HomeMy WebLinkAbout11-7217F ,FILED-or
F!C"
T L_ P,
r ,±
I I SE7 19 r
?r J ti ,
ACBB-BITS, LLC : IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
RAYMOND CAROLAN NO. l x-17 20
Defendant
Civil Term
NOTICE TO DEFEND
YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEI
CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE
TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED,
WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILL
WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET
YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PRI
YOU AND A JUDGEMENT MAY BE ENTERED AGAINST YOU BY THE
FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR
CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MON]
OR OTHER RIGHTS IMPORTANT TO YOU.
AGAINST THE
TION WITHIN
ENTERING A
3 IN WRITING
RTH AGAINST
EED WITHOUT
JRT WITHOUT
I ANY OTHER
OR PEOPERTY
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONgE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO THE TELEPHONE R THE OFFICE
SET FORTH BELOW TO FIND WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PA 17013
1-800-990-9108
717-249-3166
POWELL, TRACHTMAN, LOGAN,
CARRLE & LOMBARDO, P.C.
By: Michael G. Trachtman / Anthony S. Potter / Michael W. Kulak
Attorney ID Nos. 19525 / 75903 / 206669
475 Allendale Road
King of Prussia, PA 19406 Attorneys for Plai
Phone: (610) 354-9700 ACBB-BITS, LLC
ACBB-BITS, LLC
1400 Market Street
Camp Hill, PA 17011
V.
Plaintiff
RAYMOND CAROLAN
133 Cowneck Road
Port Washington, NY 11050
Defendant.
IN THE COURT OF COMNION PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION NO. l 1- -7'?L 17 Ga' I
COMPLAINT
Plaintiff brings this action against Defendant on account of, inter
conversion of Plaintiff's highly confidential, proprietary and trade secret i
Plaintiff's computer servers, including extremely sensitive materials belo
and his refusal to return or account for same despite Plaintiff having
opportunities to do so before the commencement of this litigation; Defen
refusal to return Plaintiff's other property; Defendant's breaches of co
duties; Defendant's violation of statutory prohibitions; and Defendant's
all as set forth below.
, Defendant's
from
to third parties,
d him numerous
's conversion and
al and fiduciary
unlawful conduct,
l . Plaintiff is ACBB-BITS, LLC ("BITS"), a Pennsylvania limited liability company
with its headquarters and Managing Member located at 1400 Market
17011.
Camp Hill, PA
#1071317vi5998-02
2. Defendant is Raymond Carolan ("Carolan" ), an individual ?esiding at 133
Cowneck Road, Port Washington, NY 11050.
3. At all material times as described below, Carolan was emplM:)yed by BITS as a
Director of Business Development. In the course of his employment with fBTTS, on a continuous
and systematic basis, Carolan developed and maintained accounts in Pennsylvania from which
he realized pecuniary benefit; on a continuous and systematic basis, he arrOged for BITS to
contract to supply services in Pennsylvania; as a part of his job responsibilities he regularly met
with BITS' executives, conducted BITS' business, and received supervision and direction at and
from BITS' headquarters, all in Pennsylvania; and as explained below he
continues to commit acts which have and will cause injury to BITS in
and the BITS Business Information
4. BITS was founded in 2005 after receiving approval from
federal banking authorities to provide a converged communication
communication services to community banks.
5. BITS spent the first year of its existence creating the
methods and technologies, described below ("BITS Technology"). BITS
million during this period for this purpose. During the course of its exis
c)mmitted and
isylvania.
ion
nnsylvania and
zcture and enhanced
rpe for its business
pent approximately $1
ice, BITS has spent
over $8 million further developing and perfecting the BITS Technology. BITS is the sole owner
of the BITS Technology.
6. The BITS Technology enables BITS to provide community, banks with unique
and proprietary voice and data network technologies, services and solutiofs at substantial cost
savings. The BITS Technology includes, for examples, proprietary, detailed and sophisticated
computer programs and spreadsheet packages, and other unique methodologies, through which
2
BITS can collect and analyze the data pertaining to a community bank's v ice and data
infrastructure; through which BITS can assess the strengths and weaknesses of a community
bank's network and related hardware and systems; through which BITS ca n analyze a
community bank's compliance with complex and lengthy banking regulati
which BITS can develop, price and provide services and solutions that effi
improvements in customer service, efficiencies, and cost savings.
7. The BITS Technology provides BITS with the ability to
the market, often against much larger companies. Using the BITS
36% in the last two years despite adverse economic circumstances.
; and through
ate substantial
cessfully compete in
ogy, BITS has grown
8. In conjunction with the use of the BITS Technology on be alf of its community
bank customers, BITS routinely collects highly sensitive and confidential nformation from such
customers which BITS uses to provide its services to such customers (`BITS Customer
Information")
9. BITS Customer Information includes, for example, a community bank's
confidential financial information; its network design, IP addresses and re ated information; its
internal security infrastructure and design; its organizational and reporting structure; and much
more.
10. The disclosure of the BITS Customer Information to un
use of the BITS Customer Information by unauthorized persons, could r
damage and other adverse consequences for BITS and BITS' customers
made commitments to its customers that it will protect the confidentialit,
Information.
prized persons, or the
t in substantial
a. result, BITS has
the BITS Customer
3
H. BITS routinely develops and modifies a variety of business. marketing, pricing,
compensation, contracting, technical and other plans and strategies that are integral to BITS'
efforts to succeed against its competition and to obtain revenue, profits and continued growth
(the `BITS Business Information"). BITS devotes substantial time and re,,ources to the BITS
Business Information, all of which BITS owns.
12. Through various means, BITS undertakes substantial measOres to protect and
maintain the confidentiality of the BITS Technology, the BITS Customer information and the
BITS Business Information. Inter alia, BITS has secured these materials #'rom access by
unauthorized persons who are not affiliated with BITS, and BITS has implemented various
methods that enables BITS to restrict its employees' access to the BITS Technology, the BITS
Customer Information and the BITS Business Information on a "need to klow" basis, such that
employees are only provided access as required in accordance with their duties and levels of
responsibility.
13. In addition, BITS imposes strict confidentiality and non-di;
those employees, including Carolan, who are provided with access to any
Technology, the BITS Customer Information and the BITS Business Infoi
alia, the following:
a. Each time a BITS employee logs on to the BITS' c
employee is presented with a screen that requires the employee to first a
Computer Network and Internet Usage Policy before proceeding further
attached hereto as Exhibit "A."
b. BITS employees are provided with an Employee F
required to agree in writing that it is their "responsibility to read and corn
,closure obligations on
aspect of the BITS
through, inter
network, the
to adhere to BITS'
copy of the screen is
and are
my with the policies
4
and procedures contained in this manual and any revision made to it." A opy of Carolan's
executed agreement is attached hereto as Exhibit "B."
C. The Internet Email Usage Policy included in the E, ployee Handbook
when Carolan signed Exhibit "B" is attached as Exhibit "C." The revisio s to these policies to
which Carolan agreed are attached as Exhibit "D."
d. By way of summary, BITS' policies specifically prohibit employees,
including Carolan, from utilizing BITS' Internet and email systems for of er than BITS' business
purposes, and from downloading or emailing BITS' confidential, sensitiv or trade secret
information other than for BITS' business purposes. In addition, BITS ei ployees are notified
that they have no expectation of privacy in respect to the BITS email syst m and that BITS has
the right to monitor emails sent over the system.
14. The unauthorized use or disclosure of the BITS Technolog, the BITS Customer
Information and/or the BITS Business Information will, inter alia, cause ITS to lose substantial
profits and incur substantial liabilities and other damages; in addition, it will cause BITS to risk
losing incalculable revenue and profits as well as its good will and busine s reputation; in
addition, it will cause BITS to incur or risk incurring incalculable damage ; to third parties and
other legal and regulatory consequences; in addition, it will cause BITS t risk incurring
incalculable damage to BITS customers; and in addition, it will cause BI S to suffer other
irreparable harm.
7
Business Information, and BITS'
15. As a Director-level employee of BITS, Carolan had access to the BITS
Technology, the BITS Customer Information and the BITS Business Info mation.
the
5
16. At all material times, Carolan agreed not to and had the legll duty not to
download, email, use or disclose, other than for BITS' business purposes, the BITS Technology,
the BITS Customer Information and the BITS Business Information.
17. At all material times, Carolan knew that he had no right to
or disclose, other than for BITS' business purposes, the BITS Technology
Information and the BITS Business Information.
18
load, email, use
the BITS Customer
On Tuesday, August 2, 2011, Carolan notified his supervis?)r, BITS' Chief
Marketing Officer, that Carolan had another job offer, and if BITS was unwilling to match this
job offer, Carolan might leave BITS.
19. On Saturday, August 6, 2011, BITS' Chief Marketing Officer advised Carolan
that BITS was already compensating Carolan fairly and that BITS would ?ot meet any other
offers that Carolan purported to have. The Chief Marketing Officer advised Carolan that BITS
required Carolan's decision on whether he would be leaving BITS by Mo?iday, August 8, 2011,
at 6 PM.
20. Shortly after being so advised, on Sunday, August 7, 2011
his BITS email account, through which he gained access to the BITS
Newark, New Jersey. Carolan then sent 66 emails from his BITS email
(Ray.Carolan@bitsnetwork.com) to his personal email address
, Carolan logged into
servers located in
ss
These emails included approximately 100 attachments comprised of copies of data and
information taken from the BITS servers, involving approximately 500 mi;gabytes of
information. Included in the attachments were confidential, proprietary, s,nsitive and trade
secret extracts from BITS Technology, BITS Customer Information and $ITS Business
6
Information (the foregoing being referred to herein, along with all copies t?nereof and extracts
therefrom, as the "Converted Information")
21. By way of example, Carolan accessed, copied and emailed Ito his personal email
account the following:
a. BITS spent millions of dollars and thousands of mahi-hours developing
BITS' "Sales Pricing Tool" ("SPT"). The SPT is a complex spreadsheet-lased system BITS
uses to analyze and price every BITS business opportunity, and includes highly confidential
information on BITS' internal costs, profit margins, and the techniques BI[FS uses to price its
services to customers. A competitor can use the SPT to discover how BI' S seeks and obtains
business, and how BITS has been able to succeed despite competing agai? st much larger and
more established competitors. Carolan took a copy of the SPT.
b. Using its own and outside consultant expertise, BI?S developed a tool that
allows it to analyze and benchmark the practices of community bank customers and potential
customers against the industry's complex compliance standards, includin? those established by
the Federal Financial Institutions Examination Council. The FFIEC is a federal agency
empowered to prescribe uniform principles, standards, and report forms flr the federal
examination of financial institutions by the Board of Governors of the Federal Reserve System,
the Federal Deposit Insurance Corporation, the National Credit Union Ad1ninistration, the Office
of the Comptroller of the Currency, and the Office of Thrift Supervision, ?ind to make
recommendations to promote uniformity in the supervision of financial institutions. BITS
conducted extensive studies to determine what community banks need to Oo to comply with
these requirements, broke the requirements down, and developed a proprietary tool to assess
compliance and prescribe compliance solutions. Carolan took a copy of these materials.
7
C. BITS compiled a list of community banks it intended to target as
customers. The list includes BITS' analysis of what BITS believes these Ranks are currently
paying to BITS' competitors, and how much BITS believes it can save these banks. For
example, BITS developed an analysis of Massachusetts banks including d?ta on how much BITS
believes it can save each one, the order in which BITS intends to pursue these banks, the return
on investment BITS expects, and so on. A competitor could use this information in numerous
ways to defeat BITS' marketing efforts. Carolan took this data.
d. BITS developed an analysis of its competitors - thel features each offers,
an analysis of how BITS compares on a feature-by-feature basis, and so o>i. This information
discloses the information BITS uses when dealing with potential customers and how BITS
competes in the community bank market. Carolan took a copy of this
e. BITS has been working with an outside writer on vorious articles it intends
to publish, including articles on community banking compliance, internal jnformation
technology, and other topics. BITS utilizes such articles to obtain a competitive edge in the
market. Carolan took a copy of these works.
f. BITS has been working on a pricing a proposal for J)ne of its largest
potential customers. The proposal includes, for example, the pricing BIT$ has been able to
obtain from its vendors, and the pricing BITS has or will propose to this
This data would permit a BITS competitor to underprice BITS in a
customer. Carolan took a copy of this data.
g. BITS has submitted a variety of proposals to pots
consideration. In many cases, the potential customers will consider the
extended time, pending expiration of their current contracts. The
al customer.
offering to this
customers for their
for an
show the details of
8
BITS' pricing. A competitor could use these proposals to underbid BITS Iin respect to these
specific customers. Carolan took a copy of these proposals.
h. As part of its routine operations, BITS will acquire highly confidential and
sensitive information from its community bank customers. Some of this information includes
network diagrams, router numbers, IP addresses, and so on. This information could compromise
a bank's security if obtained by outsiders with certain skills and motivatio)-is. Some of this
information includes confidential details on a bank's infrastructure, such 4s organizational charts
and reporting structures, which would be invaluable to the bank's competitors. This information
is so confidential that in some instances it is provided to BITS personally Jr via fax so that it
cannot reside on an email server. Carolan took a copy of such informati
' Other Equipment and Pro
22. On August 11, 2011, counsel for BITS in Pennsylvania seat the letter attached as
Exhibit "E" to Carolan. Inter ali.a, the letter sought to secure and prevent ?he disclosure of the
Converted Information, determine if Carolan had disclosed the Converted I Information,
determine if Carolan had taken any other information, obtain other BITS 4quipment and property
in Carolan's possession (including a MiFi 4G Converter, a Blackberry, anj Wad computer, a
laptop computer, a Cisco IP phone (Soho), a projector, a home router (C4o 800), a customer
demonstration model Cisco IP phone, an EZ Pass toll device, an automobile, and BITS
marketing materials), and mitigate any existing or future damages caused lby Carolan.
