineri Systems. Inc.. consigned to Buyer ar Buyer's designated consignee. Risk cf toss passes !c Buyer whether or not shipment is made prepaid. b) Buyer's or designated consignee's acceptance of delivery from the carrier shall constitute a waiver of any claim for delay or damages :o the equipment. WARRANTY: LIMIT OF LIABILITY: a) Summit Machinery Systems. Inc., warrants the products listed in ;his proposal to be free from defects in materials and workmanship under normal and proper usage when owned by the original purchaser. b) Buyer's sale remedy under this warranty and any other claim including without limitation negligence. with respect to products covered by this proposal (and their design, manufacture, sale. delivery, resale, installation, inspection. repair, operation. and usci shall be limited to repair or replacement of carts determined to be defective by Summit Machinery Systems. Inc.. during the warran:y period as specified in this proposal. c) This warranty is in lieu of any other warranty. whether express ar implied, including any warranty of merchantability or fitness far purpose other than a warranty of title. e) Summit Machinery Systems, Inc., SHALL NOT BE RESPONSIELE. under any warranty obligations or otherwise, FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES of this Buyer in connection herewith, such as loss of production, less of anticipated savings or anticipated profits, or damages of any third party asserted against the Buyer. Summit Machinery Systems, Inc., snail in no event and for no cause whatsoever, including any breach or default by Summit Machinery Systems, Inc., have any monetary liability to the Buyer in excess of the contract price of the pertinent items of equipment. SAFETY: a) Summit 61acninery Systems. Inc., assumes no respcneibilty b• damages. !njt.ries. cr accidents caused by improper or normrd •a?- this or any :blared ecu:pmem, ct Buyer vnll hold harmless, indemnity and defend Summit fdach:ne'.. Systems, Inc., against any and an claims, suits, losses. costs an- expenses arising out of injury, ?earn or danages to person or property caused or allegedly caused directly uy operation of equipment described herein. GOVERNING LAW: a) This proposal and any order placed pursuant hereto shall be governed by and construed in accordance with the laws df the State of CLERICAL ERRORS: - Clerical errors are scc,ect to correction. Errors noted by Buyer mus: be brought to the attention of Summit Machinery Systems, Inc., as soon as noted or suspected. r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SUMMIT MACHINERY SYSTEMS INC., : No. 99-7616 Civil Term Plaintiff V. POLYMER DYNAMICS, INC., : CIVIL ACTION - LAW Defendant 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 Amended 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 ajudgment may be entered against you by the Court without further notice for any money claimed in the Amended 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. Court Administrator 4u' Floor, Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013-3387 Telephone No. (717) 240.6200 AVISO USTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea defenderse de [as quejas expuestas en las paginas siguientes, debe tomar acci6n dentro de veinte (20) dias a partir de la fecha en que recibi6 la demands y el aviso. Usted debe presentar comparecencia escrita en persona o por abogado y presentar en la Corte por escrito sus defensas o sus objeciones a las demandas en su contra. Se le avisa que si no se defiende, el caso puede proceder sin usted y la Corte puede decidir en su contra sin mas aviso o notificaci6n por cualquier dinero reclamado en la demanda o por cualquier otra queja o compensaci6n reclamados por el Demandante. USTED PUEDE PERDER DINERO, 0 PROPIEDADES U OSTROS DERECHOS IMPORTANTES PARA USTED. TIENE 0 NO CONOCE UN ABOGADO, VAYA 0 LLAME A LA OFICINA EN LA DIRECCION ESCRITA ABAJO PARA AVERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI USTED NO Court Administrator 4'h Floor, Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013-3387 Telefono No. (717) 240-6200 Lrr% i?. f? 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SUMMIT MACHINERY SYSTEMS INC., Plaintiff V. POLYMER DYNAMICS, INC., Defendant No. 99-7616 Civil Term CIVIL ACTION -LAW AMENDED COMPLAINT Plaintiff, Summit Machinery Systems, Inc., (hereinafter referred to as "Summit") by its attorneys, Countess Gilbert Andrews, alleges for its Amended Complaint as follows: Summit Machinery Systems, Inc., Plaintiff, is a Pennsylvania corporation located at the Westport Business Park, 4600 Westport Drive, Suite 108, Mechanicsburg, Pennsylvania 17055. 2. On information and belief, Defendant, Polymer Dynamics, Inc., (hereinafter referred to as "Polymer") is a Pennsylvania corporation located at 2200 South 12'h Street, Allentown, Pennsylvania 18103. 3. Summit is in the business of selling machinery systems for industrial and commercial use. 4. On or about December 10, 1997, Summit and Polymer entered into a contract whereby Summit would provide to Polymer an Ingersoll EDM machine, with various accessories and options, for a total price of One Million Two Hundred Twelve Thousand Six Hundred Sixty and 00/100 ($1,212,660.00) Dollars pursuant to Summit Sales Order No. ING-23401. A true and correct copy of the Sales Order is attached hereto as Exhibit "A" and incorporated by reference herein. 5. On or about December 10, 1997, Summit and Polymer entered into a second contract whereby Summit would provide to Polymer ten (10) Okada machines, with various accessories and options, for a total price of Five Million Three Hundred Seventy Thousand and 001100 ($5,370,000.00) Dollars pursuant to Summit Sales Order No. MC-6087. A true and correct copy of the Sales Order is attached hereto as Exhibit "B" and incorporated by reference herein. 6. Summit had the ability to provide the machines for Sales Orders ING-23401 and MC-6087 through its regional, exclusive distributor relationships with M. C. Machinery Systems, Inc. and Okada Company Ltd. 7. With regard to the Ingersoll EDM machine of Summit Sales Order No. ING- 23401, Polymer entered into a settlement agreement on June 30, 1999 with M. C. Machinery Systems, Inc., and without the consent of Summit, for the purpose of attempting to cancel the purchase of the machine and accessories contemplated in Sales Order No. ING-23401. (hereinafter referred to as the "Settlement Letter"). A true and correct copy of the Settlement Letter is attached hereto as Exhibit "C" and incorporated by reference herein. 8. Polymer did not provide any notice of cancellation or any other correspondence with regard to its actions pursuant to the Settlement Letter to Summit at its office in Cumberland County. 9. With regard to the Okada machines of Summit Sales Order MC-6087, Summit sent to Polymer a letter on November 8, 1999 wherein Summit requested adequate assurance that Polymer would be proceeding with the purchase the Okada machines. (hereinafter referred to as the "November 8, 1999 Letter"). A true and correct copy of the November 8, 1999 Letter is attached hereto as Exhibit "D" and incorporated by reference herein. 10. Polymer failed to provide adequate assurance of any type as requested in the November 8, 1999 Letter, whether it be in the form of a letter confirming the Sales Order or a payment in support of the Sales Order, to Summit at its office in Cumberland County. 11. On or around December 15, 1999, Summit concluded that Polymer had repudiated Summit Sales Order No. MC-6087 because Polymer had not responded to Summit at its office in Cumberland County after the November 8, 1999 letter, and therefore, the contract was breached. 12. Likewise, Defendant Polymer breached Summit Sales Order ING-23401 by failing to complete the purchase of the machine and accessories set forth therein. 13. Polymer's breaches of Sales Orders ING-23401 and MC-6087 constituted cancellations of the Sales Orders. 14. The Sales orders between Summit and Polymer provide that, "Accepted orders are not subject to cancellation unless agreed to by Summit Machinery Systems, Inc. Cancellation terms and conditions shall include, but not be limited to payment of all costs and expenses plus a maximum of fifteen (15%) percent cancellation charge." 15. Defendant Polymer failed to purchase the machines pursuant to Sales Orders ING-23401 and MC-6087 and thereby cancelled its orders. 16. Plaintiff is entitled to a cancellation charge as per the contract up to One Hundred Eighty One Thousand Eight Hundred Ninety Nine 00/100 ($181,899.00) Dollars for Sales Order ING-23401 and Eight Hundred Five Thousand Five Hundred 00/100 ($805,500.00) Dollars for Sales Order MC-6087, for a total of Nine Hundred Eighty Seven Thousand Three Hundred Ninety Nine 00/100 ($987,399.00) Dollars. 17. Plaintiff Summit suffered damages in the nature of costs and expenses pursuant to negotiating and fulfilling its obligations pursuant to the Sales Orders. COUNT I - BREACH OF CONTRACT 18. Summit repeats and incorporates each of the preceding averments as if fully set forth herein. 19. Summit and Polymer entered into contracts whereby Summit would provide unto Polymer certain machines in exchange for monetary consideration. 20. Summit fully performed all of its obligations under its contracts with Polymer for the provision of the aforementioned goods. 21. Polymer has failed and refused to proceed with its obligations pursuant to said contracts. 22. Therefore, Summit breached the contracts. 23. Summit is entitled to payment of all costs and expenses, plus a maximum of fifteen (15%) percent cancellation charge under each contract. 24. All conditions precedent to recovery by Summit for breach of contract by Polymer have been performed or have occurred. 25. By virtue of the foregoing, Polymer is liable to Summit for breach of contract, and Summit is entitled to recover a cancellation charge up to fifteen (15%) percent, and all costs and expenses, and incidental damages in an amount yet to be determined. WHEREFORE, Summit respectfully requests that this Honorable Court enterjudgment in its favor and against Polymer awarding compensatory damages; pre-judgment interest; post- judgment interest; all costs and expenses incurred by Summit; and such other and further relief as may be just and appropriate; all in an amount in excess of the minimum mandatory arbitration limits. COUNT II - UNJUST ENRICHMENT 26. Summit repeats and incorporates each of the preceding averments as if fully set forth herein. 27. By virtue of the foregoing, Summit has conferred a benefit on Polymer, said benefit being the sale of certain machines pursuant to the Sales Orders. 28. The fair and reasonable value of the benefits conferred by the services is $987,399.00. 29. It would be unjust and unequitable for Polymer to retain the benefits so conferred without paying full, fair and reasonable value therefore plus incidental damages, expenses, and costs. 30. For the foregoing reasons, Polymer is liable to Summit for unjust enrichment. WHEREFORE, Summit respectfully requests that this Honorable Court enterjudgment in its favor and against Polymer awarding restitutionary damages; pre judgment interest; post- judgment interest; all costs and expenses incurred by Summit, and awarding such other and further relief as may be just and appropriate; all in an amount in excess of the minimum mandatory arbitration limits. COUNT III - PROMISSORY ESTOPPEL 31. Summit repeats and incorporates each of the preceding averments as if fully set forth herein. 32, Polymer promised to pay for the goods sold by Summit. 33. In so doing, Polymer intended that Summit rely on Polymer's promise. 34. Summit did in fact reasonably rely on Polymer's promise by providing the goods requested by Polymer. 35. As a result, Summit has suffered a detriment in the amount of $987,399.00, plus incidental damages, expenses, and costs. WHEREFORE, Summit respectfully requests that this Honorable Court enterjudgment in its favor and against Polymer awarding reliance damages; pre judgment interest; post- judgment interest; other costs and expenses incurred by Summit; and such other and further relief as may be just and appropriate; all in an amount in excess of the minimum mandatory arbitration limits. Respectfully submitted, Countess Gilbert Andrews e e . Reh eyer 11 12) .!?1c p e e C u No. 80210 North Duke Street York, PA 17401 (717) 848-4900 Attorneys for Plaintiff Dated: February 23, 2000 6 VERIFICATION I, the undersigned, DAVID R. GOSS, President of Summit Machinery Systems, Inc., hereby affirm that the facts contained in the foregoing Amended Complaint arc true and correct to the best of my knowledge, information and belief. This statement is made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. SUMMIT MACHINERY SYSTEMS, INC. By: ?DaQ C. U fLuwi'A David R. Goss, President Dated: February 2 ?, , 2000 CERTIFICATE OF SERVICE I hereby certify that on this date a copy of the foregoing Amended Complaint was served on Defendant's counsel in the manner indicated below: FIRST-CLASS MAIL POSTAGE PREPAID THEREON ADDRESSED AS FOLLOWS: Edward N. Cahn, Esquire Jack M. Seitz, Esquire Blank Rome Comisky & McCauley LLP 1620 Pond Road, Suite 200 Allentown, PA 18104 Countess Gilbert Andrews By: c`/7///,77 )-,;L. R meyer R, Esquire Dated: February 23, 2000 Summit Machin Westport Business Park 4600 Westport Drive • Suite 108 Mechanicsburg, PA 17055 SOLD TO: POLYMER DYNAMICS, INC P.O.BOX 4400 Allentown, PA 18105-4400 SHIP TO: POLYMER DYNAMICS, INC. 2200 S. 12th Street Allentown, PA CONTACT: Brad Jacoby PHONE: 610-798-2200 Systems, Inc. • 717 / 766-5546 lax 717 / 766-6054 Page 1 of 2 PMA 4 446 1=1v NOING-23401 DATE:112/10/97 SALESMAN McCloskey CUSTOMER P.O. 1: VOLTAGE: TERMS: See Page 2 SHIP VIA: Best Way RIGGING F.O.B.: Port of Baltimore, MD sMsouoTE#.Ref proposal N 97-SMS-5522 FAX: 610-798-2222 1 1 Ingersoll 1300 CNC EDM System - -------------------- 2 1 Optional PF1312 Paper Filter-System -- --------------------- 3 1 Optional System 3R Macro Chuck - - -- - - -- ---------------------------- 4, 1 Optional C02 Fire Extinguisher -------------------------------- 5 1 Ingersoll 1300 CNC EDM System ------------------------------------------------------- 6 1- Optional FP200 Power Supply--------------------------- ---- -7_ __ 1___ Optional PF1312 Paper_ Filter_ Sy_stem________________ --------------- - - 8_ __1___ OPtional_System_3R_Macro_Chuck ______________________ 9 1 Optional C02 Fire Extin wiher - - - --- -- - --- 9 ---s--- - --------------------- 10 2 System 311 628.31-S Starter Kit/EDM ----------------------------------------------------- 11 2 System 3R 605.1E Macro Drawbars/EDM______ _ 12__10 (System 3% 466.4033 ?lacro Adaptors/EDM ------------------------------------ ---------------- .1 3 8 Systen_ 3R_ 751 r 01_ Chucks?EDM________________ ............................ 