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HomeMy WebLinkAbout05-0201F:\FILFS\DATAFILE\General\Current\11437 Loom/cer Created 3/30/04 0-48PM Revised: 1/10/05 2:08PM MARTSON DEARDORFF WILLIAMS & OTTO Carl C. Risch, Esquire I.D. No. 75901 Christopher E. Rice, Esquire I.D. No. 90916 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs JOHN W. TOWNE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 0,5- 2-01 CL;J ?.. CIVIL ACTION - LAW ASSOCIATED SPRING CORPORATION and BARNES GROUP INC., Defendants JURY TRIAL OF TWELVE DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 JOHN W. TOWNE, Plaintiff V. ASSOCIATED SPRING CORPORATION and BARNES GROUP INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-,2- 0t ? e -77, CIVIL ACTION - LAW JURY TRIAL OF TWELVE DEMANDED COMPLAINT 1. Plaintiff, John W. Towne, is an adult individual residing at 32 Liberty Court, Carlisle, Cumberland County, Pennsylvania. 2. Defendant Associated Spring Corporation is a Delaware business with a business address of Group Headquarters, 80 Scott Swamp Road, Farmington, Connecticut 06032. Defendant Associated Spring's registered agent is Barnes Group Inc., 123 Main Street, Bristol, Connecticut 06010. 3. Defendant Barnes Group Inc., is a Delaware business with a business address of 123 Main Street, Bristol, Connecticut 06010. Defendant Barnes Group's registered agent is National Registered Agents, Inc., 12 Old Boston Post Road, Old Saybrook, Connecticut 06475. 4. On or about December 17, 2003, Plaintiff was presented with a written offer for a position with Associated Spring and/or Barnes Group Inc. of Division Manager, Associated Spring- Corry ("offer"). A true and correct copy of the offer is attached hereto as Exhibit "A." 5. The offer was mailed to and received by Plaintiff at his residential address listed above. 6. The offer was accepted and signed by Plaintiff in Cumberland County, Pennsylvania. 7. Plaintiff entered into an employment agreement with Defendants by accepting the offer in Cumberland County, Pennsylvania. 8. The offer dated December 17, 2003, and attached hereto as Exhibit "A" became the employment agreement. See Exhibit "A." 9. According to the employment agreement, Defendants agreed to pay Plaintiff a lump sum bonus of $25,000.00 ("bonus") each year on December 31, for services provided that year. 10. Further, according to the employment agreement, Defendants agreed to pay Plaintiff a sum pursuant to an incentive program payable in late February ("incentive") for the proceeding year. 11. Plaintiff began working for Defendants on or about January of 2004. 12. Plaintiff worked at Defendants' office located at 226 South Center Street, Corry, Pennsylvania, while maintaining his domicile in Cumberland County, Pennsylvania. 13. Plaintiff provided, among other things, consulting services to Defendants during his 2004 employment with Defendants. 14. At all relevant times during Plaintiff's employment with Defendants, Plaintiff faithfully discharged his duties as directed by Defendants' President, Richard McCorry, and Defendants' Vice President of Manufacturing, Larry Johnson. 15. At all relevant times during Plaintiff's employment with Defendants, Plaintiff exceeded expectation as defined by Defendants' President, Richard McCorry, and Defendants' Vice President of Manufacturing, Larry Johnson. 16. Plaintiff was paid by Defendants through December 31, 2004, although on December 3, 2004, he was terminated. 17. Plaintiff was terminated by Defendant without cause or reason that would prohibit Plaintiff from being entitled to his bonus and incentive. 18. Plaintiff has earned and is entitled to both his bonus of $25,000.00 for the services he provided to Defendants as an employee during 2004. 19. Plaintiff believes, and therefore avers, that the incentive calculation for 2004 is 18%. 20. Plaintiff has earned and is entitled to the full incentive of 18% of his base salary ($125,000.00), which is $22,500.00. The actual payout under the incentive program to Plaintiff in February of 2005 would be 80% of the $22,500.00, or $18,000.00. The remaining 20% or $4,500.00 would be paid out to Plaintiff in late February of 2006. 21. Defendants, on or about December 20, 2004, informed Plaintiff's counsel that they will not pay Plaintiff either his bonus or incentive. 22. Defendants made an absolute and unequivocal refusal to pay Plaintiff both his bonus and incentive. 23. Defendants have anticipatorily breached their obligations under the employment agreement by stating that they will not pay Plaintiff either his bonus or incentive. 24. Defendants have breached the employment agreement by failing to pay Plaintiff both his bonus and incentive. 25. Defendants have been unjustly enriched by their refusal to pay and breach of the employment agreement. 26. Plaintiff's bonus and incentive are fair and reasonable. 27. Plaintiff's bonus and incentive are earned income for 2004. 28. Defendants are in violation of the Pennsylvania Wage Payment and Collection Law ("WPCL") by failing to and/or denying payment of both the bonus and incentive to Plaintiff. 29. Under the WPCL, Plaintiff is entitled to attorney fees, specifically 43 P. S. § 260.9a(f), costs and fees associated with this lawsuit, and any other relief under the WPCL. WHEREFORE, Plaintiff demands that Defendants pay Plaintiff both his bonus of $25,000.00, and his incentive, $22,500.00, plus attorney's fees, costs, interest, and any other relief that the court deems appropriate. MARTSON DEARDORFF WILLIAMS & OTTO By Carl . sch, Esquire I.D. Number 75901 Christopher E. Rice, Esquire I.D. Number 90916 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs Dated: January ?D , 2005 Associated Spring December 17, 2003 Mr. John W. Towne 32 Liberty Court Carlisle, PA 17013 Dear John: We are pleased to offer you the position of Division Manager, Associated Spring - Corry effective January 19, 2004, or your date of employment. The expected duration of your employment will be 24 months, through December 2005. The terms or conditions of this offer as set out below will not be affected if the length or nature of your employment is extended or changed. In this position you will report to me and be headquartered in Corry, PA. Your annual salary will be $125,000, paid monthly in advance. In addition, we will provide you with a lump sum bonus of $25,000 (less applicable federal and state withholdings) each year on December 31, through 2005, as long as you remain continuously employed with Associated Spring or Barnes Group Inc. and your performance is rated as exceeds expectations or better. You will also receive at the beginning of each calendar year, through 2005, a lump sum Universal Allowance of $15,000 annually (less applicable federal and state withholdings). This allowance is yours to use however you choose, and is intended to compensate you for additional personal expenses you may incur in connection with your assignment at Associated Spring - Corry. You will participate in the Company's annual incentive program effective on your date of employment on a prorated basis. Your target incentive under this plan is 30% of base salary, with a maximum payout of 90% of salary. The incentive payout is achieved by Associated Spring - Corry Division successfully attaining its profitability and revenue targets, and your successfully attaining individual performance goals and criteria that we establish from time to time. Eighty percent (80%) of the payout amount generated for 2004, if any, will be payable to you in late February, 2005. The remaining twenty percent (20%) of the 2004 payout will be paid, along with the payout generated for 2005, if any, in late February, 2006, EXHIBIT A December 17, 2003 Mr. John W. Towne provided you have remained continuously employed through December 31, 2005, even if your term of employment has subsequently ended. Participation in the Company's short-term incentive plan brings your total cash compensation for 2004, including your lump sum bonus, to $187,500 at target, and to a maximum of $262,500. Payouts to participants are subject to the provisions of the plan. Your employee benefits will include the following: ? Health Insurance Plan (contributory on a pre-tax cost-sharing basis). ? Dental Assistance Plan (contributory on a pre-tax cost-sharing basis). ? Employee Stock Purchase Plan with a purchase price of 85% of fair market value, subject to statutory limits. ? Retirement Savings Plan [401(k)] with a Company matching contribution of 50% of the amount you contribute on a pre-tax basis, up to 6% of eligible earnings (i.e., Company match is capped at 3% of eligible earnings). The Plan offers a wide range of investment funds for both your own contributions and your company match. ? Salaried Retirement Income Plan (a qualified defined benefit retirement income plan). ? Group Term Life Insurance of 1.5 times salary (noncontributory). ? Optional Group Term Life Insurance of one to four times salary (contributory). ? Optional Dependent Term Life Insurance of up to $100,000 and $10,000 for a spouse and each dependent child, respectively, as applicable (contributory). ? Short-term disability coverage, with a benefit of up to 26 weeks' salary continuation (non-contributory). ? Long-Term Disability coverage, with a benefit of 40% of covered earnings being provided by the Company. You have the option to purchase additional coverage to 50% and 66 2/3% of covered earnings, subject to plan limits. ? $100,000 Accidental Death & Dismemberment Insurance. ? Business Travel Accident Insurance. December 17, 2003 Mr. John W. Towne You will receive a package containing all enrollment information for the above- mentioned benefits. Coverage under the Health Insurance Plan, Dental Benefit Plan, and life and accident insurance plans, if you choose to enroll, is effective on the first day of the first full month of employment (February 1 st, assuming a January 19th start date). Coverage under the Long-Term and Short-Term Disability plans begins on the first day of the calendar month following the completion of 90 days' continuous service (May 1 st, assuming a January 19th start date). Participation in the RSP is effective on the first day of the month that falls at least 30 days after you file your enrollment form (March 1st, assuming you enroll by January 30th). You are eligible to participate in the ESPP on your employment date. Employees hired after January 1, 1993 are not entitled to participate in any retiree health care insurance plans. A company-leased automobile assigned to the Corry facility will be provided to you during your assignment. You will receive taxable compensation annually based on personal use, including commutation miles, in accordance with IRS regulations. Upon successful conclusion of this assignment, the Company may, at its sole discretion, renew your assignment or, in good faith, attempt to transfer you to a position of comparable responsibility, salary, benefits and grade level within the United States. If a suitable position is not available at that time, you will be eligible for appropriate benefits under the Barnes Group Inc. Executive Separation Pay Plan as is in effect at that time. This plan currently provides, in addition to other separation benefits, additional separation pay of four months of base salary (without consideration of any bonuses and allowances), subject to the provisions of the plan. In addition, you would be provided with outplacement assistance consistent with the Company's practice for positions of comparable level. In the event that you resign from Associated Spring or Barnes Group Inc. or are discharged for cause, the Company will not be obligated to provide you with separation benefits, absent special circumstances, under which the Company, at its sole discretion, may decide to provide you with partial or full benefits as it determines are reasonable. You will be entitled to three weeks' vacation annually, and three "floating" holidays, beginning in 2004 in accordance with the policy. All prospective Barnes Group employees are required to pass a urinalysis test for the presence of drugs, and to undergo a standard physical examination. This offer of employment is contingent upon your drug test and physical examination yielding satisfactory results. December 17, 2003 Mr. John W. Towne This letter sets forth our offer of employment and is not intended to create an expressed or implied contract of any kind, nor shall it be construed to constitute a promise or contract of lifetime or continuing employment. Your employment with Barnes Group Inc. is at will and may be terminated at any time, with or without cause, by either you or the Company. The terms of this offer supersede and take the place of any prior written or oral offers of employment. Barnes Group Inc. also has the right to change, interpret, withdraw, or add to any of the policies, benefits, terms or conditions of employment at any time. The terms and conditions of this letter may only be amended or modified in writing by myself. Should you have any questions with regard to the above, please contact Dawn N. Edwards, Group Director, Human Resources directly at (860) 409-4626. To accept this offer, please sign, date, and return the enclosed duplicate copy of this letter to Dawn Edwards within three (3) days of receipt. John, I look forward to your becoming a part of the Associated Spring team and contributing to our growth and profitability. Sincerely, Richard P. McCorry President, Associated Spring Agreed to and accepted: John W. Towne -i 6 bate s`y i t VERIL F1C'ATION The ibregoing Complaim is based upon tnlbrmatjon which has hero gathered by my counsel in (lit; prepaTalio t of the lawsuit. The langttttge of t}te document is that of ci)unsel auxt not my own. I have mad the document and to the extent that it is basal ulx>n inlbrmation which ] have given to ITIV cou mcip it is True and eozreti to the hest of my knowledge, information and belief. Tn the; extent that the content of the document is that of counsel, T have relied upon coumel in making this verification. 'I his statement and vcrificatiem arc l)iaele subject to itx penalties of i b Ya. C.S. Section 4904 rt;latinK to tinswom 1alsific;1tion to autbo?itics, which provides that if 1 make knowingly false averments, T may be suhjcct to criminal penalties. [)ated: 11Z1,93 T fownc f °f 517 ?_ '11 . K rt3 73 ro U C BUCHANAN INGERSOLL P.C. Thomas G. Collins, Esquire I.D. No. 75896 213 Market Street, 3rd Floor Harrisburg, PA 17101 (717) 237-4800 Attorneys for Defendants JOHN W. TOWNE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ASSOCIATED SPRING CORPORATION and BARNES GROUP, INC. ENTRY OF APPEARANCE Kindly enter the appearance of Thomas G. Collins, Esquire, as counsel for Defendants ASSOCIATED SPRING CORPORATION and BARNES GROUP, INC. in the above-captioned matter. Respectfully submitted, B CH AN INGERSOLL P OFES ONAL CORPORATION BY: Thomas G. Collins, Esquire I.D. #75896 213 Market Street, Third Floor Harrisburg, PA 17101 (717) 237-4800 Attorneys for Defendant Doebler's Pennsylvania Hybrids No. 05-201 - Civil Term CIVIL ACTION - LAW JURY TRIAL OF TWELVE DEMANDED Defendants . Date: January 26, 2005 CERTIFICATE OF SERVICE, I hereby certify that a true and complete copy of the foregoing Entry of Appearance was transmitted to the Court via first class mail, postage prepaid, for filing and for service upon the following attorney of record by first class mail, postage prepaid, this 26th day of January, 2005: Carl C. Risch, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 BUCHANAN INGERSOLL PC Thomas G. Collins, Esquire Attorney for Defendants Associated Spring Corporation and Barnes Group, Inc. DATE: January 26, 2005 T^? ? ,_} Y . i'? Yl ?+ ....? L TI ^? • J ? ? 1 ;? r ?''? ..... ..J C?7 1'13 .? _ _.. _? BUCHANAN INGERSOLL P.C. Thomas G. Collins, Esquire I.D. No. 75896 213 Market Street, 3rd Floor Harrisburg, PA 17101 (717) 237-4800 Attorneys for Defendants JOHN W. TOWNE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. 05-201 - Civil Term CIVIL ACTION - LAW ASSOCIATED SPRING CORPORATION and BARNES GROUP INC., JURY TRIAL OF TWELVE DEMANDED Defendants NOTICE TO PLEAD TO: John W. Towne c/o Carl C. Risch, Esquire Martson, Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. BUCHANAN INGERSOLL PC By: ?? aQ --s Thomas G. Collins, Esquire I.D. No. 75896 213 Market Street, Third Floor Harrisburg, PA 17101 (717) 237-4800 Attorneys for Defendants Associated Sprint; Corporation and Barnes Group, Inc. Date: February 1, 2005 r ) i Y ?? :?.. ['ti ? ....... {.l ?_: ?A? A1`l ?GB$sq ne P C Bi3C G Collins> fhO 10-15S96 Floor 13I&S-y- PtzAee111p1 Flazxisbuxg, (?1?) 2e?s for?efendants Attorn Y JOKN w' TOwNE, Plaintiff OF COMMON Ns LYA IA IN OM RL D COUNTY I vO • CUMBE N0.05-7,01 CTIVN TO CIVII A Y TRIAL Of TwELVLDEMAI?B? JUR V. NG ES ASSOCIASION and BA COgPO is *. C. GROUP IN C" Degendan LIMINARY OB,JEC f1 D BATES GROUP IN P RpOR TATION RN W.TOWNE NG CO Of JO Barn AgSOCIPJ 'VO TK COMPLAII`i Barn eS Group lno (collectively " es Corporation and Ingersoll Yzofessiona Associated Spring Buchanan g Defendants' their attorneys' C.P. 1028, ants') t, by and thzough uxsua to Pa. R. «Defend taint P Group" or COrporation, file Preliminary follows'. Objections to the Comp b Complaint on Janus I. BACKGgOUN tiff, John ?'' Towne' commenced this action b? Complaint on Janus 1. Plain Exhibit "A t is attached hereto as 2005. of the Complain ice of ofigiv A true and correct COPY Certified Mail. Such sere 2' efendants via plaintiff sewed D 3. 13, 200. plaintiff was elnpf January of Barnes Group Inc. airy re of any to was effectuated on es Group Inc. will be re tion is an Inactive subs Given the inhera?a Barn al natu pefendants Spring Corpora oration. oration objections, shoutdpt, Associatof Associated SpriAssociated spring Corp reliminary Corporation, and n both urposes of the ins d tant p ring Group Inc. however, for p Associated spring employ" ern. status, Barnes Group" een plaintiff an as the rivity, as bete collectively lack of any P objections. to raise the instant Pre\imol survive the 4. Plaintiff's claims arise out of his employment relationship with Barnes Group Inc. (See Compl.) 5. Plaintiff's employment with Barnes Group Inc. was terminated on December 3, 2004. (Compl. ¶ 16.) 6. Plaintiff seeks to recover separate lump sum and incentive bonuses alleged to be due and owing. (Compl. ¶¶ 18, 20.) 7. Plaintiff's claims are premised upon on a certain letter agreement between the parties dated December 17, 2003, a copy of which is attached to the Complaint as Exhibit "A" (hereinafter the "Letter Agreement.") (Compl. ¶ 24.) 8. Plaintiff alleges causes of action for breach of contract, unjust enrichment, and violations of the Pennsylvania Wage Payment and Collection Law ("WPCL" ). (Compl. ¶¶ 24, 25, 28.) 9. Defendants have denied that Plaintiff is entitled to either the lump sum or incentive bonuses. (Compl. ¶ 22.) II. BREACH OF CONTRACT/ANTICIPATORY BREACH LEGAL INSUFFICIENCY (DEMURRER) 10. The averments in Paragraphs 1 through 9 above are incorporated herein by reference. 11. Plaintiff has alleged that "Defendants have breached the employment agreement by failing to pay Plaintiff both his bonus and incentive." (Compl. 124.) 12. The Letter Agreement provides as follows with respect to the lump sum bonus: In addition, we will provide you with a lump sum bonus of $25,000 (less applicable federal and state withholdings) each year on December 31, through 2005, as lone as you remain continuously employed with Associated Spring or Barnes Group Inc. and your performance is rated as exceeds expectations or better. 2 (Letter Agreement, ¶ 2) (emphasis added.) 13. Pursuant to the express terms of the Letter Agreement - upon which Plaintiff's claim for the lump sum bonus is premised - there were thus two distinct conditions precedent relative to the payment obligation: (1) continuous employment through December 31; and (2) a performance rating of "exceeds expectations or better." 14. Plaintiff has correctly alleged in the Complaint that his employment was terminated on December 3, 2004. (Compl. ¶ 16.) As such, the first condition precedent for the lump sum bonus payment obligation fails as a matter of law,2 15. The Letter Agreement provides as follows with respect to the incentive bonus: You will participate in the Company's annual incentive program effective on your date of employment on a prorated basis ... The incentive payout is achieved by Associated Spring - Corry Division successfully attaining its profitability and revenue targets, and your successfully attaining individual performance goals and criteria that we establish from time to time. Eighty percent (80%) of the payout amount generated for 2004, if any, will be payable to you in late February, 2005. The remaining twenty percent (20%) of the 2004 payout will be paid, along with the payout generated for 2005, if any, in late February, 2006, provided you have remained continuously employed through December 31, 2005, even if your term of employment has subsequently ended. (Letter Agreement, ¶ 4) (emphasis added.) 16. In light of the foregoing, continuous employment through the date of payment was an express condition precedent to the incentive bonus payment. obligation. 17. The first payment was scheduled for February, 2005. (Letter Agreement, ¶ 4) 18. Again, Plaintiff correctly alleges in the Complaint that his employment was terminated on December 3, 2004. (Compl. ¶ 16.) As such, a condition precedent for the incentive bonus payment obligation fails as a matter of law.3 z Defendants also deny that Plaintiff achieved a performance rating of "exceeds expectations or better", as alleged in the Complaint. (Comp. 115.) Recognizing the factual nature of this inquiry, Defendants reserve the right to raise the failure of this second condition precedent relative to the lump sum bonus should Plaintiff s Complaint survive the instant Preliminary Objections. 3 19. Plaintiff further alleges that "Defendants have anticipatorily breached their obligations under the employment agreement by stating that they will not pay Plaintiff either his bonus or incentive." (Compl. ¶ 23.) 20. The Letter Agreement expressly provided as follows as to the term of Plaintiff's employment: This letter sets forth our offer of employment and is not intended to create an expressed or implied contract of any kind, nor shall it be construed to constitute a promise or contract of lifetime or continuing employment. Your employment with Barnes Group Inc. is at will and may be terminated at any time, with or without cause, by either you or the ComparLy. (Letter Agreement, pg. 4) (emphasis added.) 21. Plaintiff has alleged that: The offer dated December 17, 2003, and attached hereto as Exhibit "A" became the employment agreement. See Exhibit "A." (Compl. ¶ 8) (emphasis added.) 22. The Letter Agreement - attached to Plaintiff's Complaint as Exhibit "A" - clearly established the "at-will" nature of Plaintiff s employment. 23. Thus, Defendants were free to terminate Plaintiff's employment on December 3, 2004. 24. Such termination was not in breach of the Letter Agreement. 25. As Plaintiff's employment was properly terminated. under the Letter Agreement on December 3, 2004, there can be no "anticipatory breach" relative to the lump sum or incentive bonus payments. ' Defendants further deny that the other enumerated conditions precedent relative to the incentive bonus were satisfied, e.g., Plaintiffs "successfully attaining individual performance goals and criteria...:. Again recognizing the inherent factual nature of this inquiry, Defendants reserve the right to raise these issues should Plaintiff s Complaint survive the instant Preliminary Objections. 