23. On August 15, 2011 Carolan contacted BITS' Managing Member in Camp Hill,
Pennsylvania, as requested in the August 11, 2011 letter and stated, inter 4lia, the following:
a. Carolan admitted taking the Converted Information
9
b. Despite his prior representations, Carolan represented that he did not have
another job and had tried to bluff BITS into giving him a raise;
C. Carolan stated that he had not used or disclosed the Converted Information
or taken any other BITS data or information;
d. Carolan stated that he would, as requested, fully co perate in BITS' effort
to secure, protect and prevent the disclosure of the Converted Information determine and verify
if Carolan had disclosed the Converted Information, and determine and v -ify if Carolan had
taken any other information;
e. Carolan stated he would return the BITS equipmen and property as
requested.
24. For the reasons set forth below, BITS reasonably believes at Carolan's
statements were false, that Carolan knew the statements were false, and that Carolan
intentionally made the false statements to BITS' Managing Member fort purpose of inducing
BITS to forego and/or delay the enforcement of its rights against Carolan io that Carolan could
misappropriate and otherwise use the Converted Information in violation ?f law.
25. BITS' Managing Member believed Carolan and relied on 'arolan's false
representations, as Carolan intended, by foregoing and delaying BITS' re
as set forth below, thereby causing and/or contributing to the damages su
26. In response to Carolan's admission of wrongdoing, BITS'
then advised Carolan that Carolan would be terminated for taking the C
that, nevertheless, BITS would be willing to provide severance in the f
and health insurance to protect Carolan and his family while he sought
es against Carolan,
I by BITS.
aging Member
-d Information;
of salary continuation
employment; but
10
that BITS' willingness to do so would depend on Carolan's willingness tolcooperate with BITS
so that BITS could minimize and remediate the effects of Carolan's co
27. BITS' Managing Member further explained, inter alia, that BITS would require
Carolan to cooperate in respect to the return/deletion of the Converted Information and the
verification thereof, to provide verified and enforceable assurances respecting the non-use and
non-disclosure of the Converted Information, to provide verified and enforceable assurances that
Carolan took no other BITS information or property, to return the BITS equipment and property
in Carolan's possession, and not to cause further harm to BITS.
28. In response, Carolan continued to intentionally misrepresent that he would fully
cooperate, all for the purpose and with the effect described above.
29. Accordingly, in reliance on Carolan's representations, in
filing suit against Carolan so as to protect its interests and minimize its
2011, BITS sent Carolan a Confidential Separation Agreement, General
providing, inter alia, severance and health insurance to Carolan and other
discussed with and agreed to by Carolan ("Separation Agreement"),
addition, BITS sent Carolan an Affidavit providing the representations
d of immediately
.ages, on August 23,
lease and Waiver
rovisions as generally
d as Exhibit "F." In
assurances respecting
the Converted Information that Carolan said he would provide ("Affidavi(), attached as Exhibit
"G." BITS advised Carolan to sign and return the documents no later than August 31, 2011, as
Carolan had previously represented he would.
30. Despite his representations, Carolan did not respond. BIT$, continuing to believe
Carolan, assumed that the delay was due to adverse weather conditions
by Hurricane
Irene. BITS contacted Carolan and left him a message that because of th?se adverse weather
conditions BITS would extend the deadline for Carolan's execution of the
and Affidavit and the return of BITS' equipment and property until
Separation Agreement
2, 2011.
31. On September 2, 2011, an attorney emailed BITS on behal? of Carolan. The
email is attached as Exhibit "H." Therein, counsel advised BITS, for the ?irst time, that Carolan
would not sign the Separation Agreement and Affidavit; that counsel would be willing to negoti-
ate although no indication was provided regarding any issues with the Separation Agreement and
Affidavit or any suggested changes; that Carolan demanded certain payments from BITS; and
that she had possession of BITS' equipment and property which Carolan *ould not return but
which BITS could obtain if it came to counsel's office. In fact, however, (ounsel did not have
possession of the BITS automobile, which Carolan continued to utilize unlawfully for his
personal purposes despite having been terminated, and counsel made no niention of same.
32. Of particular importance was the fact that Carolan continued to possess the
Converted Information, and counsel stated nothing in respect to its deletion or return, or
assurances of its non-use and non-disclosure.
33. BITS concluded that Exhibit "H" comprised a direct and i
diction of what Carolan had previously represented to BITS' Managing
willingness to forego the severance and health insurance payments i
obtained other employment and did not need the severance and health in
despite his contrary representations; that Carolan's failure to provide any
the Converted Information indicated that he had unlawfully used or di
Plicable contra-
Aber; that Carolan's
that he likely had
rice payments
arances respecting
I same or intended
to do so; and that Exhibit "H" represented a bad faith delaying tactic that ilaced BITS at extreme
risk.
12
34. In the effort to avoid litigation, mitigate its dar-rages and determine if, in fact,
Carolan was willing to provide the required assurances respecting his non-use and non-disclosure
of the Converted Information, BITS' counsel emailed Carolan's counsel oji September 6, 2011.
A copy of the email is attached as Exhibit "I."
35. Inter alia, Exhibit "I" pointed out that Carolan had admitted taking the Converted
Information and had to date refused to provide any information or assurances respecting his
disposition of same. In respect to the Converted Information, Exhibit "I" 14ated the following:
Please notify me by the close of business no later than Friday,
September 9, 2011 respecting Mr. Carolan's intentions. Failing to
hear from you, or in the event a suitable resolution is not f'nalized,
we will proceed without further- notice.
36.
Inter alia, Exhibit "I" further pointed out that it was Carolan's responsibility to
return BITS' equipment and property, and stated:
Unless Mr. Carolan returns what he has no legal authority
by the close of business on Friday, September 9, 2011,
BITS will commence the appropriate actions and no
appropriate authorities.
37. Finally, Exhibit "I" invited Carolan's counsel to propose al
"Please contact me if you wish to discuss alternatives to the foregoing."
38. On September 13, 2011, BITS' counsel in Pennsylvania
o retain
ACBB-
ify the
atives, stating:
a voicemail
from a different lawyer stating that he now represented Carolan. BITS' counsel returned the
voicemail later that day, but did not receive a return call. BITS' counsel cilled Carolan's
counsel again on the next day, September 14, 2011, and reached him at
39. Inter alia, BITS' counsel advised Carolan's counsel that C
Converted Information over a month previously, Carolan had failed to pro
respecting the disposition of the Converted Information, and that given
time.
an had taken the
any assurances
nature of the
1
Converted Information and the delays to date, 131 !I'S required Carolan's immediate cooperation
or it would file suit and notify the proper authorities respecting Carolan's unlawful conduct.
40. Carolan's counsel advised BITS' counsel that in his view Carolan had the right to
take the Converted Information, that the Converted Information was not snsitive or important,
and that BITS and BITS' counsel were unlawfully threatening Carolan. Carolan's counsel stated
that Carolan would provide certain unspecified assurances respecting the (onverted Information,
but not all of those set forth in Exhibit "G," and Carolan's willingness to d1o so would be further
conditioned on BITS' release of Carolan from liability for his prior action. Carolan's counsel
also stated that, inexplicably, Carolan had the right to continue to use the automobile BITS had
provided for use in conjunction with Carolan's employment, but that Carolan would make
undisclosed arrangements to return undisclosed items of BITS' equipment and property.
41. Carolan's counsel disclosed to BITS' counsel that Carolan ,vas employed.
Carolan's counsel refused to disclose to BITS' counsel the identity of Cai-41an's employer. BITS
reasonably believes that if Carolan were not employed by a BITS competijor Carolan would
freely disclose such information under these circumstances so as to make lain that the dangers
posed by Carolan's continued possession of and refusal to unconditionally
Information were not as serious as BITS has feared.
42. BITS' counsel advised Carolan's counsel to immediately
return the Converted
his proposal in
writing so that BITS could consider it and respond if appropriate. Carolank counsel said he
would do so. Nevertheless, as of the date of filing hereon, no such email N as been received.
of
43. Carolan continues to possess the Converted Information an4 has refused to
provide any assurances respecting its disposition, use or disclosure.
14
44. BITS reasonably believes that Carolan has lied to BITS re Heatedly, has been and
is employed by a BITS competitor, and has used and/or disclosed and/or v ill use and disclose
the Converted Information. It is reasonable to assume that, otherwise, Caiiolan would have
accepted BITS' offer of severance to protect Carolan and his family whilelCarolan sought
employment, that Carolan would have acted to minimize his liability for taking the Converted
Information rather than continuing to retain same in violation of law and iii contradiction of his
representations to BITS, and that Carolan would have disclosed the identity of his employer so as
to assuage BITS' concerns regarding Carolan's use and disclosure of the O.onverted Information.
45. For the reasons stated above, Carolan's and/or his employe#-'s use and/or
disclosure of the Converted Information will cause substantial and incalculable harm to BITS,
since the Converted Information includes, inter alia, the BITS trade secretk, and confidential and
proprietary information that enable BITS to generate revenue and profits, W the trade secrets
and confidential and proprietary information of third parties that BITS hascommitted to protect.
46. For the reasons stated above, Carolan's and/or his employ(;r's use and/or
disclosure of the Converted Information will cause substantial and incalculable harm to BITS'
customers and prospective customers, since the Converted Information i
trade secrets and confidential and proprietary information which, if used
substantial damage, all in violation of applicable law.
47. At all material times Carolan knew of the harm his conduct
and Carolan engaged in the aforesaid conduct, in particular pertaining to
udes, inter alia, their
disclosed, will cause
would cause to BITS,
taking and retention
of the Converted Information, willfully and maliciously, with the intention of harming BITS,
and/or with reckless disregard for the damage his conduct would cause B
to suffer.
15
COUNTI
BREACH OF CONTRACT
48. The forgoing paragraphs are incorporated by reference as i
49. By virtue of the foregoing, including, inter alia, Carolan's J
fully set forth herein.
to abide by
BITS' policies respecting the Converted Information and his agreement n?t to misappropriate
BITS' data and information on each occasion Carolan was permitted to ac? ess BITS' computer
systems, Carolan entered into an agreement with BITS in which Carolan agreed not to use or
disclose the Converted Information for non-business purposes and not to Ongage in the other
conduct as described above (the "Agreement")
50. By virtue of his conduct as described above, Carolan has beached the Agreement.
51. By virtue of Carolan's breach of the Agreement, Carolan h4s misappropriated the
Converted Information, causing BITS to suffer the harm described in the foregoing, thereby
entitling BITS to the relief requested herein.
WHEREFORE, BITS requests a judgment for compensatory damages in an amount in
excess of $50,000; an Order granting preliminary and then permanent injunctive and other
equitable relief, to be implemented at Carolan's expense, to determine thelextent to which the
Converted Information was used and/or disclosed, to prevent any further tise and/or disclosure
thereof, to determine if Carolan took additional BITS trade secrets or confidential or proprietary
information in addition to the Converted Information, to verify the locatioJi and status of the
Converted Information, and as otherwise necessary to protect BITS from
and irreparable harm resulting from Carolan's actions; the imposition of
the Converted Information; interest; and such other relief as the Court
including costs and counsel fees to the extent authorized by law.
ing incalculable
structive trust on
appropriate,
16
COUNT II
NEW JERSEY COMPUTER RELATED OFFENSE ACT
52. The forgoing paragraphs are incorporated by reference as i f fully set forth herein.
53. The New Jersey Computer Related Offenses Act ("CROA'j), N.J.S.A. 2A:38A-I
through 6, provides that an "enterprise damaged in business or property a. a result of any of the
following actions [among others] may sue the actor therefor ... may recoveir compensatory and
punitive damages and the cost of the suit including a reasonable attorney's fee, costs of
investigation and litigation":
a. The purposeful or knowing, and unauthorized ... tak
base, computer program, computer software or computer equipment e
externally to a computer, computer system or computer network;
ing of... any data, data
internally or
b. The purposeful or knowing, and unauthorized accessing or attempt to
access any computer, computer system or computer network.
54. Carolan's conduct as described above, including, inter alial, his having taken the
Converted Information from BITS' computer servers in Newark, New Jer? ey and his having
retained same, comprises a violation of CROA, causing BITS to suffer th$ harm described in the
foregoing, thereby entitling BITS to the relief requested herein.
WHEREFORE, BITS requests a judgment for compensatory danj ages in an amount in
excess of $50,000; punitive damages; attorneys' fees, costs of investigation; costs of litigation;
an Order granting preliminary and then permanent injunctive and other equitable relief, to be
implemented at Carolan's expense, to determine the extent to which the Converted Information
was used and/or disclosed, to prevent any further use and/or disclosure th4:reof, to determine if
Carolan took additional BITS trade secrets or confidential or proprietary ijiformation in addition
to the Converted Information, to verify the location and status of the Converted Information, and
17
as otherwise necessary to protect BITS from ongoing incalculable and irreparable harm resulting
from Carolan's actions; the imposition of a constructive trust on the Converted Information;
other relief as authorized by CROA; and such other relief as the Court de s appropriate,
including costs and counsel fees to the extent authorized by law.
COUNT III
55. The forgoing paragraphs are incorporated by reference as f fully set forth herein.
56. Some or all of the Converted Information constitute trade secrets in accordance
with law.
57. By virtue of the foregoing, Carolan has misappropriated B S trade secrets,
causing BITS to suffer the harm described in the foregoing, thereby entitli g BITS to the relief
requested herein.
WHEREFORE, BITS requests a judgment for compensatory daa ages in an amount in
excess of $50,000; punitive damages; an Order granting preliminary and Men permanent
injunctive and other equitable relief, to be implemented at Carolan's expe se, to determine the
extent to which the Converted Information was used and/or disclosed, to revent any further use
and/or disclosure thereof, to determine if Carolan took additional BITS try de secrets or
confidential or proprietary information in addition to the Converted Information, to verify the
location and status of the Converted Information, and as otherwise necessary to protect BITS
from ongoing incalculable and irreparable harm resulting from Carolan's act
of a constructive trust on the Converted Information; other relief as author iz
pertaining to the misappropriate of trade secrets; and such other relief as the
appropriate, including costs and counsel fees to the extent authorized by 1 4 w,
ions; the imposition
ed by applicable law
Court deems
18
COUNT IV
CONVERSION
58. The forgoing paragraphs are incorporated by reference as if fully set forth herein.
59. In addition and in the alternative, by virtue of the foregoing, Carolan converted
the Converted Information and the BITS equipment and property, causing?BITS to suffer the
harm described in the foregoing, thereby entitling BITS to the relief requc? ted herein.