14 2 lSystem 3R 461.E Electrode Holders/EDM - i- - -- - -- - ,a£r_--=--------------------------------------------- yei7Et t/1ZF{?L 7FlCS-C_ CYC?.RJ ?_ Cr cr------- ___?______ ___w4!?Ce+_?LVCiu?_1 _7 LEI Jf•__???_(p0 [J??.1??1E4 E.______ ------ ------------------------------------------------------------------ THE ABOVE ORDER IS SUBJECT TO THE TERMS AND CONDITIONS ON THE REVERSE SIDE. THIS ORDER SHALL NOT BE VALID AND BINDING UNTIL ACCEPTED BY SELLER. BUYER: SELLER: Summit Machinery Systems, Inc. BY: Y: $540,700, $540,700. $_26,500. $_ 26LSE0: ------------ --- $_-_2,500._ $ -2,500. -$___9,000._ s-__ 9,000: $540,700 $540,700. $ 26,000 $ 26,000: -$_26,500,_ $__26500_:_ $__ 9000 _ $___2,900__ $___5,800. 5_575__(-___ 1_c 1 50 5 750.15 7500. $------225,- $ 450• ------------- ------------- ---- ------------- ------------- ------------- ------------- ------------- `-_--__--__-__ SUB TOT % SALES TAXI 0 SUBTOTAL 1,212,6 10% DEPOSIT 121 , 2 1,091,3 TOTAL1. --_ - - Summit Machinery Systems, Inc. Westport Business Park 717/766-5546 fax 717/766-6054 4600 Westport Drive • Suite 108 Pa of 2 Mechanicsburg, PA 17055 , e 2• - M • No. - SOLDTO: POLYMER DYNAMICS, INC. DATE: 12/10/97 SALESMAN J. McCloskey P.O.BOX 4400 CUSTOMER P.O. f: VOLTAGE: 11 t PA 18105-4400 TERMS: See Below A en own, SHIP TO: POLYMER DYNAMICS, INC. 2200 S. 12th Street Allentown, PA CONTACT: Brad Jacoby PHONE: 61 0-798-2200 SHIP VIA: Best Way RIGGING F.O.B.: Port of Baltimore, MD sMsouoTErRef proposal N 97-SMS-5522 PAX: 61 0-798-2222 - DELIVERY _ Shipment from_factory_May_1998--------------------- _____________ --- ------ ---------------------- - ----------------- INSTALLATION June 1998 ------------- ------------- --- ------ ---------------------------------------------------------- ------ TERMS - (1) 109 downpayment with P_O. ? --- ------------- ------------- --- (2) Balance Net 30 days from completi n of inst llation ---------------------------- --- ------ -------------------------------------------------- --- ------ --------------------------------------------------- --- ------ ----------------------------------------------------- --- ------ ---------------- ---------------------------------------------------------------- ------------- --- ------ ------------------------------------------------------------------ -------------- ------------- - -------------------------------------------------------------------I -------------I------------- --- ------------------------------------------------------ --- ------ ---------------------------------------------------- --- ------ ------------------------------------------------------ --- ------ ----------------------------------------------------- --- ------ ------------------------------------------------------------------------------ ------------- ------------- --------------------------------------------------------------- --- ------ ------------------ --- ------ --------------------------------------------------------------------------------- ------------ SUBTOTAL THE ABOVE ORDER IS SUBJECT TO THE TERI.IS AND CONDITIONS ON THE REVERSE SIDE. THIS ORDER SHALL NOT BE VALID AND BINDING UNTIL ACCEPTED BY SELLER. % SALES TAX BUYER: SELLER: SUBTOTAL (L OQ?_ Summit Machinery Systems, Inc. DEPOSIT J BY TOTAL , i 1 --T Conditions of Sale PRICES AND TERMS: a) Prices ano terms are subject to change without notice until accepted and acknowledged by Summit Machinery Systems, Inc. b) Prices do not include sales, use, excise or similar taxes. Any such tax [net is required td be collected or paid by Summit Machinery Systems. Inc., is considered the Buyer's responsibility and as such may be added to the invoice, or invoiced later, as a separate charge to be pa,d by the Buyer, unless the Buyer has furnished Summit Machinery Systems, Inc., with an applicable exemption certificate.' c) Standard terms of payment are net upon receipt. All sales are subject to credit approval. In the event the Buyer enters into a security agreement, lease or other form of payment schedule with Summit Machinery Systems. Inc., there maybe additional terms and conditions supplemental to these 'Conditions of Sale'. d) A service charge of one and one-half (1 12%) percent per month will be payable on any balance past due and unpaid. DELIVERY: a) Prices are F.O.B. factory unless otherwise noted on the proposal. Claims against the carrier for damage caused during shipment must be made by the Buyer. b) Scheduled delivery is approximate and is subject to change. INVOICING: a) Invoices to Buyer will be issued at time of shipment or as soon as practicable thereafter, except as otherwise provided in the proposal or acknowledged order. b) Partial invoices may be Issued for partial shipments..- - ACCEPTANCE OF ORDER: - - a) Buyer's offer to purchase shall not constitute an order until accepted by Summit Machinery Systems, Inc., INSTALLATION AND ACCEPTANCE OF GOODS: a) Installation of machinery and equipment will be at Buyer's cost and just be performed strictly in accordance with manuals and instruction sheets furnished. Except as otherwise expressly provided in this proposal, Summit Machinery Systems. Inc., will not be obligaled to furnish pcrsornel or other on-site assis!ance for installation. b) E- a:= :-p_ a. ?^.' e c:U'p4.En: it a, bE d°s-re: :0 d:Jp .^.? ia:Er it a7 :mae c :- ..- °_ , JJe: •; A rL n e: a s•a^^- _ .ar N lti of :ne lot pr:C:: -tI..• ^.J:F: eeS py Ire 6_'E' 54d'I be conc,usive evidence of aocep:a nce.'Buyer snail provide material and tooling at its expense to run a test pan. CANCELLATION/RETURNED GOODS POLICY: a) Accepted orders are not subject to cancellation unless agreed to by SJmm 1 !.Machinery Systems, Inc. Cancellation terms and conditions shall'%!ude, bu! not be limited to payment of all costs and expenses 'plus a maximum of Wir-En (15%) percent cancellalion charge, b) No gOdcs wdI be accepted for return withoul prior written aulhor)za- ticn from Summit Machinery Systems, Inc. Credit will not be allowed on dar„aped or used material. C) Alt goods authorized for return are to be shipped prepaid to Summit Machinery Systems, Inc. Collett shipments will be refused unless wrr,:en au:^cr:a:ion has been gwen pier lp shpmen:. TITLE AND LIEN RIGHTS: a) Tltte to the EquiOmenl sha!I remain w.th Summit Machinery Systems, Inc., until :he purchase price. Including ary taxes or late charges are paid in full. C) Buyer agrees to permit Summit Machinery Systems, Inc., at their op:ion, to file security interest, in ccmpliance with Uniform Commer- Cia' Cece (UCCdd form) on the : irccaseo equipment unto payment in ful! has bran .Coal..,' y c___ .... ... - ........ ; gad es C) Tr.e :d snail rta.am persor. nal p-? ;.en/ regard ass s i q . c• n;w prc OSHA AND ELECTRICAL CODES: a) The equipment covered does rot necessarily comply with any coc• or s:anoaras unlEss specifically quoted. ordered and so accep:eo. b) When compliance with OSHA is previoed, it is based on our understancing of the construction standar_s in effect at Ice :ime of acceptance only. C) Comple:e cempliance with OSHA, and particularly regarding pant operation guarding, is :ne responsibility of the B_ yer and User arc not of Su-nit Machinery Sys:ems, Inc., or the builder of the equipment. d) Wiring an= protective conduit from :he machine to a control Pane! mounted off the machine is not included in this proposal. SHIPMENT AND RISK OF LOSS: a) Risk and foss and title shall pass to the Buyer upon delivery of carrier byes 8ummil Machinery Systems, Inc., consigned to Buyer dr Buyers dignated consignee. Risk of loss passas to Buyer whether or not shipment is made prepaid. b) Buyers or designated consignee's acceptance of delivery from the carder shall constitute a wafver of any claim for delay or damages ! the equipment. WARRANTY; LIMIT OF LIABILITY: a) Summit Machinery Systems, Inc., warrants the produ: s listed in ti- proposal to be free from defects in materials and workmanship under normal and proper usage when owned by the original purchaser. b) Buyers sole remedy under this warranty and any Other c!aim including without limitation negligence, with respect to products covered by this proposal (and their design, manufac!ure, sale. delivery, resale, installation, inspection, repair, operaricn. and use) shall be limited to repair or replacement Of pans determined to be defeGive by Summit Machinery Systems, Inc., during the warranty period as specifiedin this proposal. c) This warranty is in lieu of any other warranty, whether express or implied, including any warranty of merchantability or fitness for purpose other than a warranty of title. e) Summit Machinery Systems, Inc., SHALL NOT BE RESPONSIBLE. under any warranty cbligatans m omerv^se, FOR ANY INDIFECT, 5j:- as -S5 cf Z.- pfp:GS, dr t:a'C •cc .d -_.. ;n ._ _E-?c._c.c J assnned against the Buyer. Summit 6facn-ner S _:-„ , in no event and for no cause whatsoever, incluc.ny any breach or a,• default by Summit Machinery Systems. Inc., have any monetary liability to the Buyer in excess of the contact price of the permant items of equipment. SAFETY: a) S_mmn t:achinery Systems, Inc., assumes no respersibi6, I:r damages, injuries, or accidents caused by improper or normal use c lhis.pr any related equpment. b) Buyer will hold harmless, indemnify and defend Sa:rmit fAachfr,e•v Systems, Inc., against any and all claims, sups, losses. costs and expenses arising oil of injury, death or damages to cersor, or p:c.c'!Y causec or aI e^,eciy caused arec::y cy cpe-a:an of e,.amer: cesc::bcc rerem. GOVERNING LAW: a) Tnis proposal and any order paced pursuan! here:o shall be governed by and construed in accordance with the taws of :,e State of CLERICAL ERRORS: " C:cr ca'rrro , aE su:• ett:p Cor esl.on. E•-ors nc!rt!:v 3wer r_e. ce :,•a:n: !: ;•u, arert,cn oI Sum. ;n Maon,r,ery 5) s:E ms, Inc.. as .::n as a_.. _ cr s =:E::ec. Conditions of Sale PRICES AND TERMS: a) Prices and terms are subject to change without notice until axepled and acknowledged by Summit Machinery Systems, Inc. b) Prices do not include sales, use, excise or similar taxes. Any such tax trial is required to be collected or paid by Summit Machinery Systems. Inc., Is considered the Buyer's responsibility and as such may be added to the invoice, or invoiced later, as a separate charge to be paid by the Buyer, unless the Buyer has furnished Summit Machinery Systems, Inc., with an applicable exemption certificate.' c) Standard terms of payment are net upon receipt. All sales are subject to credit approval. In the event the Buyer enters into a security agreement, lease or other form of payment schedule with Summit Machinery Systems, Inc., there may be additional terms and conditions supplemental to these 'Conditions of Sale'. d) A service charge of one and one-half (1 12%) percent per month will be payable on any balance past due and unpaid. DELIVERY: a) Prices are F.O.B. factory unless otherwise noted on the proposal. Claims against the Carrier for damage caused during shipment must be made by the Buyer. b) Scheduled delivery is approximate and is subject to change. INVOICING: a) Invoices to Buyer will be issued at time of shipment or as soon as practicable thereafter, except as otherwise provided in the proposal or acknowledged order. b) Partial invoices maybe issued for partial shipments..- . . ACCEPTANCE OF ORDER: e) Buyer's offer to purchase shall not constitute an order until accepted by Summit Machinery Systems. Inc.. INSTALLATION AND ACCEPTANCE OF GOODS: a) Installation of machinery and equipment will be at Buyees cost and just be performed strictly in accordance with manuals and instruction sheets furnished. Except as otherwise expressly provided in this proposal, Summit Machinery Systems, Inc., will not be obligated to furnish personnel of other on-site assistance for installation. b) E_ _ ..._?_..: __ . -e-' ar„ Ira to ?_sT.cd:o e:'.,7:?