4 26. As a condition precedent has not been met by Plaintiff for the lump sum and incentive bonuses, Defendants have no obligation to pay either as a matter of law. Stebok v. American General Life Ins. Co., 715 F. Supp. 711 (W.D. Pa. 1989). 27. As Plaintiff is not contractually entitled to either the lump sum or incentive bonuses, there can be no violation of the Pennsylvania Wage Payment and Collection Law. WHEREFORE, Defendants respectfully request that this Court dismiss, with prejudice, Plaintiffs Complaint for failure to state a claim upon which relief can be granted pursuant to Pa. R.C.P. 1028. III. UNJUST ENRICHMENT LEGAL INSUFFICIENCY (DEMURRER) 28. The averments in paragraphs 1 through 27 above are incorporated herein by reference. 29. In Paragraph 25 of the Complaint, Plaintiff purports to state an equitable claim for unjust enrichment as follows: Defendants have been unjustly enriched by their refusal to pay and breach of the employment agreement. (Compl. ¶ 25) (emphasis added.) 30. To state a claim for unjust enrichment, Plaintiff must demonstrate "benefits conferred on defendant by plaintiff, appreciation of such benefits by defendant, and acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value." Temple Univ. Hosp., Inc. v. Healthcare Management Alternatives, Inc., 832 A.2d 501, 507 (Pa. Super. 2003). 31. Plaintiffs claims are clearly premised, however, on the alleged breach by the Barnes Group Defendants of the Letter Agreement. (Compl. ¶T 23-25.) Plaintiff has alleged specifically that: 5 The offer dated December 17, 2003, and attached hereto as Exhibit "A" became the employment agreement. See Exhibit "A." (Compl. ¶ 8.) 32. Pennsylvania courts have held that the doctrine of unjust enrichment "is clearly `inapplicable when the relationship between the parties is founded on a written agreement or express contract."' Roman Mosaic and Tile Co. v. Vollrath, 313 A.2d 305, 307 (Pa. Super. 1974) (quoting Third Nat'l Bank & Trust Co. of Scranton v. Lehigh Valley Coal Co., 353 Pa. 185, 44 A.2d 571 (1945)). 33. Thus, because Plaintiffs claims are clearly premised upon the terms of the Letter Agreement, Plaintiff fails to state a claim for unjust enrichment as a matter of law. WHEREFORE, the Barnes Group Defendants respectfully requests that this Court dismiss, with prejudice, Plaintiffs claim for unjust enrichment for failure to state a claim upon which relief can be granted pursuant to Pa. R.C.P. 1028. Respectfully submitted, B ANAN INGER'SOLL PC By: ?.sL..., _.. . Thomas G. Collins, Squire I.D. No. 75896 213 Market Street, Third Floor Harrisburg, PA 17101 (717) 237-4800 Attorneys for Defe:dants DATE: February 1, 2005 6 CERTIFICATE OF SERVICE I, Thomas G. Collins, hereby certify that I am this day sewing a copy of the foregoing document by United States First Class Mail, Postage Prepaid, upon the person indicated below: Carl C. Risch, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 B NAN INGERSOLL PC By:..r Thomas G. Collins DATE: February 1, 2005 JOHN W. TOWNE, V. IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA ASSOCIATED SPRING CORPORATION and BARNES GROUP INC., Defendants AND NOW, this day of No. 05-201 - Civil Term CIVIL ACTION - LAW JURY TRIAL OF TWELVE DEMANDED ORDER 200`.1, upon consideration of the Preliminary Objections of Defendants Associated Spring Corporation and Barnes Group Inc., it is hereby ORDERED that said Preliminary Objections are GRANTED. Plaintiff's Complaint is DISMISSED in its entirety with prejudice. BY THE COURT: J FMUZSVATAMMGeWrllCummV 1437.1 MM/ crewed: maw 04VM Revised: 1/land 2:0EW MARTSON DEARDORFF WILLIAMS & OTTO Carl C. Risch, Esquire I.D. No. 75901 Christopher E. Rice, Esquire I.D. No. 90916 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs JOHN W. TOWNE, Plaintiff 9 3 v. ASSOCIATED SPRING CORPORATION and BARNES GROUP INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND (AUNTY, PENNSYLVANIA NO. C5-7-ot Cav CIVIL ACTION - LAW JURY TRIAL OF TWELVE DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE Olt NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 r? sv? RTw7?'p )r F JOHN W. TOWNE, Plaintiff V. ASSOCIATED SPRING CORPORATION and BARNES GROUP INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05- ul C'_? CIVIL ACTION - LAW JURY TRIAL OF TWELVE DEMANDED COMPLAIN T Plaintiff, John W. Towne, is an adult individual resid''mg at 32 Liberty Court, Carlisle, Cumberland County, Pennsylvania. 2. Defendant Associated Spring Corporation is a Delaware business with a business address of Group Headquarters, 80 Scott Swamp Road, Farmington, Connecticut 06032. Defendant Associated Spring's registered agent is Barnes Group Inc., 123 Main Street, Bristol, Connecticut 06010. 3. Defendant Barnes Group Inc., is a Delaware business with a business address of 123 Main Street, Bristol, Connecticut 06010. Defendant Barnes Group's registered agent is National Registered Agents, Inc., 12 Old Boston Post Road, Old Saybrook, Connecticut 06475. 4. On or about December 17, 2003, Plaintiff was presented with a written offer for a position with Associated Spring and/or Barnes Group Inc. of Division Manager, Associated Spring- Cony ("offer"). A true and correct copy of the offer is attached hereto as Exhibit "A." The offer was mailed to and received by Plaintiff at his residential address listed above. 6. The offer was accepted and signed by Plaintiff in Cumberland County, Pennsylvania. 7. Plaintiff entered into an employment agreement with Defendants by accepting the offer in Cumberland County, Pennsylvania. 8. The offer dated December 17, 2003, and attached hereto as Exhibit "A" became the employment agreement. See Exhibit "A." 9. According to the employment agreement, Defendants agreed to pay Plaintiff a lump sum bonus of $25,000.00 ("bonus") each year on December 31, for services provided that year. 10. Further, according to the employment agreement, Defendants agreed to pay Plaintiff a sum pursuant to an incentive program payable in late February (`incentive") for the proceeding year. 11. Plaintiff began working for Defendants on or about January of 2004. 12. Plaintiff worked at Defendants' office located at 226 South Center Street, Corry, Pennsylvania, while maintaining his domicile in Cumberland County, Pennsylvania. 13. Plaintiff provided, among other things, consulting services to Defendants during his 2004 employment with Defendants. 14. At all relevant times during Plaintiff's employment with Defendants, Plaintiff faithfully discharged his duties as directed by Defendants' President, Richard McCorry, and Defendants' Vice President of Manufacturing, Lang Johnson. 15. At all relevant times during Plaintiff's employment with Defendants, Plaintiff exceeded expectation as defined by Defendants' President, Richard.VcCorry, and Defendants' Vice President of Manufacturing, Larry Johnson. 16. Plaintiff was paid by Defendants through December 31, 2004, although on December 3, 2004, he was terminated. 17. Plaintiff was terminated by Defendant without cause or reason that would prohibit Plaintiff from being entitled to his bonus and incentive. 18. Plaintiff has earned and is entitled to both his bonus of $25,000.00 for the services he provided to Defendants as an employee during 2004. 19. Plaintiff believes, and therefore avers, that the incentive calculation for 2004 is 18%. 20. Plaintiff has earned and is entitled to the full incentive of 18% of his base salary ($125,000.00), which is $22,500.00. The actual payout under the incentive program to Plaintiff in February of 2005 would be 80% ofthe $22,500.00, or $18,000.00. The remaining 20% or $4,500.00 would be paid out to Plaintiff in late February of 2006. 21. Defendants, on or about December 20, 2004, infornied Plaintiff- s counsel that they will not pay Plaintiff either his bonus or incentive. 22. Defendants made an absolute and unequivocal refusal to pay Plaintiff both his bonus and incentive. 23. Defendants have anticipatorily breached their obligations under the employment agreement by stating that they will not pay Plaintiff either his bonus or incentive. 24. Defendants have breached the employment agreement by failing to payPlaintiff both his bonus and incentive. 25. Defendants have been unjustly enriched by their refusal to pay and breach of the employment agreement. 26. Plaintiffs bonus and incentive are fair and reasonable. 27. Plaintiffs bonus and incentive are earned income for 2004. 28. Defendants are in violation of the Pennsylvania Wage Payment and Collection Law ("WPCL") by failing to and/or denying payment of both the bonus and incentive to Plaintiff. 29. Under the WPCL, Plaintiffis entitled to attorney fees„ specifically 43 P. S. § 260.9a(f), costs and fees associated with this lawsuit, and any other relief under the WPCL. WHEREFORE, Plaintiff demands that Defendants pay Plaintiff both his bonus of $25,000.00, and his incentive, $22,500.00, plus attorney's fees, co:rts, interest, and any other relief that the court deems appropriate. Dated: January 2005 MARTSON DEARDORFF WILLLAMS & OTTO By Carl sch, Esquire I.D. Number 75901 Christopher E. Rice, Esquire I.D. Number 90916 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for PIaiatiffs Associated f Spring y? December 17, 2003 Mr. John W. Towne 32 Liberty Court Carlisle, PA 17013 Dear John: We are pleased to offer you the position of Division Manager, Associated Spring - Corry effective January 19, 2004, or your date of employment. The expected duration of your employment will be 24 months, through December 2005. The terms or conditions of this offer as set out below will not be affected if the length or nature of your employment is extended or changed. In this position you will report to me and be headquartered in Corry, PA. Your annual salary will be $125,000, paid monthly in advance. In addition, we will provide you with a lump sum bonus of $25,000 (less applicable federal and state withholdings) each year on December 31, through 2005, as long as you remain continuously employed with Associated Spring or Barnes Group Inc. and your performance is rated as exceeds expectations or better. You will also receive at the beginning of each calendar year, through 2005, a lump sum Universal Allowance of $15,000 annually (less applicable federal and state withholdings). This allowance is yours to use however you choose, and is intended to compensate you for additional personal expenses you may incur in connection with your assignment at Associated Spring- Corry. You will participate in the Company's annual incentive program effective on your date of employment on a prorated basis. Your target incentive under this plan is 30% of base salary, with a maximum payout of 90% of sahi y. The incentive payout is achieved by Associated Spring - Corry Division success fully attaining its profitability and revenue targets, and your successfully attaining individual performance goals and criteria that we establish from time 'to time. Eighty percent (80%) of the payout amount generated for 2004, if any, will be payable to you in late February, 2005. The remaining twenty percent (20%) of the 2004 payout will be paid, along with the payout generated for 2005, if any, in late February, 2006, EIIBIT A December 17, 2003 Mr. John W. Towne provided you have remained continuously employed through December 31, 2005, even if your term of employment has subsequently ended. Participation in the Company's short-term incentive plan brings your total cash compensation for 2004, including your lump sum bonus, to $187,500 at target, and to a maximum of $262,500. Payouts to participants are subject to the provisions of the plan. Your employee benefits will include the following: ? Health Insurance Plan (contributory on a pre-tax cost-sharing basis). Dental Assistance Plan (contributory on a pre-tax cost->haring basis). Employee Stock Purchase Plan with a purchase price of 85% of fair market value, subject to statutory limits. ? Retirement Savings Plan [401(k)) with a Company matching contribution of 50% of the amount you contribute on a pre-tax basis, up to 6% of eligible earnings (i.e., Company match is capped at 3% of eligible earnings). The Planoffers a wide range of investment funds for both your own contributions and your company match. o Salaried Retirement Income Plan (a qualified defined benefit retirement income plan). ? Group Term Life Insurance of 1.5 times salary (noncontributory). Optional Group Term Life Insurance of one to four times salary (contributory). s Optional Dependent Term Life Insurance of up to $100,000 and $10,000 for a spouse and each dependent child, respectively, as applicable (contributory). Short-term disability coverage, with a benefit of up to 26 weeks' salary continuation (non-contributory). Long-Term Disability coverage, with a benefit of 40% of covered earnings being provided by the Company. You have the option to purchase additional coverage to 50% and 66 2/3% of covered earnings, subject to plan limits. s $100,000 Accidental Death & Dismemberment Insurance. o Business Travel Accident Insurance. December 17, 2003 Mr. John W. Towne You will receive a package containing all enrollment information for the above- mentioned benefits. Coverage under the Health Insurance Plan, Dental Benefit Plan, and life and accident insurance plans, if you choose to enroll, is effective on the first day of the first full month of employment (February 1 st, assuming a January 19th start date). Coverage under the Long-Term and Short-Tenn Disability plans begins on the first day of the calendar month following the completion of 90 days' continuous service (May 1st, assuming a January 19th start: date). Participation in the RSP is effective on the first day of the month that falls at least 30 days after you file your enrollment form (March 1 st, assuming you enroll by January 30th). You are eligible to participate in the ESPP on your employment date. Employees hired after January 1, 1993 are not entitled to participate in any retiree health care insurance plans. A company-leased automobile assigned to the Corry facility will be provided to you during your assignment. You will receive taxable compensation annually based on personal use, including commutation miles, in accordance with IRS regulations. Upon successful conclusion of this assignment, the Company may, at its sole discretion, renew your assignment or, in good faith, attempt to transfer you to a position of comparable responsibility, salary, benefits and grade level within the United States. If a suitable position is not available at that time, you will be eligible for appropriate benefits under the Barnes Group Inc. Executive Separation Pay Plan as is in effect at that time. This plan currently provides, in addition to other separation benefits, additional separation pay of four months of base salary (without consideration of any bonuses and allowances), subject to the provisions of the plan. In addition, you would be provided with outplacement assistance consistent with the Company's practice for positions of comparable level. In the event that you resign from Associated Spring or Barnes Group Inc. or are discharged for cause, the Company will not be obligated to provide you with separation benefits, absent special circumstances, under which the Company, at its sole discretion, may decide to provide you with partial or Rill benefits as it determines are reasonable. You will be entitled to three weeks' vacation annually, and three "floating" holidays, beginning in 2004 in accordance with the policy. All prospective Barnes Group employees are required to pa.ss a urinalysis test for the presence of drugs, and to undergo a standard physical examination. This offer of employment is contingent upon your drug test and physical examination yielding satisfactory results. December 17, 2003 Mr. John W. Towne This letter sets forth our offer of employment and is not intended to create an expressed or implied contract of any kind, nor shall it be construed to constitute a promise or contract of lifetime or continuing employment. Your employment with Bames Group Inc. is at will and may be terminated at any time, with or without cause, by either you or the Company. The terms of this offer supersede and take the place of any prior written or oral offers of employment. Barnes Group Inc. also has the right to change, interpret, withdraw, or add to any of the policies, benefits, terms or conditions of employment at any time. The terms and conditions of this letter may only be amended or modified in writing by myself. Should you have any questions with regard to the above, please contact Dawn N. Edwards, Group Director, Human Resources directly at (8610) 409-4626. To accept this offer, please sign, date, and return the enclosed duplicate copy of this letter to Dawn Edwards within three (3) days of receipt. John, I look forward to your becoming a part of the Associated Spring team and contributing to our growth and profitability. Sincerely, 7 / Richard P. McCorry President, Associated Spring Agreed to and accepted: John W. Towne `% yam, C, •? ate q'2 i 1 ? A e r; y-?f r VFP't ON The lbregoingCornplahn is basal upon information which has heen gathered by illy counsO in the proparatiun of the lawsuit, The tartgnage o f the document is that of counsel and not my own. I have mad the document and to the extent that it is based upon inlixination which 1 have given to n1y cotmscl, it Is true and comet to dte hest uftny knowledge, information mid belief. 'I'n the extent that the content of die document is that or counsel, i have relied Upon counSO in making this verification. 'phis statement and verification nfc lnade subject to the penalties of 19 Yn. C.S. Section 4904 relating to unworn 1hisificattion to authorities, which provides that if I make knowingly false uvern'1en Lv, i maybe subject to criminal pen.Oties. Dated: I/ ?1193-? -70 owne December 3, 2004 Mr. John W. Towne 32 Liberty Court Carlisle, PA 17013 Dear John: This is to confirm the arrangements regarding the notification of termination of your employment as Division Manager, Associated Spring Corry Division of Barnes Group Inc. (the "Company'), effective December 3, 2004 (the "Termination Date"). Minimum Severance. Under the Company's Executive Separation Pay Plan, you are eligible to receive the minimum severance pay of your current monthly salary of $10,417 for one (1) month following the Termination Date or the amount, if any, of your accrued unused vacation pay, whichever is greater. 2. Enhanced Severance. In order to receive additional s.-verance payments and other benefits to which you would not otherwise be entitled, as described in this letter, you must agree to all of the terns and conditions in this letter and the attached Release Addendum (the "Release"), and return a signed copy of this letter and the Release within the time period set forth in the Release. You are hereby advised to consult with an attorney before signing the Release. In exchange for your signed Release and compliance with the terns of this letter, under the Company's Executive Separation Pay Plan, you are eligible to receive severance payments at your current monthly rate of $10,417 for a period of up to four (4) months following the Termination Date or the (late on which you commence new employment, whichever occurs first (the "Severance Pay Period"). You are required to notify me immediately in writing upon your acceptance of new employment. Failure to do so will result in a breach of this agreement. You have received the minimum severance payment on December 1, 2004. Subject to this paragraph, additional severance payments will commence on the regular pay date following the Last Revocation Day, as defined in the Release. The first such payment shall include any amounts otherwise payable on regular pay dates after December 1, 2004, and before the commencement of such additional severance payments. Severance payments will be subject to the customary deductions. During the Severance Pay Period, you may also continue to participate in the Company's benefit programs as described in the following paragraphs. For Mr. John W. Town„ December 3, 2004 purposes of this letter, "new employment" shall include, without limitation, full- time or substantially full-time work as an employee, consultant or contractor, partner, or proprietor, or a similar position. 3. Benefits. You may continue to participate in the Company's medical, dental, group life insurance, supplemental life, dependent life, accidental death and dismemberment insurance, flexible benefit reimbursement accounts and long-term disability plans during the Severance Pay Period. You are required to continue making any premium and/or other employee contributions required by these benefit plans in order to maintain coverage during the Severance Pay Period. Your participation will cease in all of the Company's other employee benefit plans, including the Bames Group Inc. Retirement Savings Plan ("RSP"), Employee Stock Purchase Plan and any applicable profit-sharing or pension plan, upon the Termination Date. After severance payments cease, COBRA medical and/or dental coverage may be continued upon payment by you of the full premium for up to eighteen (18) months or the date on which you become covered for medical and/or dental benefits under another group health plan, whichever occurs first. 4. Salaried Retirement Income Plan. You are not vestal in the Salaried Retirement Income Plan (the "Plan") and are not eligible to receive benefits under the Plan. 5. Retirement Savings Plan. Regarding your RSP account, you can access the Fidelity Website at www.40Ik.com or the Retirement Benefits Line at 1-800-835- 5095 for the necessary information to receive a distribution or rollover of your account to an IRA or another qualified plan. 6. Automobile. You will be permitted to use the vehicle leased by the Company until January 3, 2005. Until then, the Company will continue to reimburse you for the reasonable expenses incurred by you in connection with your use of the vehicle according to the same policies as in effect from time to time for similarly situated employees of the Company. All requests for reimbursement must be submitted to me. Please contact me not later than December 23, 2004 to make arrangements for the return of the vehicle. Outplacement Benefit. To assist you in managing the change and locating a new employment opportunity, the Company has arranged for outplacement services for you. These services will be provided to you for six (6) raonths from the date of this letter. Please contact me if you wish to use this outplacement benefit. 8. MICP. Although you are a participant in the Company's Management Incentive Compensation Plan (MICP), you will not be employed b;y the Company when awards, if any, are paid and, therefore, you will be ineligible to receive a bonus under the MICP. 2 Mr. John W. Towne December 3, 2004 9. Other Bonuses. Since you will not be employed by the Company when awards, if any, are payable, you will not receive the lump-sum performance-based bonus or Universal Allowance. 