WHEREFORE, BITS requests a judgment for compensatory damages in an amount in
excess of $50,000; punitive damages; an Order granting preliminary and tten permanent
injunctive and other equitable relief, to be implemented at Carolan's expefse, to determine the
extent to which the Converted Information was used and/or disclosed, to Orevent any further use
and/or disclosure thereof, to determine if Carolan took additional BITS tr4de secrets or
confidential or proprietary information in addition to the Converted Information, to verify the
location and status of the Converted Information, and as otherwise neces4ry to protect BITS
from ongoing incalculable and irreparable harm resulting from Carolan's fictions; the imposition
of a constructive trust on the Converted Information; and such other relief as the Court deems
appropriate, including costs and counsel fees to the extent authorized by low.
COUNT V
UNJUST ENRICHMENT
60. The forgoing paragraphs are incorporated by reference as it fully set forth herein.
61. By virtue of the foregoing, Carolan has received the financ?al and competitive
benefit of BITS' Converted Information and BITS equipment and prope
62. Carolan has no valid legal or equitable claim to BITS' Converted Information or
the financial benefit he may have derived from it.
63. Accordingly, Carolan has been unjustly enriched it would ? e inequitable for him
to retain that benefit, thereby entitling BITS to the relief requested herein.
19
WHEREFORE, BITS requests a judgment for compensatory
excess of $50,000; an Order granting preliminary and then permanent inj
equitable relief, to be implemented at Carolan's expense, to determine the
Converted Information was used and/or disclosed, to prevent any further
thereof, to determine if Carolan took additional BITS trade secrets or con
information in addition to the Converted Information, to verify the
in an amount in
ve and other
tent to which the
and/or disclosure
or proprietary
and status of the
Converted Information, and as otherwise necessary to protect BITS from ongoing incalculable
and irreparable harm resulting from Carolan's actions; the imposition of alconstructive trust on
the Converted Information; and such other relief as the Court deems
and counsel fees to the extent authorized by law.
COUNT VI
BREACH OF FIDUCIARY DUTY
64.
65
ate, including costs
The forgoing paragraphs are incorporated by reference as i f fully set forth herein.
In addition and in the alternative, by virtue of the foregoing;, Carolan breached the
fiduciary duties he owed to BITS as an executive level employee of BITS causing BITS to
suffer the harm described in the foregoing, thereby entitling BITS to the r?lief requested herein.
WHEREFORE, BITS requests a judgment for compensatory
excess of $50,000; punitive damages; an Order granting preliminary and
injunctive and other equitable relief, to be implemented at Carolan's
extent to which the Converted Information was used and/or disclosed, to
and/or disclosure thereof, to determine if Carolan took additional BITS tr
confidential or proprietary information in addition to the Converted Info
location and status of the Converted Information, and as otherwise necess
from ongoing incalculable and irreparable harm resulting from Carolan's
ages in an amount in
ien permanent
ise, to determine the
revent any further use
de secrets or
cation, to verify the
iry to protect BITS
fictions; the imposition
20
of a constructive trust on the Converted Information; and such other rellet] as the Court deems
appropriate, including costs and counsel fees to the extent authorized by 1?w.
COUNT VII
FRAUD
66. The forgoing paragraphs are incorporated by reference as if fully set forth herein.
67. By virtue of the foregoing, Carolan engaged in a fraud by i Misrepresenting his
status and intentions, with the intention of causing BITS to delay the impl mentation of remedies
as described above.
68. BITS reasonably relied on Carolan's misrepresentations, to its detriment, causing
BITS to suffer the harm described in the foregoing, thereby entitling BIT to the relief requested
herein.
WHEREFORE, BITS requests a judgment for compensatory
excess of $50,000; punitive damages; an Order granting preliminary and
injunctive and other equitable relief, to be implemented at Carolan's
extent to which the Converted Information was used and/or disclosed, to
and/or disclosure thereof, to determine if Carolan took additional BITS tr
confidential or proprietary information in addition to the Converted
location and status of the Converted Information, and as otherwise neces
from ongoing incalculable and irreparable harm resulting from Carolan's
ages in an amount in
en permanent
se, to determine the
'event any further use
le secrets or
ation, to verify the
ry to protect BITS
Aions; the imposition
of a constructive trust on the Converted Information; and such other relief as the Court deems
appropriate, including costs and counsel fees to the extent authorized by Iiw.
21
Date: September 19, 2011 POWELL TRACHTMAN ?OGAN
CARRLE & LOMBARDO PC
By:
Michael G. Tr tm n
S. P Anthony tter
Michael W. ulako ski
475 Allendale Road, Suite 200
King of Prussia, PA 19406
(610) 354-9700
Attorneys for Plai
ACBB-BITS, LLC
22
VERMCATfOhI
1, Charles P. Daniels, CEO for ACBB-BITS, LLC, Plaintiff herein, ver that 1 am
authorized to make this Verification on its behalf. I further verify that the state ents of fact
made in the Plaintiff s Complaint are true and correct to the best of my knowl ge, information
and belief based upon information provided to me.
I understand that the statements herein are made subject to the penalties of 18 Pa.
C.S. 4904 relating to unworn falsification to authorities.
Dated: September 16, 2011
&'-L Charles P. Daniels
#1070871x1 599M
EXHIBIT A
? -? rye`,{ ?'° u:? -.;^ "
Q d ?.??ha ??C4 t< (K ? 1ty .3 / ] :1`f^0.?'Gr
. S ?? ? t ? ?
? .
? ? f t
Y?, i
? a;. r y??Y. i?9??•5????y Qs ???t 't 4
k
-?
F
- ?? .-.
- .
t r
,
{r
- ?r
- ?
'
e _ ..... _
t
Y.
?
'? i
4}'?? ? i
?' z .,1,.
i
K
`
r
?
a?
?t' ?cw.?.
t
,?U? a '
?.
.?
?
.
?.
{
1!
#?
?. r
? ? a
?s? ? ?( i?A?1 r ? .'1 L .' _
?? s
..
§. ? ?. .fti ? i F
-
?
r- v ..,
s?,?? ?
.? Y•v To' ".. ..
..
??V.r a ..
F? .:? P k
y ?
`
_
.,Fr1
"? .L,
-
..
,?? h
:
,?h
?
E
EMPLOYEE ACKNOWLEDGEMENT
This employee manual describes important information about ACBB-BITS, U 'C. Its subsidiaries
or affiliates (collectively "ACBB-BITS"), and I understand that I s ould consult my
Supervisor/Manager regarding any questions not answered in this manual.
I acknowledge that this manual is neither a contract of employment nor a leg 1 document. I have
received this manual and I understand that it is my responsibility to read and comply with the
policies and procedures contained is this manual and any revision made to it.
I acknowledge that ACBB-BITS manual contains confidential company i formation and can
only be shared with other Company employees.
I acknowledge that this manual is the property of ACBB-BITS; LLC. And I t must be returned
upon resignation.
Please make colpy of acknowledgement, sign and date it, then return
Manager.
copy to Office
$I4/2o?
FAWWAM
Employee's Name (please print) Date
p. y .Q ee's Sl?natul? Tillp
1?; I
3
p zNTF,
1AL O1?I?.
EXHIBIT
4 ?„ ?r' ?? Internal Use Only 550 Broad St 7-'" Floor
????;,,:.,;,,,;,MA? Newark, (9 3)1741800
Email Usage Policy
This policy governs the use of Atlantic Central Bankers Bank ?'$ankiiig Infra" tfucture and
Technology Services, LLC email system, by ACBB-BITS personnel. As used in this policy,
ACBB-BITS personnel means all full-time, part-time, and temporary employe s, persons employed
by temporary employment agencies, and all third party contractor personnel, a proved by the Chief
Technology Officer (CTO).
Email Exists for Business Purposes
ACBB-BITS allows email access for business purposes. Users may use the A BB-BITS email
system for personal use only in accordance with this policy. Users are authori d to check personal
email (Hotmail, Yahoo Mail, AOL, etc) via web access only as long as the rig it is not abused and
at the direction of the employees direct manager.
Authorized Personal Use of Email
Users may use email to communicate with spouses, children, domestic partner, and other family
members, only during authorized times, specified by the individuals managing supervisor. Users
are prohibited to use email to operate a business, conduct an external job searc , solicit money for
personal gain, campaign for political causes or candidates, or promote or solici funds for a
religious or other personal cause.
Users Have No Reasonable Expectation of Privacy
Email messages created and transmitted on ACBB-BITS computers are proper of ACBB-BITS.
ACBB-BITS reserves the right to monitor all email transmitted via the ACBB- ITS network. Users
have no reasonable expectation of privacy when it comes to business and pers al use of the
ACBB-BITS email system. Additionally, all personal email access over web b ased services are
filtered through the ACBB-BITS web content filtering and protection applicati ns.
ACBB-BITS reserves the right to monitor, inspect, copy, review, and store at y time and without
notice any and all usage of email, and any and all files, information, software, nd other content
created, sent, received, downloaded, uploaded, accessed, or stored in connecti with employee
usage. ACBB-BITS also reserves the right to disclose email text and images t regulators, the
courts, law enforcement, and other third parties without the user's consent.
Offensive Content and Harassing or Discriminatory Activities are Banned
Users are prohibited from using email to engage in activities or transmit conte that is harassing,
discriminatory, menacing, threatening, obscene, defamatory, or in any way objectionable or
offensive.
Users are prohibited from using email to send, receive, solicit, print, copy, or reply to:
• Text or images that disparage others based on their race, religion, colo , sex, sexual
orientation, national origin, veteran status, disability, ancestry, age, or ny other
characteristic.
• Jokes (text or images) based on race, religion, color, sex, sexual orient tion, national origin,
veteran status, disability, ancestry, age, or any other characteristic.
• Messages that are disparaging or defamatory
• Sexually oriented messages or images
• Messages or images that contain foul, obscene, off-color, or adult-oriented language.
• Messages or images that are intended to alarm others, embarrass ACB -BITS, negatively
impact employee productivity, or harm employee morale.
SD0004 Internal Use Only
1(2)
??'? Bl TS' Internal Use Only 550 Broad St 7 1h Floor
1 Newark, NJ 07102
(973)474-1800
• Spread gossip, rumors, and innuendos about employees, clients, suppl ers, or other outside
parties.
Confidential, Proprietary, and Personal Information Must Be Protected
Unless authorized to do so, employees are prohibited from using email to tran it confidential
information to outside parties. Users may not access, send, receive, solicit, pri t, copy, or reply to
confidential or proprietary information about the ACBB-BITS employees, cli its, suppliers, and
other business associates. Confidential information includes but is not limited to client lists, credit
card numbers, Social Security numbers, employee performance reviews, sala details, trade
secrets, passwords, and information that could embarrass ACBB-BITS and a loyees were it to be
made public.
All emails that are sent to external recipients will contain the following disclo re :
Confidentiality Notice: This e-mail message, including any attachments, is for he sole use of the
intended recipient(s) and may contain confidential and privileged information. Any unauthorized
review, use, disclosure or distribution is prohibited. If you are not the intende recipient, please
contact the sender by reply e-mail and destroy all copies of the original messa e.
This disclosure is automatically placed on all outgoing emails, automatically b the system.
Noncompliance
Use of the Email System is a privilege, not a right. Violation of this Policy, m y result, at a
minimum, with termination of Email access. Policy breaches include violating a above
provisions, and failing to report violations by other users. Permitting another rson to use your
account or password to access Email - including but not limited to someone w ose access has been
denied or terminated - is a violation of Policy. Should another user violate thi Policy while using
your account, you will be held responsible, and both of you are subject to disci linary action, up to
and including termination.
Employee Acknowledgement
Note: If you have any questions or concerns about this Policy, contact the CT before signing this
agreement
I have read Atlantic Central Bankers Bank - Banking Infrastructure and Technology Services, LLC
Email Usage Policy and agree to abide by it. I understand all terms of violatio and the
consequences of those actions.
Name (Printed) Signature Date
SD0004 Internal Use Only
2(2)
EXHIBIT D
Internal Use Only 550 Broad St 714 Floor
? y 1KJ11 Newark, NJ 07102
(973)474-1800
Computer Network and Internet Usage Policy
This policy governs the use of Atlantic Central Bankers Sank -L Sankin Infrastructure and
Technology Services, LLC computer network and the public internet, b ACBB-BITS
personnel. As used in this policy, ACBB-BITS personnel means all full time, part-time,
and temporary employees, persons employed by temporary employment agencies, and all
third party contractor personnel, approved by the Chief Technology Officer (CTO).
Personal Responsibility
By accepting your account password and related information, and accessing ACBB-BITS's
Network or Internet system, you agree to adhere to this policy. You also agree to report
any misuse of the Network or Internet to the CTO. Misuse includes pol cy violations that
harm another person or another individual's property.
Term of Permitted Use
Users shall not engage in any other activity deemed by ACBB-BITS to onflict with the
intent of the Policy, since the examples of prohibited use set forth in the policy are not
intended to be all inclusive. Users who fail to comply with ACBB-BIT 's Network and
Internet Usage Policy will be subject to disciplinary action, up to and including
termination. ACBB-BITS retains the right to revoke access at any time, with or without
cause, at ACBB-BITS's sole discretion. I
Purpose of Use '
Computer Network and Internet access is provided to conduct official c mpany business.
Users must abide by all software license agreements, copyright laws, trademark laws,
patent laws, intellectual property laws, and state and Federal laws and r gulations. If you
are unsure whether an activity constitutes appropriate business use, con It the Information
Systems (IS) Staff.