-°rt:.a°:'_ EJ ::E:_e_! r,.' J aI__-_._.'p:' e __c :'4'' iCJCL:' cases et :re L_.r.r shdli be conclusive evidence of accep:anee.'Buyer shall provide material and tooling at its expense to run a test part CANCELLATION/RETURNED GOODS POLICY: a) Accepted orders are not subject to cancellation unless agreed to by Summ.! Machinery Systems. Inc. Cancellation terms and conditions wall include. but not be limited to payment of all costs and expenses p!us a maumum cf fi,`,eer, It 5%) percent cancellation Charge. b) No c:pgs wolf be accepted for return without prior written authoriza- tior.':_•n Summit Machinery Systems, Inc. Credit will not be avowed on damaged or used material. C) Ali goods authorized for return are to be shipped prepaid to Summit Macnmery Systems. Inc. Collect shipmenis will be refused unless wrc:en au:n:rza:ion 1-,as been given prix to sn:pmci:. TITLE AND LIEN RIGHTS: a) Tile to the equipment shall remain watt Summit Maninery Systems, Inc., until ;rte purchase price, me:uaing any taxes cr late charges are paid in full. c) Buyer agrees to permit Summit Machinery Systems, Inc., at their op!ion, to file security interest, in compliance with Un'fo-m Commer- e:: :ode (UCC-fit form) on the zurenased equppment unti: payment .:.. - in full t•aI oeen •__-.._ _r.a Sys:cr- c) Tt.e ec.r ?oeit cnall re-.n pcrcgr::,,p:epeny rega:c ass u : o+. u. r:bm:/C Jr6. OSHA AND ELECTRICAL CODES: a) The equipment covered does not necessarily comply with any coca. or s:andaros umess specifically quoted. ordered aid s; ac:ev:eo. b) When compliance with OSHA is proviaed, it is based on our understanding of the Construction s:anoams in effect a: tie ;imam acceptance only. - e) Complete compliance with OSHA, and pari:u'arly re-ardinc _c•nt operation guarding, is :ne responsibility of :he Buyer arc Lase: arc not of Summit Machinery Sys:ems, Inc., or the builcer of the equipment. d) Wiring and protective conduit from :he machine to a conlrol Pane! mounted off the machine is not included in tors proposal. SHIPMENT AND RISK OF LOSS: a) Risk and loss and title shall pass to the Buyer upon delivery of Carrier by Summit Machinery Systems. Inc., consigned to Buyer or Buyer's designated consignee. Risk of loss passes to Buyer whether or not shipment is made prepaid. b) Buyer's or designated consignee's acceptance of delivery from the carrier shall constitute a waive: of arty claim for delay or damages the equipment. WARRANTY; LIMIT OF LIABILITY. a) Summit Machinery Systems, Inc., warrants the produc:s listed in tit proposal to be free from defects in mslena:s and workmanship under normal and proper usage when owned by the original purchaser. b) Buyers sole remedy underthis warranty and any other claim including without limitation negrigence, with respect to products covered by this proposal (and their design, manufacture, sale. delivery, resale, installation, inspection, repair, ope¢::sn. and use) shall be limited to repair or replacement of pans determined to be detective by Summit Machinery Systems, Inc., during the wartan:y period as specified In this proposal. ' c) This warranty is in lieu of any other warranty, whether express or implied, including any warranty of merchantabitiy or fitness for purpose other than a warranty of title. e) Summit Machinery Systems, Inc., SHALL NOT 13ERESPONSI3LE. under any warranty cbligafions or ott'emise, FOR ANY INIDIRECT .r _.. .. .r. _. p5I : .. ..: ac _c : a. ,C...9:E:' ,;E5 p_') assermi against Inc Buyer. Samn- : Macn, ne:) Systems. Inc.. sna:: in no event and for no cause whatsoever, including any breach or default by Summit Machinery Systems, Inc., have any monetary liability to the Buyer in excess of the contact price of Inc perment items of equipment. SAFETY: a) S_n,-i! l.'acl)inery Systems, Inc.. assumes no respznsibili; 1:r camages, injuries, or accidents caused by improper or normal use c this or any related equppmenl. b) Bayer will hold harm:ess, indemnity and defend Summit Idach-eery Systems, Inc., against any and all claims, suis. losses. casts and expenses arising out of injury, death or damages ;o cere:.n or proceny caused or at a;ec!y caused drec:?y cp c;e'a::on of a::_p-ent cescribed nerein. GOVERNING LAW: a) Tnis proposal and ary or_er placed pursuant here sna'I be governed by and construed in accordance w•ih Inc taws 61 :110 State of _ r CLE;ICAL ERRORS: .. ' C.-ca'errors arc E `iG:o co:rn_'t,dn. E'ro's rr'c-r•.:°_.cr m_c' Crt i...:nt is:ae bneil,un of Summt 146c'.;d•/ J)s-i m. s, Inc., as Summit Machinery Systems, Inc. Westport Business Park 717 If 766-5546 tax 7171766-6054 4600 Westport Drive • Suite 108 Mechanicsburg, PA 17055 • , No.MC-6087 SOLD TO: POLYMER DYNAMICS. INC. P.O.BOX 4400 Allentown, PA 18105-4400 SHIPTO: POLYMER DYNAMICS, INC. 2200 S. 12th Street Allentown, PA CONTACT: Brad Jacoby PHONE: _610-798-2200 DATE-1 2/10/97 SALESMANJ. McCloskey CUSTOMER P.O.#: VOLTAGE: TERMS: Gaa page'; 7 b 7 SHIP VIA: Best Way RIGGING F.o.e.: Polymer Dynamics Plant SUB QUOTE 8 -. FAX: 61 0-798-2222 ITEM ? --- i10 ------ Okada MM 1814-ZS UH 5-Axis Mill ------------------------------------------------------------------- 49000. ------------- $4,900,00 ------------- 2 j10 40-Position Autcnlatic Tool Chanaer ---------------•--------------------`-------------------- $ 34,000. - ----------- $ 340,00'3 I------------- 3_ _10__ Automatic Tool Length Measurement - - - - - ------------------- $ 4,000. ------------- $ 40,00 ------------- 4 --- --- --- --- --- --- --- --- --- --- --- ---- ---- ---- --- 10 ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------- ------- ------- ------ Probe System ------------------------------------------------------------------ ------------------------------------------------------------------- ------------------------------------------------------------------- ------------------------------------------------------------------- ------------------------------------------------------------------- ------------------------------------------------------------------- ------------------------------------------------------------------- ------------------------------------------------------------------- ------------------------------------------------------------------- ------------------------------------------------------------------- -------- ---------------------------------------------------------- ------------------------------------------------------------------- ------------------------------------------------------------------- ------------------------------------------------------------------- ------------------------------------------------------------------- $ 9,000. ------------- ------------- ------------- -----=------- -------------- -------------- -------------- ------------- ------------- -------------- -------------- --------------- ------------- - --------------- --------------- $ 90,00 ------------- ------------- ------------- ------------- -------------- -------------- ------------ ------------- ------------- ------------- ------------- -------------- ------------ -------------- ------------- THE ABOVE ORDER IS SUBJECT TO THE TERMS AND CONDITIONS ON THE REVERSE SIDE THIS ORDER SHALL NOT BE VALID AND BINDING UNTIL ACCEPTED BY SELLER SUB TOTAL ' 5, 370, 00 0 . . %SALES TAX _0_ BUYER: SELLER: SUBTOTAL 65,370,000 Summit Machinery Systems, inc. DEPOSIT SEE TERMS 500,00 BY: BY: f? nn 0 U" -4 ( `' _ y TOTAL 1 00 5,370, 0 .) I i SOLD TO: I SHIP TO: Ali li I CONTACT: PHONE: Westport Business Park 4600 Westport Drive • Suite 108 Mechanicsburg, PA 17055 POLYMER DYNAMICS, INC. P.O.BOX 4400 Allentown, PA 18105-4400 POLYMER DYNAMICS INC. 2200 S. 12th Street Allentown, PA Brad Jacoby 610-798-2200 s, Inc.- - 717 If 766-5546 (ax 717 / 766-6054 Page 2 of 3 ° NO.M - 7 DATE:12/10/97 SALESMANJ. McCloskey CUSTOMER P.0.1: VOLTAGE: TERMS: See pages 2 & 3 SHIPVIA: Best Way RIGGING F.O.B.: Polymer Dynamics Plan SMS QUOTE/: FAX: 610-798-2222 --------- --------- - ------------ - 129$-- -- ---------- --- ------- -- ---- --- ______ ________________ (2 ) Machines shipping to Polymer fo_ installa ion _-_ ______ DELIVERY_ _ S2j Machines leaving_dock_from Japa -------------- ---- -each---mon on h ------ --------- ---- ------------- --- ______ ------------___ each month beginning July 1998__ ------ ----- ............. ---------- - ------ INSTALLATION - (2) Okada Mechanical Engineers ___ ______ ______________________(1_) Okada Electrical Engineer ... ______ ______________________(1 Okada Trainer -------------------- ------------ ------------- --- ------ TERMS - _ (1 ) $500: 000. cash downpayment with---P. -- ------------ ------------- --- ______ __________ (2) Letter of irrevocable Credit issue on or ab ut _ ------------- ------------ JanuarX 5! 1998 for $2,148000_ applie- - to--f i-nal (4)-__------ machinesdeli-vered -- ---------------------------------- - --------- -------------- -- ---------- ------------- __ (3) 8500,000. downpayment returned upon issue of --- lLetter - - --- ------------------------------------------- __ _____ of Credit ------------- ------------------------------------------------ ------------- ___ ______ ____________ (91_ Palment_due _on_machines at 1 ?3 ---- on__ hipping_ & nii----atio-- ------------- 2/3 on completion of installation --- ------ ------------------------------------------------------------------- ------------- ------------- --- ------ ------------------------------------------------------------------- ------------- ------------- --- ------ ------------------------------------------------------------------- -------------- ------------- --- ------ --------------------- ------------------------------------------- ---------- - I ------------------------------------------------------------------- --- -------------f------------- BY: ByR 4? SUMML Machinery S THE ABOVE ORDER IS SUBJECT TO THE TERMS AND CONDITIONS ON THE REVERSE I SUBTOTAL SIDE. THIS OROEk SHALL NOT BE VALID AND BINDING UNTIL ACCEPTED BY SELLER. BUYER: SELLER: 7 9- Summit Machinery Systems, Inc. Summit - White Customer -Yellow Sales - Pink Summio. Machinery Systems, Inc. Westport Business Park 4600 Westport Drive • Suite 108 Mechanicsburg, PA 17055 Sow TO: POLYMER DYNAMICS, INC. P.O. BOX 4400 Allentown, PA 18105-4400 SHIP TO: POLYMER DYNAMICS, INC. 2200 S. 12th street Allentown, PA CONTACT: Brad Jacoby PHONE: 610-798-2200 • 717 / 766-5546 fax 717 / 766-6054 Page 3 of 3 S No 7 DATE32/10/97 SALESMAN J. McCloskey CUSTOMER P.O.1: VOLTAGE: TERMS: See pages 2 & 3 SHIPVIA: Best Way RIGGING F.O.B.: Polymer Dynamics Plant SMS QUOTE I: FAX: 610-798-2222 --- ------ PAYMENT-SCHEDULE --- ---------------------------------------------------------------- ------- ------ ------------- --- ------ (a) 1st, 2nd, 3rd, 4th, 5th & 6th machine ------------------------------------------------------------------- ------------- ------------- --- ------- -------------- ___?178?999___due_within__5_4aXS__4f_r_e ip_t_Qf__sh pping_----- --- ------ - _______-_ --- documents--from-Japam__per_machine --- ---------- --_______-_- ------------- -- ------- --------------- --$358,001 --due --- upon--completi- on--of i- - -- stallatio ------------ --per ------- ---- --- ------ ma ch ine ------------------------------------------------------------------- ------------- ... _---- (b) 7th, 8th?9th & 10th_ machine_paid_on Letter - - of_Credit ------------- --- - ------ - - ------------------------------------------------------------------- WARRANTY - (1) Okada to provide (1) year parts -- ------------------ ---- - ------------- & labor g --- -- ------------- arantee ---------- --- ------ - - -on each machine commencing on date ------ - - ------------------------- of complet on of --- ------- installation ---------------- - -------------------------------------------- ------------- ------------- --- 1 ------' I (2) Okada to provide (2) year warran ------•------------------------------------ ty_on Fau Control --------- --- ___ ------ ______ ------------------------------------------------------------------ CANCELLATION_PENALTY- __Okada_will_p@_? ;?_3SL$__ --------- -the--y --- -- --- --- --- ------ ------ ------ .................................. anX machine--65-B--complet - -- -- ------------------------------------------------------------------- ------------------------------------------------------------------- --------------------------------- - d -&--canoe- ------- ------------- ------------- led._______ ------ ------------- ---- --------- THE ABOVE ORDER IS SUBJECT TO THE TERNS AND CONDITIONS ON THE REVERSE I SUB TOTAL SIDE THIS ORDEP SHALL NOT BE VALID AND BINDING UNTIL ACCEPTED BY SELLER . . %SALESTAX BUYER: SELLER: + SUBTOTAL Summit Machinery Systems, Inc. DEPOSIT o- `n sy BY: z • `?-?o l' ' ? ? ?