10. Final Expenses. Your expense account, and use of Company credit and telephone cards, will cease as of the Termination Date. You will promptly return any such cards or other similar Company property in your possession and submit your final expense account, including an accounting for any advances, as of the Termination Date. 11. Return of Company Property. As of the Termination Date, you will promptly return to the Company any and all information relating to the Company in your possession and you will not directly or indirectly, copy, take, or remove from the Company's premises, use or disclose to third parties arty such information. 12. No Re-employment. You agree that by signing this letter and the Release you have waived and released any chance, right or opportunity to seek re-employment with the Company. You further agree not to apply for or seek such re- employment with the Company and that this letter and the Release are good and sufficient cause for the Company to reject any such application for re- employment. 13. Non-Solicitation. You shall not, directly or indirectly, hire or solicit or facilitate or arrange for the hiring or solicitation of any person who is an employee of the Company, or encourage any such employee to leave such employment, or knowingly assist any business he/she has become associated with to do so, for a period of two (2) years beginning with the date of this letter. 14. Confidentiality. You agree not to disclose to anyone other than your spouse, lawyer, accountant, income tax preparer or financial planner (together, "permitted advisors") that you have entered into this letter and the Release with the Company except upon written approval of the President and Chief'Executive Officer of the Company (the "CEO') or by court order or otherwise as compelled by law. You and your pemlitted advisors also agree to keep the facts, amount of severance and other payments hereunder, and terms of this letter and the Release in strict confidence, unless and only to the extent you have been authorized in writing by the CEO or the Company's attorney to make such disclosure or as compelled by law or court order. You further agree not to disclose this; document, including the Release, its contents or subject matter to any person other than to a permitted advisor, except pursuant to written authorization by the CEO or the Company's attorney or as compelled by law or court order. Notwithstanding the foregoing, this letter and the Release may be used as evidence in an y subsequent proceeding alleging a breach of this letter and the Release. Mr. John W. Towne December 3, 2004 In the event you discuss this letter or the Release with. a permitted advisor or pursuant to a court order or as otherwise compelled by law, it shall be your duty, responsibility, and obligation to advise those persons of the confidential nature of this letter and the Release and to direct therm not to discuss the terms and conditions of this letter or the Release with any other person. You shall be fully and completely responsible for any breach of this confidentiality provision, whether it be your breach or a breach by a permitted advisor. Further, you acknowledge and agree that any information constituting a trade secret or otherwise of a proprietary, secret or confidential nature of or relating to any business of the Company, or any affiliate of the Company ("Affiliate') ("Confidential Information') acquired by you during your employment, or known by you with respect to the businesses of the Company or any Affiliate prior to your employment by the Company is the exclusive property of, and of great value to, the Company and its Affiliates. You agree that without the prior written permission of the CEO, you will not divulge to any person or entity (other than to officers, directors and employees of the Company and'or its Affiliates or in connection with the proper business and affairs of the Company and/or its Affiliates), at any time, any Confidential Information iuiless and only (a) to the extent that said information becomes publicly known other than as a result of your acts or omissions to act, or (b) as may be required by applicable law or in connection with any investigation, suit or other proceeding before any court, tribunal, arbitration proceeding or agency having competent jurisdiction thereover; rovid however that you shall use your best efforts to provide the Company with adequate and timely written notice so as to enable the Company to seek a protective order or other appropriate relief. As used herein, Confidential Information may include, but is not limited to, the names of suppliers, customers, or employees of, the Company, and its Affiliates, the fives the Company and/or any Affiliate obtain or have obtained for services, financial information, computer programs, marketing plans, pricing information, strategic plans, the existence of any discussions or negotiations concerning any transaction proposed by the Company and/or any Affiliate or other facts relating thereto, the Company's manner of operation or plans, processes, and data of any kind. The confidentiality obligations in this letter and the Release are in addition to any other confidentiality obligation or agreement that you have with the Company, and nothing in this letter or the Release is intended to waive, modify, alter or amend the terms of any such confidentiality obligation or agreement. 15. Cooperation. You agree to fully cooperate with the Company by responding truthfully to any questions asked of you by the Company concerning its business, or operational or regulatory issues that may arise following the execution of this Agreement. You further agree to cooperate with any investigation conducted by the Company on its own iniliative or pursuant to a request by any government agency or department, including, but not limited to, Mr. John W. Towne December 3, 2004 the provision of personal documents and testimony, in connection with any matter arising out of or related to your duties while employed. by the Company. 16. Non-disparagement. You agree that you will make no written or oral statements that directly or indirectly disparage the Company or any Affiliate in any manner whatsoever including but not limited to the working conditions or employment practices of the Company. This covenant is in addition to, and not in lieu of, any other non-disparagement obligation that you have to the Company. You agree that you will not directly or indirectly contact the press or media, any federal, state, local or foreign governmental agency, the Company's employees, customers of the Company or any entity that has a business relationship with the Company, for the purpose of disparaging the good morale or business reputation or business practices of the Company or any of the Company's cun-ent or former officers, directors, managers, employees or agents. It will not be a violation of your obligations under this paragraph for you to make truthfil statements, under oath, as required by law or formal legal process. Notwithstanding any provision of this letter to the contrary including, but not limited to, the obligations set forth in Paragraphs 14, 15 and 16 hereof, you may provide any iruthful and accurate information to, and cooperate with, any federal, state, local or foreign governmental agency or entity. 17. Consequences of Breach; Procedures. In the event of a breach of any provision of this letter, you agree that any of the Company's obligations to pay compensation and benefits to you pursuant to this letter shall be terminated, and the Company shall be entitled to immediate restitution of all sums paid to you under this letter. In addition to such right to restitution, and without limitation, the Company shall have the right to enforce the provisions of this letter through any and all rights and remedies as may be available to the Company at law or in equity, including injunctive relief and specific performance. In the event that either party institutes legal proceedings to enforce the terms of this letter, it is specifically understood and agreed that such a claim shall be submitted to final and binding arbitration in Hartford County, Connecticut, pursuant to the rules of the American Arbitration Association, and that the prevailing party shall recover its costs and reasonable attorney's fees incurred in such arbitration proceeding. The parties further agree that this Agreement is governed by the laws of the State of Connecticut. Mr. John W. Town, December 3, 2004 The attached Release Addendum is a legal release, the terms of which are incorporated by reference in this letter. Please review it carefully and let me lnow if you have any questions. Sincerely, Dawn Edwards Group Director, Human Resources Encl. Agreed and accepted: John W. Towne Date RELEASE ADDENDUM In exchange for additional severance benefits to which l would not otherwise be entitled, set forth in the attached Letter of Agreement ("letter'), the terms of which are incorporated by reference in this Release Addendum ("Release"), I (and anyone acting on my behalf) agree to release every past and present right or claim of any kind, whether legal, equitable or otherwise, that is related to my employment and termination of my employment with Barnes Group Inc. (the "Company), including any and all related entities, corporations, partnerships, subsidiaries, joint ventures and divisions of the Company. I give up such rights and claims against the Company, its employee benefit plans and anyone else related to the Company (such as, without limitation, the Company's present and former employees, officers, directors, stockholders, representatives, agents and insurers) and agree not to file a lawsuit or seek to receive a recovery related to such rights and claims against any of them. I agree that I executed this Release on my own behalf and Oso on behalf of any heirs, agents, representatives, successors and assigns that I have now or may have in the future. These rights and claims include, but are not limited to, those that I may have under the Age Discrimination in Employment Act, which prohibits age discrimination in employment; Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment based on race, color, national origin, religion or sex; the Americans With Disabilities Act of 1990, which prohibits discrimination in employment based on a handicap or disability; the Equal Pay Act, which prohibits paying men and women unequal pay for equal work; any claims under the Worker Adjustment and Retraining Notification Act of 1988 or any similar law, which requires, among other things, that advance notice be given of certain work force reductions; and all claims under the Employee Retirement Income Security Act of 1974, such as claims relating to pension, profit sharing, or health plan benefits, except as noted in the following paragraph; the Fami]'y and Medical Leave Act of 1993; all claims under any state Fair Employment Practices Act as well as any other federal, state or local laws or regulations; all claims for alleged physical or personal injury or emotional distress; and any other claims which could arise from ymployment or separation from employment, whether in express or implied contract (whether written or oral), or in tort (including without limitation, defamation, assault, battery, false imprisonment, interference with contractual or advantageous business relationship, and invasion of privacy) or for wrongful or retaliatory discharge, whether based on common law or otherwise. The foregoing list is meant to be illustrative rather than inclusive. I keep my right, however, to (1) receive severance benefits under the Executive Separation Pay Plan; and (2) elect health care coverage under the federal continuation of health coverage law known as "COBRA," or under any applicable state law concerning continuation of health coverage, unless I am ineligible for such coverage under such law. This Release covers both claims that I know about and those I may not know about. I expressly give up and waive all rights afforded by any statute which limits the effect of a release with respect to claims that are presently unknown. I understand the significance of my release of unknown claims and my waiver of statutory protection against a release of unknown claims. This Release does not give up or waive any rights or claims, which arise after the date that this Release becomes enforceable. I have a period of twenty-one (21) days from the date of my receipt of this Release to review and consider this Release before signing it. I may take as much of this period of time to consider this Release as I wish prior to signing it. I understand that if I sign this Release, it is in exchange for receiving the additional payments and the other benefits described in the letter. I acknowledge that I have received and have twenty-one (21) days to review this Release from when it was first given to me. I acknowledge and agree that any changes made to this Release before I sign it will not entitle me to an additional twenty-one (21) days to review the new version of this Release. I am hereby advised by the Company to consult with an attorney before signing this Release. I understand that whether or not to do so is my decision. I have not relied on any representations, promises, or agreements of any kind made to me in connection with my decision to sign this Release except for those set forth in the documents attached to or referred to by this Release. I may revoke or cancel this Release within seven O days after I sign it. The last day on which this Release can be revoked is called the "Last Revocation Day." Revocation can only be made by delivering a written notice of revocation to Dawn Edwards, Group Director, Human Resources at Associated Spring, 80 Scott Swamp Road, Farmington, CT 06032. For this revo,-ation to be effective, it must be received not later than the close of business at the Associated Spring, Farmington, Connecticut location on the Last Revocation Day. I acknowledge that this Release can be revoked only in its entirety and that once revoked, I wa11 only receive the minimum severance payment described in Paragraph 1 of the letter and the other benefits that similarly situated employees who do not sign a Release receive. If I do not revoke this Release, it shall go into effect on the day after the Last Revocation Day and I will receive the additional severance payments described in Paragraph 2 of the letter and the other benefits described therein. A finding that any term or provision of this Release is invalid, unlawful or unenforceable will not affect the remaining terms and provisions of this Release. This Release, and the documents referenced in or attached to this Release, set forth the entire agreement between me and the Company and supersede and render null and void any and all prior or contemporaneous oral or written understandings, statements, representations or promises pertaining to the matters set forth herein except for those set forth in the documents attached to or referred to by this Release and except for any and all previously agreed to noncompetition or confidentiality obligations to the Company to which I specifically agree to remain bound after signing this Release, including without limitation my obligations under the Barnes Group Inc. Code of Business Ethics and Conduct. If I violate any part of this Release, I will be responsible for all costs incurred by the Company that flow from that violation, including the Company s legal fees and other costs associated with any legal action that arises from that violation. If 1 violate any part of this Release, I will also be required to return all payments and reimburse the Company for all benefits provided to me in exchange for signing this Release. I UNDERSTAND THAT THIS RELEASE ADDENDUM, INCLUDING THE LETTER OF AGREEMENT INCORPORATED HEREIN BY REFERENCE, CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. BY SIGNING THE ATTACHED LETTER OF AGREEMENT AND THIS RELEASE ADDENDUM IN THE PLACES PROVIDED, I ACKNOWLEDGE THAT I HAVE READ EACH OF THESE DOCUMENTS CAREFULLY, UNDERSTAND THEIR CONTENTS AND EFFECTS AND THAT MY DECISION TO SIGN THESE DOCUMENTS IS KNOWING AND VOLUNTARY. Agreed and accepted: John W. Towne Date r-? ?7 ?? , -n 1 ._ _.?1 ". .n C;?n+ ? s?? ? i __, i . ?` .. :?:?? l t.:- F T1LES\ ATAFI6E\Gener.ACuaent\11437, I.wtOJer C,.W 330104 04%PM B .d: 914105 3:25PM MARTSON DEARDORFF WILLIAMS & OTTO Carl C. Risch, Esquire I.D. No. 75901 Christopher E. Rice, Esquire I.D. No. 90916 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs JOHN W. TOWNE, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. NO, 05-201 Civil Term CIVIL ACTION - LAW ASSOCIATED SPRING CORPORATION and BARNES GROUP INC., Defendants JURY TRIAL OF TWELVE DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 JOHN W. TOWNE, Plaintiff V. ASSOCIATED SPRING CORPORATION and BARNES GROUP INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-201 Civil Term CIVIL ACTION - LAW JURY TRIAL OF TWELVE DEMANDED FIRST AMENDED COMPLAINT Plaintiff, John W. Towne, is an adult individual residing at 32 Liberty Court, Carlisle, Cumberland County, Pennsylvania. 2. Defendant Associated Spring Corporation is a Delaware business with a business address of Group Headquarters, 80 Scott Swamp Road, Farmington, Connecticut 06032. Defendant Associated Spring's registered agent is Barnes Group Inc., 123 Main Street, Bristol, Connecticut 06010. 3. Defendant Barnes Group Inc., is a Delaware business with a business address of 123 Main Street, Bristol, Connecticut 06010. Defendant Barnes Group's registered agent is National Registered Agents, Inc., 12 Old Boston Post Road, Old Saybrook, Connecticut 06475. 4. On or about December 17, 2003, Plaintiff was presented with a written offer for a position with Associated Spring and/or Barnes Group Inc. of Division Manager, Associated Spring- Corry ("offer'). A true and correct copy of the offer is attached hereto as Exhibit "A." 5. The offer was mailed to and received by Plaintiff at his residential address listed above. 6. The offer was accepted and signed by Plaintiff in Cumberland County, Pennsylvania. 7. Plaintiff entered into an employment agreement with Defendants by accepting the offer in Cumberland County, Pennsylvania. 8. The offer dated December 17, 2003, and attached hereto as Exhibit "A" became the employment agreement. See Exhibit "A." 9. According to the employment agreement, Defendants agreed to pay Plaintiff a lump sum bonus of $25,000.00 ("bonus") each year on December 31, for services provided that year. 10. Further, according to the employment agreement, Defendants agreed to pay Plaintiff a sum pursuant to an incentive program payable in late February ("incentive") for the proceeding year. 11. Plaintiff began working for Defendants on or about January of 2004. 12. Plaintiff worked at Defendants' office located at 226 South Center Street, Corry, Pennsylvania, while maintaining his domicile in Cumberland County, Pennsylvania. 13. Plaintiff provided, among other things, consulting services to Defendants during his 2004 employment with Defendants. 14. At all relevant times during Plaintiffs employment with Defendants, Plaintiff faithfully discharged his duties as directed by Defendants' President, Richard McCorry, and Defendants' Vice President of Manufacturing, Larry Johnson. 15. At all relevant times during Plaintiff's employment with Defendants, Plaintiff exceeded expectation as defined by Defendants' President, Richard McCorry, and Defendants' Vice President of Manufacturing, Larry Johnson. 16. Although Plaintiff was notified of his termination on December 3, 2004, Defendants paid Plaintiff and, therefore, employed Plaintiff through December 31, 2004. 17. Therefore, for purposes of entitlement to the bonus and incentive, Plaintiff was an employee of Defendant until December 31, 2004. 18. Plaintiff was terminated by Defendant without cause or reason that would prohibit Plaintiff from being entitled to his bonus and incentive. 19. Plaintiff has earned and is entitled to his bonus of $25,000.00 for the services he provided to Defendants as an employee during 2004. 20. Plaintiff believes, and therefore avers, that the incentive calculation for 2004 is 18%. 21. Plaintiff has earned and is entitled to the full incentive of 18% of his base salary ($125,000.00), which is $22,500.00. The actual payout under the incentive program to Plaintiff in February of 2005 would be 80% of the $22,500.00, or $18,000.00. The remaining 20% or $4,500.00 would be paid out to Plaintiff in late February of 2006. 22. Including, but not limited to, the satisfactory provision of services in accordance with the employment agreement, Plaintiff has satisfied all conditions in order to receive the bonus and incentive. 23. Defendants, on or about December 20, 2004, informed Plaintiff's counsel that they will not pay Plaintiff either his bonus or incentive. 24. Defendants made an absolute and unequivocal refusal to pay Plaintiff both his bonus and incentive. 25. Defendants have anticipatorily breached their obligations under the employment agreement by stating that they will not pay Plaintiff either his bonus or incentive. 26. Defendants have breached the employment agreement by failing to pay Plaintiff both his bonus and incentive. 27. In the alternative, Defendants have been unjustly enriched by their refusal to pay the bonus and incentive when they have received the benefit of his services. 28. Plaintiff's bonus and incentive are fair and reasonable. 29. Plaintiff's bonus and incentive are earned income for 2004. 30. Defendants are in violation of the Pennsylvania Wage Payment and Collection Law ("WPCL") by failing to and/or denying payment of both the bonus and incentive to Plaintiff. 31. Under the WPCL, Plaintiff is entitledtoattorney fees,specifically43P.S.