Netiquette Rules
Users must adhere to the rules of Network etiquette, or Netiquette. In o her words, you
must be polite, adhere to the organization's electronic writing and conte it guidelines, and
use the Network and Internet appropriately and legally. ACBB-BITS 11 determine what
materials, files, information, software, communications, and other Conte t and activity are
permitted or prohibited, as outlined below or as may be added from tim to time.
Unauthorized Activity
The following activities violate ACBB-BITS's Computer Network and ntemet Usage
Policy:
o Using, transmitting, receiving, or seeking inappropriate, ffensive, vulgar,
suggestive, obscene, abusive, harassing, belligerent, thr-- tening, defamatory
(harming another person's reputation by lies), or mislead ng language or
materials.
o Revealing personal information, such as home address, telephone number,
or Social Security number of another person or yourself.
SD0003 Internal Use Only
1(3)
t )v T?? Internal Use Only ? 550 Broad St 71' Floor
`Newark, NJ 07102
B1
1 ?Mi?rdin.xmm?mw/lank+ .973 474-1800
o Initiating or distributing ethnic, sexual-preference, or ge der-related slurs or
jokes.
o Engaging in illegal activities, violating the Human R66 `des Policies, or
encouraging others to do.
o Accessing, transmitting, receiving, or seeking unauthori d, confidential
information about clients or colleagues.
o Conducting unauthorized business.
o Viewing, transmitting, downloading, or searching for ob cene,
pornographic, or illegal materials.
o Accessing others' folders, files, work, networks, or comp utes. Intercepting
communications intended for others.
o Downloading or transmitting ACBB-BITS confidential i nformation or trade
secrets.
o Causing Harm or damaging others' property.
o Downloading or transmitting copyrighted materials with ut permission from
the copyright holder.
o Using another user's password to trick recipients into bel ieving someone
other you is communication or accessing the Network or Internet.
o Malicious use of ACBB-BITS resources is strictly prohi ited. This includes
but is not limited to:
¦ Bypassing Internet authentication security by sea ching for software
vulnerabilities or taking advantage of know softw are vulnerabilities.
• Initiating denial of service attacks on ACBB-BIT network
resources or resources of others
¦ Cracking or Hacking into ACBB-BITS or other o ganizations
resources.
¦ Uploading a virus, harmful component, or corrup data. Vandalizing
the Network.
¦ Using software that is not licensed or approved b the IS Staff.
o Jeopardizing the security of access, the Network, or othe Internet Networks
by disclosing or sharing passwords and/or impersonating others.
o Accessing or attempting to access controversial or offensive materials.
Network and Internet access may expose employees to it egal, defamatory,
inaccurate, or offensive materials. Employees must avoi these sites. If you
know of employees who are visiting offensive or harmfit sites, report that
use to the COO.
o Engaging in commercial activity. Users may not sell or buy anything over
the Internet. Users may not solicit business for personal ain or profit.
Users may not divulge private information - including c dit card numbers
and Social Security numbers - about themselves or other .
o Encouraging associates to view, download, or search for aterials, files,
information, software or other offensive, defamatory, mi leading, infringing,
or illegal content is prohibited.
o Downloading files from the Internet without advanced p rmission from the
IS Staff is prohibited. Only software with direct busines use may be
SD0003 Internal Use Only
2(3)
I_
Internal Use Only
downloaded from approved sites. Permission from seni
be granted prior to downloading.
Confidential Information
Users may be granted access to confidential information about ACBB-E
employees, and clients. With the approval of management, employees 1
communicate confidential information internally to those with a need to
mail must be marked "Confidential." When in doubt, do not use e-mail
confidential material.
Privacy
Network and Internet access is provided as a tool for our organization's
BITS reserves the right to monitor, inspect, copy, review, and store at al
prior notice any and all usage of the Network and Internet, as well as an
files, information, software, communications, and other content transmi
stored in connection with the usage.
550 Broad St 71h Floor _
Newark, NJ 07102
(973)474-1800
management must
6, our
y use e-mail to
Zow. Such e-
communicate
usiness. ACBB-
time and without
and all materials,
;d, received, or
All such information, content, and files are property of ACBB-BITS. Y u should have no
expectation of privacy regarding them. Network staff may review files and intercept
communications for any reason, including by not limited to maintaining system integrity
and ensuring employees are using the system consistently with this Poli y.
Noncompliance
Use of the Network and Internet is a privilege, not a right. Violation of
result, at a minimum, with termination of Network and Internet access.
include violating the above provisions, and failing to report violations b,
Permitting another person to use your account or password to access the
Internet - including but not limited to someone whose access has been c
- is a violation of Policy. Should another user violate this Policy while
you will be held responsible, and both of you are subject to disciplinary
including termination.
his Policy, may
olicy breaches
other users.
Network or the
enied or terminated
tsing your account,
action, up to and
Employee Acknowledgement
Note: If you have any questions or concerns about this Policy, contact tie CTQ before
signing this agreement
I have read Atlantic Central Bankers Bank - Banking Infrastructure and Technology
Services, LLC Computer Network and Internet Usage Policy and agree o abide by it. I
understand all terms of violation and the consequences of those actions.
Name (Printed) Signature
SD0003 Internal Use Only
3(3)
=v? Internal Use Only 550 Broad St T" Floor --
.../?j Newark, NJ 07102 -
B
i L i Cm me y mTm a,. r, (973)474-1800
Email Usage Policy
This policy governs the use of Atlantic Central Bankers Bank - Banking Infras cture and
Technology Services, LLC email system, by ACBB-BITS personnel. As used n this policy,
ACBB-BITS personnel means all full-time, part-time, and temporary employe , persons employed
by temporary employment agencies, and all third party contractor personnel, a proved by the Chief
Technology Officer (CTO).
Email Exists for Business Purposes
ACBB-BITS allows email access for business purposes. Users may use the A BB-BITS email
system for personal use only in accordance with this policy. Users are authori d to check personal
email (Hotmail, Yahoo Mail, AOL, etc) via web access only as long as the rig it is not abused and
at the direction of the employees direct manager.
Authorized Personal Use of Email
Users may use email to communicate with spouses, children, domestic partner, and other family
members, only during authorized times, specified by the individuals managing supervisor. Users
are prohibited to use email to operate a business, conduct an external job searc , solicit money for
personal gain, campaign for political causes or candidates, or promote or solici funds for a
religious or other personal cause.
Users Have No Reasonable Expectation of Privacy
Email messages created and transmitted on ACBB-BITS computers are propel
ACBB-BITS reserves the right to monitor all email transmitted via the ACBB-
have no reasonable expectation of privacy when it comes to business and persi
ACBB-BITS email system. Additionally, all personal email access over web 1
filtered through the ACBB-BITS web content filtering and protection applicat
of ACBB-BITS.
ITS network. Users
al use of the
sed services are
ns.
ACBB-BITS reserves the right to monitor, inspect, copy, review, and store at y time and without
notice any and all usage of email, and any and all files, information, software, nd other content
created, sent, received, downloaded, uploaded, accessed, or stored in connecti n with employee
usage. ACBB-BITS also reserves the right to disclose email text and images t regulators, the
courts, law enforcement, and other third parties without the user's consent.
Offensive Content and Harassing or Discriminatory Activities are Banne
Users are prohibited from using email to engage in activities or transmit conte t that is harassing,
discriminatory, menacing, threatening, obscene, defamatory, or in any way ob ctionable or
offensive.
Users are prohibited from using email to send, receive, solicit, print, copy, or reply to:
• Text or images that disparage others based on their race, religion, colo r, sex, sexual
orientation, national origin, veteran status, disability, ancestry, age, or any other
characteristic. .
• Jokes (text or images) based on race, religion, color, sex, sexual orient tion, national origin,
veteran status, disability, ancestry, age, or any other characteristic.
• Messages that are disparaging or defamatory
• Sexually oriented messages or images
• Messages or images that contain foul, obscene, off-color, or adult-ori ted language.
• Messages or images that are intended to alarm others, embarrass ACB -BITS, negatively
impact employee productivity, or harm employee morale.
SD0004 Internal Use Only
1(2)
I? -x Internal Use Only 550 Broad St J Floor -
Nevrark, NJ 07102
(973)474-1800 • Spread gossip, rumors, and innuendos about employees, clients, suppl rs, or other outside
parties.
Confidential, Proprietary, and Personal Information Must Be Protected
Unless authorized to do so, employees are prohibited from using email to tran it confidential
information to outside parties. Users may not access, send, receive, solicit, pri t, copy, or reply to
confidential or proprietary information about the ACBB-BITS employees, cli ts, suppliers, and
other business associates. Confidential information includes but is not limited to client lists, credit
card numbers, Social Security numbers, employee performance reviews, salary details, trade
secrets, passwords, and information that could embarrass ACBB-BITS and a loyees were it to be
made public.
All emails that are sent to external recipients will contain the following disclosure :
Confidentiality Notice: This e-mail message, including any attachments, is for he sole use of the
intended recipient(s) and may contain confidential and privileged information Any unauthorized
review, use, disclosure or distribution is prohibited. if you are not the intende recipient, please
contact the sender by reply e-mail and destroy all copies of the original messy e.
This disclosure is automatically placed on all outgoing emails, automatically % the system.
Noncompliance
Use of the Email System is a privilege, not a right. Violation of this Policy, m y result, at a
minimum, with termination of Email access. Policy breaches include violating the above
provisions, and failing to report violations by other users. Permitting another erson to use your
account or password to access Email - including but not limited to someone whose access has been
denied or terminated - is a violation of Policy. Should another user violate thi Policy while using
your account, you will be held responsible, and both of you are subject to disc linary action, up to
and including termination.
Employee Acknowledgement
Note: If you have any questions or concerns about this Policy, contact the CT before signing this
agreement
I have read Atlantic Central Bankers Bank - Banking Infrastructure and Tech logy Services, LLC
Email Usage Policy and agree to abide by it. I understand all terms of violatio and the
consequences of those actions.
Name (Printed) Signature DateI
SD0004 Internal Use Only
2(2)
EXHIBIT E
MICHAEL G. TRACH MAN
PAUL A. LOGAN-*
GuNrRzR O. CARRLe'
BRUCE D. LOMDARDO
NEIL P. CWN, JR.-
JONATHAN K. HOLLIH
DAVID T. BOLOPR
Rx:HARDJ. DAVIBS'O
STEM O. BARDSLEY'
FRANK S. NOFER*
ANTHONY S. POTTER-
FREDERICK M. BREHM'
DENNIS P. HERBERT"
GEORGE T. REYNOLDS-
MARY J. PEDWBN'
]ENIFERM. LENER'
CHRISTOPHER P. ALLEN
DAVID M. BURKHOLDER
JON D. MARANS'
MICHAEL S. MCCAR7eR-
MICHAE.J. HOOK'
DAVID M. ABIJANAC, JR.
BEN)A6EN A. ANDERSEN'
RICHARD J. MOSBACK, IR.-
MICHAEL W. KULAKOWSKI-
'ALSO ADMITTED IN NJ
-ALSO ADMITTED IN MD
QALSO ADMITTED IN DE
oALSO ADMITTED IN NY
LAW OFFICES
POWELL, TRACHTMAN, LOGAN,
CARRLE & LomBARDo
A PROPFliONAL COMRATIDN
475 ALLENDALE ROAD
Sum200
KING of PRUSSIA, PA 19406
(610) 354-9700
FACSIMILE (610) 354-9760
BANDERSEN@POW ELLTRAWI MAN.COM
www.PowELLTRAcKrmAN.COM
August 11, 2011
VIA FEDERAL EXPRESS AND EMAIL
Mr. Raymond Carolan
133 Cowneck Road
Port Washington, NY 11050
Re: Breach of Obligations owed to ACBB-BITS
Dear Mr. Carolan,
Our firm represents Atlantic Central Bankers Bank - Banking
Services.
RALPH B. POWEL. JR.
(1978-2010)
OFCOUHSEL
MALCO MB. JACOBSON
RICHARD T. ARELL
MARSHAB.FLORA•
114 NORTH secoPm STS&?'T. .. ...
rPLOOR
HARRISEUFA PA 17101
(717)238-9300
FAX (717) 238-9325
SURE 350
1814 EASTROUIE 70
CHERRY EIKJ, NI 08003
(856)663-0021
FAX (856) 663-159D
651 HOLIDAY DRIVE
FOSTER PLAZA 5
PITTSEURGK PA 15220
(412) 2562632
FAX (412) 2504804
TO: KING OF PRUSSIA
& Technology
You sent to your personal email account confidential information belongin to ACBB-BITS.
Among the information you sent are emails and attachments that relate to ACBB- TS' business. This
confidential information you have improperly transferred includes important busin ss information
pertaining to ACBB-BITS, including but not limited to customer lists, pricing data spreadsheets,
reports, and other important data and documents.
Your actions are illegal. Furthermore, your actions subject you to a lawst
grounds. You have violated the ACBB-BITS employee manual, which you have
writing as applying to you. In addition to being the basis for a civil action being 1
ACBB-BITS in court, your actions are a violation of federal law. The relevant fe
for both civil liability and criminal liability.
This letter is to demand that you take no further action of any nature with r
BITS related information or documents that you possess. To the extent you have z
ACBB-BITS documents or information by any means other than email transmissic
email account, no use of any nature is to be taken by you regarding such documenl
Such prohibition on any use of such information and materials includes, but is not
on multiple
Dwleagea in
against you by
statutes provide
;ard to any ACBB-
cessed any other
1 to your personal
or information.
mited to, allowing
#10604950 5998-02
Raymond Carolan
August 11, 2011
Page 2
anyone to view it, sending any of the documents or information to anyone, makin copies of any of the
documents or information, or discussing or disclosing the contents in any manner th anyone.
This letter is to further demand that you neither access nor transfer to )
additional ACBB-BITS emails, documents or other information of any nature.