•? W TOTAL Summit - White Customer -Yellow Sales - Pink ACOMPAAYOFak MITSUBISHI CORPORATION MC MACHINERY SYSTEMS, INC. June 30,1999 Via Facsimile (610) 798-2222 and Federal Express 1500 MICHAEL DRIVE WOOD DALE. IL 60191 PHONE 630.060.4206 FAX 630.660.4710 Polymer Dynamics, Inc. 2200 South 12th Street Allentown, Pennsylvania 18105-4400 ea Attention: Mr. William Peoples, President Iwo Dear Mr. Peoples: 0 oT. This letterwill confirm the recent correspondence and communications between Polymer Dynamics, Inc. ("PDI") and MC Machinery Systems, Inc. ("MMS") relating to the two Ingersoll EDM machines which are the subject ofthe Sales Order between PDI and Summit Machinery Systems, Inc. (Summit Sales Order #ING-23401) (the "Machines"). PDI has claimed that MMS has breached an agreement and commitment to provide fmancing to PDI in connection with the purchase of the Machines. In addition, PDI has claimed that MMS has engaged in fraudulent conduct in obtaining a down payment from PDI. MMS has denied these claims and has asserted that MMS does not have any obligation to provide financing or other financial accommodations relative to the Machines. As a result, PDI has demanded the return of $242,532.00, being the 20% down payment which PDI remitted directly to MMS. PDI has also made various other claims and assertions against MMS in connection with the above contemplated transaction, MMS has denied these claims and a dispute exists as to the parties respective rights to the down payment. Both MMS and PDI claim an interest in said down payment (or portions thereof). In addition, Summit claims or may claim that it has an interest in such funds. We also deny that any claim with respect thereto can be made by Summit against MMS. MMS has held the down payment with the hope that an agreement could be reached by all parties. It is clear that this is not possible. Nonetheless, despite the losses which have been incurred by MMS, MMS is willing to return the down payment to PDI in accordance with this letter upon the condition that PDI executes this letter agreement and returns the same to MMS' counsel. Accordingly, we hereby request that you execute this letter agreement and return the same immediately by facsimile and air express to MMS' counsel. I f A COMPANY OF? MITSUa1SHl CORPORATION 1500 MICHAEL DRIVE 6 IL 60191 MC MACHINERY SYSTEMS, INC. WOOD DALE. 8 PHONE 670.860-4206 -4206 FAX 630.860.4718 June 30, 1999 Via Facsimile (610) 798-2222 and Federal Express Polymer Dynamics, Inc. 2200 South 12th Street Allentown, Pennsylvania 18105-4400 Attention: Mr. William Peoples, President Dear Mr. Peoples: This letter will confirm the recent correspondence and communications betwe P l " " ? en o ymer Dynamics, Inc. ( PDI ) and MC Machinery Systems, Inc. ("MMS") relating to the two Ingersoll EDM machines which are the subject of the S l O W a es rder between PDI and Summit Machinery Systems, Inc. (Summit Sales Order #ING-23401) (the "Machines"). PDI has claimed that MMS has breached an agreement and commitment to provide financing to PDI in connection with the purchase of the M hi ac nes. In addition, PDI has claimed that MMS has engaged in fraudulent conduct in obtaining a down payment from PDI . MMS has denied these claims and has asserted that MMS does not have any obligation to rovid f p e inancing or other financial accommodations relative to the Machines. As a result, PDI has dem=ded the return of $242,532.00 bein the 20% d . , g own payment which PDI remitted directly to MMS. PDI has also made various other claims and assertions against MMS i n connection with the above contemplated transaction. MMS has denied these claims and a dispute exists as to the parties respective rights to the down a me t B h p y n . ot MMS and PDI claim an interest in said down payment (or portions thereof). In addition, Summit claims or may claim that it ha i s an nterest in such funds. We also deny that any claim with respect thereto can be made by Summit against MMS r1 a . MMS has held the down payment with the hope that an agreement could be reached by all parties. It is clear that this is not ossibl N p e. onetheless, despite the losses which have been incurred by MMS, MMS is willing to return the do wn payment to PDI in accordance with this letter upon the condition that PDI executes this letter agreement and f returns the same to MMS' counsel. Accordingly, we hereby request that you execute this letter agreement and return the same immediately by facsimile and ai ' 1. i, r express to MMS counsel. i A Mr. William Peoples Polymer Dynamics, Inc. Page 2 By executing this letter, PDI hereby agrees as follows: (a) PDI shall reimburse MMS for one-half of storage and related charges incurred by MMS with respect to the storage and shipment of the Machines (i.e., $11,562.89 +2 = $5,781.45). The sum of $5,781.45 shall be deducted from the down payment amount to be paid to PDI; and (b) PDI, on behalf of itself and its related companies and their respective officers and directors, hereby remises, releases and forever discharges MMS and its affiliated and related companies, and their respective directors, officers, employees, agents, representatives and distributors, past, present and future, ("MMS Released Parties") of and from any and all manner of action, cause and causes of action, debts, shits, controversies, agreements, commitments, lawsuits, damages, judgments, warranties and claims and demands of any nature whatsoever, including, but not limited to, any and all claims arising out of or relating to the purchase, sale and/or financing of the Machines, existing on or at any time prior to the date of this letter agreement, wllicla PDI now has against the MMS Released Parties, or ever had, or which its successors or assigns hereafter can, shall or may have for, upon, or by reason of any matter, cause or thing occurring on or prior to the date of this letter agreement. In consideration of the foreeoing, MNIS, on behalf of itself and its related compr.nics and their respective officers and directors, hereby remises, releases and Ibrever discharges 1'Dl and its affiliated and related companies, and their respective directors, officers, employees and agents, past, present and future, ("PDI Released Parties") of and from any and all manner of action, cause and causes of action, debts, suits, controversies, agreements, commitments, lawsuits, damages, judgments, warranties and claims and demands of any nature whatsoever, including, but not limited to, any and all claims arising out of or relating to the purchase, sale and/or financing of the Machines, existing on or at any time prior to the date of this letter agreement, which M\9S now has against the PDI Released Parties, or ever had, or which its successors or assigns hereafter can, shall or may have for, upon, or by reason of any matter, cause or thing occurring oil or prior to the date of this letter agreement. Please sign the original and fax of this letter and return the same to Joscph S. Parisi, our legal counsel, by fax (847-734-1039) and return air express. This lever agreement will become effective upon Mr. Parisi's receipt of your faxed signature. Upon receipt of your facsimile signature, MMS Mr. William Peoples Polymer Dynamics, Inc. Page 3 shall make arrangements for the wire transfer of $236,750.55 ($242,532.00 - $5,781.45) to PDI's account as follows: Bank: Sovereign Bank Account Name: Polymer Dynamics, Inc. - Payroll Account Account No.: 0050900118 ABA No.: 231372691 MMS and PDI shall keep the terms of this letter agreement confidential and not disclose the same to any third parties not involved in the aforesaid transactions. No third party beneficiaries are intended tinder this agreement, except to the extent set forth herein with respect to the MMS Released Parties and PDI Released Parties. If the foregoing is acceptable, please sign this letter at the place noted for your signature below. Very truly yours, MC MACHINERY SYSTEMS, INC. ?? H. Usamt, Prestdent ACKNOWLEDGED AND AGREED: POLYMER \DDYY/NAAUCS, INC. By: Win eoples, President HU:sa:N:u. m-rERSX5S ER154010261.06 11._1.____.. .. 0 NOVEMBER 8,1999 SUMMIT MACHINERY SYSTEMS, INC. P.O. BOX 1066 MECI-IANICSBURG, PA 17055 Polymer Dynamics, Inc. Attn: W.J. Peoples, President Attn: Brad Jacoby Attn: Jonathan Marks P.O. Box 4400 Allentown, PA 18105 Gentlemen, As you are aware, Polymer Dynamics, Inc. executed Sales Orders with Summit Machinery Systems, Inc. on December 10, 1999. The Okada Sales Order involved the purchase of ten (10) Okada Mills and accessories for the stun of $5,370,000.The Ingersoll Mitsubishi Sales Order involved the purchase of two (2) Ingersoll Mitsubishi EDM Systems and accessories for the stun of $1,212,660. Summit Machinery Systems, Inc. has attempted to be cooperative when addressing the various issues that have arisen with regard to the Sales Orders. Nevertheless, it now appear; that there is a likelihood that you will not be purchasing any Okada Mills. Additionally, you have not gone through with the purchase of the Ingersoll Mitsubishi EDM, rather simply signed a settlement letter with MC Machinery Systems, Inc. while ignoring your contractual obligations with Summit Machinery Systems, Inc. Accordingly, by this letter, Summit Machinery Systems, Inc. requests that Polymer Dynamics, Inc, provides to it adequate assurance that it will be purchasing 4 or all of the Okada Mills pursuant to Okada Sales Order. In the event you do not provide said assurance and perform pursuant to the terms and conditions of the contracts, Summit Machinery Systems, Inc, will be forced to take any action necessary to collect the fifteen (15%) percent cancellation charge allowed for by the conditions of sale. Hopefully we can resolve this matter amicably and all involved can avoid the unnecessary costs of time and money should litigation prove necessary. I will look forward to hearing from you. Sincerely, ummitnMachinery Systems, Inc. Q David R. Goss PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) SUMMIT MACHINERY SYSTEMS, INC., VS. (Plaintiff) POLYMER DYNAMICS, INC., (Defendant) No. 7616 Civil Term 19 99 1. State matter to be argued (i.e., Plaintiff's motion for new trial, defendant's demurrer to co:Plaint, etc.): 2. Identify morsel who will argue case: (a) for nia;.,tyff; Jeffrey Rehmeyer, Esq. Address: Countess Gilbert Andrews 27 North Duke Street (b) for defendant: York' PA 17401 Address: Jack M. Seitz, Esq. Blank Rome Comisky & McCauley LLP 1620 Pond Road, Suite 200 Allentown, PA 18104 3. I will notify all parties in writing within two days that this case has been listed for axgurent. 4. ant Court Date: April 26, 2000 Dated: March $, 2000 -? ?' ?' .wo IN TIIE COURT OF COMMON PLEAS Or CUMBERLAND COUNTY, PENNSYLVANIA SUMMIT MACHINERY ) SYSTEMS, INC. ) Plaintiff ) V. ) POLYMER DYNAMICS, INC., ) Defendant ) Civil Action - Law No. 99 - 7616 Civil Term ORDER AND NOW, this day of , 2000, upon consideration of Defendant's preliminary objection to venue underPa.R.C.P. 1028(a)(1), it is hereby ORDERED that venue in Cumberland County is improper and Plaintiff's Amended Complaint is dismissed, without prejudice to Plaintiff's right to ref ile the action in Lehigh County, Pennsylvania. BY THE COURT: , J. Copies to be served on: Jeffrey Reltmeyer, Esquire Jack M. Seitz, Esquire I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SUMMIT MACHINERY ) SYSTEMS, INC. ) Plaintiff ) V. ) POLYMER DYNAMICS, INC., ) Defendant ) Civil Action - Law No. 99 - 7616 Civil Term DEFENDANT'S PRELIMINARY OBJECTION TO PLAINTIFF'S AMENDED COMPLAINT Defendant, Polymer Dynamics, Inc., responds to Plaintiff's Amended Complaint as follows: Plaintiff, Summit Machinery Systems, Inc., commenced this action on December 21, 1999. Defendant filed a Preliminary Objection challenging venue in Cumberland County. Plaintiff countered with an Amended Complaint. Defendant does not believe the Amended Complaint corrects the problem and therefore reasserts its Preliminary Objection. 2. The Amended Complaint identifies Plaintiff as a seller of machinery systems for industrial and commercial use with offices in Mechanicsburg, Cumberland County, Pennsylvania. (Amended Complaint, 11111 & 3) 3. The Amended Complaint identifies Defendant as having offices in Allentown, Lehigh County, Pennsylvania. (Amended Complaint, 112) 4. Plaintiff seeks to recover a sales commission and expenses allegedly due from Defendant in connection with Defendant's aborted purchase of the following industrial amU/n?iY?ti•n?-upM machinery (with options and accessories) as set forth in certain sales orders attached to the Complaint (the "Equipment" and the "Sales Orders"): Item Price Sales Order Ingersoll EDM machine, $1,212,660.00 ING-23401 10 Okada machines $5,370,000.00 MC-6087 5. Plaintiff alleges the Sales Orders contain the following clause: Accepted orders are not subject to cancellation unless agreed to by Summit Machinery Systems, Inc. Cancellation terms and conditions shall include but not be limited to payment of all costs and expenses plus a maximum of fifleen (15%) percent cancellation charge. 6. Based on the clause described in the preceding paragraph, Plaintiff alleges it is entitled to recover (A) cancellation charges of $181,899 on Sales Order ING-23401, (B) cancellation charges of$805,500 on Sales Order MC-6087, and (C) unspecified costs and expenses. (Amended Complaint, 1118 & 9) According to Pa.R.C.P. 2179(a), an action against a corporation may be brought in and only in: (l) the county where its registered office or principal place of business is located; (2) a county where it regularly conducts business; (3) the county where the cause of action arose; or (4) it county where a transaction or occurrence took place out of which the cause of action arose. s>, t . r: i i 8. Pursuant to Rule 10280a00 ) of the Pennsylvania Rules of Civil Procedure, Plaintiff asserts that venue in Cumberland County is improper and this matter should be dismissed without prejudice. In support of its preliminary objection, Defendant attaches copies of the following Affidavits, which were attached to Defendant's Preliminary Objection to Plaintiff's original Complaint: Exhibit A - the Affidavit of William Peoples, President of the Defendant corporation (the "Peoples Affidavit"); Exhibit B - the Affidavit of Bradley Jacoby, Director of CAD/CAM Technologies of the Defendant corporation (the Jacoby Affidavit"); and Exhibit C - the Affidavit of Deborah Kocher, Vice President of Administration for Defendant corporation (the "Kocher Affidavit"). 