§260.9a(1), costs and fees associated with this lawsuit, and any other relief under the WPCL. WHEREFORE, Plaintiff demands that Defendants pay Plaintiff both his bonus of $25,000.00, and his incentive, $22,500.00, plus attorney's fees, costs, interest, and any other relief that the court deems appropriate. MARTSON DEARDORFF WILLIAMS & OTTO Carl C. Risch, Esquire I.D. Number 75901 Christopher E. ]Rice, Esquire I.D. Number 90916 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs Dated: February 14, 2005 A aock?.te Spring December 17, 2003 Mr. ioin W. Towne 32 Liberty Court Carlisle, PA 17013 Dear John. We are pleased to offer you the position of Division Manager, Associated Spring - Corry effective January 19, 2004, or your date of employment. The expected duration of your employment will be 24 months, through December 2005. The terms or conditions of this offer as set out below will not be affected if the length or nature of your employment is extended or changed. In this position you will report to me and be headquartered in Cony, PA. Your annual salary will be $125,000, paid monthly in advance. In addition, we will provide you with a lump sum bonus of $25,000 (less applicable federal and state withholdings) each year on December 31, through 2005, as long as you remain continuously employed with Associated Spring or Barnes Group Inc. and your performance is rated as exceeds expectations or better. You will also receive at the begimiing of each calendar year, through 2005, a lump sum Universal Allowance of $15,000 annually (less applicable federal and state withholdings). This allowance is yours to use however you choose, and is intended to compensate you for additional personal expenses you may incur in connection with your assignment at Associated Spring - Corry. You will participate in the Company's annual incentive program effective on your date of employment on a prorated basis. Your target incentive under this plan is 30% of base salary, with a maximum payout of 90% of salary. The incentive payout is achieved by Associated Spring - Cony Division successfully attaining its profitability and revenue targets, and your successfully attaining individual performance goals and criteria that we establish from time to time. Eighty percent (80%) of the payout amount generated for 2004, if any, will be payable to you in late February, 2005. The remaining twenty percent (20%) of the 2004 payout will be paid, along with the payout generated for 2005, if any, in late February, 2006, EXHIBIT A December 17, 2003 Mr. John W. Towne provided you have remained continuously employed through December 31, 2005, even if your tern of employment has subsequently ended. Participation in the Company's short-term incentive plan brings your total cash compensation for 2004, including your lump sum bonus, to $187,500 at target, and to a maximum of $262,500. Payouts to participants are subject to the provisions of the plan. Your employee benefits will include the following: ? Health Insurance Plan (contributory on a pre-tax cost-sharing basis)- ? Dental Assistance Plan (contributory on a pre-tax cost-sharing basis). ? Employee Stock Purchase Plan with a purchase price of 85% of fair market value, subject to statutory limits. ? Retirement Savings Plan [401(k)] with a Company matching contribution of 50% of the amount you contribute on a pre-tax basis, up to 6% of eligible earnings (i.e., Company match is capped at 3% of eligible earnings). The Plan offers a wide range of investment funds for both your own contributions and your company match. ? Salaried Retirement Income Plan (a qualified defined benefit retirement income plan). ? Group Term Life Insurance of 1.5 times salary (noncontributory). ? Optional Group Term Life Insurance of one to four times salary (contributory). ? Optional Dependent Term Life Insurance of up to $100,000 and $10,000 for a spouse and each dependent child, respectively, as applicable (contributory). ? Short-tern disability coverage, with a benefit of up to 26 weeks' salary continuation (non-contributory). ? Long-Term Disability coverage, with a benefit of 40% of covered earnings being provided by the Company. You have the option to purchase additional coverage to 50% and 66 213% of covered earnings, subject to plan limits. $100,000 Accidental Death & Dismembernent Insurance. e Business Travel Accident Insurance. December 17, 2003 Mr. John W. Towne You will receive a package containing all enrollment information for the above- mentioned benefits. Coverage under the Health Insurance Plan, Dental Benefit Plan, and life and accident insurance plans, if you choose to enroll, is effective on the first day of the first full month of employment (February 1 st, assuming a January 19th startdate). Coverage under the Long-Term and Short-Tenn Disability plans begins on the first day of the calendar month following the completion of 90 days' continuous service (May 1st, assuming a January 19th start date). Participation in the RSP is effective on the first day of the month that falls at least 30 days after you file your enrollment form (March 1st, assuming you enroll by January 30th). You are eligible to participate in the ESPP on your employment date. Employees hired after January 1, 1993 are not entitled to participate in any retiree health care insurance plans. A company-leased automobile assigned to the Cony facility will be provided to you during your assignment. You will receive taxable compensation annually based on personal use, including commutation miles, in accordance with IRS regulations. Upon successful conclusion of this assigmnent, the Company may, at its sole discretion, renew your assignment or, in good faith, attempt to transfer you to a position of comparable responsibility, salary, benefits and grade level within the United States. If a suitable position is not available at that time, you will be eligible for appropriate benefits under the Bames Group Inc. Executive Separation Pay Plan as is in effect at that time. This plan currently provides, in addition to other separation benefits, additional separation pay of four months of base salary (without consideration of any bonuses and allowances), subject to the provisions of the plan. In addition, you would be provided with outplacement assistance consistent with the Company's practice for positions of comparable level. In the event that you resign from Associated Spring or Barnes Group Inc. or are discharged for cause, the Company will not be obligated to provide you with separation benefits, absent special circumstances, under which the Company, at its sole discretion, may decide to provide you with partial or full benefits as it determines are reasonable. You will be entitled to three weeks' vacation annually, and three "floating" holidays, beginning in 2004 in accordance with the policy. All prospective Barnes Group employees are required to pass a urinalysis test for the presence of drugs, and to undergo a standard physical examination. This offer of employment is contingent upon your drug test and physical examination yielding satisfactory results. December 17, 2003 Mr. John W. Towne This letter sets forth our offer of employment and is not intended to create an expressed or implied contract of any kind, nor shall it be construed to constitute a promise or contract of lifetime or continuing employment. Your employment with Barnes Group Inc. is at will and maybe terminated at any time, with or without cause, by either you or the Company. The terms of this offer supersede and take the place of any prior written or oral offers of employment. Barnes Group Inc. also has the right to change, interpret, withdraw, or add to any of the policies, benefits, terms or conditions of employment at any time. The terms and conditions of this letter may only be amended or modified in writing by myself. Should you have any questions with regard to the above, please contact Dawn N. Edwards, Group Director, Human Resources directly at (860) 409-4626. To accept this offer, please sign, date, and return the enclosed duplicate copy of this letter to Dawn Edwards within three (3) days of receipt. John, I look forward to your becoming a part of the Associated Spring team and contributing to our growth and profitability. Sincerely, J Richard P. McCorry President, Associated Spring Agreed to and accepted: John W. Towne J f > Gam. Date l ?.s i, VERIFICATION Christopher E. Rice, Esquire, of the firm of MARTSON DEARDORFF WILLIAMS & OTTO, attorneys for Plaintiff John W. Towne in the within action, certifies that the statements made in the foregoing First Amended Complaint are true and correct to the best of his knowledge, information and belief. He understands that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. This Verification is being made by Plaintiff's attorney because Plaintiff is located out-of- state. Plaintiff will substitute this verification with one of his own. Date: February 14, 2005 ?e f /Z- Christopher E. Rice 8 -.? ? ? ?'" ir+ ? ?? ? w BUCHANAN INGERSOLL P.C. Thomas G. Collins, Esquire I.D. No. 75896 213 Market Street, 3rd Floor Harrisburg, PA 17101 (717) 237-4800 Attorneys for Defendants JOHN W. TOWNE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. 05-201 - Civil Term CIVIL ACTION - LAW ASSOCIATED SPRING CORPORATION and BARNES GROUP INC., JURY TRIAL OF TWELVE DEMANDED Defendants PRELIMINARY OBJECTIONS OF ASSOCIATED SPRING CORPORATION AND BARNES GROUP INC. TO THE FIRST AMENDED COMPLAINT OF JOHN W. TOWNE Defendants, Associated Spring Corporation and Barnes Group Inc. (collectively "Barnes Group" or "Defendants")', by and through their attorneys, Buchanan Ingersoll PC, file Preliminary Objections to the First Amended Complaint pursuant to Pa. R.C.P. 1028, as follows: I. BACKGROUND 1. Plaintiff, John W. Towne, commenced this action by Complaint on January 10, 2005. A true and correct copy of the original Complaint is attached hereto as Exhibit "A." ' Associated Spring Corporation is an inactive subsidiary of Barnes Group Inc. Plaintiff was employed by Barnes Group Inc. and not Associated Spring Corporation. Given the inherent factual nature of any inquiry into Plaintiff's employment relationship with Associated Spring Corporation, the dispositive arguments set forth in the instant Preliminary Objections are being raised on behalf of both Associated Spring Corporation and Barnes Group Inc. Defendants reserve the right, however, to raise the lack of privity between Plaintiff and Associated Spring Corporation, should Plaintiffs First Amended Complaint survive the instant Preliminary Objections. I 2. Defendants timely filed Preliminary Objections to the original Complaint, pursuant to Pa. R.C.P. 1028, on January 27, 2005. 3. In response to Defendant's Preliminary Objections, Plaintiff filed his First Amended Complaint (the "Amended Complaint") on or about February 14, 2005. A true and correct copy of Plaintiff s Amended Complaint is attached hereto as Exhibit "B." 4. Plaintiff s claims arise out of his employment relationship with Barnes Group Inc. (See Amd. Compl.) 5. Plaintiffs employment with Barnes Group Inc. was terminated on December 3, 2004. (Compl. ¶ 16) (See also Amd. Compl. ¶ 16.) 6. Plaintiff seeks to recover separate lump sum and incentive bonuses alleged to be due and owing. (Amd. CompL ¶¶ 19, 21.) 7. Plaintiffs claims are premised upon on a certain letter agreement between the parties dated December 17, 2003, a copy of which is attached to the Amended Complaint as Exhibit "A" (hereinafter the "Letter Agreement.") (Amd. Compl. ¶ 8.) 8. Plaintiff alleges causes of action for breach of contract, unjust enrichment, and violations of the Pennsylvania Wage Payment and Collection Law ("WPCL"). (Amd. Compl. ¶¶ 25, 26, 27, 30.) 9. Defendants have denied that Plaintiff is entitled to either the lump sum or incentive bonuses. (Amd. Compl. ¶ 23.) IL BREACH OF CONTRACT/ANTICIPATORY BREACH LEGAL INSUFFICIENCY (DEMURRER) 10. The averments in Paragraphs 1 through 9 above are incorporated herein by reference. 2 11. Plaintiff has alleged that "Defendants have breached the employment agreement by failing to pay Plaintiff both his bonus and incentive." (Amd. Compl. ¶ 26.) 12. The Letter Agreement provides as follows with respect to the lump sum bonus: In addition, we will provide you with a lump sum bonus of $25,000 (less applicable federal and state withholdings) each year on December 31, through 2005, as long as you remain continuously employed with Associated Spring or Barnes Group Inc. and your performance is rated as exceeds expectations or better. (Letter Agreement, ¶ 2) (emphasis added.) 13. Pursuant to the express terms of the Letter Agreement- upon which Plaintiff's claim for the lump sum bonus is premised - there were thus two distinct conditions precedent relative to the payment obligation: (1) continuous employment through December 31; and (2) a performance rating of "exceeds expectations or better." 14. Plaintiff correctly alleged in his original Complaint that his employment was terminated on December 3, 2004. (Compl. ¶ 16) (emphasis added.) Plaintiff attempts in his Amended Complaint to cure this fatal defect by alleging that "Plaintiff was notified of his termination on December 3, 2004, Defendants paid Plaintiff and, therefore, employed Plaintiff through December 31, 2004." Of note, there is no allegation in the Amended Complaint that Plaintiff performed any services for Defendants after December 3, 2004. That is, of course, because Plaintiff was in fact terminated on December 3, 2004, as alleged in Plaintiffs original Complaint. Plaintiff's attempt to recharacterize the date of his termination- equating payment with employment - is simply inconsistent with the facts alleged by Plaintiff. Plaintiff can not in this regard escape his prior allegation that "on December 3, 2004, he was terminated." 3 (Compl. ¶ 16) (emphasis added.) As such, the first condition precedent for the lump sum bonus payment obligation fails as a matter of law.z 15. The Letter Agreement provides as follows with respect to the incentive bonus: You will participate in the Company's annual incentive program effective on your date of employment on a prorated basis ... The incentive payout is achieved by Associated Spring - Corry Division successfully attaining its profitability and revenue targets, and your successfully attaining individual performance goals and criteria that we establish from time to time. Eighty percent (80%) of the payout amount generated for 2004, if any, will be payable to you in late February, 2005. The remaining twenty percent (20%) of the 2004 payout will be paid, along with the payout generated for 2005, if any, in late February, 2006, provided you have remained continuously employed through December 31, 2005, even if your term of employment has subsequently ended ... Payouts to participants are subiect to the provisions of the plan. (Letter Agreement, ¶ 4) (emphasis added.) 16. Payouts of the incentive bonus "are subject to" the Bames Group, Inc. Management Incentive Compensation Plan (the "Plan"). (Letter Agreement, ¶ 4.) The Plan expressly provides that "a person must be employed by the Company or one of its subsidiaries on the date when an award is paid in order to be eligible to receive an Award ..." (A copy of the Plan, as amended on December 12, 2001, is attached hereto as Exhibit "C." Such document forms a part of the Letter Agreement attached to Plaintiff s Complaint as Exhibit "A.") 17. In light of the foregoing, continuous employment through the date of payment was a condition precedent to the incentive bonus payment obligation. 18. Plaintiff has alleged that the incentive bonus was "payable in late February (`incentive') for the proceeding year." (Amd. Compl. ¶ 10.) Plaintiff has further alleged that he was employed no later than December 31, 2004.3 (Amd. Compl. ¶ 16.) z Defendants also deny that Plaintiff achieved a performance rating of "exceeds expectations or better", as alleged in the Complaint (Amd. Comp.1 15.) Recognizing the factual nature of this inquiry, Defendants reserve the right to raise the failure of this second condition precedent relative to the lump sum bonus should Plaintiff's Complaint survive the instant Preliminary Objections. 4 19. As such, a condition precedent for the incentive bonus payment obligation fails as a matter of law. 20. Plaintiff further alleges that "Defendants have anticipatorily breached their obligations under the employment agreement by stating that they will not pay Plaintiff either his bonus or incentive." (Amd. Compl. ¶ 25.) 21. The Letter Agreement expressly provided as follows as to the term of Plaintiff's employment: This letter sets forth our offer of employment and is not intended to create an expressed or implied contract of any kind, nor shall it be construed to constitute a promise or contract of lifetime or continuing employment. Your employment with Barnes Group Inc. is at will and may be terminated at any time, with or without cause, by either you or the Company. (Letter Agreement, pg. 4) (emphasis added.) 22. Plaintiff has alleged that: The offer dated December 17, 2003, and attached hereto as Exhibit "A" became the employment agreement. See Exhibit "A." (Amd. Compl. ¶ 8) (emphasis added.) 23. The Letter Agreement - attached to Plaintiff's First Amended Complaint as Exhibit "A" - clearly established the "at-will" nature of Plaintiff's employment. 24. Thus, Defendants were free to terminate Plaintiff's employment on December 3, 2004. 25. Such termination was not in breach of the Letter Agreement. 3 As discussed above, Defendants contend that Plaintiff was in fact terminated on December 3, 2004, as previously alleged by Plaintiff. (Comp. ¶ 16.) 4 Defendants further deny that the other enumerated conditions precedent relative to the incentive bonus were satisfied, e.g., Plaintiffs "successfully attaining individual performance goals and criteria...... Again recognizing the inherent factual nature of this inquiry, Defendants reserve the right to raise these issues should Plaintiff's Complaint survive the instant Preliminary Objections. 5 26. As Plaintiff's employment was properly terminated under the Letter Agreement on December 3, 2004, there can be no "anticipatory breach" relative to the lump sum or incentive bonus payments. 27. As a condition precedent has not been met by Plaintiff for the lump sum and incentive bonuses, Defendants have no obligation to pay either as a matter of law. Stebok v. American General Life Ins. Co., 715 F. Supp. 711 (W.D. Pa. 1989). 28. As Plaintiff is not contractually entitled to either the lump sum or incentive bonuses, there can be no violation of the Pennsylvania Wage Payment and Collection Law. WHEREFORE, Defendants respectfully request that this Court dismiss, with prejudice, Plaintiffs breach of contract and/or anticipatory breach claims as set forth in the Amended Complaint for failure to state a claim upon which relief can be granted pursuant to Pa. R.C.P. 1028. III. UNJUST ENRICHMENT LEGAL INSUFFICIENCY (DEMURRER) 29. The averments in paragraphs 1 through 28 above are incorporated herein by reference. 30. In Paragraph 27 of the First Amended Complaint, Plaintiff purports to state an equitable claim for unjust enrichment as follows: In the alternative, Defendants have been unjustly enriched by their refusal to pay the bonus and incentive when they have received the benefit of his services. (Amd. Compl. ¶ 27.) 31. To state a claim for unjust enrichment, Plaintiff must demonstrate "benefits conferred on defendant by plaintiff, appreciation of such benefits by defendant, and acceptance and retention of such benefits under such circumstances that it would be inequitable for 6 defendant to retain the benefit without payment of value." Temple Univ. Hosp., Inc. v. Healthcare Management Alternatives, Inc., 832 A.2d 501, 507 (Pa. Super. 2003). 32. Plaintiffs claims are clearly premised, however, on the alleged breach by Defendants of the terms of the Letter Agreement. (Amd. Compl. ?T 25-26.) Plaintiff has alleged specifically that: The offer dated December 17, 2003, and attached hereto as Exhibit "A" became the employment agreement. See Exhibit "A." (Amd. Compl. ¶ 8.) 33. Pennsylvania courts have held that the doctrine of unjust enrichment "is clearly `inapplicable when the relationship between the parties is founded on a written agreement or express contract."' Roman Mosaic and Tile Co. v. Vollrath, 313 A.2d 305, 307 (Pa. Super. 1974) (quoting Third Nat'l Bank & Trust Co. of Scranton v. Lehigh Valley Coal Co., 353 Pa. 185, 44 A.2d 571 (1945)). 34. Thus, because Plaintiff s claims are clearly premised upon the terms of the Letter Agreement, Plaintiff fails to state a claim for unjust enrichment as a matter of law. WHEREFORE, the Barnes Group Defendants respectfully requests that this Court dismiss, with prejudice, Plaintiff's claim for unjust enrichment for failure to state a claim upon which relief can be granted pursuant to Pa. R.C.P. 1028. submitted, Thomas G. Collins, Esquire I.D. No. 75896 213 Market Street, Third Floor Harrisburg, PA 17101 (717) 237-4800 Attorneys for Defendants DATE: March 4, 2005 7 CERTIFICATE OF SERVICE I, Thomas G. Collins, hereby certify that I am this day serving a copy of the foregoing document by United States First Class Mail, Postage Prepaid, upon the person indicated below: Carl C. Risch, Esquire Christopher E. Rice, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 B 7NAN INGERSOLL PC By: Thomas G. Collins DATE: March 4, 2005 JOHN W. TOWNE, Plaintiff V. ASSOCIATED SPRING CORPORATION and BARNES GROUP INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 05-201 - Civil Term CIVIL ACTION - LAW JURY TRIAL OF TWELVE DEMANDED Defendants ORDER AND NOW, this day of 2005, upon consideration of the Preliminary Objections of Defendants Associated Spring Corporation and Barnes Group Inc., it is hereby ORDERED that said Preliminary Objections are GRANTED. Plaintiff's Complaint is DISMISSED in its entirety with prejudice. BY THE COURT: J m x a a F:IFMZMATAFMGe .,J Un ffl193].1 mM CTWtd! 35a09 0:40M Rcvimd: MOW 2:0"M MARTSON DEARDORFF WILLIAMS & OTTO Carl C. Risch, Esquire I.D. No. 75901 Christopher E. Rice, Esquire I.D. No. 90916 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs JOHN W. TOWNE, Plaintiff -J V. ASSOCIATED SPRING CORPORATION and BARNES GROUP INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05 201 a-;?/7 CIVIL ACTION - LAW JURY TRIAL OF TWELVE DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 $ w 0€le°'t r? a 1? t t t t 4nkt 4t.C1 s 7'A JOHN W. TOWNE, Plaintiff V. ASSOCIATED SPRING CORPORATION and BARNES GROUP INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-.U1 Cu:*Q %, CIVIL ACTION - LAW JURY TRIAL OF TWELVE DEMANDED COMPLAINT Plaintiff, John W. Towne, is an adult individual residing at 32 Liberty Court, Carlisle, Cumberland County, Pennsylvania. 2. Defendant Associated Spring Corporation is a Delaware business with a business address of Group Headquarters, 80 Scott Swamp Road, Farrington, Connecticut 06032. Defendant Associated Spring's registered agent is Barnes Group Inc., 123 Main Street, Bristol, Connecticut 06010. 3. Defendant Barnes Group Inc., is a Delaware business with a business address of 123 Main Street, Bristol, Connecticut 06010. Defendant Barnes Group's registered agent is National Registered Agents, Inc., 12 Old Boston Post Road, Old Saybrook, Connecticut 06475. 4. On or about December 17, 2003, Plaintiff was presented with a written offer for a position with Associated Spring and/or Bames Group Inc. of Division Manager, Associated Spring- Corry ("offer"). A true and correct copy of the offer is attached hereto as Exhibit "A." 5. The offer was mailed to and received by Plaintiff at his residential address listed above. 6. The offer was accepted and signed by Plaintiff in Cumberland County, Pennsylvania. 7. Plaintiff entered into an employment agreement with Defendants by accepting the offer in Cumberland County, Pennsylvania. The offer dated December 17, 2003, and attached hereto as Exhibit "A" became the employment agreement. See Exhibit "A." 9. According to the employment agreement, Defendants agreed to pay Plaintiff a lump sum bonus of $25,000.00 ("bonus") each year on December 31, for services provided that year. 10. Further, according to the employment agreement, Defendants agreed to pay Plaintiff a sum pursuant to an incentive program payable in late February ("incentive") for the proceeding year. 11. Plaintiff began working for Defendants on or about January of 2004. 12. Plaintiff worked at Defendants' office located at 226 South Center Street, Corry, Pennsylvania, while maintaining his domicile in Cumberland County, Pennsylvania. 13. Plaintiff provided, among other things, consulting services to Defendants during his 2004 employment with Defendants. 14. At all relevant times during Plaintiff's employment with Defendants, Plaintiff faithfully discharged his duties as directed by Defendants' President, Richard McCorry, and Defendants' Vice President of Manufacturing, Larry Johnson. 