If you wish to see if a lawsuit can be avoided, please contact Jon Evans,
Central Bankers Bank (717-441-4616), upon your receipt of this letter. The dis
Evans will include:
- verifying what information or documents have been taken or
- verifying what use has been made of such documents and i
- verifying who else has received or had access in any manner to
or information; and
- retrieving all such documents and information, including all
transmissions that have been made.
or to anyone any
of Atlantic
ns with Mr.
by you;
of such documents
or later
As part of any such discussions, ACBB-BITS will require access to your rsonal email
account(s) and authorization from your email provider to release its own archived ata to verify the full
extent to which ACBB-BITS documents and information has been accessed or tr sferred from your
email account.
At a minimum, ACBB-BITS will seek an affidavit from you attesting to th accuracy of the
information you provide regarding the above matters. Such affidavit would also i clude an agreement
by you not to make any use of any ACBB-BITS information or documents. The idavit would be
given under oath with the penalty of a perjury prosecution or other legal action ei er in the event the
information in your affidavit is inaccurate or incomplete, or in the event you breac the agreement not
to make any further use of the information or documents and not to take any other Improper actions
involving ACBB-BITS.
Until directed otherwise in writing by our firm or by Jon Evans, Christian lricson, or Chuck
Daniels in writing, you are not authorized to:
[a] contact any of ACBB-BITS' customers,
[b] contact any individuals or entities with which ACBB-BITS does busine is, including
vendors, consultants, and other businesses who work cooperatively in any way wit ACBB-BITS;
[c] contact any ACBB-BITS employee other than Jon Evans, Christian Eric on or Chuck
Daniels (except limited contact with Tasha Moore for the exclusive purpose of in 'ng arrangements to
return ACBB-BITS property as described immediately below). Any contact with . Ericson or Mr.
Daniels shall be in writing only, and sent via email to christian.ericson@bitsnetwo .coin or
chuck.daniels@bitsnetwork.com;
#I 060495v4 5998-02
Raymond Caroian
August 11, 2011
Page 3
[d] contact any person or entity with whom you had contact as a
ACBB-BITS; or
[e] contact any person or entity and represent to such person or entity that
capacity for ACBB-BITS.
customer of
are acting in any
Immediately upon your receipt of this letter, you must contact Jon Evans t discuss the matters
described above. Please also make immediate arrangements with Tasha Moore, xce Manager of
BITS, to return the laptop computer, Blackberry, Wad, Cisco IP Demo Phone, and any other equipment
that is the property of ACBB-BITS.
Your improper actions constitute a serious violation of the legal duties you owe. ACBB-BITS
reserves all of its rights against you regarding these matters. In setting forth the a ve specific matters,
ACBB-BITS does not waive any other rights it has nor does ACBB-BITS restrict tself to acting only
as set forth above.
This is a serious matter with significant legal consequences. Please be
the right to consult with an attorney.
Please contact Jon Evans no later than Monday August 15, 2011. If we do
if you do not provide a response that is satisfactory, ACBB-BITS's intention is to
its rights.
Very Truly Yours,
;ion =-.
Benjamin A. Andersen
CC: Jon Evans
Chuck Daniels
Christian Ericson
that you have
hear from you or
action to protect
#1060495v4 5998-02
EXHIBIT F
co
This Confidential Separation Agreement, General Release and Waiver (the ` greement") is
entered into by and between Raymond Carolan ("Employee"), 133 Cownec Road, Port
Washington, NY 11050, and ACBB-BITS, LLC ("Company"), 1400 Marke Street,
Camp Hill, PA 17011 (collectively, the "Parties"), for good and valuable co sideration,
intending to be legally bound hereby, and is comprised of the following to s and conditions.
WHEREAS, Employee was terminated for cause by the Company effective August 12,
2011.
WHEREAS, Employee and the Company mutually desire to fully d finally resolve
any/all potential claims, disputes, charges or actions of any kind whatsoever including without
limitation those arising out of Employee's employment relationship with the Company and his
separation therefrom;
IT IS HEREBY AGREED, by and between Employee and the Con
tion of the foregoing and expressly acknowledging the accuracy of same, as
1. Severance Payments
In full consideration of Employee's agreements and obligations as., contingent upon Employee's full compliance herewith and the accuracy of
forth in the Affidavit attached hereto as Exhibit B, Company will make the
Payments to Employee pursuant to the following terms and conditions:
a. Beginning two weeks subsequent to the effective date of the re.
and continuing for three months thereafter or until the date on
commences other employment, consulting work or other remur
whichever is earlier, Company shall forward to Employee a bi-
gross amount of Employee's final bi-weekly salary, less all lam
first Severance Payment shall be in the amount owing from Au
the date of the first Severance Payment.
b. As additional Severance Payments, Company shall reimburse
COBRA premium payments made by him during the period s:
Severance Payments are payable as set forth in Paragraph La.
provided that Employee first provides Company with written
such payments.
c. As additional Severance Payments, Company shall compensate
seventeen (17) unused vacation days (in accordance with the m,
vacation days or PTO pay is calculated under normal employmi
, in considera-
forth herein, and
representations set
llowine Severance
e provisions herein
;h Employee
tive activities,
.kly check in the
withholdings. The
t 12, 2011 through
loyee for monthly
continuation
ediately above,
' of having made
iployee for
er in which unused
circumstances).
d. As additional Severance Payments, Company shall pay commis
sions were not fully earned as of the date of termination), pendi
tion, as follows:
Monson Savings Bank
Commission (contract signature + successful install) _ $3,918
Paid 6/23/11: $1,959
Due upon successful install: $1,959
Merrimack County Savings Bank:
Commission (contract signature + successful install) _ $4
Paid 8/4/11: $2,402.33
Due upon successful install: $2,402.33
Colonial American Bank:
Commission (contract signature + successful install) _ $1,698
Paid 8/4/11: $789
Due upon successful install: $909
TOTAL payment due upon successful customer installs: $5,2
ns (which commis-
successful installa-
13
e. Company will issue Employee, and Employee shall not contest, IRS Form W-2
and/or an IRS Form 1099 reflecting the Severance Payments ma e by Company to
Employee;
f. Employee shall immediately notify Company at such time as E ployee commences
other employment, consulting work or other remunerative activi ies, and at such time
as Employee becomes entitled to any unemployment compensat on or similar benefits
(which unemployment compensation or similar benefits shall be deducted from the
amount of the Severance Payments owing hereunder).
g. Previous to the due date of any Severance Payment as defined
requested by Company from time to time, Employee will prov
signed verification stating that has not commenced other empl,
work or other remunerative activities, and that he has made no
unemployment compensation or similar benefits and has not rf
h. Employee shall provide to Company a copy of Employee's fede
returns for 2011 immediately after same are filed, and any other
information reasonably requested, so that Company can verify v
was entitled to receive all of the Severance Payments paid or to
i. Employee agrees that a violation hereof (including, without li
and/or refusal to return Severance Payments to which Employ
the failure to provide the documents and/or other information
shall constitute a material breach of this Agreement, in which
ein and as otherwise
to Company a
lent, consulting
)lication for
ved same.
and state tax
cuments or
ther Employee
ation, the acceptance
is not entitled, and/or
set forth herein)
ent, in addition to
#10641830 5998-02 2
such injunctive and other equitable relief as Company may be en
without waiver of any other rights or remedies, Company shall b
Severance Payments, and Company shall be entitled to immediat
Employee, without limitation and in addition to all other damage
may be entitled, all Severance Payments made to or on behalf of
forth herein, plus interest from the date of payment, plus costs of
attorneys' fees resulting from such violation and related costs.
2. Employee's General Release
Employee, on behalf of himself and his agents, spouse, trustees, heir
strators, legal representatives, successors, assigns and any person or entity a
claims by or on Employee's behalf, for and in consideration of the Severanc
other good and valuable consideration, and intending to be legally bound, do
RELEASE AND FOREVER DISCHARGE the Company, its predecessors,
assigns, as well as its current, former and future officers, directors, sharehol,
trustees, agents, insurers, attorneys and affiliated persons and entities, as we
employee benefit plans and their respective administrators, trustees, functioi
fiduciaries, and all persons acting by, through, under, or in concert with any
"the Releasees"), of and from any and all manner of actions and causes of ai
obligations, claims and demands, whatsoever in law or in equity, known or 1
contingent, which the Employee may have or claims to have or ever had, no
may have, arising on or before the date of this Agreement, and/or based on
omissions that occurred on or before the date of this Agreement, whether or
Employee's employment with Company, including without limitation Empl
for cause and any claims against any of the Releasees arising under the Age
Employment Act ("ADEA"), Title VII of the Civil Rights Acts of 1964 and
the Americans with Disabilities Act Amendments Act ("ADAAA"), the Far.
Leave Act ("FMLA"), the Older Workers Benefits Protection Act ("OWBP,
tional Safety and Health Act ("OSHA"), the Equal Pay Act ("EPA"), the Fa
Act ("FLSA"), the Pregnancy Discrimination Act of 1978, the Lilly Ledbet
National Labor Relations Act ("NLRA"), the Employee Retirement Income
("ERISA"), the Consolidated Omnibus Budget Reconciliation Act ("COBR
Pennsylvania Human Relations Act, the New Jersey Law Against Discrimir.
10:5-1 et seq., the New Jersey Wage and Hour Law, N.J.S.A. § 34:11-56a e
Conscientious Employee Protection Act, N.J.S.A. § 34:19-1 et seq., the Ne,
Leave Act, N.J.S.A. § 34:11B.I et seq., and all other waivable and releasabl
under any other federal, state, or local statutes or common law now or herea
including without limitation claims in tort and/or contract, as well as all elai
fees and costs. Employee covenants not to bring any claim against any of t
contravention hereof and agrees to be liable for all counsel fees and costs in
Releasees arising from Employee's violation hereof.
itled to obtain, and
entitled to cease all
.ly recover from
to which Company
;mployee as set
,ollection, plus
executors, admini-
ithorized to bring
Payments and for
es hereby REMISE,
Successors and
lers, employees,
1 as the Company's
aries, and
of them (collectively
tion, suits, debts,
nknown, fixed or
v has, or hereafter
lleged acts or
not arising from
)yee's termination
Discrimination in
1991 ("Title VII"),
dly and Medical
?"), the Occupa-
r Labor Standards
er Fair Pay Act, the
Security Act
k"), the
ation, N.J.S.A. §
seq., the New Jersey
v Jersey Family
claims arising
3er recognized,
ns for attorney's
le Releasees in
,urred by any of the
#1064183v3 5998-02 3
3. Waiver of Age Discrimination in Employment Act (ADEA)
Employee acknowledges that Employee has received this Agree me on the date a copy
of same was sent via email to Employee , and that under this Agreement E ployee is knowingly
and voluntarily waiving and releasing any rights that Employee may have der the federal Age
Discrimination in Employment Act of 1967, as amended ("ADEA Waiver, d Release"), among
other claims. Employee acknowledges that the consideration given for this DEA Waiver and
Release is in addition to anything of value to which Employee was already ntitled.
The Parties agree and acknowledge that Employee has been advised?by this writing that:
a. Notwithstanding anything to the contrary contained in this reement, this
ADEA Waiver and Release does not apply to any claims under the ADEA at may arise after
the date that Employee signs this Agreement;
b. Employee has the right to and is advised to consult with an a?torney prior to
executing this Agreement;
C. Employee has twenty-one (21) days from the date of receipt ereof within which
to consider this ADEA Waiver and Release (although Employee may exec a this ADEA Waiver
and Release at any time before the expiration of such period) (the "Delibera ion Period");
d. Employee has seven (7) days following the execution of this greement to revoke
his ADEA Waiver and Release by hand delivering and sending, via certified United States mail,
written notice of revocation, in the form of the attached Exhibit "A", to the Mention of the
person named therein (the "Revocation-Period"). -
4. No Other Consideration
Employee acknowledges and agrees that other than the consideratio
he is not entitled to and will not receive any additional compensation or bet
whatsoever from the Company and that no representations have been made
such additional compensation or benefits. Employee affirms that he has be
received compensation, salary/wages, vacation pay and/or benefits to whicl
the Company and no other compensation, salary/wages, vacation pay and/o
him from the Company, except as specifically provided herein.
5. Confidentiality of Agreement and Terms Thereof
Employee agrees to keep confidential the existence and terms of thi:
represents that he has not and will not communicate or disclose the'terms of
the circumstances leading up to this Agreement, to anyone other than his wi
any), his accountant and/or tax consultant, or as otherwise required by law,
informs each of them of this confidentiality provision and they each likewis
by it.
provided for herein,
;fits of any kind
o him regarding any
n paid and/or has
he was entitled from
benefits are due to
Agreement and
this Agreement, or
e, his attorney (if
)rovided that he
agree to fully abide
#10641830 5998-02 4
Employee further agrees that disclosure by him of any of the terms a
in violation of the foregoing shall constitute a material breach of this Agreel
in addition to such injunctive otherequitable-relief as Company-may°be
and without waiver of any other rights or remedies, Company shall be entitl,
Severance Payments, and Company shall be entitled to immediately recover
without limitation and in addition to all other damages to which Company n
Severance Payments made to or on behalf of Employee as set forth herein, I
date of payment, plus costs of collection, plus attorneys' fees resulting from
related costs.
6. Non-Disparagement .
Employee agrees that except as may be required by law, he will not
through any medium, disparage or negatively portray Company or any of d
of the products, services or actions of the Company or the Releasees.
Employee further agrees that a violation hereof shall constitute a m
Agreement, in which event, in addition to such injunctive and other equital
may be entitled to obtain, and without waiver of any other rights or remedi
entitled to cease all Severance Payments, and Company shall be entitled to
from Employee, without limitation and in addition to all other damages to,
be entitled, all Severance Payments made to or on behalf of Employee as s
interest from the date of payment, plus costs of collection, plus attorneys' 1
such violation and related costs.
id of this Agreement
lent, in which event,
entitled to obtain,
d to cease all
from Employee,
ay be entitled, all
lus interest from the
such violation and
zblicly or privately,
Releasees, or any
trial breach of this
relief as Company
Company shall be
nmediately recover
ich Company may
forth llerein, plus
s resulting from
Company agrees to provide neutral -information to third party writte inquiries from
prospective employers limited to Employee's dates of employment and positions held, and to
financial institutions which Employee has made application, to include verication of his salary,
if such financial institution provides a signed authorization by Employee fo release of salary
information.