10. The following facts are set forth in the Affidavits: (a) PDI is a vertically integrated manufacturer of small pour polyurethane parts. (Peoples Affidavit, 113) (b) The equipment described in the Complaint was not manufactured, used, stored or even transported through Cumberland County. (Peoples Affidavit, 1112) (c) Defendant never solicited business from Plaintiff; instead, Defendant sought to (i) develop and acquire a large bed sinker EDM machine (the "EDM Machine") from Mitsubishi EDM, and (ii) acquire 10 high speed gantry five axis CNC machining centers (the "Machining Centers") manufactured by Okada Corporation ("Okada"). (Jacoby Affidavit, 114; Peoples Affidavit, 11115-6) (d) Defendant expressed interest in the EDM Machine at a booth operated by Mitsubishi EDM at a trade show in Chicago in 1996. After that contact, Summit communicated with Defendant to further discuss [lie purchase. (Jacoby Affidavit, $115-6) (c) The first discussion of Defendant's acquisition of the Machining Centers from Okada occurred in a face to face meeting at Defendant's facility in Allentown. (Peoples Affidavit, 11116-7) (f) Defendant never entered Cumberland County to investigate, negotiate or close the transactions alleged in the Complaint. (Jacoby Affidavit, 1199-10; PcoPles Affidavit, 11117-8) (g) Plaintiff's representatives came to Defendant's facility in Allentown at least 21 times to discuss and close the transactions described in the Complaint. (Jacoby Affidavit, 11119-10; Pcoplcs Affidavit, 11117-8) (h) Defendant executed the Sales Orders at a meeting with Plaintiff held on December 10, 1997, in Defendant's conference room at Defendant's Allentown facility, nolinCumberlandCounty. (Kocher Affidavit,¶¶8-9;Jacoby Affidavit, Jill II-1G) 0) David Goss and James McCloskey, Plaintiffs representatives, were at the meeting held on December 10,1997; in Defendant's conference room at Defendant's Allentown facility. (Kocher Affidavit, 116; Jacoby Affidavit, 1113) 6) Plaintiffalso signed the Sales Orders at that meeting in Allentown and gave Defendant signed copies at that limo. (Kocher Affidavit, 118; Jacoby Affidavit, ¶15) (k) Defendant has not solicited business in Cumberland County by direct advertising or solicitation within the last live years. (Peoples Affidavit, Ill 6) 11. Venue is improper under Rude 2179(1) because Plaintiff admits, in paragraph 2 of the Complaint, that Defendant is located in Lehigh County. 12. Venuc is improper under Rule 2179(2) because Defendant does not allege that Defendant conducts business in Cumberland County. 13. Venue is improper under Rule 2179(3) because Plaintiff's alleged cause of action did not arise in Cumberland County. Paragraphs 1 1-16 and 21-2 of the Amended Complaint allege the "breach" by Defendant was Defendant's frtilure to purchase the machines. Plaintiff does not allege where those acts look place. Asa result, Plaintiff does not plead grounds for venue under Rule 2179(3). Moreover, the record establishes that the decisions described in the urvr+rhrrrn.. ?r•M Amended Complaint, if they took place at all, took place in Lehigh County, which means venue is not proper in Cumberland County under Rule 2179(3). 14. Venue is improper under Rule 2179(4) because none of the transactions or occurrences out of which the alleged cause of action arose took place in Cumberland County. Contract formation is such an occurrence or transaction, but the contracts Plaintiff alleges were formed in Lehigh County, not Cumberland County. WHEREFORE, Defendant respectfully requests that the Amended Complaint be dismissed, with costs against Defendant. BLANK ROME COMISKY & McCAULEY LLP No. Jack M. Seitz squire ttomey .37026 16 and Road, Suite 200 Allentown, PA 18104 (610) 706-4300 Attorney for Defendant 5 CERTIFICATE OR SERVICE I hereby certify that on March i , 2000, 1 served a true and correct copy of Defendant's Preliminary Objection to Plaintiff's Amended Complaint by first class mail, postage prepaid, to: Jeffrey Rehmeyer, Esq. Countess Gilbert Andrews 27 North Duke Street York, PA 17401 Date: March 0, 2000 V i!gl4x3 tiVrmWnlimmibdrnA•rtvm+dma COMMONWEALTH OF PENNSYLVANIA ss COUNTY OF LEHIGII AFFIDAVIT I, William Peoples, President of Polymer Dynamics, Inc., hereby swear and depose as follows: 1. I am an adult individual. 2. I am the President of Polymer Dynamics, Inc. ("PDI"). PDI is a vertically integrated manufacturer of small pour polyurethane parts. 4. As President of PDI, I am responsible for supervising the company's major equipment acquisitions. I also direct the company's acquisition of financing for operations and equipment acquisitions. 5. In or about 1996, PDI was interested in developing and acquiring a large bed sinker EDM machine (the "EDM Machine"). PDI was also interested in acquiring 10 high speed gantry 5 axis CNC machining centers manufactured by the Okada Corporation of Japan and others (the "Machining Centers"). 6. As PDI was negotiating with Summit Machinery Systems, Inc. ("Summit") for PDI's acquisition of the EDM Machine from Mitsubishi EDM, I learned from a Summit representative, at a meeting held in PDI's Allentown facility, that Summit also arranged sales of machinery manufactured by Okada Corporation. The first discussions with Summit of PDI's possible acquisition of the Machining Centers took place in person at PDI's facility in Allentown. 8. No one from PDI ever went to Summit's facility in Cumberland County. Page 1 of 3 ovuTnwa?.osiW,m•Rmww?•l.? 9. PDI eventually offered to acquire the EDM Machine from Mitsubishi and the Machining Centers from Okada. 10. The items to be acquired are described in Sales Orders issued by Summit and signed by Summit and PDI on December 10, 1997 (the "Sales Orders"). 11. The Sales Orders were signed by Summit and by PDI in PDI's conference room in Allentown on December 10, 1997. 12. The equipment was not manufactured, used, stored or even transported through Cumberland County at any point in connection with the transactions described in this Affidavit. 13. PDI did not complete the acquisition of the equipment described in the Sales Orders because its financing fell through after PDI suffered significant systems failures. 14. PDI's decision to stop the orders was made and implemented at PDI's facility in Allentown. 15. PDI learned of its inability to acquire the machines and communicated that information to Summit out of PDI's facility in Allentown. 16. To the best of my knowledge, PDI has not directly solicited any business from prospective customers in Cumberland County within the last five years. 17. I am aware that this affidavit will be submitted to the Court in Summit Machinery Systems, Inc. v. Polymer Dynamics, Inc., filed in the Court of Common Pleas of Cumberland County, Pennsylvania, to docket no. 99-7616-Civil. Page 2 of 3 i q?SE1R,p,.bmq?v^?mkNrtPM4?W 18. I am aware that I will be subject to sanctions if any statements in this Affidavit are willfully false. Dated: January o/ 2000 William Peoples Sworn to and subscribed to before me this ?day of ;Janua , 2000, ary Public MY COMMISSION EXPIRES: ENotarial Sandra KSouth WhilMy CommisMember Pennsylvania Association or Natarlos Page 3 of 3 .l El l!q!4X3 , , KMEj7Z1M1a- Wyw,(.IfjA,(.,d COMMONWEALTH OF PENNSYLVANIA ss COUNTY OF LEHIGH AFFIDAVIT I, Bradley Jacoby, Director of CAD/CAM Technologies for Polymer Dynamics, Inc., hereby swear and depose as follows: 1. 2. since 1990. 3. I am an adult individual. I am employed by Polymer Dynamics, Inc. ("PDI") and have been so employed I am PDI's Director of CAD/CAM Technologies. I oversee machine design and mold manufacturing for PDI. 4. I was the person primarily responsible for PDI's efforts to (a) develop and acquire a large bed sinker EDM machine (the "EDM Machine") from Mitsubishi EDM, and (b) acquire 10 high speed gantry five axis CNC machining centers (the "Machining Centers") manufactured by Okada Corporation ("Okada"). 5. At a trade show in Chicago held in September of 1996, I informed representatives of Mitsubishi EDM that PDI was interested in an EDM Machine. 6. In response to PDI's inquiries, Mitsubishi put Summit Machinery Systems, Inc. ("Summit") of Mechanicsburg, Pennsylvania, in touch with PDI to pursue PDI's acquisition of its EDM Machine from Mitsubishi. 7. At about the same PDI was negotiating with Summit for the EDM Machine, PDI learned from Summit that Summit also sold machinery manufactured by Okada. 8. PDI expressed interest to Summit in acquiring the Machining Centers. ?I LU[IRIyi,l?meb?pdryvrtdlj,Nl.Id 9. All negotiations between PDI and Summit for the machines described above took place either by telephone or in person at PDI's facility in Allentown. 10. Between May 26, 1997, and July of L999, Summit came to PDI's facility in Allentown no fewer than 21 times to discuss the machines. PDI never went to Summit's facility in Cumberland County for any reason. 11. On or about December 10, 1997, I participated in a meeting held in PDI's conference room at 2200 S. 12" Street, Allentown, Lehigh County, Pennsylvania. 12. The meeting described in the preceding paragraph was convened to execute papers related to PDI's acquisition of the machinery described above. 13. The meeting was also attended by several PDI employees and David Goss and James McCloskey from Summit Machinery Systems, Inc. ("Summit"). 14. I have reviewed the Sales Orders attached as Exhibits A and B to Summit's complaint against PDI in Summit Machinery Systems, Inc. v. Polymer Dynamics, Inc., filed in the Court of Common Pleas of Cumberland County, Pennsylvania, to docket no. 99-7616-Civil (the "Litigation"). 15. Summit's representatives signed the Sales Orders in my presence in PDI's conference room in Allentown and then distributed a signed copy to a PDI employee. 16. The Sales Orders were not executed in Cumberland County. Page 2 of 3 x. ?[irzp,r,,,,,gWrMd?rtkgl..?d 17. I am aware that this affidavit will be submitted to the Court in the Litigation. I ant aware that I will be subject to sanctions if any statements in this Affidavit are willfully false. Dated: January -3 ( 2000 Sworn to and subscribed to before me this d/5day of January, 2000. otary public MY COMMISSION EXPIRES: Notarial Seal Sandra K. Kerriggan, Notary Public South Whftehall Twp., Lehigh Courhy My Commission Expves Feb. 22.20 61 Member. Pe---wN nla Association of Notaries Bradley Jacoby -ems Page 3 of 3 f Exhibit C ;. u"yrLp.uroy?pd?vrt.rt?d.1..N COMMONWEALTH OF PENNSYLVANIA ss COUNTY OF LEHIGH AFFIDAVIT I, Deborah Kocher, Vice President of Administration for Polymer Dynamics, Inc., hereby swear and depose as follows: 1. I am an adult individual. 2. I am employed by Polymer Dynamics, Inc. ("PDI") and have been so employed since 1984. 3. I am PDI's Vice President of Administration. My duties include contract review and administration and equipment acquisition. 4. On or about December 10, 1997, I participated in a meeting held in PDI's conference room at 2200 S. 12`h Street, Allentown, Lehigh County, Pennsylvania. 5. The meeting described in the preceding paragraph was convened to execute papers related to PDI's possible acquisition of certain industrial machinery. 6. The meeting was also attended by several PDI employees and David Goss and James McCloskey from Summit Machinery Systems, Inc. ("Summit"). 7. I have reviewed the Sales Orders attached as Exhibits A and B to Summit's complaint against PDI in Summit Machinery Systems, Inc. v. Polymer Dynamics, Inc., filed in the Court of Common Pleas of Cumberland County, Pennsylvania, to docket no. 99-7616-Civil (the "Litigation"). 8. Summit's representatives signed the Sales Orders in my presence in PDI's conference room in Allentown and then distributed a signed copy to a PDI employee. .. a?crrzWd„wt, pdr,..rt?n?.ee.•N 9. The Sales Orders were not executed in Cumberland County. 10. I am aware that this affidavit will be submitted to the Court in the Litigation. I am aware that I will be subject to sanctions if any statements in this Affidavit are willfully false. Dated: January , 2000 Sworn to and subscribed to before me this. /-9 day of January, 2000. , /.' -, /' '--k ?- Notary Public MY COMMISSION EXPIRES: Notarial Seal Sandra K. Kerrigan, Notary Public South Whitehall g, ., lshigh Co My commission Expires Fe.22.2061 Member. PennsyNane Asscelauuu of Notaries eborah Kocher Page 2 of 2 SHERIFF'S RETURN - OUT OF COUNTY 'CASE NO: 1999-07GIG P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SUMMIT MACHINERY SYSTEMS INC VS POLYMER DYNAMICS INC R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: POLYMER DYNAMICS INC but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of LEHIGH County, Pennsylvania, to serve the within NOTICE & COMPLAINT On January 11th 2000 this office was in receipt of the attached return from LEHIGH Sheriff's Costs: So answer. Docketing 18.00 Out of County 9.00 Surcharge 8.00 R.' Thomas Kline Dep. Lehigh Cc 32.00 Sheriff of Cumberland County .00 67.00 01/11/2000 COUNTESS, GILBERT & ANDREWS Sworn and subscribed to before me this day of . < lctrv A.D. (Prothonotary ''In The Court of Common Pleas of Cumberland County, Pennsylvania Summit Machinery Systems, Inc. vs. polymer Dynamics, Inc. No. 99-7616 Civil Now, 12/22/99 , 19_, I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Lehigh County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now,. within upon at by handing to a and made known to Sworn and subscribed before me this _ day of 19 AFFIDAVIT 19_, at o'clock M. served the copy of the original So answers, the contents thereof. Sheriff of COSTS SERVICE _ MILEAGE S County, PA i -b c-o-' ;Anh ?q hW h ?j SAC- 2', O b e rn. 2.2-0 S \2 kh S}- NOTARIAL SEAL SUSAN 1. SEDORA, NOTARY PUBLIC CI1Y OF ALLENTOWN, LEHIGH COUNTY, PA JAY COMMISSION EXPIRES JUNE 251h, 2001 t14 1 • r ??' • 91•IiiN : Fi= "'I ?. ? _ : I-1 I GPI"'C:Ut?1^S'r' l:lJl!ri it+I Il r dF. . a` +v I Ir41"ill. L.. :i ?I, r Alta l': . p-, ... _.... X11!'3!: i-i !?: ?•?irlt. I.1 !.Y.!IIf"'L.i: E! i? l Iv .. i'•i :. GI I ....1111 'rl IV- r. I•'. btf.d^!(' OF lND . .' i [n-.lolL.._ -- --?---......... _. r[cit,sHif= 1t_ CI-;:vi 0 '? , rn :_ac:al .nra u?. !ter <: u r ?-?-??__.? _. ???,_-tih. ?_.t • __ _....__ _ ...-------•-•-• - ' III !I'tli. ? i i?.} ..•:i {t??'-. _, '.'?,i ... .LP. :.ASE: 7,, .r;=: -? ?-?-='` :• ???-, .... t. CIA 1 E t. - r r 1 ? '....._ - - '.1 .. ..f i. .. C5 -FG is •. ._s Fir :Vl'E:D NAME C)r' i:UTI-!01?1 7p 1) -;'iEidi 1 IGIu;=..:F'E -C! III.iTFjIJF< I ZED -C.f?FriT _.... . u. .. r Call ?'