15. At all relevant times during Plaintiff's employment with Defendants, Plaintiff erxceec 0ixp oa"& defined by Defendants' President, Richard McCorry, and Defendants' Vice President of Manufacturing, Lang Johnson. 16. Plaintiff was paid by Defendants through December 31, 2004, although on December 3, 2004, he was terminated. 17. Plaintiff was terminated by Defendant without cause or reason that would prohibit Plaintiff from being entitled to his bonus and incentive. 18. Plaintiff has earned and is entitled to both his bonus of $25,000.00 for the services he provided to Defendants as an employee during 2004. 19. Plaintiff believes, and therefore avers, that the incentive calculation for 2004 is 18%. 20. Plaintiff has earned and is entitled to the full incentive of 18% of his base salary ($125,000.00), which is $22,500.00. The actual payout under the incentive program to Plaintiff in February of 2005 would be 80% ofthe $22,500.00, or $18,000.00. The remaining 20% or $4,500.00 would be paid out to Plaintiff in late February of 2006. 21. Defendants, on or about December 20, 2004, informed Plaintiff's counsel that they will not pay Plaintiff either his bonus or incentive. 22. Defendants made an absolute and unequivocal refusal to pay Plaintiff both his bonus and incentive. 23. Defendants have anticipatorily breached their obligations under the employment agreement by stating that they will not pay Plaintiff either his bonus or incentive. 24. Defendants have breached the employment agreement by failing to pay Plaintiff both his bonus and incentive. 25. Defendants have been unjustly enriched by their refusal to pay and breach of the employment agreement. 26. Plaintiff s bonus and incentive are fair and reasonable. 27. Plaintiff's bonus and incentive are earned income for 2004. 28. Defendants are in violation of the Pennsylvania Wage Payment and Collection Law ("WPCL") by failing to and/or denying payment of both the bonus and incentive to Plaintiff. 29. Under the WPCL, Plaintiff is entitled to attorney fees, specifically 43 P. S. § 260.9a(f), costs and fees associated with this lawsuit, and any other relief under the WPCL. WHEREFORE, Plaintiff demands that Defendants pay Plaintiff both his bonus of $25,000.00, and his incentive, $22,500.00, plus attorney's fees, costs, interest, and any other relief that the court deems appropriate. MARTSON DEARDORFF WILLIAMS & OTTO By C(W Cart sch, Esquire I.D. Number 75901 Christopher E. Rice, Esquire I.D. Number 90916 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs Dated: January LQ , 2005 December 17, 2003 Mr. John W. Towne 32 Liberty Court Carlisle, PA 17013 Dear John: We are pleased to offer you the position of Division Manager, Associated Spring - Corry effective January 19, 2004, or your date of employment. The expected duration of your employment will be 24 months, through December 2005. The terms or conditions of this offer as set out below will not be affected if the length or nature of your employment is extended or changed. In this position you will report to me and be headquartered in Cosy, PA. Your annual salary will be $125,000, paid monthly in advance. In addition, we will provide you with a lump sum bonus of $25,000 (less applicable federal and state withholdings) each year on December 31, through 2005, as long as you remain continuously employed with Associated Spring or $arnes Group Inc. and your perfonnance is rated as exceeds expectations or better. You will also receive at the begimZing of each calendar year, through 2005, a lump sum Universal Allowance of $15,000 annually (less applicable federal and state withholdings). This allowance is yours to use however you choose, and is intended to compensate you for additional personal expenses you may incur in comlection with your assignment at Associated Spring - Corry. You will participate in the Company's annual incentive program effective on your date of employment on a prorated basis. Your target incentive under this plan is 30% of base salary, with a maximum payout of 90% of salary. The incentive payout is achieved by Associated Spring - Corry Division successfully attaining its profitability and revenue targets, and your successfully attaining individual performance goals and criteria that we establish from time to time. Eighty percent (80%) of the payout amount generated for 2004, if any, will be payable to you in late February, 2005. The remaining twenty percent (20%) of the 2004 payout will be paid, along with the payout generated for 2005, if any, in late February, 2006, EK=T A December 17, 2003 Mr. John W. Towne provided you have remained continuously employed through December 31, 2005, even if your term of employment has subsequently ended. Participation in the Company's short-term incentive plan brings your total cash compensation for 2004, including your lump sum bonus, to $187,500 at target, and to a maximum of $262,500. Payouts to participants are subject to the provisions of the plan. Your employee benefits will include the following: ? Health Insurance Plan (contributory on a pre-tax cost-sharing basis). ? Dental Assistance Plan (contributory on a pre-tax cost-sharing basis). ? Employee Stock Purchase Plan with a purchase price of 851/6 of fair market value, subject to statutory limits. ? Retirement Savings Plan [401(k)] with a Company matching contribution of 50% of the amount you contribute on a pre-tax basis, up to 6% of eligible earnings (i.e., Company match is capped at 3% of eligible eamings). The Planoffers a wide range of investment funds for both your own contributions and your company match. Salaried Retirement Income Plan (a qualified defined benefit retirement income plan). t Group Term Life Insurance of 1.5 times salary (noncontributory). ? Optional Group Term Life Insurance of one to four times salary (contributory). ? Optional Dependent Terra Life Insurance of up to $100,000 and $10,000 for a spouse and each dependent child, respectively, as applicable (contributory). s Short-term disability coverage, with a benefit of up to 26 weeks' salary continuation (non-contributory). ? Long-Term Disability coverage, with a benefit of 40% of covered earnings being provided by the Company. You have the option to purchase additional coverage to 50% and 66 2/3% of covered earnings, subject to plan limits. s $100,000 Accidental Death & Dismemberment Insurance. o Business Travel Accident Insurance. December 17, 2003 Mr. John W. Towne You will receive a package containing all enrollment information for the above- mentioned benefits. Coverage under the Health Insurance Plan, Dental Benefit Plan, and life and accident insurance plans, if you choose to enroll, is effective on the first day of the first full month of employment (February 1 st, assuming a January 19th start date). Coverage under the Long-Term and Short-Term Disability plans begins on the first day of the calendar month following the completion of 90 days' continuous service (May lst, assuming a January 19th start date). Participation in the RSP is effective on the first day of the month that falls at least 30 days after you file your enrollment form (March 1st, assuming you enroll by January 30th). You are eligible to participate in the ESPP on your employment date. Employees hired after January 1, 1993 are not entitled to participate in any retiree health care insurance plans. A company-leased automobile assigned to the Cony facility will be provided to you during your assignment. You will receive taxable compensation annually based on personal use, including commutation miles, in accordance with IRS regulations, Upon successful conclusion of this assignment, the Company may, at its sole discretion, renew your assignment or, in good faith, attempt to transfer you to a position of comparable responsibility, salary, benefits and grade level within the United States. If a suitable position is not available at that time, you will be eligible for appropriate benefits under the Barnes Group Inc. Executive Separation Pay Plan as is in effect at that time. This plan currently provides, in addition to other separation benefits, additional separation pay of four months of base salary (without consideration of any bonuses and allowances), subject to the provisions of the plan. In addition, you would be provided with outplacement assistance consistent with the Company's practice for positions of comparable level. In the event that you resign from Associated Spring or Barnes Group Inc. or are discharged for cause, the Company will not be obligated to provide you with separation benefits, absent special circumstances, under which the Company, at its sole discretion, may decide to provide you with partial or full benefits as it determines are reasonable. You will be entitled to three weeks' vacation annually, and three "floating" holidays, beginning in 2004 in accordance with the policy. All prospective Barnes Group employees are required to pass a urinalysis test for the presence of drugs, and to undergo a standard physical examination. This offer of employment is contingent upon your drug test and physical examination yielding satisfactory results. December 17, 2003 Mr. John W. Towne This letter sets forth our offer of employment and is not intended to create an expressed or implied contract of any kind, nor shall it be construed to constitute a promise or contract of lifetime or continuing employment. Your employment with Barnes Group Inc. is at will and may be terminated at any time, with or without cause, by either you or the Company. The terms of this offer supersede and take the place of any prior written or oral offers of employment. Barnes Group Inc. also has the right to change, interpret, withdraw, or add to any of the policies, benefits, terms or conditions of employment at any time. The terms and conditions of this letter may only be amended or modified in writing by myself. Should you have any questions with regard to the above, please contact Dawn N. Edwards, Group Director, Human Resources directly at (860) 409-4626. To accept this offer, please sign, date, and return the enclosed duplicate copy of this letter to Dawn Edwards within three (3) days of receipt. John, I look forward to your becoming apart of the Associated Spring team and contributing to our growth and profitability. Sincerely, z Richard P. McCorry President, Associated Spring Agreed to and accepted: John W. Towne L/ 7 "/0 .-2) Date y- f r VFRMCATION The. lolrgoing rornplsini is hascdupon information which has been gathered by my counsel in the proparalion of the lawsuit. The language or the document is that of counsel and not my own. 1 have rend the document and to the extent that it. is based upon information which I have given to my cotntscl, it Is true and eoumt to the bent of my knowledge, infonnalion and belief. '1'n the extent that the content of the document is that of counsel, T have relied upon counsel in making this vc ification. I his statcmenl and verification ore made subject to the penalties of IS Fa- C.?. Section 4904 relating to unworn IalsificttGon to authori ties, which provkles that if I make knowingly false averments, i may be suhic cr to cJiminal penalties. Dated: A119-5 T .Towne December 3, 2004 Mr, John W. Towne 32 Liberty Court Carlisle, PA 17013 Dear John: This is to confirm the arrangements regarding the notification of termination of your employment as Division Manager, Associated Spring Corry Division of Barnes Group Inc. (the "Company"), effective December 3, 2004 (the "Termination Date"). Minimum Severance. Under the Company's Executive Separation Pay Plan, you are eligible to receive the minimum severance pay of your current monthly salary of $10,417 for one (1) month following the Termination Date or the amount, if any, of your accrued unused vacation pay, whichever is greater. 2. Enhanced Severance. In order to receive additional severance payments and other benefits to which you would not otherwise be entitled, as described in this letter, you must agree to all of the terms and conditions in this letter and the attached Release Addendum (the "Release"), and return a signed copy of this letter and the Release within the time period set forth in the Release. You are hereby advised to consult with an attorney before signing the Release. In exchange for your signed Release and compliance with the terms of this letter, under the Company's Executive Separation Pay Plan, you are eligible to receive severance payments at your current monthly rate of $10,417 for a period of up to four (4) months following the Termination Date or the date on which you commence new employment, whichever occurs first (the "Severance Pay Period'). You are required to notify me immediately in writing upon your acceptance of new employment. Failure to do so will result in a breach of this agreement. You have received the minimum severance payment on December 1, 2004. Subject to this paragraph, additional severance payments will commence on the regular pay date following the Last Revocation Day, as defined in the Release. The first such payment shall include any amounts otherwise payable on regular pay dates after December 1, 2004, and before the commencement of such additional severance payments. Severance payments will be subject to the customary deductions. During the Severance Pay Period, you may also continue to participate in the Company's benefit programs as described in the following paragraphs. For Mr. John W. Town December 3, 2004 purposes of this letter, "new employment" shall include, without limitation, full- time or substantially full-time work as an employee, consultant or contractor, partner, or proprietor, or a similar position. 3. Benefits. You may continue to participate in the Company's medical, dental, group life insurance, supplemental life, dependent life, accidental death and dismemberment insurance, flexible benefit reimbursement accounts and long-term disability plans during the Severance Pay Period. You are required to continue making any premium and/or other employee contributions required by these benefit plans in order to maintain coverage during the Severance Pay Period. Your participation will cease in all of the Company's other employee benefit plans, including the Barnes Group Inc. Retirement Savings Plan ("RSP'), Employee Stock Purchase Plan and any applicable profit-sharing or pension plan, upon the Termination Date. After severance payments cease, COBRA medical and/or dental coverage may be continued upon payment by you of the full premium for up to eighteen (18) months or the date on which you become covered for medical and/or dental benefits under another group health plan, whichever occurs first. 4. Salaried Retirement Income Plan. You are not vested in the Salaried Retirement Income Plan (the "Plan") and are not eligible to receive benefits under the Plan. 5. Retirement Savings Plan. Regarding your RSP account, you can access the Fidelity Website at www.401k.com or the Retirement Benefits Line at 1-800-835- 5095 for the necessary information to receive a distribution or rollover of your account to an IRA or another qualified plan. 6. Automobile. You will be permitted to use the vehicle leased by the Company until January 3, 2005. Until then, the Company will continue to reimburse you for the reasonable expenses incurred by you in connection with your use of the vehicle according to the same policies as in effect from time to time for similarly situated employees of the Company. All requests for reimbursement must be submitted to me. Please contact me not later than December 23, 2004 to make arrangements for the return of the vehicle. Outplacement Benefit. To assist you in managing the change and locating a new employment opportunity, the Company has arranged for outplacement services for you. These services will be provided to you for six (6) months from the date of this letter. Please contact me if you wish to use this outplacement benefit. 8. A11CP. Although you are a participant in the Company's Management Incentive Compensation Plan (MICP), you will not be employed by the Company when awards, if any, are paid and, therefore, you will be ineligible to receive a bonus under the IvIICP. Mr. John W. Towne December 3, 2004 9. Other Bonuses. Since you will not be employed by the Company when awards, if any, are payable, you will not receive the lump-sum performance-based bonus or Universal Allowance. 10. Final Expenses. Your expense account, and use of Company credit and telephone cards, will cease as of the Termination Date. You will promptly return any such cards or other similar Company property in your possession and submit your final expense account, including an accounting for any advances, as of the Termination Date. 11. Return of Company Property. As of the Termination Date, you will promptly return to the Company any and all information relating to the Company in your possession and you will not, directly or indirectly, copy, take, or remove from the Company's premises, use or disclose to third parties any such information. 12. No Re-employment. You agree that by signing this letter and the Release you have waived and released any chance, right or opportunity to seek re-employment with the Company. You fiutber agree not to apply for or seek such re- employment with the Company and that this letter and the Release are good and sufficient cause for the Company to reject any such application for re- employment. 13. Non-Solicitation. You shall not, directly or indirectly, hire or solicit or facilitate or arrange for the hiring or solicitation of any person who is an employee of the Company, or encourage any such employee to leave such employment, or knowingly assist any business be/she has become associated with to do so, for a period of two (2) years beginning with the date of this letter. 14. Confidentiality. You agree not to disclose to anyone other than your spouse, lawyer, accountant, income tax preparer or financial planner (together, "permitted advisors') that you have entered into this letter and the Release with the Company except upon written approval of the President and Chief Executive Officer of the Company (the "CEO's or by court order or otherwise as compelled by law. You and your permitted advisors also agree to keep the facts, amount of severance and other payments hereunder, and terms of this letter and the Release in strict confidence, unless and only to the extent you have been authorized in writing by the CEO or the Company's attorney to make such disclosure or as compelled by law or court order. You further agree not to disclose this document, including the Release, its contents or subject matter to any person other than to a permitted advisor, except pursuant to written authorization by the CEO or the Company's attorney or as compelled by law or court order. Notwithstanding the foregoing, this letter and the Release may be used as evidence in any subsequent proceeding alleging a breach of this letter and the Release. Mr. John W. Towne December 3, 2004 In the event you discuss this letter or the Release with a permitted advisor or pursuant to a court order or as otherwise compelled by law, it shall be your duty, responsibility, and obligation to advise those persons of the confidential nature of this letter and the Release and to direct them not to discuss the terms and conditions of this letter or the Release with any other person. You shall be fully and completely responsible for any breach of this confidentiality provision, whether it be your breach or a breach by a permitted advisor. Furtber, you acknowledge and agree that any information constituting a trade secret or otherwise of a proprietary, secret or confidential nature of or relating to any business of the Company, or any affiliate of the Company ("Affiliate") ("Confidential Information') acquired by you during your employment, or known by you with respect to the businesses of the Company or any Affiliate prior to your employment by the Company is the exclusive property of, and of great value to, the Company and its Affiliates. You agree that without the prior written permission of the CEO, you will not divulge to any person or entity (other than to officers, directors and employees of the Company and/or its Affiliates or in connection with the proper business and affairs of the Company and/or its Affiliates), at any time, any Confidential Information unless and only (a) to the extent that said information becomes publicly known other than as a result of your acts or omissions to act, or (b) as may be required by applicable law or in connection with any investigation, suit or other proceeding before any court, tribunal, arbitration proceeding or agency having competent jurisdiction thereover rovid however, that you shall use your best efforts to provide the Company with adequate and timely written notice so as to enable the Company to seek a protective order or other appropriate relief. As used herein, Confidential Information may include, but is not limited to, the names of suppliers, customers, or employees of, the Company, and its Affiliates, the fees the Company and/or any Affiliate obtain or have obtained for services, financial information, computer programs, marketing plans, pricing information, strategic plans, the existence of any discussions or negotiations concerning any transaction proposed by the Company and/or any Affiliate or other facts relating thereto, the Company's manner of operation or plans, processes, and data of any kind. The confidentiality obligations in this letter and the Release are in addition to any other confidentiality obligation or agreement that you have with the Company, and nothing in this letter or the Release is intended to waive, modify, alter or amend the terms of any such confidentiality obligation or agreement. 15. Cooperation. You agree to fully cooperate with the Company by responding truthfully to any questions asked of you by the Company concerning its business, or operational or regulatory issues that may arise following the execution of this Agreement. You further agree to cooperate with any investigation conducted by the Company on its own initiative or pursuant to a request by any government agency or department, including, but not limited to, Mr. John W. Towne December 3, 2004 the provision of personal documents and testimony, in connection with any matter arising out of or related to your duties while employed by the Company. 16. Non-disparagement. You agree that you will make no written or oral statements that directly or indirectly disparage the Company or any Affiliate in any manner whatsoever including but not limited to the working conditions or employment practices of the Company. This covenant is in addition to, and not in lieu of, any other non-disparagement obligation that you have to the Company. You agree that you will not directly or indirectly contact the press or media, any federal, state, local or foreign governmental agency, the Company's employees, customers of the Company or any entity that has a business relationship with the Company, for the purpose of disparaging the good morale or business reputation or business practices of the Company or any of the Company's current or former officers, directors, managers, employees or agents. It will not be a violation of your obligations under this paragraph for you to make truthful statements, under oath, as required by law or formal legal process. Notwithstanding any provision of this letter to the contrary including, but not limited to, the obligations set forth in Paragraphs 14, 15 and 16 hereof, you may provide any truthful and accurate information to, and cooperate with, any federal, state, local or foreign governmental agency or entity. 