7. Waiver of Reemployment
Employee agrees that his termination for cause by the Company effE
2011, is an irrevocable separation of employment and Employee agrees not
reemployment with the Company and any of the other Releasees. In the ey
this waiver by Employee, he agrees that any subsequent application for reel
Company or any of the other Releasees will be considered to be null and ve
that violation of the foregoing shall constitute a material breach of this A;r(
event, in addition to such injunctive and other equitablerelief as Company
obtain, and without waiver of any other rights or remedies, Company shall 1
Severance Payments, and Company shall be entitled to immediately recove..
without limitation and in addition to all other damages to which Company r
Severance Payments made to or on behalf of Employee as set forth herein,
date of payment, plus costs of collection, plus attorneys' fees resulting frorr
related costs.
tive August 12,
o reapply or accept
nt of any breach of
ployment with the
d. Employee agrees
ment, in which
ay be entitled to
e entitled to cease all
from Employee,
?ay be entitled, all
,us interest from the
such violation and
#10641830 5998-02
S. Non-Admission of Liability; No Existing Claims or Actions
The execution of this Agreement by the Parties shall not constitute y admission of
liability or wrongdoing by the Company or other Rel--asees and any/all liabi ty is expressly
denied. The Parties enter into this Agreement solely because they desire to solve all potential
disputes or claims at any time up to the execution of this Agreement, and av id the burden,
expense, delay and uncertainties of litigation. Employee represents that he as not previously
filed any claims or demands in any forum against the Company or any of the other Releasees and
that there are no claims or demands by him pending against any of the Rele ees.
9. Confidential Information; Verification of Employee Conduct
a. Employee covenants and agrees that he shall not at any time inclose, discuss or
otherwise disseminate, directly or indirectly, any of the Company's Confide tial Information.
"Confidential Information" includes the Company's proprietary information and. documents in
any format or media, including copies thereof and excerpts therefrom, whet er or not Company
maintained same as trade secrets, with the exception of information and doc ents which are or
become. matters of public record with Company's knowledge and consent.. y way of example
only, Confidential Information includes documents and information pertaini g to Company's
practices, policies, business methods, business plans, business strategies, in keting, finances,
customers, prospects, employees and all other materials that relate or pertai to the Company's
business or operations, including but not limited to: Sales Pricing Tool (SP"), telecommunica-
tion carrier and partner pricing documents, prospect customer organization charts; BoD
preparation documents, sales performance documents, profitability and reye ue documents,
network diagrams, customer proposals; customer bill-of materials, customer ricinl schedules,
list of customers and prospect customers, marketing documentation, non-pu lished article
editorials, BITS vs. competition feature comparison documents, and any otl r confidential or
company related documents.
b. Employee further agrees that all. Confidential Information that came into the
possession of Employee in the past or that comes into the possession of E loyee in the future
is and shall remain the exclusive property of the Company and Employee fu her agrees to
immediately return same to the Company, including all copies thereof and a cerpts therefrom.
C. Employee acknowledges that he has accessed and obtained c (f
Information without authorization, and that he has disposed of such Confid t
set forth in the Affidavit attached as Exhibit B. Employee agrees to execli*e
oath and subject to penalties of perjury. Employee hereby promises and-rep
statements in the Affidavit are true and complete in all respects:
d. Employee agrees that violation of the foregoing shall constit
of this Agreement, in which event, in addition to such injunctive and other
Company may be entitled to obtain, and without waiver of any other rights
Company shall be entitled to cease all Severance Payments, and Company
immediately recover from Employee, without limitation and in addition to
pies of Confidential
ial Information as
1e Affidavit under
Bents that -the
a material breach
uitable relief as
remedies,
dl be entitled to
other damages to
#10641830 5998-02 6
which Company may be entitled, all Severance Payments made to or on
set forth herein, plus interest from the date of payment, plus costs of col.
fees resulting from such violation and related costs- as well as all costs e
investigation and forensic analysis of Employee's conduct.
e. Employee further agrees that Company may take any and all
necessary to verify the accuracy of the information set forth in the Affidavit,
cooperate with, provide any necessary additional information, and execute a1
documents that may be required by Company to effectuate such verification,
limited to, providing access to Employee's personal email account(and authc
such as email providers to provide logs, backup data, and other information i
use of personal email accounts). Upon cause shown (such as, by way of exaJ
the attached Affidavit and/or evidence that Confidential Information has bees
retained in any form), and subject to appropriate safeguards of Employee's It
concerns, Employee shall permit Company and its agents and/or experts to v
perform forensic testing on any computer or other electronic data storage or I
owned or controlled by Employee.
f. On a continuing basis into the future, Employee agrees to exe
and perform such actions as may be reasonably necessary for the purpose.of
disclosure or dissemination of Company's Confidential Information.
10. Return of Company Prgperty
Employee agrees that, in the course of employment with Company, l
various equipment which always has beerrand continues °to'bethe stile prupt
Employee agrees to return all such Company property within five (5) days o
hereof. Such company property includes, but is not necessarily limited to, a
for access to the Verizon Wireless network, a mobile telephone (specifically
iPad computer, a laptop computer, a Cisco IP phone (Soho), a projector, a h(
800), a customer demonstration model Cisco IP phone, an EZ Pass toll devi<
and Company related marketing materials.
Employee agrees that violation of the foregoing shall constitute a ma
Agreement, in which event, in addition to such injunctive and other equitabb
may be entitled to obtain, and without waiver of any other rights or remedies
entitled to cease all Severance Payments, and Company shall be entitled to it
from Employee, without. limitation and in addition to all other damages to wl
be entitled, all Severance Payments made to or on behalf of Employee as set
interest from the date of payment, plus costs of collection; plus=attomeys' fe(
such violation and related costs.
11. Non-Solicitation of Customers and Employees of the Company
of Employee as
plus attorneys'
:d for purposes of
,tions it deems
nd further agrees to
? such additional
ncluding, but not
izing third parties
garding Employee's
ple, inaccuracies in
downloaded and/or
;itimate privacy
:e possession of and
ansmission device
such documents
,cti.ng against the
was provided with
ty of Company.
the execution
? M 4G Converter
a Blackberry), an
ne router (Cisco
an automobile,
trial breach of this
relief as Company
Company shall be
mediately recover
ich Company may
orth herein, plus
resulting from
#10641830 5998-02 7
a. Employee covenants and agrees that for two (2) years follo„
-termination date effective as of August 1.2,2014, or in respect-to any custom
Company for six (6) months subsequent to the expiration of any agreement 1
and such customer or "partner", whichever period is longer, Employee. sliall
indirectly, solicit or induce, or assist any other person or entity to solicit or i
solicit or induce any person or entity who was a customer of the Company, <
customer of the Company, a "partner" of the Company, or a person or entity
Company engaged in. any manner of cooperative business activity for the laE
Employee's employment with the Company, or any individual, company, di
other affiliated person or entity (hereafter "Customers") to conduct business
any employer of Employee, or to terminate or adversely change the Custome:
the Company. Employee further agrees that, by way of example, any comm
Customer or directed to any Customer (including indirect communications ii
advertisements, websites or other communications utilizing the Internet) vvh
alludes to Employee's business activities or affiliation shall constitute a viol
Notwithstanding any contrary provision herein, to facilitate compliance wits
provisions hereof, Company shall have the right to provide a copy of pertine
Agreement or a. summary thereof to Employee's filture employer(s).
b. Employee covenants and agrees that for one (1) year followir
termination date effective as of August 12, 2011, Employee shall not, direct]
solicit or induce, or assist any other person or entity to solicit or induce, or a
induce ;Wy of the Company's current employees an former employees (c
who were employees during the preceding three (3) year period prior to. Eml
date) to become employed by or otherwise provide.services for Employee an
which Employee is an owner, officer, director, employee, consultant or indepf
to terminate or otherwise alter their relationship with the Company.
C. The Parties agree that a court with jurisdiction may shorted
such other changes to such minimum extent as is required to make the fore
enforceable.
d. Employee agrees that violation of the foregoing. shall constil
of this Agreement, in which event, in addition to such injunctive and other.
Company may be entitled to obtain, and without waiver of any other rights.
Company shall be entitled to cease all Severance Payments, and Company
immediately recover from Employee, without limitation and in addition to ,
which Company may be entitled, all Severance Payments made to or on be:
set forth herein, plus interest from the date of payment, plus costs of collccl
fees resulting from such violation and related costs. '. ,-
12. Reimbursable Expenses
Employee agrees that he is not entitled to reimbursement of any eap(
obligations incurred after the date of his termination on August 12, 2011. E
warrants and represents that on or before. August 26, 20I-1 Employee has' ul
ing Employee's
er or "partner" of
etween Company
not, directly or
iduce,: or attempt to
prospective
with whom the
three years of
tision, subsidiary or
vith Employee or
's relationship with
mication with any
the nature of
ch mentions or
ttion hereof.
this and other
it provisions of this
Employee's
or indirectly,
;mpt to solicit or
fined.. as employees
)yee's termination
or any business of
dent contractor, or
periods or make
provisions
a material breach
zitabl;, relief as
remedies;
dl be entitled to
other damages to
f of Employee as
1, phis attorneys'
; ayments or
(ee hereby
d all claims for
#10641830 5998-02
reimbursable expenses, payments and obligations Employee incurred p
termination, and Employee further agrees that he is entitled to no other
payments or obligations and that he wilt-trot submit further-claims fors
expenses, payments or obligations after August 26, 2011.
13. Employee to Continue Repayment of Loan Made by Company
As a material inducement for the Company to enter into this Agrees
for the Severance Payments to Employee identified in paragraph 1 above, ]
and agrees to continue to make all timely repayments to Atlantic Central B
Loan of $9,000.00 previously made to him by Atlantic Central Bankers Ba
with the terms of the Loan Agreement that was entered into between the P,
which are incorporated herein by reference.
Employee agrees that violation of the foregoing shall constitute a ma
Agreement, in which event, in addition to such injunctive and other equitable
may be entitled to obtain, and without waiver of any other rights or remedieE
entitled to cease all Severance Payments, and Company shall be entitled to it
from Employee, without limitation and in addition to all other damages to w
be entitled, all Severance Payments made to or on behalf of Employee as set
interest from the date of payment, plus costs of collection, plus attorneys' fe
such violation and related costs.
14. No Assignment of Claims
Employee represents that he has not made, and will mot make; any
claim, cause or right of action, or any right of any kind whatsoever, embod
claims and obligations that are released herein, and that no other person or
other than Employee had or has any interest in any claims that are released
agrees to defend, indemnify and hold harmless each and every one of the R
all claims, demands, expenses, costs, attorneys' fees, and causes of action
or entity due to a violation of this non-assignment provision.
14. Company Release of Employee
Contingent up'n Employee's full and continuing compliance with
conditions hereof, and subject to revocation upon Employee's failure to *ft
continuing basis with the terms and conditions hereof, Company hereby r(
Employee for all claims, suits, debts, liabilities and obligations (not inclu(
the Agreement) which are known to Company as of the date of execution.
15. Construction of Agreement
Should any of the provisions or terms of this Agreement require judi
is agreed that the Court interpreting or construing this Agreement shall not
that such provision(s) or term(s) shall be more strictly construed against one
the rule of construction that a document is to be construed more strictly aga:
to the date of his
rsable expenses,
it and to provide
ployee promises
cers Bank of the
and in accordance
es- the terms of
xial breach of this
relief as Company
Company shall be
mediately recover
ich Company may
brth herein, plus
resulting from
;nment of any
in any of the
.ty of any kind,
'ein. Employee
asees from any and
rted by any person
terms and
comply on a
ses and discharges
those set forth in
interpretation, it
y a presumption
rty by reason of
the party who
#10641830 5998-02 9
prepared it, it being agreed that all Parties and their counsel have participat
and review of this Agreement. The Parties agree that this Agreement is see
agree that if any term, condition or provision, is hel&to be invalid, void-or t
only that term, condition or provision shall be stricken from this Agreemen
respects this Agreement shall be valid and continue in full force, effect and
16. Entire Agreement, Mutual Understanding
The Parties further agree, declare and represent that no promise, inc
representation or agreement not herein expressed has been made to any par
enter this Agreement. This Agreement contains the entire agreement by an
supersedes any proposal or prior agreement, oral or written, and any other 4
relating to the subject matter of this Agreement, and the terms of this Agree
and not a mere recital. This is- a fully integrated agreement. It may not be
oral agreement or representation or otherwise except by a writing of subset
signed by the Parties. Further, the Parties acknowledge that the undertakin
Parties are expressly contingent upon the fulfillment and satisfaction of the
other party as set forth herein.
17. Governing Law, Jurisdiction and Venue
This Agreement has been executed and delivered in the Commonwe
and shall be interpreted, construed, and enforced pursuant to the laws of the
Pennsylvania without regard to its conflict of law rules. The Parties agree t]
proceeding based on, arising out of or relating to this Agreement, or the brei
ment, shall be brought and maintained exclusively in a Pennsylvania state o
jurisdiction and venue over the Parties, and not in or before any other court,
tribunal. Employee hereby irrevocably consents to the exercise of personal
Employee by the respective foregoing courts, agrees that venue shall be pro
and irrevocably waives and releases any and all defenses based on lack of p
improper venue and/or forum non conveniens. Employee and Company fur
to a jury trial in any suit, action or proceeding based on, arising out of, or re
Agreement, or the breach of this Agreement.