.? k SUMMIT MACHINERY SYSTEMS, INC., Plaintiff VS. POLYMER DYNAMICS, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 99-7616 CIVIL CIVIL ACTION - LAW IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT BEFORE BAYLEY AND HESS, JJ. ORDER AND NOW, this 9? day ofJunc, 2000, the preliminary objection ofthe defendant to the plaintiffs amended complaint is SUSTAINED. It is ordered and directed that this case be transferred to the County of Lehigh. The costs and fees for transfer and removal of the record shall be paid by the plaintiff. BY THE COURT, Jeffrey L. Rehmeyer II, Esquire 29 North Duke Street York, PA 17401 For the Plaintiff Edward N. Cahn, Esquire Jack M. Seitz, Esquire 1620 Pond Road, Suite 200 Allentown, PA 18104 For the Defendant Hess, J.nj -(q jj 6"' - - 9 -00 K3 ?i t ir'(. fy I SUMMIT MACHINERY SYSTEMS, INC., Plaintiff vs. POLYMER DYNAMICS, INC., Defendant IN THE COURT OP COMMON PLEAS OP CUMBERLAND COUNTY, PENNSYLVANIA 99-7616 CIVIL CIVIL ACTION - LAW IN RE, DEPENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIPp'S AMENDED COMPLAINT BEFORE BAYLEY AND HESS JJ. OPINION AND ORDER Before the court is the defendant's preliminary objection challenging venue, 'File plaintiff alleged a breach of contract arising out of two sales orders. The plaintiff Ele has also alleged damages under theories of promissory estoppel and unjust enrichment. The plaintiff is a Pennsylvania corporation located in Mechanicsburg, Cumberland County, Pennsylvania. The defendant is a Pennsylvania corporation located in Allentown, Lehigh County, Pennsylvania. On or about December 10, 1997, the plaintiff entered into two separate contracts with the defendant in Lehigh County. According to the first contract, sales order ING-23401, the plaintiff was to provide the defendant with an Ingersol EDN machine and accessories for a total price of $1,212,660.00. The second contract, sales order MC-6087, provided that the plaintiff would furnish the defendant with ten Okada machines and accessories for a total price of $5,370,000.00. The plaintiff was able to provide the equipment by virtue of its exclusive regional distributor relationship with MC Machinery Systems Inc. and Okada Company Ltd. f 99-76I6 CIVIL On June 30, 1999, the defendant entered into a settlement agreement with MC Machinery to cancel the purchase pursuant to ING-23401. On November 8, 1999, the plaintiff sent a letter asking the defendant for adequate assurance that they would be proceeding with the purchase under the second sales order. According to the complaint, the defendant failed to make these assurances and on December 15, 1999, the plaintiff concluded that the defendant had repudiated the second sales order and, thus, breached the contract. Rule 2179 of the Pennsylvania Rules of Civil Procedure governs venue in cases involving corporations. The Rule provides in pertinent part that an action against a corporation may be brought in and only in: ( I ) the county where its registered office or principle place of business is located; (2) a county where it regularly conducts business; (3) the county where the cause ofaction arose; or (4) a county where a transaction or occurrence look place out of which the cause of action arose. The plaintiff acknowledges that venue is not proper under paragraphs (1), (2), and (3) above. Thus, the issue before this court is whether the defendant's failure to purchase the ordered machines is a "transaction or occurrence" in Cumberland County. One of the earliest cases construing this Rule was Craig v. W. J. Thicle and Sons, Inc., 395 Pa. 129, 149 A.2d 35 (1959). There, the plaintiff, owner of a truck dealership in Luzerne County, entered into a contract with a defendant in Cambria County. Pursuant to that agreement, the defendant agreed to sell truck bodies to the plaintiff which bodies were to be placed on trucks which the plaintifTsent to the defendant's plant in Cambria County. The plaintiff brought an i It t 99-7616 CIVIL action seeking damages as a result of poor workmanship in the construction of the truck bodies. In Craic, the issue was whether the sending of an order for the truck bodies from Luzcme County was a transaction or occurrence out of which a transaction arose for the purpose of laying venue there. The Supreme Court held that it was not. The framers of our rule... intended to require that a transaction (in this case the making of a contract) and not merely some part of the transaction take place in the county where venue is laid. It would lead only to confusion and a practice which we have heretofore referred to as "forum shopping" if the law were to permit suit to be commenced against a corporation in any county where any facet of a complex transaction occurred. Nor do we understand the "occurrence" to mean "part of a transaction." On familiar principles of ejusden generis, the word "occurrence" would not have a broader meaning than "transaction" so as to conform it to "part of a transaction." Id, at 37. In this case, the plaintiffs argue that the failure to purchase the ordered machines occurred in Cumberland County. Even assuming that a nonevent can constitute a "transaction or occurrence" we do not believe, in this case, that it rises to the level necessary to confer venue pursuant to Rule 2179. It is true that the Pennsylvania Supreme Court has recognized a failure to act as an occurrence. In Burdett Oxygen Co. v. I.R. Wolfe & Sons. Inc., 433 Pa. 291, 247 A.2d 299 (1969), a Dauphin County corporation had entered into a contract under which it agreed to purchase all of its requirement for certain gases from Burdett Oxygen Co., a Montgomery County corporation. Burdette brought suit against I.R. Wolfe & Sons because I.R. Wolfe & Sons T . a 99-7616 CIVIL breached the contract when they bought gases from other entities. The defendant filed preliminary objections claiming venue was improper in Montgomery County. The Supreme Court found Montgomery County to be a proper forum. The court held that because it was anticipated that the defendant would obtain all of its gas requirements for a period of ten years from Montgomery County that the defendant was regularly conducting business in Montgomery County within the meaning of Pa.R.C.P. 2179(a)(2). In addition, had the defendant not breached the contract, it would have sent orders to the plaintiff in Montgomery County for goods covered by the contract and the failure to deliver the required orders constituted an "occurrence... out of which the cause of action arose" as contemplated by Pa.R.C.P. 2179(a)(4). The matter sub judice is readily distinguishable. In this case, orders had already been placed. The defendants simply signaled their intention not to accept delivery which was to have occurred in Lehigh County. The defendant corporation is located in a different county than the plaintiff and there is no suggestion that it regularly conducts business here. The plaintiff has failed to allege facts which would support its argument that any aspect of the breach of contract took place in Cumberland County. It is undisputed that the contracts were formed and accepted at the defendant's office in Lehigh County. We agree with the defendant that this case has no connection to Cumberland Counhv other than the fact that the plaintiffs office is located here. In suggesting that venue is nonetheless proper here, the plaintiff relics on Lucas fintemrises Inc v Paul C Harman Co Inc , 273 Pa.Super. 422, 417 A.2d 720 (1980). In that case, the Superior Court concluded that Allegheny County, the place of business of the plaintiff, was a proper venue for the case. In Lucas, the breach of contract was the failure to pay a finder's I 5---- ".4? 51M 99-7616 CIVIL fee according to the terms of the contract. The court held that in construing Pennsylvania's venue provision, the rule is that, in the absence of an agreement to the contrary, "payment is due at the plaintiffs' residence or place of business, and venue is proper there in a breach of contract alleging failure to make payment." Id. at 424-425, 417 A.2d at 721. In the present case, the alleged breach is not a failure to make payment. We are satisfied that Lucas does not apply. ORDER AND NOW, this q' day of June, 2000, the preliminary objection of the defendant to the plaintiff's amended complaint is SUSTAINED. It is ordered and directed that this case be transferred to the County of Lehigh. The costs and fees for transfer and removal of the record shall be paid by the plaintiff'. Jeffrey L. Rehmeyer 11, Esquire 29 North Duke Street York, PA 17401 For the Plaintiff Edward N. Cahn, Esquire Jack M. Seitz, Esquire 1620 Pond Road, Suite 200 Allentown, PA 1 R 104 For the Defendant BY'rl-IE COURT. 4 Kcvit? A. I Icss' J. IN THE COURT Or COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SUMMIT MACHINERY SYSTEMS, INC. V. Plaintiff POLYMER DYNAMICS, INC., Defendant Civil Action - Law No. 99 - 7616 Civil Term ORDER AND NOW, this day of , 2000, upon consideration of Defendant's preliminary objection to venue under Pa.R.C.P. 1028(a)(2), it is hereby ORDERED that venue in Cumberland County is improper and this matter is dismissed, without prejudice. BY THE COURT: , J. Copies to be served on: Jeffrey Rehmcycr, Esquire Jack M. Seitz, Esquire l ?11]Y??.?'r...-I.M r , IN TILE COURT OF COMMON PLEAS OF CUMBERLAND COUN'T'Y, PENNSYLVANIA SUMMIT MACHINERY SYSTEMS, INC. Plaintiff V. POLYMER DYNAMICS, INC., Defendant Civil Action - Law No. 99 - 7616 Civil Term DEFENDANT'S PRELIMINARY OBJECTION Defendant, Polymer Dynamics, Inc., responds to Plaintiff's Complaint as follows: Plaintiff, Summit Machinery Systems, Inc., commenced this action on December 21, 1999. 2. The Complaint identifies Plaintiff as a seller of machinery systems for industrial and commercial use with offices in Mechanicsburg, Cumberland County, Pennsylvania. (Complaint,Jill 1 & 3) 3. The Complaint identifies Defendant as having offices in Allentown, Lehigh County, Pennsylvania. 4. Plaintiff seeks to recover it sales commission and expenses allegedly due from Defendant in connection with Defendant's aborted purchase of the following industrial machinery with options and accessories, as set forth in certain purchase orders attached to the Complaint (the "Equipment" and the "Purchase Orders"): Item Price Sales Order Ingersoll EDM machine, $1,212,660.00 ING-23401 10 Okada machines $5,370,000.00 MC-6087 Y ?? 4A?SIYA ..11n . -- .M 5. Plaintiff alleges the Purchase Orders contain the following clause: Accepted orders are not subject to cancellation unless agreed to by Summit Machinery Systems, Inc. Cancellation terms and conditions shall include but not be limited to payment ofall costs and expenses plus a maximum of fifteen (15%) percent cancellation charge. 6. Based on the clause described in the preceding paragraph, Plaintiff alleges it is entitled to recover (A) cancellation charges of $181,899 on Purchase Order ING-23401, (I3) cancellation charges of $987,399 on Purchase Order MC-6087, and (C) unspecified costs and expenses. (Complaint, 11118 & 9) According to Pa.R.C.P. 2179(a), an action against a corporation may be brought in and only in: (1) file county where its registered office or principal place of business is located; (2) a county where it regularly conducts business; (3) the county where the cause of action arose; or (4) it county %vhcrc a transaction or occurrence took place out of which the caUSC of action arose. 8. Pursuant to Rule 1028(a)(1) of the Pennsylvania Rules of Civil Procedure, Plaintiff asserts that venue in Cumberland County is improper and this matter should be dismissed without prejudice. 9. In support of its preliminary abjection, Defendant attaches the following materials: Exhibit A - the Affidavit of William Peoples, President of the Defendant corporation (the "Peoples Affidavit"); Exhibit B - the Affidavit of Bradley Jacoby, Director of CAD/CAM Technologies of the Defendant corporation (the Jacoby Affidavt"); and Exhibit C - the Affidavit of Deborah Kocher, Vice President of Administration for Defendant corporation (the "Kocher Affidavit"). 10. The following facts are set forth in the Affidavits: (a) PDI is a vertically integrated manufacturer of small pour polyurethane parts. (Peoples Affidavit, 113) (b) The equipment described in the Complaint was not manufactured, used, stored or even transported through Cumberland County. (Peoples Affidavit,If 12) (c) Defendant never solicited business from Plaintiff; instead, Defendant sought to (i) develop and acquire a large bed sinker EDM machine (the "EDM Machine") from Mitsubishi EDM, and (ii) acquire 10 high speed gantry five axis CNC machining centers (the "Machining Centers") manufactured by Okada Corporation ("Okada"). (Jacoby Affidavit, 114; Peoples Affidavit, ¶115-6) (d) Defendant expressed interest in the EDM Machine at a booth operated by Mitsubishi EDM at a trade show in Chicago in 1996. After that contact, Summit communicated with Defendant to further discuss the purchase. (Jacoby Affidavit, 11115-6) (e) The first discussion of Defendant's acquisition of the Machining Centers from Okada occurred in a face to face meeting at Defendant's facility in Allentown. (Peoples Affidavit, 11116-7) (f) Defendant never entered Cumberland County to investigate, negotiate or close the transactions alleged in the Complaint. (Jacoby Affidavit, ¶¶9-10; Peoples Affidavit, $117-8) (g) Plaintiff's representatives came to Defendant's facility in Allentown at least 21 times to discuss and close the transactions described in the Complaint. (Jacoby Affidavit, 111(9-10; Peoples Affidavit, 11117-8) (h) Defendant executed the Sales Orders at a meeting with Plaintiff held on December 10, 1997, in Defendant's conference room at Defendant's Allentown facility, not in Cwnberland County. (Kocher Affidavit, 11118-9; Jacoby Affidavit, llllI 1-16) W David Goss and James McCloskey, Plaintiffs representatives, were at the meeting held on December 10, 1997, in Defendant's conference room at Defendant's Allentown facility. (Kocher Affidavit, 116; Jacoby Affidavit, ¶13) Ew"-.