17. Consequences of Breach; Procedures. In the event of a breach of any provision of this letter, you agree that any of the Company's obligations to pay compensation and benefits to you pursuant to this letter shall be terminated, and the Company shall be entitled to immediate restitution of all sums paid to you under this letter. In addition to such right to restitution, and without limitation, the Company shall have the right to enforce the provisions of this letter through any and all rights and remedies as maybe available to the Company at law or in equity, including injunctive relief and specific performance. In the event that either party institutes legal proceedings to enforce the terms of this letter, it is specifically understood and agreed that such a claim shall be submitted to final and binding arbitration in Hartford County, Connecticut, pursuant to the rules of the American Arbitration Association, and that the prevailing party shall recover its costs and reasonable attorney's fees incurred in such arbitration proceeding. The parties further agree that this Agreement is governed by the laws of the State of Connecticut. Mr. John W. Town, December 3, 2004 The attached Release Addendum is a legal release, the terms of which are incorporated by reference in this letter. Please review it carefully and let me know if you have any questions. Sincerely, Dawn Edwards Group Director, Human Resources Encl. Agreed and accepted: John W. Towne Date 6 RELEASE ADDENDUM In exchange for additional severance benefits to which I would not otherwise be entitled, set forth in the attached Letter of Agreement ("letter'), the terms of which are incorporated by reference in this Release Addendum ("Release'), I (and anyone acting on my behalf) agree to release every past and present right or claim of any kind, whether legal, equitable or otherwise, that is related to my employment and termination of my employment with Barnes Group Inc. (the "Company), including any and all related entities, corporations, partnerships, subsidiaries, joint ventures and divisions of the Company. I give up such rights and claims against the Company, its employee benefit plans and anyone else related to the Company (such as, without limitation, the Company's present and former employees, officers, directors, stockholders, representatives, agents and insurers) and agree not to file a lawsuit or seek to receive a recovery related to such rights and claims against any of them. I agree that I executed this Release on my own behalf and also on behalf of any heirs, agents, representatives, successors and assigns that I have now or may have in the future. These rights and claims include, but are not limited to, those that I may have under the Age Discrimination in Employment Act, which prohibits age discrimination in employment; Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment based on race, color, national origin, religion or sex; the Americans With Disabilities Act of 1990, which prohibits discrimination in employment based on a handicap or disability; the Equal Pay Act, which prohibits paying men and women unequal pay for equal work; any claims under the Worker Adjustment and Retraining Notification Act of 1999 or any similar law, which requires, among other things, that advance notice be given of certain work force reductions; and all claims under the Employee Retirement Income Security Act of 1974, such as claims relating to pension, profit sharing, or health plan benefits, except as noted in the following paragraph; the Family and Medical Leave Act of 1993; all claims under any state Fair Employment Practices Act as well as any other federal, state or local laws or regulations; all claims for alleged physical or personal injury or emotional distress; and any other claims which could arise from employment or separation from employment, whether in express or implied contract (whether written or oral), or in tort (including without limitation, defamation, assault, battery, false imprisonment, interference with contractual or advantageous business relationship, and invasion of privacy) or for wrongful or retaliatory discharge, whether based on common law or otherwise. The foregoing list is meant to be illustrative rather than inclusive. I keep my right, however, to (1) receive severance benefits under the Executive Separation Pay Plan; and (2) elect health care coverage under the federal continuation of health coverage law known as "COBRA," or under any applicable state law concerning continuation of health coverage, unless I am ineligible for such coverage under such law. This Release covers both claims that I know about and those I may not know about. I expressly give up and waive all rights afforded by any statute which limits the effect of a release with respect to claims that are presently unknown. I understand the significance of my release of unknown claims and my waiver of statutory protection against a release of unknown claims. This Release does not give up or waive any rights or claims, which arise after the date that this Release becomes enforceable. I have a period of twenty-one (21) days from the date of my receipt of this Release to review and consider this Release before signing it. I may take as much of this period of time to consider this Release as I wish prior to signing it. I understand that if I sign this Release, it is in exchange for receiving the additional payments and the other benefits described in the letter. I acknowledge that I have received and have twenty-one (21) days to review this Release from when it was first given to me. I acknowledge and agree that any changes made to this Release before I sign it will not entitle me to an additional twenty-one (21) days to review the new version of this Release. I am hereby advised by the Company to consult with an attorney before signing this Release. I understand that whether or not to do so is my decision. I have not relied on any representations, promises, or agreements of any kind made to me in connection with my decision to sign this Release except for those set forth in the documents attached to or referred to by this Release. I may revoke or cancel this Release within seven O days after I sign it. The last day on which this Release can be revoked is called the "Last Revocation Day." Revocation can only be made by delivering a written notice of revocation to Dawn Edwards, Group Director, Human Resources at Associated Spring, 80 Scott Swamp Road, Farmington, CT 06032. For this revocation to be effective, it must be received not later than the close of business at the Associated Spring, Farmington, Connecticut location on the Last Revocation Day. I acknowledge that this Release can be revoked only in its entirety and that once revoked, I will only receive the minimum severance payment described in Paragraph I of the letter and the other benefits that similarly situated employees who do not sign a Release receive. If I do not revoke this Release, it shall go into effect on the day after the Last Revocation Day and I will receive the additional severance payments described in Paragraph 2 of the letter and the other benefits described therein. A finding that any term or provision of this Release is invalid, unlawful or unenforceable will not affect the remaining terms and provisions of this Release. 2 This Release, and the documents referenced in or attached to this Release, set forth the entire agreement between me and the Company and supersede and render null and void any and all prior or contemporaneous oral or written understandings, statements, representations or promises pertaining to the matters set forth herein except for those set forth in the documents attached to or referred to by this Release and except for any and all previously agreed to noncompetition or confidentiality obligations to the Company to which I specifically agree to remain bound after signing this Release, including without limitation my obligations under the Barnes Group Inc. Code of Business Ethics and Conduct. If I violate any part of this Release, I will be responsible for all costs incurred by the Company that flow from that violation, including the Company's legal fees and other costs associated with any legal action that arises from that violation. If I violate any part of this Release, I will also be required to return all payments and reimburse the Company for all benefits provided to me in exchange for signing this Release. I UNDERSTAND THAT THIS RELEASE ADDENDUM, INCLUDING THE LETTER OF AGREEMENT INCORPORATED HEREIN BY REFERENCE, CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. BY SIGNING THE ATTACHED LETTER OF AGREEMENT AND TIES RELEASE ADDENDUM IN THE PLACES PROVIDED, I ACKNOWLEDGE THAT I HAVE READ EACH OF THESE DOCUMENTS CAREFULLY, UNDERSTAND THEIR CONTENTS AND EFFECTS AND THAT MY DECISION TO SIGN THESE DOCUMENTS IS KNOWING AND VOLUNTARY. Agreed and accepted: John W. Towne Date `v L> r ,,, , c. s:\Pn Ec rVP.T4 2E\Gmcal\CUr. m:\I 1137. Lc Cr utW 3130/04 049PM Revised. 2114105 3.25PM MARTSON DEARDORFF WILLIAMS & OTTO Carl C. Risch, Esquire I.D. No. 75901 Christopher E. Rice, Esquire I.D. No. 90916 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs JOHN W. TOWNE, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 05-201 Civil Term CIVIL ACTION - LAW ASSOCIATED SPRING CORPORATION and BARNES GROUP INC., Defendants JURY TRIAL OF TWELVE DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 JOHN W. TOWNE, Plaintiff V. ASSOCIATED SPRING CORPORATION and BARNES GROUP INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-201 Civil Term CIVIL ACTION - LAW JURY TRIAL OF TWELVE DEMANDED FIRST AMENDED COMPLAINT 1. Plaintiff, John W. Towne, is an adult individual residing at 32 Liberty Court, Carlisle, Cumberland County, Pennsylvania. 2. Defendant Associated Spring Corporation is a Delaware business with a business address of Group Headquarters, 80 Scott Swamp Road, Farmington, Connecticut 06032. Defendant Associated Spring's registered agent is Barnes Group Inc., 123 Main Street, Bristol, Connecticut 06010. 3. Defendant Barnes Group Inc., is a Delaware business with a business address of 123 Main Street, Bristol, Connecticut 06010. Defendant Barnes Group's registered agent is National Registered Agents, Inc., 12 Old Boston Post Road, Old Saybrook, Connecticut 06475. 4. On or about December 17, 2003, Plaintiff was presented with a written offer for a position with Associated Spring and/or Barnes Group Inc. of Division Manager, Associated Spring- Corry ("offer"). A true and correct copy of the offer is attached hereto as Exhibit "A." 5. The offer was mailed to and received by Plaintiff at his residential address listed above. 6. The offer was accepted and signed by Plaintiff in Cumberland County, Pennsylvania. 7. Plaintiff entered into an employment agreement with Defendants by accepting the offer in Cumberland County, Pennsylvania. 8. The offer dated December 17, 2003, and attached hereto as Exhibit "A" became the employment agreement. See Exhibit "A." 9. According to the employment agreement, Defendants agreed to pay Plaintiff a lump sum bonus of $25,000.00 ("bonus") each year on December 31, for services provided that year. 10. Further, according to the employment agreement, Defendants agreed to pay Plaintiff a sum pursuant to an incentive program payable in late February ("incentive") for the proceeding year. 11. Plaintiff began working for Defendants on or about January of 2004. 12. Plaintiff worked at Defendants' office located at 226 South Center Street, Corry, Pennsylvania, while maintaining his domicile in Cumberland County, Pennsylvania. 13. Plaintiff provided, among other things, consulting services to Defendants during his 2004 employment with Defendants. 14. At all relevant times during Plaintiffs employment with Defendants, Plaintiff faithfully discharged his duties as directed by Defendants' President, Richard McCory, and Defendants' Vice President of Manufacturing, Larry Johnson. 15. At all relevant times during Plaintiffs employment with Defendants, Plaintiff exceeded expectation as defined by Defendants' President, Richard McCorry, and Defendants' Vice President of Manufacturing, Larry Johnson. 16. Although Plaintiff was notified of his termination on December 3, 2004, Defendants paid Plaintiff and, therefore, employed Plaintiff through December 31, 2004. 17. Therefore, for purposes of entitlement to the bonus and incentive, Plaintiff was an employee of Defendant until December 31, 2004. 18. Plaintiff was terminated by Defendant without cause or reason that would prohibit Plaintiff from being entitled to his bonus and incentive. 19. Plaintiff has earned and is entitled to his bonus of $25,000.00 for the services he provided to Defendants as an employee during 2004. 20. Plaintiff believes, and therefore avers, that the incentive calculation for 2004 is 18%. 21. Plaintiff has earned and is entitled to the full incentive of 18% of his base salary ($125,000.00), which is $22,500.00. The actual payout under the incentive program to Plaintiff in February of 2005 would be 80% of the $22,500.00, or $18,000.00. The remaining 20% or $4,500.00 would be paid out to Plaintiff in late February of 2006. 22. Including, but not limited to, the satisfactory provision of services in accordance with the employment agreement, Plaintiff has satisfied all conditions in order to receive the bonus and incentive. 23. Defendants, on or about December 20, 2004, informed Plaintiff's counsel that they will not pay Plaintiff either his bonus or incentive. 24. Defendants made an absolute and unequivocal refusal to pay Plaintiff both his bonus and incentive. 25. Defendants have anticipatorily breached their obligations under the employment agreement by stating that they will not pay Plaintiff either his bonus or incentive. 26. Defendants have breached the employment agreement by failing to pay Plaintiff both his bonus and incentive. 27. In the alternative, Defendants have been unjustly enriched by their refusal to pay the bonus and incentive when they have received the benefit of his services. 28. Plaintiff's bonus and incentive are fair and reasonable. 29. Plaintiff's bonus and incentive are earned income for 2004. 30. Defendants are in violation of the Pennsylvania Wage Payment and Collection Law ("WPCL") by failing to and/or denying payment of both the bonus and incentive to Plaintiff. 31. Under the WPCL, Plaintiff is entitled to attorney fees, specifically 43 P.S. § 260.9a(f), costs and fees associated with this lawsuit, and any other relief under the WPCL. WHEREFORE, Plaintiff demands that Defendants pay Plaintiff both his bonus of $25,000.00, and his incentive, $22,500.00, plus attorney's fees, costs, interest, and any other relief that the court deems appropriate. MARTSON DEARDORFF WILLIAMS & OTTO By Carl C. Risch, Esquire I.D. Number 75901 Christopher E. Rice, Esquire I.D. Number 90916 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs Dated: February 14, 2005 December 17, 2003 ivfi. Jclm yNr. To?.vre 32 Liberty Court Carlisle, PA 17013 Dear John: We are pleased to offer you the position of Division Manager, Associated Spring - Corry effective January 19, 2004, or your date of employment. The expected duration of your employment will be 24 months, through December 2005. The term: or conditions of this offer as set out below will not be affected if the length or nature of your employment is extended or changed. In this position you will report to me and be headquartered in Cony, PA. Your armual salary will be $125,000, paid monthly in advance. In addition, we will provide you with a lump sum bonus of $25,000 (less applicable federal and state withholdings) each year on December 3l, through 2005, as long as you remain continuously employed with Associated Spring or Baines Group Inc. and your performance is rated as exceeds expectations or better. You will also receive at the beginning of each calendar year, through 2005, a lump sum Universal Allowance of $15,000 annually (less applicable federal and state withholdings). This allowance is yours to use hov,,ever you choose, and is intended to compensate you for additional personal expenses you may incur in connection with your assignment at Associated Spring - Cony. You will participate in the Company's annual incentive program effective on your date of employment on a prorated basis. Your target incentive under this plan is 30% of base salary, with a maximum payout of 90% of salary. The incentive payout is achieved by Associated Spring - Corry Division successfully attaining its profitability and revenue targets, and your successfully attaining individual performance goals and criteria that we establish from time to time. Eighty percent (80%) of the payout amount generated for 2004, if any, will be payable to you in late February, 2005. The remaining twenty percent (20%) of the 2001, payout will be paid, along with the payout generated for 2005, if any, in late February, 2006, ETI[IBIT A December I7, 2003 Mr. John W. Towne provided you have remained continuously employed through December 31, 2005, even if your teen of employment has subsequently ended. Participation in the Company's short-tenn incentive plan brings your total cash compensation for 2004, including your lump sum bonus, to $1 °7,500 at target, and to a maximum of 5262,500. Payouts to participants are subject to the provisions of the plan. Your employee benefits will include the following: ® Health Insurance Plan (contributory on a pre-tax cost-sharing basis). s Dental Assistance Plan (contributory on a pre-tax cost-sharing basis). ? Employee Stock Purchase Plan with a purchase price of 85% of fair market value, subject to statutory limits. Retirement Savings Plan [401(7)] with a Company matching contribution of 50% of the amount you contribute on a pre-tax basis, up to 6% of eligible earnings (i.e., Company match is capped at 3% of eligible earnings). The Plan offers a wide range of investment funds for both your own contributions and your company match. Salaried Retirement Income Plan (a qualified defined benefit retirement income plan). o Group Term Life Insurance of 1.5 times salary (noncontributory). ? Optional Group Term Life Insurance of one to four times salary (contributory). 4 Optional Dependent Tenn Life hlsuranca of up to $100,000 and $10,000 for a spouse and each dependent child, respectively, as applicable (contributory). m Short-tern disability coverage, with a benefit of up to 26 weeks' salary continuation (non-contributory). o Long-Term Disability coverage, with a benefit of 40% of covered earnings being provided by the Company. You have the option to purchase additional coverage to 50% and 66 2/3% of covered -earnings, subject to plan limits. $100,000 P.ccidertal Death & Dismembenner, Insurance. ® Business Travel Accident Insurance. December 17, 2003 Mr. Jolty W. Towne You will receive a package containing all enrollment information for the above- mentioned benefits. Coverage under the Health Insurance Plan, Dental Benefit Plan, and Bic and accident insurance purrs, if -you choose io eiuoii, is effective vn +he first day of the first full month of employment (February 1st, assuming a January 19th start date). Coverage under the Lone-Tenn and Short-Tema Disability plans begins on the first day of the calendar month following the completion of 90 days' continuous service (May Ist, assuming a January 19th start date)- Participation in the RSP is effective on the first day of the month that falls at least 30 days after you file your enrollment form (March Ist, assuming you enroll by January 30th). You are eligible to participate in the ESPP on your employment date. Employees hired after January 1, 1993 are not entitled to participate in any retiree health care insurance plans. A company-leased automobile assigned to the Cony facility will be provided to you during your assignment. You will receive taxable compensation annually based on personal use, including commutation miles, in accordance with IRS regulations. Upon successful conclusion of this assignment, the Company may, at its sole discretion, renew your assignment or, in good faith, attempt to transfer you to a position of comparable responsibility, salary, benefits and grade level within the United States. If a suitable position is not available at that time,, you will be eligible for appropriate benefits under the Barnes Group Inc- Executive Separation Pay Plan as is in effect at that time. This plan currently provides, in addition to other separation benefits, additional separation pay of four months of base salary (without consideration of any bonuses and allowances), subj ect to the provisions of the plan. In addition, you would be provided with outplacement assistance consistent with the Company's practice forpositions of comparable level In the event that you resign from Associated Spring or .Barnes Group lac. or are discharged for cause, the Company will not be obligated to provide you with separation benefits, absent special circumstances, under which the Company, at its sole discretion, may decide to provide you with partial or full benefits as it determines are reasonable. You will be entitled to three weeks' vacation annually, and three "floating" holidays, beginning in 2004 in accordance with the policy. All prospective Barnes Group employees are required to pass a urinalysis test for the presence of drugs, and to undergo a standard physical examination. This offer of employment is contingent upon your drug test and physical examination yielding satisfactory results. December 17, 2063 Mr. John W. Towne This letter sets forth our offer of employment and is not intended to create an expressed or implied contract of any kind, nor shall it be construed to constitute a promise or contract of lifetime or continuing employment. Your employment with Barnes Group inc. is ai will and maybe temlinated at any time, with or without cause, by either you or the Company. The terms of this offer supersede and take the place of any prior written or oral offers of employment. Barnes Group Inc. also has the right to change, interpret, withdraw, or add to any of the policies, benefits, terns or conditions of employment at any time. The terms and conditions of this letter may only be amended or modified in writing by myself. Should you have any questions with regard to the above, please contact Dawn N. Edwards, Group Director, Human Resources directly at (860) 409-4626. To accept this offer, please sign, date, and return the enclosed duplicate copy of this letter to Dawn Edwards within three (3) days vi recclpt. John, Z look forward to your becoming a part of the Associated Spring team and contributing to our growth and profitability. Sincerely, ,'! Richard P McCorry / President, Associated Spring Agreed to and accepted: John W. Towne Date is i ?;;. s VERIFICATION Christopher E. Rice, Esquire, of the firm of MARTSON DEARDORFF WILLMMS & OTTO, attorneys for Plaintiff John W. Towne in the within action, certifies that the statements made in the foregoing First Amended Complaint are true and correct to the best of his knowledge, information and belief. He understands that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. This Verification is being made by Plaintiff s attorney because Plaintiff is located out-of- state. Plaintiff will substitute this verification with one of his own. 1Z Christopher E. Rice Date: February 14, 2005 ,. Minutes of the Meeting of the Compensation and Management Development Committee December 12, 2001 2) RESOLVED, that, in accordance with Section 11.2 of the Barnes Group loc. Management Incentive Compensation Plan, amended and restated effective as of January 1, 2000 (the "Plan"), the Compensation and Management Development Committee hereby amends Section 6 of the Plan to delete the last sentence thereof and to substitute the following sentence therefor. "Except for participants who retire, die or become permanently disabled during the Award Period, whose Award shall be prorated to the date of such retirement, death or permanent disability, a person must be employed by the Company or one of its subsidiaries on the date when an Award is paid in order to be eligible to receive an Award, unless the CEO decides otherwise in individual cases.. BARNES GROUP INC. Effective as of January SECTION 1. PURPOSE The Management Incentive Compensation Plan (the "MCP") is designed to provide incentive compensation opportunities to persons in key positions who contribute importantly to the success of Barnes CITOW Inc. (the "Company"). SECTION 2. ADMIlYISTRATION The MCP shall be administered by the Compensation Committee of the Board of Directors of the Company, or Its successor (the "Committee"). Amounts paid or projected to be paid under the MICP are referred to herein as "Awards." SECTION 3. DEF NMONS 3.1 "Award Period" shall mean the period of time within which performance is measured for the purpose of determining whether an Award bas been earned. 