18. . Counterparts and Facsimile Signatures
This Agreement may be executed in any number of counterparts witl
if all of the Parties hereto had signed the same document. All counterparts s
together and shall constitute one agreement. Absent an original signature, it
understood and agreed that a signature transmitted by facsimile, PDF,.or sirr
as binding as an original signature.
19. Acknowledgment and Disclaimer
Employee stipulates and agrees that:
#10641830 5998-02 10
I in the preparation
rable and further
enforceable, then
and that in all other
or caused them to
between the Parties,
ent are contractual
-red or modified by
nt date hereto
of each of the
>ligations of the
Ith of Pennsylvania
;ommonwealth of
it any suit, action or
:h of this Agree-
federal court with
igency or other
,uisdiction over
er in such courts,
-sonal. jurisdiction,
ler waive any right
lina to this
the same effect as
.all be construed
s hereby
Jar means shall be
a. He has read the terms of this Agreement, and he understands is terms and effects,
including the fact that he has agreed to release and forever discharge the Rel asees as provided in
_ - ,,- paragraph 2 of this Agreement; _..,
b. He has signed this Agreement voluntarily and knowingly; an .not as a result of
any pressure, coercion or duress, in exchange for the consideration provided to hint, which he
acknowledges is adequate and satisfactory; and
c. Neither the Company nor any of its agents, representatives, c ployees, or
attorneys has made any representations to him concerning the terms or eff-, s of this Agreement
other than those contained herein.
IN WITNESS «REOF, in consideration of the mutual covenancontained herein, and with the intention of being legally bound hereby, the F
this Agreement on the dates indicated below.
(SEAL)
RAYMOND CAROLAN
Date
ACBB-BITS, LLC
By: _
Name:
Title:
Date
#10641830 5998-02
11
is and promises
hrties have. executed
EXHIBIT "A"
Jon S. Evans
President and CEO
Atlantic Central Bankers Bank
1400 Market Street
Camp Hill, PA 17011
Re: Non-Revocation of Confidential Separation Agreement and
Dear Mr. Evans:
This letter will serve to confirm that more than seven (7) days has el
the Confidential Severance Agreement, General Release and Waiver ("Agre
on 2011 between myself and ACBB-BITS, LLC
have not revoked my signature to the Agreement within the specified seven
date thereafter.
Sincerely,
11
Release
A since I signed
ant") entered into
t to certify that I
days, or at any
Raymond Carolan
EXHIBIT "B"
STATE OF PENNSYLVANIA )
COUNTY OF: )
AFFIDAVIT OF RAYMOND CAROLAN
I, Raymond Carolan, hereby represent that the following statements
true and correct
in all respects. I make these statements under oath, subject to penalties of perjury, intending that
ACBB-BITS, LLC rely thereon.
1. Up until August 12, 2011, I was employed by ACBB-BITS a a Regional Sales
Manager.
2. As directed in the August 11. 2011 letter of ACBB-BITS' co
August 11, 2011 I have not contacted any of ACBB-BITS' customers, vend
whom ACBB-BITS does business; I have not contacted any ACBB-BITS el
authorized in such letter; I have not contacted any prospective customer of
have not represented to any person or entity that I am acting in any capacity
3. In August 2011, without authorization, I sent approximately ;
my ACBB-BITS email account to my personal email account at raycarolan
majority of these emails included Confidential Information, as that term is
CONFIDENTIAL SEPARATION AGREEMENT, GENERAL RELEASE
have entered into with ACBB-BITS.
el, on and after
or others with
oyee except as
3B-BITS; and I
ACBB-BITS.
y-six emails from
.hoo.com. The
ied in the
D WAIVER I
4. Other than these emails, I did not email, copy, download, pri t, excerpt or in any
other way take or retain any other Confidential Information except as part o legitimate and
authorized business activities performed as part of my employment duties o4 behalf of ACBB-
BITS.
5. I have either destroyed, deleted or returned to ACBB-BI T S a 1 of the Confidential
Information in my possession in any form (including the emails I sent to my account), including
all electronic and hard copies of and excerpts from the Confidential Inform ion, and including
any Confidential Information that was printed, downloaded using any electr nic media or other
storage device, or otherwise obtained or stored. I have not saved any copies printouts or
excerpts of the emails or their attachments which I sent to raycarolan@yahoo.com, I have
deleted all of the emails I sent to that address, and I have emptied the delete4 emails from my
"Trash" ;,r similar folder to ensure their permanent deletion.
h. I have not forwarded, displayed, summarized or otherwise di closet any
Confidential Information, including the Confidential Information I emailed my, personal
account, to any person or entity other than as required and authorized in the erforImance of my
job duties. By way of example, I did not:
a. Allow any other persons to view any of the information, erna Is, or attachments I
sent to raycarolan@yahoo.com;
b. Allow any other persons access to the Yahoo email account
"raycarolan@yahoo.com";
c. Send any emails, data, or attachments containing Confi
other email address;
d. Upload, transmit, share, convey, or otherwise send emails,
regarding or containing Confidential Information to any of
other electronic device, address, or destination, including,
Ps
Information to any
or: formation
i
computer or any
not hinited to, FTP
2
servers, Internet file sharing services, Internet Relay Chat
through any form of instant messaging or chat service;
e. Create-or modify any documents containing, discussing, or u:
Information, which were inconsistent with the furtherance of
authorized ACBB-BITS business activity, or which have bee:
otherwise made accessible from a physical or electronic local
owned or controlled by ACBB-BITS;
or transmission
any Confidential
ny legitimate and
saved, copied, or
>n or medium not
f. Save, summarize, store, recapitulate or otherwise copy, any the Confidential .
Information or any of the data or information contained there n into any other
form or medium.
7. In the event I discover in the future that any Confidential Information remains in
my possession or available to me, or has come into the possession of any" d party as the result
of any act or omission .for which I am responsible, I will immediately notify ACBB-BITS
executives in writing, and cooperate in their efforts to obtain, delete or
disclosure thereof. I will perform such actions and execute such docur
reasonably necessary to continue to protect against the disclosure of
Information.
ise prevent further
as may be
BITS' Confidential
Raymond Carolan
Sworn to and subscribed before me
this day of 2011.
Notary Public
3
EXHIBIT G
EXHIBIT "B"
STATE OF PENNSYLVANIA )
COUNTY OF: )
AFFIDAVIT OF RAYMOND CAROLAN
I, Raymond Carolan, hereby represent that the following statements e
*e true and correct
in all respects. I make these. statements under oath, subject to penalties of ury, intending that
ACBB-BITS, LLC rely thereon.
1. Up until August 12, 2011, I was employed by ACBB-BITS a Regional Sales
Manager.
2. As directed in the August 11. 2011 letter of ACBB-BITS' co
August 11, 20111 have not contacted any of ACBB-BITS' customers, vend
whom ACBB-BITS does business; I have not contacted any ACBB-BITS ei
authorized in such letter; I have not contacted any prospective customer of E
have not represented to any person or entity that I am acting in any capacity
3. In August 2011, without authorization, I sent approximately
my ACBB-BITS email account to my personal email account at raycarolan
(
majority of these emails included Confidential Information, as that term is d
CONFIDENTIAL SEPARATION AGREEMENT, GENERAL RELEASE.
have entered into with ACBB-BITS.
4. Other than these emails, I did not email, copy, download, pri
other way take or retain any other Confidential Information except as part o
nsel, on and after
rs or others with
ployee except as
--BB-BITS; and I
or ACBB-BITS.
xty-six emails from
yahoo.com. The
fined in the
ND WAIVER I
excerpt or in any
legitimate and
authorized business activities performed as part of my employment duties of behalf of ACBB-
BITS.
5. I have either destroyed, deleted or returned to ACBB-BITS A of the Confidential
Information in my possession in any form (including the emails I sent to my ccount), including
all electronic and hard copies of and excerpts from the Confidential Informa on, and including
any Confidential Information that was printed, downloaded using any electr nic media or other
storage device, or otherwise obtained or stored. I have not saved any copies printouts or
excerpts of the emails or their attachments which I sent to raycarolan@yaho com, I have
deleted all of the emails I sent to that address, and I have emptied the delete emails from my
"Trash" or similar folder to ensure their permanent deletion.
6. I have not forwarded, displayed, summarized or otherwise di losed any
Confidential Information, including the Confidential Information I emailed t my personal
account, to any person or entity other than as required and authorized in the erformance of my
job duties. By way of example, I did not:
a. Allow any other persons to view any of the information, ema s, or attachments I
sent to raycarolan@yahoo.com;
b. Allow any other persons access to the Yahoo email account
"raycarolan@yahoo. com";
c. Send any emails, data, or attachments containing Confident
other email address;
d. Upload, transmit, share, convey, or otherwise send emails,
regarding or containing Confidential Information to any of
other electronic device, address, or destination, including,
as
Information to any
or information
computer or any
not limited to, FTP
2
servers, Internet file sharing services, Internet Relay Chat
through any form of instant messaging or chat service;
e. Create or modify any documents containing, discussing, or u:
Information, which were inconsistent with the furtherance of
authorized ACBB-BITS business activity, or which have bee
otherwise made accessible from a physical or electronic
owned or controlled by ACBB-BITS;
or transmission
any Confidential
ay legitimate and
saved, copied, or
?n or medium not
f. Save, summarize, store, recapitulate or otherwise copy, any o . the Confidential
information or any of the data or information contained there 'n into any other
form or medium.
7. In the event I discover in the future that any Confidential Information remains in
my possession or available to me, or has come into the possession of any thi ;d party as the result
of any act or omission for which I am responsible, I will immediately notify CBB-BITS
executives in writing, and cooperate in their efforts to obtain, delete or othe 'se prevent further
disclosure thereof. I will perform such actions and execute such documents may be
reasonably necessary to continue to protect against the disclosure of ACBB- ITS' Confidential
Information.
Raymond Carolan
Sworn to and subscribed before me
this day of , , 2011.
Notary Public
3
EXHIBIT H
From: lynne nolan < lyn nenolan@opton line. net>
Sent: Friday, September 02, 20118:55 AM
To: Jon Evans <jevans@atlanticcentral.com>
Subject: Raymond Carolan
September 2, 2011
Atlantic Central Bankers Bank
1400 Market Street
Camp Hill, PA 17011
Attn: Mr. Jon S. Evans
RE: Raymond Carolan
Dear Mr. Evans:
Please be advised that Mr. Raymond Carolan will not be signing th
Separation Agreement, General Release and Waiver that was rece
on behalf of Atlantic Central Bankers Bank and Banking Infrastruc
Services. At this time, we ask that you immediately cease and de
improper tactics you have recently employed in your attempt to it
the agreement which clearly adversely effects his rights, including
threatening of legal action if he does not sign same.
"non-negotiable-"
Jy presented by you
re Technology
st from any further
uence him to sign
iut not limited to the
Mr. Carolan has advised that he is due $8,341.67 in commissions r successfully
securing the service contracts of Monson Savings Bank, Merrimack ounty Savings Bank
and Colonial American Bank. In addition, he has 17 unused vacatio days. As such,
please issue a check for moneys owed without further delay.
With respect to the loan from ACBB, please provide a current balan a and instructions
for the continued repayment of same under the terms of the original agreement. We
also ask that you promptly provide all exit instructions and COBRA nformation in
accordance with ACBB-BITS, LLC policy.
Finally, please contact the undersigned regarding arrangements to ick up the
company's property at my office.
If, at anytime, you wish to discuss amicable and therefore negotiabl
agreement, I would be happy to discuss same with you.
Very truly yours,
Lynne M. Nolan, Esq.
CARTIGLIA, CONNOLLY & RUSSO
1050 Franklin Avenue, Suite 308
Garden City, New York 11530
(516) 877-0800
Fax (516) 873-0513
Confidentiality Notice: This e-mail message, including any attachments, is for the so
recipient(s) and may contain confidential and privileged information. Any unauthori:
or distribution is prohibited. If you are not the intended recipient, please contact the
destroy all copies of the original message.
terms of an
use of the intended
;d review, use, disclosure
nder by reply e-mail and
2
POWELL, TRACHTMAN, LOGAN,
CARRLE & LOMBARDO, P.C.
By: Michael G. Trachtman / Anthony S
Attorney ID Nos. 19525 / 75903 / 206669
475 Allendale Road
King of Prussia, PA 19406
Phone: (610) 354-9700
ACBB-BITS, LLC
1400 Market Street
Camp Hill, PA 17011
Plaintiff
V.
RAYMOND CAROLAN
133 Cowneck Road
Port Washington, NY 11050
Defendant.
Potter / Michael W. Kulakowski
Attorneys for Plaintiff
ACBB-BITS, LLC
: IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
vJ
CIVIL ACTION NO. 11-7217 _77 F
<
-
<
?`' -- 1 _ ,
ri
PRAECIPE TO ENTER DEFAULT JUDGMENT
TO THE PROTHONOTARY:
Please enter a default judgment in favor of Plaintiff, ACBB-BITS, LLC and against
Defendant, Raymond Carolan: (a) in an amount to be assessed at hearing or trial, in accordance
with Pennsylvania Rule of Civil Procedure 1037 (b) (1); and (b) for the entry of an Order, a
proposed form of which is submitted herewith, in connection with the equitable relief sought by
the Plaintiff by way of its Complaint against Defendant, and in accordance with Pennsylvania
Rule of Civil Procedure 1037 (d). A true and correct copy of Plaintiff's Proposed Order is
attached hereto and incorporated herein as Exhibit "A". The Complaint was served upon the
Defendant on September 29, 2011. As of the date of this filing, the Defendant has failed to file
any responsive pleading to Plaintiff's Complaint.
I certify that written notice of the intention to file a Praecipe for Default Judgment was
mailed to the Defendant on October 20, 2011, said date being after the default occurred and at
least ten (10) days prior to the date of the filing of the Praecipe for Default Judgment. A true and
correct copy of said Notice is attached hereto and incorporated herein as Exhibit "B".