- - 0) Plaintiff also signed the Sales Orders at that meeting in Allentown and gave Defendant signed copies at that time. (Kocher Affidavit, ¶S; Jacoby Affidavit, 1115) (k) Defendant has not solicited business in Cumberland County by direct advertising or solicitation within the last five years. (Peoples Affidavit, ¶16) 11. Venue is improper under Rule 2179(1) because Plaintiff admits, in paragraph 2 of the Complaint, that Defendant is located in Lehigh County. 12. Venue is improper under Rule 2179(2) because Defendant does not even allege that Defendant conducts business in Cumberland County. 13. Venue is improper under Rule 2179(3) because Plaintiffs alleged cause of action did not arise in Cumberland County. Paragraph 7 of the Complaint alleges "breach" by Defendant was Defendant's firilure to purchase the machines. Plaintiff does not allege where that act took place. As a result, Plaintiff does not plead grounds for venue under Rule 2179(3). Moreover, the record establishes that the decision described in paragraph 7 of the Complaint, if it took place at all, took place in Lehigh County, which means venue is not proper in Cumberland County under Rule 2179(3). 14. Venue is improper under Rule 2179(4) because none of the transactions or occurrences out of which the alleged cause of action arose took place in Cumberland County. Contract formation is such an occurrence or transaction, but the contracts Plaintiff alleges were formed in Lehigh County, not Cumberland County. 4 t YII/p?l,ry4?ln.-I?N WHEREFORE, Defendant respectfully requests that the Complaint be dismissed, with costs against Defendant. BLANK ROME COMISKY & McCAULEY LLP Attome No. 08007 Ja Seitz, Esquire Attorney No. 37026 1620 Pond Road, Suite 200 Allentown, PA 18104 (610) 706-4300 Attorney for Defendant vanpa.+rrw.a?..nr? CERTIFICATE Or SERVICE I hereby certify that on ? ??• Z , 2000, I served a true and correct copy of Defendant's Preliminary Objection by first class mail, postage prepaid, to: Jeffrey Rehmeyer, Esq. Countess Gilbert Andrews 27 North Duke Street York, PA 17401 Date: I oLD a Exhibit A A OlITPryrLm?A,lplmr•1•II1r941 qd COMMONWEALTH OR PENNSYLVANIA COUNTY OF LEIIIGII AFFIDAVIT ss I, William Peoples, President of Polymer Dynamics, Inc., hereby swear and depose as follows: L I am an adult individual. 2. I am the President of Polymer Dynamics, Inc. ("PDI" ). 3. PDI is a vertically integrated manufacturer of small pour polyurethane parts. 4. As President of PDI, I am responsible for supervising the company's major equipment acquisitions. I also direct the company's acquisition of financing for operations and equipment acquisitions. 5. In or about 1996, PDI was interested in developing and acquiring a large bed sinker EDM machine (the °EDM Machine"). PDI was also interested in acquiring 10 high speed gantry 5 axis CNC machining centers manufactured by the Okada Corporation of Japan and others (the "Machining Centers"). 6. As PDI was negotiating with Summit Machinery Systems, Inc. ("Summit") for PDI's acquisition of the EDM Machine from Mitsubishi EDM, I learned from a Summit representative, at a meeting held in PDI's Allentown facility, that Summit also arranged sales of machinery manufactured by Okada Corporation. 7. The first discussions with Summit of PDI's possible acquisition of the Machining Centers took place in person at PDI's facility in Allentown. 8. No one from PDI ever went to Summit's facility in Cumberland County. Page 1 of 3 9. PDf eventually offered to acquire the BDM Machine from Mitsubishi and the Machining Centers from Okada. 10. The items to be acquired are described in Sales Orders issued by Summit and signed by Summit and PDI on December 10, 1997 (the "Sales Orders"). 11. The Sales Orders were signed by Summit and by PDI in PDI's conference room in Allentown on December 10, 1997. 12. The equipment was not manufactured, used, stored or even transported through Cumberland County at any point in connection with the transactions described in this Affidavit. 13. PDI did not complete the acquisition of the equipment described in the Sales Orders because its financing fell through after PDI suffered significant systems failures. 14. PDI's decision to stop the orders was made and implemented at PDI's facility in Allentown. 15. PDI learned of its inability to acquire the machines and communicated that information to Summit out of PDI's facility in Allentown. 16. To the best of my knowledge, PDI has not directly solicited any business from prospective customers in Cumberland County within the last five years. 17. 1 am aware that this affidavit will be submitted to the Court in Summit Machinery S)wems. Inc. v. Polymer Dynamics, Inc., filed in the Court of Common Pleas of Cumberland County, Pennsylvania, to docket no. 99-7616-Civil. Page 2 of 3 Rr6EfRV^I'"10??II"+M?r411pN?g9, 18. 1 am aware that I will be subject to sanctions if any statements in this Affidavit are willfully false. Dated: January j2000 Swom to and subscribed to before me this ?day of Jlic MY COMMISSION EXPIRES: Notarial Seal Sandra K. Kerrigan. Notary t?>c South Whitehall wp.. Leh1Gh CouMY My Commission Expires Feb. ?• ? a Member Pennsylvania Association of Nolades LA3 William Peoples Page 3 of 3 .,r s`= I .?An r, ! 91!9!4x3 • R:VFT/.?ry?l?nxt,?.JimAJIKL•1 •?? COMMONWEALTH OF PENNSYLVANIA COUNTY OF LEHIGH AFFIDAVIT ss I, Bradley Jacoby, Director of CAD/CAM Technologies for Polymer Dynamics, Inc., hereby swear and depose as follows: I am an adult individual. 2. 1 am employed by Polymer Dynamics, Inc. ("PDI") and have been so employed since 1990. 3. I am PDI's Director of CAD/CAM Technologies. I oversee machine design and mold manufacturing for PDI. 4. I was the person primarily responsible for PDI's efforts to (a) develop and acquire a large bed sinker EDM machine (the "EDM Machine") from Mitsubishi EDM, and (b) acquire 10 high speed gantry five axis CNC machining centers (the "Machining Centers") manufactured by Okada Corporation ("Okada"). 5. At a trade show in Chicago held in September of 1996, 1 infornied representatives of Mitsubishi EDM that PDI was interested in an EDM Machine. 6. In response to PDI's inquiries, Mitsubishi put Summit Machinery Systems, Inc. ("Summit") of Mechanicsburg, Pennsylvania, in touch with PDI to pursue PDI's acquisition of its EDM Machine from Mitsubishi. At about the same PDI was negotiating with Summit for the EDM Machine, PDI learned from Summit that Summit also sold machinery manufactured by Okada. 8. PDI expressed interest to Summit in acquiring the Machining Centers. • R:UEfI'Lyvd?md,?NmMJf r4rl qJ 9. All negotiations between PDI and Summit for the machines described above took place either by telephone or in person at PDI's facility in Allentown. 10. Between May 26, 1997, and July of 1999, Summit came to PDI's facility in Allentown no fewer than 21 times to discuss the machines. PDI never went to Summit's facility in Cumberland County for any reason. 11. On or about December 10, 1997, I participated in a meeting held in PDI's conference room at 2200 S. 12" Street, Allentown, Lehigh County, Pennsylvania. 12. The meeting described in the preceding paragraph was convened to execute papers related to PDI's acquisition of the machinery described above. 13. The meeting was also attended by several PDI employees and David Goss and James McCloskey from Summit Machinery Systems, Inc. ("Summit"). 14. I have reviewed the Sales Orders attached as Exhibits A and B to Summit's complaint against PDI in Summit Machinery Systems, Inc. v. Polymer Dynamics, Inc., filed in the Court of Common Pleas of Cumberland County, Pennsylvania, to docket no. 99-7616-Civil (the "Litigation"). 15. Summit's representatives signed the Sales Orders in my presence in PDI's conference room in Allentown and then distributed a signed copy to a PDI employee. 16. The Sales Orders were not executed in Cumberland County. Page 2 of 3 17. I am aware that this affidavit will be submitted to file Court in the Litigation. I am aware that I will be subject to sanctions if any statements in this Affidavit are willfully false. Dated: January 3 2000 Sworn to and subscribed to before me this kg/5day of January, 2000. otary Public MY COMMISSION EXPIRES: Notarial Seal Sandra K. Kerr an, Notary Public South Whitehall Vp.. Lehigh Co 2007 My Commission Expires Feb. 22,unty Member Pennsylvania Association of Notaries Bradley Jacoby Page 3 of 3 KNFIi2.`pd?my411`imddl4Lil qd I , 1 COMMONWEALTH OF PENNSYLVANIA COUNTY OF LEHIGH AFFIDAVIT ss 1, Deborah Kocher, Vice President of Administration for Polymer Dynamics, Inc., hereby swear and depose as follows: 1. I am an adult individual. 2. 1 am employed by polymer Dynamics, Inc. ("PDI") and have been so employed since 1984. 3. I am PD I's Vice President of Administration. My duties include contract review and administration and equipment acquisition. 4. On or about December 10, 1997, 1 participated in a meeting held in PDI's conference room at 2200 S. 12111 Street, Allentown, Lehigh County, Pennsylvania. 5, The meeting described in the preceding paragraph was convened to execute papers related to PDI's possible acquisition of certain industrial machinery. 6. The meeting was also attended by several PDI employees and David Goss and James McCloskey from Summit Machinery Systems, Inc. ("Summit"). 7. I have reviewed the Sales Orders attached as Exhibits A and B to Summit's complaint against PDI in Summit Machinery Systems, Inc. v. Polymer Dynamics, Inc., filed in the Court of Common Pleas of Cumberland County, Pennsylvania, to docket no. 99-7616-Civil (the "Litigation"). 8. Summit's representatives signed the Sales Orders in my presence in PDI's conference room in Allentown and then distributed a signed copy to a PDI employee. i . R L?SEmt?p?WW ?i4drmrH?rl?hitryJ 9. The Sales Orders were not executed in Cumberland County. 10. 1 am aware that this affidavit will be submitted to the Court in the Litigation. 1 am aware that I will be subject to sanctions if any statements in this Affidavit are willfully false. Datcd: January 2000 Sworn to and subscribed to before me this./-'? day of January, 2000. r ? - /Notary Public MY COMMISSION EXPIRES: Notarial Seal Sandra K. Kerrigan. Notary Public South Whitehall gwp.. Lehigh Courny My Commission Expires Feb. 22. 2001 Member. Pennsylvania Association or Notaries eborah Kocher t? c Page 2 of 2 W.. i -_f i. t 4 " • 7 a o - '1 ? ? F a n• t/? 7o p_ CV F pp i ' r , u r4 WA a J L W i? ' a U N P 1 a! o AL e y O U y r v v ` o ' Ci X a 9 o p 3 ' c J C j i i e? tr, ?d =BL'ANWRON E CQ1yIISKY'.& McCAULEY?I:LP wmtiN"s REBY u'kTRUE AND' FY 60R RECT ^•® ..., . - ' SUITE 200 ...:. COPY OF THMIRNM FILED IN 1620 POND ROAD THIS ACTION. ALLENTOWN, PENNSYLVANIA 18104 _ ATTORNEY - F EB 0 4 2000 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SUMMIT MACHINERY ) SYSTEMS, INC. ) Plaintiff ) Civil Action - Law V. ) No. 99 - 7616 Civil Term POLYMER DYNAMICS, INC., ) Defendant ) ORDER AND NOW, this day of , 2000, upon consideration of Defendant's preliminary objection to venue under Pa.R.C.P. 1028(a)(2), it is hereby ORDERED that venue in Cumberland County is improper and this matter is dismissed, without prejudice. BY THE COURT: , J. Copies to be served on: Jeffrey Rehmeyer, Esquire Jack M. Seitz, Esquire LAW OFFICES BLANK ROME COMISKY & MCCAULEY LLP WE DO HERESY CERTIFY TNATTHE SUrrE?200 WITHIN IS A TRUE AND CORRECT COPY OF ME ORIOI/{AL FILED IN 1620 POND ROAD THIS ACTION ALLENTOWN, PENNSYLVANIA 181 W .... 2U?d ATTORNEY .......... FEB U IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SUMMIT MACHINERY ) SYSTEMS, INC. ) Plaintiff O? V. ) Civil Action -Law POLYMER DYNAMICS, INC., ) No. 99 - 7616 Civil Term Defendant ORDER AND NOW, this day of 2000, upon consideration of Defendant's preliminary objection to venue under Pa.R.C.P. 1028(a)(2), it is hereby ORDERED that venue in Cumberland County is improper and this matter is dismissed, without prejudice. BY THE COURT: , J. Copies to be served on: Jeffrey Rehmeyer, Esquire Jack M. Seitz, Esquire _ _. . ?Ya?t^3a IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SUMMIT MACHINERY ) SYSTEMS, INC. ) ) Plaintiff ) V. ) POLYMER DYNAMICS, INC., ) Defendant ) Civil Action - Law No. 99 - 7616 Civil Term DEFENDANT'S PRELIMINARY OBJECTION C-) r, Defendant, Polymer Dynamics, Inc., responds to Plaintiff's Complaint as follows: 1. Plaintiff, Summit Machinery Systems, Inc., commenced this action on December 21, 1999. 2. The Complaint identifies Plaintiff as a seller of machinery systems for industrial and commercial use with offices in Mechanicsburg, Cumberland County, Pennsylvania. (Complaint, 1$1 & 3) 3. The Complaint identifies Defendant as having offices in Allentown, Lehigh County, Pennsylvania. 4. Plaintiff seeks to recover a sales commission and expenses allegedly due from Defendant in connection with Defendant's aborted purchase of the following industrial machinery with options and accessories, as set forth in certain purchase orders attached to the Complaint (the "Equipment" and the "Purchase Orders"): Item Price Sales Order Ingersoll EDM machine, $1,212,660.00 ING-23401 10 Okada machines $5,370,000.00 MC-6087 [.?YIR,nY?y1.4y?rIM 5. Plaintiff alleges the Purchase Orders contain the following clause: Accepted orders are not subject to cancellation unless agreed to by Summit Machinery Systems, Inc. Cancellation terms and conditions shall include but not be limited to payment of all costs and expenses plus a maximum of fifteen (15%) percent cancellation charge. 