41083947v1 5998-03
Date: November 1, 2011 POWELL TRACHTMAN LOGAN
CARRLE & LOMBARDO, PC
By:
Anthony.. Potter
Michael G. Trachtman
Michael W. Kulakowski
475 Allendale Road, Suite 200
King of Prussia, PA 19406
(610) 354-9700
Attorneys for Plaintiff
ACBB-BITS, LLC
#1083947v15998-03
POWELL, TRACHTMAN, LOGAN,
CARRLE & LOMBARDO, P.C.
By: Michael G. Trachtman / Anthony S. Potter / Michael W. Kulakowski
Attorney ID Nos. 19525 / 75903 / 206669
475 Allendale Road
King of Prussia, PA 19406 Attorneys for Plaintiff
Phone: (610) 354-9700 ACBB-BITS, LLC
ACBB-BITS, LLC
1400 Market Street
Camp Hill, PA 17011
V.
Plaintiff
RAYMOND CAROLAN
133 Cowneck Road
Port Washington, NY 11050
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION NO. 11-7217
Defendant.
Pa. R.C.P. 236 NOTICE
TO: Raymond Carolan, 133 Cowneck Road, Port Washington, NY 11050. You are
hereby notified that on the day of , 2011, Judgment was entered against
you: (a) in an amount to be assessed at hearing or trial; and (b) that an Order was entered against
you in connection with the Plaintiff's prayer for equitable relief provided for in its Complaint. A
copy of the Order entered against you in connection with this Judgment is attached hereto. This
judgment is based upon the Plaintiff's filing of a Praecipe to Enter Default Judgment for failure
to Answer or otherwise respond to the Plaintiff's Complaint.
Prothonotary
#1083947v1 5998-03
POWELL, TRACHTMAN, LOGAN,
CARRLE & LOMBARDO; P.C.
By: Michael G. Trachtman / Anthony S. Potter / Michael W. Kulakowski
Attorney ID Nos. 19525 / 75903 / 206669
475 Allendale Road
King of Prussia, PA 19406 Attorneys for Plaintiff
Phone: (610) 354-9700 ACBB-BITS, LLC
ACBB-BITS, LLC
1400 Market Street
Camp Hill, PA 17011
V.
Plaintiff
RAYMOND CAROLAN
133 Cowneck Road
Port Washington, NY 11050
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION NO. 11-7217
Defendant.
CERTIFICATE OF ADDRESS
I, Michael W. Kulakowski, hereby certify that the address of the Defendant to this action
is as follows:
Raymond Carolan,
133 Cowneck Road,
Port Washington, NY 11050
Date: November 1, 2011 POWELL TRACHTMAN LOGAN
CARRLE & LOMBARDO, PC
$y
Michael W. Kulakowski
Michael G. Trachtman
Anthony S. Potter
475 Allendale Road, Suite 200
King of Prussia, PA 19406
(610) 354-9700
Attorneys for Plaintiff
ACBB-BITS, LLC
#1083947v15998-03
POWELL, TRACHTMAN,-LOGAN,
CARRLE & LQMBARDO t-.e. ,
By: Michael G. Trachtman / Anthony S
Attorney ID Nos. 19525 / 75903 / 206669
475 Allendale Road
King of Prussia, PA 19406
Phone: (610) 354-9700
ACBB-BITS, LLC
1400 Market Street
Camp Hill, PA 17011
Potter / Michael W. Kulakowski
Attorneys for Plaintiff
ACBB-BITS, LLC
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V.
: CIVIL ACTION NO. 11-7217
RAYMOND CAROLAN
133 Cowneck Road
Port Washington, NY 11050
Defendant.
AFFIDAVIT OF NON-MILITARY SERVICE
COMMONWEALTH OF PENNSYLVANIA
SS:
COUNTY OF MONTGOMERY
I, Michael W. Kulakowski, being duly sworn according to law, depose and say that I am
attorney for Plaintiff in this matter, and that the above-named Defendant, Raymond Carolan, a
party to the above action, is not, to the best of my knowledge, in the military service of the
United States of America as defined by the Soldiers' and Sailors' Civil Relief Act of 1940 as
amended; and that Defendant is sui juris.
Lf-- ichael W. Kulakowski
Sworn to and subscribed before me this
I S` day of November 1, 2011.
N ARY PUBLIC
am,
IN 0 TWA L
ROSS ANN CHERKAO, N®loryr PyWW
U Motion fwp., Mont X2766
Comrnlssipn t= i?o§u I
#I1083947v15998-03
POWELL, TRACHTMAN, LOGAN,
CARRLE & LOMBARDO, P.C...___
By: Michael G. TrachtrnanY Anthony S. Potter / Michael W. Kulakowski
Attorney ID Nos. 19525 / 75903 / 206669
475 Allendale Road
King of Prussia, PA 19406 Attorneys for Plaintiff
Phone: (610) 354-9700 ACBB-BITS, LLC
ACBB-BITS, LLC
1400 Market Street
Camp Hill, PA 17011
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V.
RAYMOND CAROLAN
133 Cowneck Road
Port Washington, NY 11050
Defendant.
CIVIL ACTION NO. 11-7217
AFFIDAVIT OF SERVICE
COMMONWEALTH OF PENNSYLVANIA
SS:
COUNTY OF MONTGOMERY
I, Michael W. Kulakowski, being duly sworn according to law, depose and say that I am
attorney for Plaintiff in this matter, and that the above-named Defendant, Raymond Carolan, a
party to the above action, was served with a Notice to Defend and Complaint on September 29,
2011, by process server in accordance with Pennsylvania Rule of Civil Procedure 404 (1)
governing service of original process outside of the Commonwealth.
G/" n
ichael W. Kulakowski
Sworn to and subscribed before me this
Is` day of November 1, 2011.
NO° ARY PUBLIC
MM'O, NW NBYLV NIA lip , NOTARIAL SEAL
ROSE ANN CHERKAS, Notary Public
U per Merion Twp., Montgomery County
M Commission Expires August 9, 2013
#1083947v] 5998-03
EXHIBIT A
POWELL, TRACHTMAN, LOGAN,
CARRLE & LOMBARDO, P.C.
By: Michael G. Trachtmar A ny S: Potter /Michael W. Kulakowski
Attorney ID Nos. 19525 / 75903 / 206669
475 Allendale Road
King of Prussia, PA 19406 Attorneys for Plaintiff
Phone: (610) 354-9700 ACBB-BITS, LLC
ACBB-BITS, LLC
1400 Market Street
Camp Hill, PA 17011
V.
Plaintiff
RAYMOND CAROLAN
133 Cowneck Road
Port Washington, NY 11050
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION NO. 11-7217
Defendant.
AND NOW, this day of
2011, upon the entry of Judgment by
Default against the Defendant, it is hereby ORDERED as follows:
1. The Court finds, on the basis of Defendant's failure to respond to any of the
factual allegations set forth in Plaintiff's Complaint, that all of the Plaintiff's allegations
contained in the Complaint are deemed admitted by the Defendant.
2. The Court finds that Defendant unlawfully took from Plaintiff the Converted
Information as set forth in the Plaintiff's Complaint.
1 Within ten (10) days from the entry of this Order, Defendant shall account for
each item of Converted Information (as that term is defined in Plaintiff's Complaint) that was in
Defendant's possession, custody and/or control or was otherwise accessible by Defendant as of
and after the date of Defendant's termination from Plaintiff's employ. The accounting shall be
ORDER
#1083945v1 5998-03
provided in writing and under oath to Plaintiff and the Court, it shall be updated and
supplemented as additional'm€ormatiorr becomes-available; and it shall include at least the
information set forth below.
The accounting shall include a complete description of each item of Converted
Information, and in respect to each item:
a. Defendant shall state whether Defendant (or any person or entity acting
with his authorization or knowledge) has used or disclosed such item, or uses or discloses
such item at any time in the future, and, if so, Defendant shall provide all pertinent details
respecting such use and/or disclosure;
b. Defendant shall state the disposition, location and status of each such item,
and shall provide all pertinent details currently known to Defendant and as may come to
be known by Defendant in the future respecting such disposition, location and status;
C. Defendant shall provide all documents, dates, details, data, information
and access to electronic media as may be required to corroborate and verify the
representations made in the accounting, on an ongoing basis.
To the extent any Converted Information (as that term is defined in Plaintiff's
Complaint) is or comes to be in Defendant's possession, custody and/or control at any time,
Defendant shall fully disclose same to Plaintiff and shall permit Plaintiff full access to such
Converted Information, including any media or other storage devices in which such Converted
Information is or may be stored, so that Plaintiff may dispose of such Converted Information as
it deems appropriate.
#1083945v1 5998-03
6. Defendant shall not use or disclose and shall not allow permit any other person or
entity acting by, through -or witlr the assist=ce„of Defendantto use or disclose any aspect of any
of the Converted Information (as that term is defined in Plaintiff's Complaint).
7. For a period of three years from the date of Defendant's termination from
Plaintiff, Defendant shall forthwith advise Plaintiff in writing of the name and contact
information (address, email address and telephone number) of every person and entity by which
Defendant becomes employed, and every person and entity for which Defendant provides
services of any kind on a consulting or other independent contractor basis (whether or not
Defendant is compensated for such services). Plaintiff shall have the right to notify each such
person and entity of the following: Defendant obtained copies of the Converted Information
(which Plaintiff may generally describe); Defendant is subject to this Order; that such person and
entity shall not solicit, accept, possess, use or disclose any of the Converted Information; that
such person's or entity's solicitation, acceptance, possession, use or disclosure of the Converted
Information may constitute a violation of this Order; and that Plaintiff reserves all rights to
pursue all applicable remedies in respect to the solicitation, acceptance, possession, use or
disclosure of its Converted Information.
8. Plaintiff may, at its option, engage forensic and other qualified experts to review
and analyze Defendant's computer systems, email accounts, and related media for the purpose of
investigating and corroborating the statements in Defendant's accounting and Defendant's
compliance with this Order. Plaintiff shall utilize due regard for the purpose of maintaining the
confidentiality of Defendant's personal information unrelated to the statements in the
accounting. Defendant shall execute all authorizations and provide such access as is required to
complete the foregoing.
#1083945v15998-03
9. The Court finds that Defendant was not authorized to take the Converted
Information, that Defendant knew thathe°was-wt-anthvrized-to•take the Converted,Information,
and that Defendant purposefully and knowingly took the Converted Information despite such
knowledge from Plaintiff's computers and computer servers located in Newark, New Jersey.
Based thereon, the Court finds that pursuant to New Jersey's Computer Related Offenses Act,
N.J.S.A. 2A:38A-1 through 6, Plaintiff is entitled to an award of counsel fees and costs of
litigation and investigation incurred and to be incurred as the result of Defendant's conduct.
Within (14) fourteen days of the date of this Order, and from time to time hereafter to the extent
counsel fees and costs continue to be incurred, Plaintiff shall submit an itemized claim for such
counsel fees and costs, after which the Court will enter an appropriate Order respecting
Defendant's payment of such fees and costs.
10. Plaintiff shall retain the right to seek such compensatory and punitive damages,
and other relief, as may be authorized by law.
It. This Preliminary Injunction shall remain in full force and effect until further
Order of Court.
12. The Court shall retain continuing jurisdiction over the administration and
enforcement of this Order.
J.
#1083945v1 5998-03
EXHIBIT B
POWELL, TRACHTMAN, LOGAN,
CARRLE & LOMBARDO, P.C.
By: Michael G. Trachtman / Anthony S. Potter / Michael W. Kulakowski
Attorney ID Nos. 19525 / 75903 /-206669
475 Allendale Road
King of Prussia, PA 19406 Attorneys for Plaintiff
Phone: (610) 354-9700 ACBB-BITS, LLC
ACBB-BITS, LLC
1400 Market Street
Camp Hill, PA 17011
Plaintiff
V.
RAYMOND CAROLAN
133 Cowneck Road
Port Washington, NY 11050
Defendant.
Dated: October 20, 2011
To: RAYMOND CAROLAN
133 Cowneck Road
Port Washington, NY 11050
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION NO. 11-7217
NOTICE OF INTENTION TO FILE FOR ENTRY OF JUDGMENT BY DEFAULT
IMPORTANT NOTICE
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN
APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILED IN WRITING WITH
THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH
AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS
NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING
AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS.
YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS
OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF
YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE CAN PROVIDE YOU
WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO
ELIGIBLE PERSONS AT A REDUCED FEE.
#1080986v] 5998-02
Cumberland County Bar Association &
Lawyer Referral Service
32 South Bedford Street
Carlisle, PA 17013
(717) 249-3166
POWELL, TRACHTMAN, LOGAN,
CARRLE, & LOMBARw, P.C.
r
B
Michael W. Kulakowski, Esquire
Attorneys for Plaintiff, ACBB-BITS, LLC
#10809860 5998-02
POWELL, TRACHTMAN, LOGAN,
CARRLE & LOMBARDO, P.C.
By: Michael G. Trachtman / Anthony S. Patter / Michael W. Kulakowski
Attorney ID Nos. 19525 / 75903 / 206669
475 Allendale Road
King of Prussia, PA 19406 Attorneys for Plaintiff
Phone: (610) 354-9700 ACBB-BITS, LLC
ACBB-BITS, LLC
1400 Market Street
Camp Hill, PA 17011
V.
Plaintiff
RAYMOND CAROLAN
133 Cowneck Road
Port Washington, NY 11050
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION NO. 11-7217
Defendant.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the forgoing Praecipe to
Enter Default Judgment, with Exhibits was served via U.S. Mail, postage prepaid upon the
following:
Raymond Carolan,
133 Cowneck Road,
Port Washington, NY 11050
Date: November 1, 2011 POWELL TRACHTMAN LOGAN
CARRLE & LOMBARDO, PC
By: ,a®
Anthony S. Po
Michael ulakowski
Michael G. Trachtman
475 Allendale Road, Suite 200
King of Prussia, PA 19406
(610) 354-9700
Attorneys for Plaintiff
ACBB-BITS, LLC
#1083947v1 5998-03