6. Based on the clause described in the preceding paragraph, Plaintiff alleges it is entitled to recover (A) cancellation charges of $181,899 on Purchase Order ING-23401, (B) cancellation charges of $987,399 on Purchase Order MC-6087, and (C) unspecified costs and expenses. (Complaint, 1$8 & 9) 7. According to Pa.R.C.P. 2179(a), an action against a corporation may be brought in and only in: (1) the county where its registered office or principal place of business is located; (2) a county where it regularly conducts business; (3) the county where the cause of action arose; or (4) a county where a transaction or occurrence took place out of which the cause of action arose. 8. Pursuant to Rule 1028(a)(1) of the Pennsylvania Rules of Civil Procedure, Plaintiff asserts that venue in Cumberland County is improper and this matter should be dismissed without prejudice. 9. In support of its preliminary objection, Defendant attaches the following materials: Exhibit A - the Affidavit of William Peoples, President of the Defendant corporation (the "Peoples Affidavit'); Exhibit B - the Affidavit of Bradley Jacoby, Director of CAD/CAM L 1W II1?-.AIM Technologies of the Defendant corporation (the Jacoby Affidavt" ); and Exhibit C - the Affidavit of Deborah Kocher, Vice President of Administration for Defendant corporation (the "Kocher Affidavit"). 10. The following facts are set forth in the Affidavits: (a) PDI is a vertically integrated manufacturer of small pour polyurethane parts. (Peoples Affidavit, ¶3) (b) The equipment described in the Complaint was not manufactured, used, stored or even transported through Cumberland County. (Peoples Affidavit, 112) (c) Defendant never solicited business from Plaintiff; instead, Defendant sought to (i) develop and acquire a large bed sinker EDM machine (the "EDM Machine") from Mitsubishi EDM, and (ii) acquire 10 high speed gantry five axis CNC machining centers (the "Machining Centers") manufactured by Okada Corporation ("Okada"). (Jacoby Affidavit, 14; Peoples Affidavit, 115-6) (d) Defendant expressed interest in the EDM Machine at a booth operated by Mitsubishi EDM at a trade show in Chicago in 1996. After that contact, Summit communicated with Defendant to further discuss the purchase. (Jacoby Affidavit, 115-6) (e) The first discussion of Defendant's acquisition of the Machining Centers from Okada occurred in a face to face meeting at Defendant's facility in Allentown. (Peoples Affidavit, 1116-7) (f) Defendant never entered Cumberland County to investigate, negotiate or close the transactions alleged in the Complaint. (Jacoby Affidavit, $19-10; Peoples Affidavit, $17-8) (g) Plaintiff s representatives came to Defendant's facility in Allentown at least 21 times to discuss and close the transactions described in the Complaint. (Jacoby Affidavit, 119-10; Peoples Affidavit, %7-8) (h) Defendant executed the Sales Orders at a meeting with Plaintiff held on December 10, 1997, in Defendant's conference room at Defendant's Allentown facility, not in Cumberland County. (Kocher Affidavit, 118-9; Jacoby Affidavit, ¶¶11-16) (i) David Goss and James McCloskey, Plaintiff s representatives, were at the meeting held on December 10, 1997, in Defendant's conference room at Defendant's Allentown facility. (Kocher Affidavit, 16; Jacoby Affidavit, 113) cwf[n?.M1Nru^u1M 6) Plaintiff also signed the Sales Orders at that meeting in Allentown and gave Defendant signed copies at that time. (Kocher Affidavit, 118; Jacoby Affidavit, ¶15) (k) Defendant has not solicited business in Cumberland County by direct advertising or solicitation within the last five years. (Peoples Affidavit, 1116) 11. Venue is improper under Rule 2179(1) because Plaintiff admits, in paragraph 2 of the Complaint, that Defendant is located in Lehigh County. 12. Venue is improper under Rule 2179(2) because Defendant does not even allege that Defendant conducts business in Cumberland County. 13. Venue is improper under Rule 2179(3) because Plaintiff s alleged cause of action did not arise in Cumberland County. Paragraph 7 of the Complaint alleges "breach" by Defendant was Defendant's failure to purchase the nmchines. Plaintiff does not allege where that act took place. As a result, Plaintiff does not plead grounds for venue under Rule 2179(3). Moreover, the record establishes that the decision described in paragraph 7 of the Complaint, if it took place at all, took place in Lehigh County, which means venue is not proper in Cumberland County under Rule 2179(3). 14. Venue is improper under Rule 2179(4) because none of the transactions or occurrences out of which the alleged cause of action arose took place in Cumberland County. Contract formation is such an occurrence or transaction, but the contracts Plaintiff alleges were formed in Lehigh County, not Cumberland County. 4 h l ?I -_ ,n respectfully requests that the Complaint be dismissed, with BLANK ROME COMISKY & McCAULEY LLP Attorne No. 08007 Ja Seitz, Esquire Attorney No. 37026 1620 Pond Road, Suite 200 Allentown, PA 18104 (610) 706-4300 Attorney for Defendant IVRR?+bWI?A1nrI?M CERTIFICATE OF SERVICE I hereby certify that on ? C ?*• Z- , 2000, I served a true and correct copy of Defendant's Preliminary Objection by first class mail, postage prepaid, to: Jeffrey Rehmeyer, Esq. Countess Gilbert Andrews 27 North Duke Street York, PA 17401 Date: ?1i0 -. COMMONWEALTH OF PENNSYLVANIA ss COUNTY OF LEHIGH AFFIDAVIT I, William Peoples, President of Polymer Dynamics, Inc., hereby swear and depose as follows: I am an adult individual. 2. I am the President of Polymer Dynamics, Inc. ("PDI"). 3. PDI is a vertically integrated manufacturer of small pour polyurethane parts. 4. As President of PDI, I am responsible for supervising the company's major equipment acquisitions. I also direct the company's acquisition of financing for operations and equipment acquisitions. 5. In or about 1996, PDI was interested in developing and acquiring a large bed sinker EDM machine (the "EDM Machine'). PDI was also interested in acquiring 10 high speed gantry 5 axis CNC machining centers manufactured by the Okada Corporation of Japan and others (the "Machining Centers'). 6. As PDI was negotiating with Summit Machinery Systems, Inc. ("Summit") for PDI's acquisition of the EDM Machine from Mitsubishi EDM, I learned from a Summit representative, at a meeting held in PDI's Allentown facility, that Summit also arranged sales of machinery manufactured by Okada Corporation. 7. The first discussions with Summit of PDI's possible acquisition of the Machining Centers took place in person at PDI's facility in Allentown. 8. No one from PDI ever went to Summit's facility in Cumberland County. Page 1 of 3 &MEtTZV M ?-&j',pol-,4Vr?d4."d 9. PDI eventually offered to acquire the EDM Machine from Mitsubishi and the Machining Centers from Okada. 10. The items to be acquired are described in Sales Orders issued by Summit and signed by Summit and PDI on December 10, 1997 (the "Sales Orders"). 11. The Sales Orders were signed by Summit and by PDI in PDI's conference room in Allentown on December 10, 1997. 12. The equipment was not manufactured, used, stored or even transported through Cumberland County at any point in connection with the transactions described in this Affidavit. 13. PDI did not complete the acquisition of the equipment described in the Sales Orders because its financing fell through after PDI suffered significant systems failures. 14. PDI's decision to stop the orders was made and implemented at PDI's facility in Allentown. 15. PDI learned of its inability to acquire the machines and communicated that information to Summit out of PDI's facility in Allentown. 16. To the best of my knowledge, PDI has not directly solicited any business from prospective customers in Cumberland County within the last five years. 17. I am aware that this affidavit will be submitted to the Court in Summit Machinery Systems, Inc. v. Polymer Dynamics, Inc., filed in the Court of Common Pleas of Cumberland County, Pennsylvania, to docket no. 99-7616-Civil. Page 2 of 3 EASEITL?peluM.??,dpr?l•IrPM•1?1? 18. I am aware that I will be subject to sanctions if any statements in this Affidavit are willfully false. Dated: January it 2000 William Peoples Sworn to and subscribed to before me this ?day of Janua , 2000. otary Public MY COMMISSION EXPIRES: ial Seal an. Notary Public CourtN wp., Lehlg xpires Feb. 22, 20 1 a Pssociatlan of Notaries gaw Page 3 of 3 COMMONWEALTH OF PENNSYLVANIA COUNTY OF LEHIGH ss AFFIDAVIT I, Bradley Jacoby, Director of CAD/CAM Technologies for Polymer Dynamics, Inc., hereby swear and depose as follows: 1. I am an adult individual. 2. I am employed by Polymer Dynamics, Inc. ("PDI") and have been so employed since 1990. I am PDI's Director of CAD/CAM Technologies. I oversee machine design and mold manufacturing for PDI. 4. I was the person primarily responsible for PDI's efforts to (a) develop and acquire a large bed sinker EDM machine (the "EDM Machine") from Mitsubishi EDM, and (b) acquire 10 high speed gantry five axis CNC machining centers (the "Machining Centers") manufactured by Okada Corporation ("Okada"). 5. At a trade show in Chicago held in September of 1996, I informed representatives of Mitsubishi EDM that PDI was interested in an EDM Machine. 6. In response to PDI's inquiries, Mitsubishi put Summit Machinery Systems, Inc. ("Summit") of Mechanicsburg, Pennsylvania, in touch with PDI to pursue PDI's acquisition of its EDM Machine from Mitsubishi. At about the same PDI was negotiating with Summit for the EDM Machine, PDI learned from Summit that Summit also sold machinery manufactured by Okada. 8. PDI expressed interest to Summit in acquiring the Machining Centers. 14V FfR?PeLmdry?ydlm,?dlFbY) •1? 9. All negotiations between PDI and Summit for the machines described above took place either by telephone or in person at PDI's facility in Allentown. 10. Between May 26, 1997, and July of 1999, Summit came to PDI's facility in Allentown no fewer than 21 times to discuss the machines. PDI never went to Summit's facility in Cumberland County for any reason. 11. On or about December 10, 1997, I participated in a meeting held in PDI's conference room at 2200 S. 12" Street, Allentown, Lehigh County, Pennsylvania. 12. The meeting described in the preceding paragraph was convened to execute papers related to PDI's acquisition of the machinery described above. 13. The meeting was also attended by several PDI employees and David Goss and James McCloskey from Summit Machinery Systems, Inc. ("Summit"). 14. I have reviewed the Sales Orders attached as Exhibits A and B to Summit's complaint against PDI in Summit Machinery Systems, Inc. v. Polymer Dynamics, Inc., filed in the Court of Common Pleas of Cumberland County, Pennsylvania, to docket no. 99-7616-Civil (the "Litigation"). 15. Summit's representatives signed the Sales Orders in my presence in PDI's conference room in Allentown and then distributed a signed copy to a PDI employee. 16. The Sales Orders were not executed in Cumberland County. Page 2 of 3 K:V EER?pnli?mq?pdyme?(?II?Kb,I??'1d 17. I am aware that this affidavit will be submitted to the Court in the Litigation. I am aware that I will be subject to sanctions if any statements in this Affidavit are willfully false. Dated: January '3 (_, 2000 Sworn to and subscribed to before me this od/day of January, 2000. otary Public MY COMMISSION EXPIRES: :Notajdal Seal Sandra K. ran. Notary PuWfc South Whitl p., Lehigh CourrtY My Commispires Feb. 22, 2001 Member, Pennsylvania Association of Notaries Bradley Jacoby Page 3 of 3 Exhibit C IL?f EICL?prt4nwbjb,vl,rtw,(alfk b??^J I COMMONWEALTH OF PENNSYLVANIA COUNTY OF LEHIGH ss AFFIDAVIT I, Deborah Kocher, Vice President of Administration for Polymer Dynamics, Inc., hereby swear and depose as follows: 1. I am an adult individual, 2. I am employed by Polymer Dynamics, Inc. ("PDI") and have been so employed since 1984. 3. I am PDI's Vice President of Administration. My duties include contract review and administration and equipment acquisition. 4. On or about December 10, 1997, I participated in a meeting held in PDI's conference room at 2200 S. 1211 Street, Allentown, Lehigh County, Pennsylvania. 5. The meeting described in the preceding paragraph was convened to execute papers related to PDI's possible acquisition of certain industrial machinery. 6. The meeting was also attended by several PDI employees and David Goss and James McCloskey from Summit Machinery Systems, Inc. ("Summit"). 7. I have reviewed the Sales Orders attached as Exhibits A and B to Summit's complaint against PDI in Summit Machinery Systems, Inc. v. Polymer Dynamics, Inc., filed in the Court of Common Pleas of Cumberland County, Pennsylvania, to docket no. 99-7616-Civil (the "Litigation") 8. Summit's representatives signed the Sales Orders in my presence in PDI's conference room in Allentown and then distributed a signed copy to a PDI employee. gvurzkrtuew4?adm•.(,n Uh,l •N The Sales Orders were not executed in Cumberland County. , 10. I am aware that this affidavit will be submitted to the Court in the Litigation. I am aware that I will be subject to sanctions if any statements in this Affidavit are willfully false. Dated: January , 2000 Sworn to and subscribed to before me this./-(; day of January, 2000. /Notary Public MY COMMISSION EXPIRES: Sandra K. Ker an. Notarial Seal orgyPublic ?y h Whiission tehallw e? bh?2, 2001 Comm My ut Member. Pennsylvania Association of Notaries dl.? eborah Kocher Page 2 of 2 I i W d M F u Q z = z r. r u m o ? 5 - 7 7 cG ? x L 2 z = O O - I 1 I ? ? U U I ? '^ N N V 4l P O X o N A ?+ /. U Y ?+ C r W a p p e ? O J 0.•i < a v G ? z ? ? ? p G N G .. C ' t 1 ?Y SUMMIT MACHINERY SYSTEMS, INC. plaitiff VS POLYMER DYDAMICS, INC., defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-7616 civil term IN THE COURT OF OS'PdCXV PLEAS LEHIGH COUNTY, PENNSYLVANIA PLEASE ACKNOWLEDGE RECEIPT OF THIS CASE BY SIGNING AND DATING THIS DOCUMENT. DATE: -'r) .I I Record Received: ts9ne e i e i ? ?I