3.2 "Business Unit" shall mean a cost center, profit center or international subsidiary within a Group. 3.3 "Business Unit Fund" shall mean an amount equal to the sum, in the aggregate, of the Individual Targets earned by all of the MCP participants in a Business Unit. 3.4 "CEO" shall mean the President and Chief Executive Officer of the Company. 3.5 "Company Officer" shall mean an executive officer of the Company elected by its Board of Directors. 3.6 "Fund" shall mean an amount equal to the sum, in the aggregate, of the Individual Targets earned by all of the MCP participants in a Group. 3.7 "Group" shall mean the Executive Office, Associated Spring, Bowman Distribution, or Barnes Aerospace. G:uL eahCORPMCMENPLANsSmtep.du 3.8 'Group President" shall mean the president of Associated Spring, Bowman Distribution, or Barnes Aerospace. 3.9 "Individual Target" shall mean the percentage of salary for each individual participating in the MICP. The Committee will establish the Individual Target for each MICP participant, by position title, salary grade, or other category before or during the Award Period. 3.10 "Maximum" shall mean a Performance level at or above which the amount paid or projected to be paid for an Award Period is equal to 300% of the Fund for the corresponding Group. 3.11 "Performance" shall mean the performance objectives established by the Committee in advance, with respect to each Group or Business Unit, as the case may be, for an Award Period, for the purpose of determining whether, and to what extent, an Award has been earned by the Group or Business Unit for an Award Period. Performance may be adjusted by the Committee to include or exclude extraordinary and non-recurring items or other factors. 3.12 "Target" shall mean a Performance level at which the amount paid or projected to be paid for an Award Period is equal to 100 % of the Fund for the corresponding Group. 3.13 "Threshold" shall mean a Performance level at or above which an Award is earned for an Award Period. For Threshold Performance, the amount paid or projected to be paid for an Award Period is equal to 25 % of the Fund for the corresponding Group. SECTION 4. GROUP FUNDS If an Award Period is a calendar year, prior to March 1, the Committee shall establish the Threshold, Target and Maximum for each Group, The Committee may also designate one or more intermediate levels of Performance between the Threshold and the Target, and the Target and the Maximum, for a Group, and the percentage of the corresponding Fund that will be available for payment as an Award if Performance equals such intermediate level. QXAOlMRPSSCnat9IVLnx54a1ro,ax 2 SECTIONS. BUSDOM UNIT ]FUNDS if an Award Period is a calendar year, prior to May 1, the CEO shalt designate which Business Units, if any, shall have separate Business Unit Funds. For each such Business Unit, the CEO shalt also determine the threshold, target and maximum on the same basis as such measures are determined for a Fund. The CEO may also designate intermediate levels of Performance between the threshold and the target, and the target and the maximum, for the Business Unit and the percentage of the Business Unit Fund that will be available for payment as an Award if Performance equals such intermediate level, SECTION 6. PARTICIPANTS If an Award Period is a calendar year, prior to May 1, the CEO, upon the recommendations of the Company Officers, shall designate eligible participants in the MICP for the current year and the respective Funds or Business Unit Funds, as the case may be, in which they shall participate. The CEO shall participate in the Executive ' ipants who Office Fund. Except for 'P T during the year, whose Awaz 1 be p permanent disability, a person mus subsidiaries on December 1 ' der to be decides otherwise in ' ' ual cases. or become permanently disabled to the date of such retirement, death or by the Company or one of its to receive an Award, unless the CEO i4lm10/ SECTION 7. AWARDS - BUSINESS UNIT FUNDS After the end of the Award Period and based on the final Performance of each Business Unit for which a Business Unit Fund has been designated pursuant to Section 5, the CEO, upon the recommendation of the corresponding Company Officer, shall determine each participant's share of the Business Unit Fund (except for any Company Officer who participates in the Business Unit Fund or the Fund of the corresponding Group, whose Award shall be determined by the Committee pursuant to Section 8.1). Without limiting the foregoing, the CEO shall have the authority, subject to Section 9, to c:l M9kCDRMCMMiFLN$=cp.da y make adjustments to the amount of any Business Unit Fund and to adjust or refrain from making an Award to any participant. SECTION S. AWARDS - GROUP FUNDS 8.1 After the end of the Award Period and based on the final Performance of each Group, the CEO shall determine each participant's share of the corresponding Group Fund, upon the recommendations of the Company Officers (except for any Company Officer who participates in the Fund). The CEO shall recommend the share of the Executive Office Fund for each Company Officer, other than the CEO. The Committee shall approve the Award to each Company Officer other than the CEO, and determine the appropriate Award for the CEO, based in all instances on Individual Targets and the Performance level achieved. 8.2 Subject to Section 9, the Committee shall have the authority to make adjustments to the Funds and to adjust or refrain from making an Award including, without limitation, making an Award to any Company Officer in excess of his or her calculated Award and recommending to the CEO an Award in excess of the calculated Award for any participant who is not a Company Officer. SECTION 9. AWARDS ABOVE MAXIMUM Notwithstanding anything in the MICP to the contrary, no awards in excess of the Maximum shall be made to any person without the approval of the Committee. SECTION 10. PAYMENT Awards shall be paid within 60 days after the expiration of the Award Period, unless otherwise decided by the Committee. SECTION 11. GENERAL 11.1 The interpretation of the MICP by the Committee and its decisions on all questions arising under the MICP shall be conclusive and binding on all participants and the CEO. c:ftz**1%CoRPSWYUW..h7`1 ANMMft.4W _ 4 11.2 The MICP may be amended at any time, including retroactively, by the Committee. 11.3 This amendment and restatement of the MICP supersedes all prior MICP and similar incentive plans, effective as of January 1, 2000 for the Award Period of calendar year 2000 and Award Periods thereafter. Amended 2/17/95 2/20/96 7/20/98 4/11/00 0:\tAg =RPS=YMENFLANS\n&p.d= TOTAL P.06 '? . ?_ F IILESDATAFILE\General\Currenl\11439. I.wm3/cer Created'. 3/30104 048PM Re ,M 3/15/05 1133W MARTSON DEARDORFF WILLIAMS & OTTO Carl C. Risch, Esquire I.D. No. 75901 Christopher E. Rice, Esquire I.D. No. 90916 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs JOHN W. TOWNE, IN THE COURT OF COMMON Plaintiff CUMBERLAND COUNTY, PEI V. NO. 05-201 Civil Term CIVIL ACTION - LAW ASSOCIATED SPRING CORPORATION and BARNES GROUP INC., Defendants JURY TRIAL OF TWELVE DE NOTICE You have been sued in court. If you wish to defend against the claims set following pages, you must take action within twenty (20) days after this Complaint a served, by entering a written appearance personally or by attorney and filing in writing your defenses or objections to the claims set forth against you. You are warned that if so, the case may proceed without you and a judgment may be entered against you without further notice for any money claimed in the Complaint or for any other cl requested by the Plaintiffs. You may lose money or property or other rights importan YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH E OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LA IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OF SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 OF VANIA forth in the I Notice are ith the court ou fail to do >y the court im or relief to you. DO NOT N. THIS ABLE TO R LEGAL JOHN W. TOWNE, IN THE COURT OF COMMON Plaintiff CUMBERLAND COUNTY, PEI V. NO. 05-201 Civil Term CIVIL ACTION - LAW ASSOCIATED SPRING CORPORATION and BARNES GROUP INC., Defendants JURY TRIAL OF TWELVE SECOND AMENDED COMPLAINT 1. Plaintiff, John W. Towne, is an adult individual residing at 32 Li Cumberland County, Pennsylvania. i OF VANIA Carlisle, 2. Defendant Associated Spring Corporation is a Delaware business wit} a business address of Group Headquarters, 80 Scott Swamp Road, Farmington, Connecticut 0603 1 Defendant Associated Spring's registered agent is Barnes Group Inc., 123 Main Street, Bristol, 06010. 3. Defendant Barnes Group Inc., is a Delaware business with a business a*ress of 123 Main Street, Bristol, Connecticut 06010. Defendant Barnes Group's registered agenjl is National Registered Agents, Inc., 12 Old Boston Post Road, Old Saybrook, Connecticut 064 4. On or about December 17, 2003, Plaintiff was presented with a writte' offer for a position with Associated Spring and/or Barnes Group Inc. of Division Manager, Corry ("offer"). A true and correct copy of the offer is attached hereto as Exhibit "A. 5. The offer was mailed to and received by Plaintiff at his residential above. 6. The offer was accepted and signed by Plaintiff in Cumberland County, 7. Plaintiff entered into an employment agreement with Defendants by offer in Cumberland County, Pennsylvania. 8. The offer dated December 17, 2003, and attached hereto as Exhibit "A employment agreement. See Exhibit "A." Spring- listed the the 9. According to the employment agreement, Defendants agreed to pay Pla#? tiff a lump sum bonus of $25,000.00 ("bonus") each year on December 31, for services provided if hat year. 10. Further, according to the employment agreement, Defendants agreed to a sum pursuant to an incentive program payable in late February ("incentive") for year. 11. Plaintiff began working for Defendants on or about January of 2004. 12. Plaintiff worked at Defendants' office located at 226 South Center Pennsylvania, while maintaining his domicile in Cumberland County, Pennsylvania. 13. Plaintiff provided, among other things, consulting services to 2004 employment with Defendants. Plaintiff Corry, during his 14. At all relevant times during Plaintiffs employment with Defendants, Plaintiff faithfully discharged his duties as directed by Defendants' President, Richard MRCorry, and Defendants' Vice President of Manufacturing, Larry Johnson. 15. At all relevant times during Plaintiffs employment with Defendants, Plaintiff exceeded expectation as defined by Defendants' President, Richard McCorry, and President of Manufacturing, Larry Johnson. 16. Defendants employed Plaintiff through December 31, 2004. 17. Defendants paid Plaintiff through December 31, 2004. 18. Therefore, for purposes of entitlement to the bonus and incentive, employee of Defendant until December 31, 2004. 19. Plaintiff s bonus and incentive are fair and reasonable. 20. Plaintiff s bonus and incentive are earned income for 2004. COUNTI Breach of Contract 21. Paragraphs 1-20 are incorporated herein by reference as is full set f 22. Plaintiff was terminated by Defendant without cause or reason that Plaintiff from being entitled to his bonus and incentive. 23. Plaintiff has earned and is entitled to his bonus of $25,000.00 for provided to Defendants as an employee during 2004. Vice was an below. prohibit services he 24. Plaintiff believes, and therefore avers, that the incentive calculation for 004 is 18%. 25. Plaintiff has earned and is entitled to the full incentive of 181 of hi base salary ($125,000.00), which is $22,500.00. The actual payout under the incentive program Plaintiff in February of 2005 would be 80% of the $22,500.00, or $18,000.00. The remaining 20% r $4,500.00 would be paid out to Plaintiff in late February of 2006. 26. Including, but not limited to, the satisfactory provision of services in ac the employment agreement, Plaintiff has satisfied all conditions in order to receive incentive. 27. Defendants, on or about December 20, 2004, informed Plaintiff's will not pay Plaintiff either his bonus or incentive. 28. Defendants made an absolute and unequivocal refusal to pay and incentive. 29. Defendants have anticipatorily breached their obligations under the agreement by stating that they will not pay Plaintiff either his bonus or incentive. 30. Defendants have breached the employment agreement by failing to pay his bonus and incentive. WHEREFORE, Plaintiff demands that Defendants pay Plaintiff both $25,000.00, and his incentive, $22,500.00, plus costs, interest, and any other relief deems appropriate. COUNT II Unjust Enrichment 31. Paragraphs 1-30 are incorporated herein by reference as is full set 32. In the alternative, if no written agreement is in effect between Plaintiff, Defendants have been unjustly enriched by their refusal to pay the 1 incentive. 33. Plaintiff has provided services to Defendant. 34. Defendants have received the benefit of Plaintiff's services. WHEREFORE, Plaintiff demands that Defendants pay Plaintiff both $25,000.00, and his incentive, $22,500.00, plus costs, interest, and any other relief deems appropriate. dance with bonus and -1 that they i his bonus bonus of the court below. and and/or the bonus of the court COUNT III Pennsylvania Wage Payment and Collection Law 35. Paragraphs 1-36 are incorporated herein by reference as is full set fo below. 36. Defendants are in violation of the Pennsylvania Wage Payment and ("WPCL") Law 37. Defendants have failed to pay and/or denied payment of the bonus to 38, Defendants have failed to pay and/or denied payment of the incentive Plaintiff. 39. Under the WPCL, Plaintiff is entitled to attorney fees, specifically 43 P.S § 260.9a(f), costs and fees associated with this lawsuit, and any other relief under the WPCL. WHEREFORE, Plaintiff demands that Defendants pay Plaintiff both h bonus of $25,000.00, and his incentive, $22,500.00, plus attorney's fees, costs, interest, and arother relief that the court deems appropriate. & OTTO By Carl C. Risch, Esquire I.D. Number 75901 Christopher E. Rice, Esquire I.D. Number 90916 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs Dated: March 15, 2005 Associated Spring December 17, 2003 Mr. John W. Towne 32 Liberty Court Carlisle, PA 17013 Dear John: / ' We are pleased to offer you the position of Division Manager, Associated S ing - Corry effective January 19, 2004, or your date of employment. The expecte duration of your employment will be 24 months, through December 2005. e terms or conditions of this offer as set out below will not be affected if the length nature of your employment is extended or changed. In this position you will report o me and be headquartered in Corry, PA. Your annual salary will be $125,000, paid monthly in advance. In addition, o will provide you with a lump sum bonus of $25,000 (less applicable federal and tate withholdings) each year on December 31, through 2005, as long as you rem in continuously employed with Associated Spring or Barnes Group Inc. and y r performance is rated as exceeds expectations or better. You will also receive at the beginning of each calendar year, through 2005, lump sum Universal Allowance of $15,000 annually (less applicable federal and ate withholdings). This allowance is yours to use however you choose, and is i tender to compensate you for additional personal expenses you may incur in coma tion with your assignment at Associated Spring - Corry. You will participate in the Company's annual incentive program effective your date of employment on a prorated basis. Your target incentive under this p n is 30% of base salary, with a maximum payout of 90% of salary. The incenti e payout is achieved by Associated Spring - Corry Division successfully attaining it profitability and revenue targets, and your successfully attaining individual performance goals and criteria that we establish from time to time. Eighty ercent (800%) of the payout amount generated for 2004, if any, will be payable to u in late February, 2005. The remaining twenty percent (20%) of the 2004 payout Il be paid, along with the payout generated for 2005, if any, in late February, 20 6, EXEIBIT A December 17, 2003 Mr. John W. Towne provided you have retrained continuously employed through December 31, 005, even if your tern of employment has subsequently ended. Participation in t e Company's short-term incentive plan brings your total cash compensation f 2004, including your lump sum bonus, to $187,500 at target, and to a maximum o $262,500. Payouts to participants are subject to the provisions of the plan. I Your employee benefits will include the following ? Health Insurance Plan (contributory on a pre-tax cost-sharing basis). ? Dental Assistance Plan (contributory on a pre-tax cost-sharing basis). et ? Employee Stock Purchase Plan with a purchase price of 85% of fair mIr value, subject to statutory limits. ? Retirement Savings Plan [401(k)] with a Company matching contribute of 50% of the amount you contribute on a pre-tax basis, up to 6% of eligible ea ngs (i.e., Company match is capped at 3% of eligible earnings). The Plan o rs a wide range of investment funds for both your own contributions and yo company match. ? Salaried Retirement Income Plan (a qualified defined benefit retiremencomeplan). ? Group Term Life Insurance of 1.5 times salary (noncontributory). ? Optional Group Term Life Insurance of one to four times salary (contri tory). ? Optional Dependent Term Life Insurance of up to $100,000 and $10,00 fora spouse and each dependent child, respectively, as applicable (contributo y). ? Short-tern disability coverage, with a benefit of up to 26 weeks' salary continuation (non-contributory). ? Long-Term Disability coverage, with a benefit of 40% of covered eami gs being provided by the Company. You have the option to purchase additional overage to 50% and 66 2/3% of covered earnings, subject to plan limits. $100 000 Accidental Death & Dismemberment Insurance. ? Business Travel Accident Insurance. December 17, 2003 Mr. John W. Towne You will receive a package containing all enrollment information for the abc mentioned benefits. Coverage under the Health Insurance Plan, Dental Bene and life and accident insurance plans, if you choose to enroll, is effective on day of the first full month of employment (February I st, assuming a January start date). Coverage under the Long-Term and Short-Term Disability plans on the first day of the calendar month following the completion o£90 days' continuous service (May 1st, assuming a January 19th start date). Participat; the RSP is effective on the first day of the month that falls at least 30 days at file your enrollment form (March 1st, assuming you enroll by January 30th). are eligible to participate in the ESPP on your employment date. Employees after January 1, 1993 are not entitled to participate in any retiree health care insurance plans. t Plan, tc first 9th mm er you You to you A company-leased automobile assigned to the Corry facility will be providins. during your assignment. You will receive taxable compensation annually ba ed on personal use, including commutation miles, in accordance with IRS r( gulati Upon successful conclusion of this assignment, the Company may, at its sol discretion, renew your assignment or, in good faith, attempt to transfer you a position of comparable responsibility, salary, benefits and grade level withi the United States. If a suitable position is not available at that time, you will be ligible for appropriate benefits under the Barnes Group Inc. Executive Separation y Plan as is in effect at that time. This plan currently provides, in addition to other separation benefits, additional separation pay of four months of base salary ithout consideration of any bonuses and allowances), subject to the provisions of t e plan. In addition, you would be provided with outplacement assistance consistent ith the Company's practice for positions of comparable level. In the event that you resign from Associated Spring or Barnes Group Inc. o are discharged for cause, the Company will not be obligated to provide you wit separation benefits, absent special circumstances, under which the Compan , at its sole discretion, may decide to provide you with partial or full benefits as it determines are reasonable. You will be entitled to three weeks' vacation annually, and three "floating" beginning in 2004 in accordance with the policy. All prospective Barnes Group employees are required to pass a urinalysis t t for the presence of drugs, and to undergo a standard physical examination. This o er of employment is contingent upon your drug test and physical examination yi ding satisfactory results. December 17, 2003 Mr. John W. Towne This letter sets forth our offer of employment and is not intended to create an expressed or implied contract of any kind, nor shall it be construed to constit to a promise or contract of lifetime or continuing employment. Your employme with Barnes Group Inc. is at will and may be terminated at any time, with or with t cause, by either you or the Company. The terms of this offer supersede and ke the place of any prior written or oral offers of employment. Barnes Group Inc. so has the right to change, interpret, withdraw, or add to any of the policies, benefit , terms or conditions of employment at any time. The terms and conditions of this 1 ter may only be amended or modified in writing by myself. Should you have any questions with regard to the above, please contact Da N. Edwards, Group Director, Human Resources directly at (860) 409-4626. To ccep this offer, please sign, date, and return the enclosed duplicate copy of this to er to Dawn Edwards within three (3) days of receipt. John, I look forward to your becoming a part of the Associated Spring team contributing to our growth and profitability. Sincerely, J Richard P. McCorry President, Associated Spring Agreed to and accepted: John W. Towne r 71i? J? I;•J rites Ll I ate "71 j, x. J VERIFICATION Christopher E. Rice, Esquire, of the firm of MARTSON DRDORFF WILLIAMS & OTTO, attorneys for Plaintiff John W. Towne in the within action, ce J ies that the statements made in the foregoing Second Amended Complaint are true and correct to best of his knowledge, information and belief. He understands that false statements herein are ade subject to the penalties of IS Pa. C.S. Section 4904 relating to unswom falsification to autho ities. This Verification is being made by Plaintiffs attorney because Plaintiff is to ted out-of- state. Plaintiff will substitute this verification with one of his own. Christopher E. Rice Date: March 22, 2005 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Second Amended Complaint was se4ed this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, ?ddressed as follows: Thomas G. Collins, Esquire BUCHANAN INGERSOLL PC 213 Market Street, Third Floor Harrisburg, PA 17101 By MARTSON DEARDORFF WILLIAMS & OTTO Christopher E. Rice Dated: March 22, 2005 i N 2. -G N BUCHANAN INGERSOLL P.C. Thomas G. Collins, Esquire I.D. No. 75896 Nicole L. Borda, Esquire I.D. No. 89214 213 Market Street, 3rd Floor Harrisburg, PA 17101 (717) 237-4800 Attorneys for Defendants JOHN W. TOWNE, V. Plaintiff ASSOCIATED SPRING CORPORATION and BARNES GROUP INC., Defendants ^? n u+ -o rv '?? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 05-201- Civil Term CIVIL ACTION - LAW JURY TRIAL OF TWELVE DEMANDED ANSWER OF ASSOCIATED SPRING CORPORATION AND BARNES GROUP INC. TO PLAINTIFF'S SECOND AMENDED COMPLAINT Defendants, Associated Spring Corporation and Barnes Group Inc. (collectively "Defendants")', by and through their undersigned counsel, Buchanan Ingersoll PC, file this Answer to the Second Amended Complaint ("Complaint") as follows: Admitted based upon information received. 2. Denied. By way of further answer, Associated Spring Corporation is an inactive subsidiary of Barnes Group Inc., a Delaware Corporation. The registered agent for Associated Spring Corporation is The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. 3. Admitted in part and denied in part. By way of further answer, the correct address for National Registered Agents, Inc. is 9 East Lockerman Street, Suite 113, Dover, DE 19901. The remaining averments of Paragraph 3 are admitted. Associated Spring Corporation is an inactive subsidiary of Barnes Group Inc. Plaintiff was employed by Barnes Group Inc. and not Associated Spring Corporation. 4. Denied as stated. By way of further answer, the correspondence attached to the Complaint as Exhibit "A" is a document that speaks for itself and any characterization of the nature or contents of same is denied. Defendant's further deny that Plaintiff was employed by Associated Spring Corporation. 5. Admitted in part and denied in part. Defendants admit that the correspondence attached to the Complaint as Exhibit "A" was mailed to Plaintiff. Defendants deny the remaining averments as conclusions of law. 6. The averments of Paragraph 6 as to Plaintiff's acceptance of the offer constitute conclusions of law requiring no responsive pleading. By way of further answer, Defendants are without knowledge or information sufficient to form a belief as to where Plaintiff signed the correspondence and the same are therefore denied. 7. The averments of Paragraph 7 as to the existence of an agreement and Plaintiffs acceptance of an offer constitute conclusions of law requiring no responsive pleading. 8. The averments of Paragraph 8 as to the existence of an agreement constitute conclusions of law requiring no responsive pleading. By way of further answer, Exhibit "A" to the Complaint is a document that speaks for itself and any characterization of the content or nature thereof is denied. 9. Exhibit "A" to the Complaint is a document that speaks for itself and any characterization of the content or nature thereof is denied. 10. Exhibit "A" to the Complaint is a document that speaks for itself and any characterization of the content or nature thereof is denied. 11. Admitted. 2 12. Admitted in part and denied in part. Defendants admit only that Plaintiff worked at Defendant's office located in Corry, Pennsylvania. The remaining averments as to Defendant's domicile are denied as conclusions of law. 13. Denied as stated. By way of further answer, Defendants admit only that Plaintiff provided services through December 3, 2004. 14. Denied. By way of further answer, Defendant's deny specifically that Plaintiff "faithfully discharged his duties." To the contrary, Plaintiffs performance with Defendant was unacceptable warranting the termination of his employment on December 3, 2004. 15. Denied. By way of further answer, Defendant's deny specifically that Plaintiff "exceeded expectation (sic)." To the contrary, Plaintiffs performance with Defendant was unacceptable warranting the termination of his employment on December 3, 2004. 16. Denied. By way of further answer, Defendants terminated Plaintiff s employment on December 3, 2004. 17. Admitted in part and denied in part. It is admitted only that Defendants paid Plaintiff on December 1, 2004 for the entire month of December. As provided in the Letter Agreement, Defendants paid Plaintiff "monthly in advance." To the extent that the averment in Paragraph 17 implies that payment of Plaintiff through December 31, 2004 constituted continued employment through December 31, 2004, the averment is denied. 18. Denied. Barnes Group Inc. terminated Plaintiffs employment on December 3, 2004. By way of further answer, any averment that Plaintiff is entitled to the bonus and incentive is denied as a conclusion of law requiring no responsive pleading. 19. Denied. By way of further answer, Plaintiff was not entitled to receive the bonus or incentive. 3 20. Denied. By way of further answer, Plaintiff was not entitled to receive the bonus or incentive. COUNTI Breach of Contract 21. Defendants hereby incorporate by reference their answers to Paragraphs 1 through 20 above. 22. Denied. By way of further answer, Plaintiff was employed on an at-will basis. Plaintiffs performance with Defendant was unacceptable warranting the termination of his employment on December 3, 2004. Defendants deny that Plaintiff is entitled to the bonus or incentive. 23. Denied. By way of further answer, Defendants deny specifically that Plaintiff is entitled to the claimed bonus. 24. Denied. By way of further answer, defendant is unaware of Plaintiffs belief as to the incentive calculation. Defendants deny specifically that Plaintiff is entitled to the claimed incentive bonus. 25. Denied. By way of further answer, Defendants deny specifically that Plaintiff has earned and is entitled to the incentive. Plaintiff s performance with Defendant was unacceptable warranting the termination of his employment on December 3, 2004. 26. Denied. Defendants deny specifically that Plaintiff has satisfied the conditions precedent for the bonus or incentive. By way of further answer, Plaintiffs performance with Defendant was unacceptable warranting the termination of his employment on December 3, 2004. 27. Admitted. 4 28. Admitted. 29. The averments in Paragraph 29 are conclusions of law to which no response is required. By way of further answer, Plaintiff was employed on an at-will basis. Plaintiff's performance with Defendant was unacceptable warranting the termination of his employment on December 3, 2004. As Plaintiff's employment was properly terminated, and because Plaintiff did not fulfill the prerequisites for the bonus or incentive payments, there can be no anticipatory breach relative to the payment of a bonus or incentive to Plaintiff. 30. The averments in Paragraph 30 are conclusions of law to which no response is required. By way of further answer, Plaintiff is not entitled to either the bonus or incentive. Thus, Defendants have not breached their obligations to Plaintiff. WHEREFORE, Defendants Associated Spring Corporation and Barnes Group Inc. demand judgment in their favor and against Plaintiff John W. Towne, together with costs and such other relief as the Court may deem just and appropriate. COUNT II Unjust Enrichment 31. Defendants hereby incorporate by reference their answers to Paragraphs 1 through 30 above. 32. The averments in Paragraph 32 are denied as conclusions of law to which no response is required. By way of further answer, Defendants deny that they have been "unjustly enriched." Plaintiff is not entitled to either the bonus or incentive. 33. Admitted in part and denied in part. Defendants admit only that Plaintiff provided services prior to his termination on December 3, 2004. Plaintiff has been fully and completely 5 compensated for same. Defendants deny any implication that Plaintiff is entitled to the bonus or incentive. 34. Admitted in part and denied in part. Defendants admit only that Plaintiff provided services prior to his termination on December 3, 2004. Plaintiff has been fully and completely compensated for same. Defendants deny any implication that Plaintiff is entitled to the bonus or incentive. WHEREFORE, Defendants Associated Spring Corporation and Barnes Group Inc. demand judgment in their favor and against Plaintiff John W. Towne, together with costs and such other relief as the Court may deem just and appropriate. COUNT III Pennsylvania Wage Payment and Collection Law 35. Defendants hereby incorporate by reference their answers to paragraphs 1 through 34 above. 36. The averments in paragraph 36 are conclusions of law to which no response is required. 37. Admitted in part and denied in part. Defendants admit only that they refused to pay the bonus to Plaintiff. Defendants deny any implication that Plaintiff is entitled to same. 38. Admitted in part and denied in part. Defendants admit only that they refused to pay the incentive to Plaintiff. Defendants deny any implication that Plaintiff is entitled to same. 39. The averments in Paragraph 39 are conclusions of law to which no response is required. By way of further answer, Defendants deny that Plaintiff is entitled to the relief requested. 6 WHEREFORE, Defendants Associated Spring Corporation and Barnes Group Inc. demand judgment in their favor and against Plaintiff John W. Towne, together with costs and such other relief as the Court may deem just and appropriate. AFFIRMATIVE DEFENSES First Affirmative Defense Plaintiff's claims, collectively and individually, fail to state a claim upon which relief may be granted. Second Affirmative Defense Plaintiff's claim for unjust enrichment fails to state a claim upon which relief can be granted. Third Affirmative Defense Plaintiff has failed to satisfy multiple conditions precedent relative to Defendant's payment obligation for the incentive and bonus. Fourth Affirmative Defense Plaintiff's performance with Defendant was unacceptable warranting his termination on December 3, 2004. Fifth Affirmative Defense Plaintiff fails to state a claim for wages or attorneys' fees under the Pennsylvania Wage Payment and Collection Law. Sixth Affirmative Defense Plaintiff fails to state a claim for breach of contract. Seventh Affirmative Defense Plaintiff fails to state a claim for anticipatory breach. 7 WHEREFORE, Defendants Associated Spring Corporation and Barnes Group Inc. demand judgment in their favor and against Plaintiff John W. Towne, together with costs and such other relief as the Court may deem just and appropriate. Respectfully submitted, BUCHANAN INGERSOLL PC By: Thomas G. Collins, squire I.D. No. 75896 Nicole L. Borda, Esquire I.D. No. 81924 213 Market Street, Third Floor Harrisburg, PA 17101 (717) 237-4800 Attorneys for Defendants DATE: April 8, 2005 8 CERTIFICATE OF SERVICE I, Nicole L. Borda, hereby certify that I am this day serving a copy of the foregoing document by United States First Class Mail, Postage Prepaid, upon the person indicated below: Carl C. Risch, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 BUCHANANINGERSOLLPC By:/ Z.Cl'!f N icole L. Bord DATE: April 8, 2005 CIVIL ACTION - LAW JURY TRIAL OF TWELVE DEMANDED Defendants CONFIDENTIALITY AGREEMENT AND ORDER To expedite the flow of discovery material, facilitate the prompt resolution of disputes over JOHN W. TOWNE, V. IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA No. 05-201- Civil Term ASSOCIATED SPRING CORPORATION and BARNES GROUP INC., confidentiality, protect material entitled to be kept confidential, and insure that protection is afforded to confidential material, John W. Towne ("Plaintiff'), and Associated Spring Corporation and Barnes Group, Inc. (collectively "Defendants") AGREE as follows: 1. Non-disclosure of Confidential Documents and Information. No documents or information produced by the parties during discovery of the above-captioned case which are designated as "confidential" by the producing party may be disclosed to any person except with the prior written consent of the party or other person originally designating a document or other information as confidential or as hereinafter provided. A "confidential document" means any document which bears a stamp reading "Confidential" to signify that it contains information believed to be subject to protection because it is confidential and sensitive information in which a party has a privacy and property interest. For purposes of this order, the term "document" means all written, electronic, recorded or graphic material, whether produced or created by a party or another person, whether produced in discovery, subpoena, by agreement, or otherwise. Interrogatory answers, responses to requests for admission, and deposition transcripts may be accorded status as a confidential document, and exhibits, pleadings, motions, affidavits, and briefs that quote, summarize, or contain materials entitled to protection may be accorded status as a confidential document. 2. Permissible Disclosures, Notwithstanding paragraph 1, confidential documents and information may be disclosed to (a) the parties or employees of the parties to this litigation; (b) to counsel for the parties in this litigation; (c) to the partners, associates, secretaries, paralegal assistants, and employees of such counsel; (d) to consultants and experts retained for the purpose of assisting counsel in this litigation; (e) to persons employed or consulted by counsel for litigation management purposes in this litigation, including, but not limited to, copying services and computerized litigation support services; (f) to deponents pursuant to paragraph 3 hereinafter; (g) to witnesses at any proceeding including trial of this case; (h) to court officials involved in this litigation (including court reporters, persons operating video recording equipment at depositions, and any special master appointed by the Court); and (i) to any person designated by the Court, upon such terms as the Court may deem proper. For purposes of this paragraph, this "litigation" shall mean the case captioned above. To the extent any parry intends to disclose confidential documents or information to any person identified in items (d), (f) and (g) above, the party seeking to make such disclosure shall provide a copy of this Agreement and the Order confirming this Agreement to such person prior to such disclosure and shall affirmatively advise such person that this Agreement and the Order apply to that person. With respect to categories (d), (f) and (g) above, counsel for the party wishing to make the disclosure shall first obtain a signed consent and joinder from the person to whom such disclosure is to be made in the form attached as Exhibit "A" and shall maintain such signed consent(s) and joinder(s). Counsel shall deliver all such consent(s) and joinder(s) to counsel for the opposing party at the conclusion of the trial in this litigation. 2 3. Confidential Documents and Information in Depositions. (a) A deponent may during the deposition be shown, and examined about, confidential documents and information. Deponents shall not retain or copy confidential documents or portions of the transcript of their depositions that contain confidential information provided to them or the entities they represent under other provisions of this Order. (b) The parties anticipate that some or all of the depositions taken in this case will contain discussions of confidential information and therefore, unless the parties agree otherwise, or until further order of this Court, all transcripts of depositions taken in these cases will be regarded as confidential documents for a period of twenty (20) days following receipt of the transcript by both parties. A party may designate some or all of the transcript as "Confidential" by notifying the other party any time within the twenty day period. 4. Subpoena by Other Courts or Agencies. If another court or an administrative agency subpoenas or orders production of confidential documents which a party has obtained under the terms of this order, such parry shall promptly notify the party or other person who designated the document as confidential of the pendency of such subpoena or order. 5. Filing. Confidential documents need not be filed with the Court except when required in connection with applicable discovery motions or other matters pending before the Court. If filed, they shall be filed under seal and shall remain sealed with the Court so long as they retain their status as stamped confidential documents. All documents filed under seal shall be placed in a box or envelope and marked "sealed by order of court." 6. Use. Persons obtaining access to confidential documents under this order shall use the information only for preparation and trial of this litigation (including appeals and retrials), and shall not use such information for any other purpose, including business, governmental, commercial, or administrative or judicial proceedings; nor shall such persons disclose the 3 information contained in such documents to any persons other than those to whom disclosures of such documents can be made under this order. 7. Non-Termination. The provisions of this order shall not terminate at the conclusion of this action. After final conclusion of all aspects of this litigation, confidential documents and all copies of same, including all electronic media (other than exhibits of record) shall be returned to the parry or person which produced such documents. Alternatively, the party to whom confidential documents have been provided may produce a certificate signed by the party indicating that any confidential documents have been destroyed and the manner of destruction. 8. Modification Permitted. Nothing in this order shall prevent any party or other person from seeking modification of this order or from objecting to discovery that it believes to be otherwise conclusive. 9. No Waiver of Obiections or Privilege. Nothing in this order shall be construed to waive the attorney-client or work product privileges or any other objection or privilege to or from discovery with respect to any document or information. 10. No Waiver of Claims or Defenses. (a) The failure of any party to stamp any document with the legend required by paragraph 1 hereof shall not be construed as an admission or waiver of any claim that the document is confidential as it relates to the claims and defenses asserted in this action. (b) The provisions of this order are for the convenience of the parties and the protection of their interests in maintaining the confidential nature of information produced in discovery, and this order shall not be construed in a way which limits any parties' claims or defenses. 11. Enforcement. This Agreement shall be enforceable in the court in which the above- captioned action is pending at the time of its execution, regardless of whether the above-captioned action is pending at the time of its enforcement. The parties and anyone who executes a consent 4 and joinder under paragraph 2 hereof hereby consent to the issuance of injunctive relief for the enforcement of this Agreement, including temporary, preliminary and permanent injunctive relief, in addition to any other remedies or relief which may properly be sought for the enforcement hereof. It is further agreed that the party or individual found to be in violation of this Agreement shall pay the reasonable attorneys fees and expenses of the prevailing party associated with the enforcement of this Agreement. 12. Execution. This Agreement may be executed in counterparts and may be executed and copies thereof exchanged by facsimile. JOHN W. TOWNE By: 1 . Carl C. Risch, Esquire I.D. No. 75901 Christopher E. Rice, Esquire I.D. No. 90916 ASSOCIATED SPRING CORPORATION and BARNES GROUP INC. By Thomas G. Collins, Esquire I.D. No. 75896 Stephen Moniak, Esquire I.D. No. 80035 Martson, Deardorff, Williams & Otto 10 East High Street Carlisle, PA 17013 717/243-3341 SO ORDERED: DATE: J. Buchanan Ingersoll, PC One South Market Square 213 Market Street, 3rd Floor Harrisburg, PA 17101 (717) 237-4800 5 JOHN W. TOWNE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. 05-201- Civil Term ASSOCIATED SPRING CIVIL ACTION - LAW CORPORATION and BARNES GROUP INC., JURY TRIAL OF TWELVE DEMANDED Defendants CONSENT AND JOINDER I have been provided with a copy of the Confidentiality Agreement and Order in this case. I have read the Confidentiality Agreement and Order before signing this Consent and Joinder. I understand that the Confidentiality Agreement and Order applies to me and that I am bound by its terms. I am signing this Consent and Joinder indicating my agreement to the terms of the Confidentiality Agreement and Order. I specifically consent to and join in the terms of the Confidentiality Agreement and Order and agree to be bound by its terms in all respects. 0,44 DATE: 6-14,06, (Print Name) {'-1 "?` _ C? t , ' t. No. 05-201 - Civil Term CIVIL ACTION - LAW JURY TRIAL OF TWELVE DEMANDED Defendants CONFIDENTIALITY AGREEMENT AND ORDER To expedite the flow of discovery material, facilitate the prompt resolution of disputes over ?i(JN f?, 2006 JOHN W. TOWNE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ASSOCIATED SPRING CORPORATION and BARNES GROUP INC., confidentiality, protect material entitled to be kept confidential, and insure that protection is afforded to confidential material, John W. Towne ("Plaintiff'), and Associated Spring Corporation and Barnes Group, Inc. (collectively "Defendants") AGREE as follows: 1. Non-disclosure of Confidential Documents and Information. No documents or information produced by the parties during discovery of the above-captioned case which are designated as "confidential" by the producing party may be disclosed to any person except with the prior written consent of the party or other person originally designating a document or other information as confidential or as hereinafter provided. A "confidential document" means any document which bears a stamp reading "Confidential" to signify that it contains information believed to be subject to protection because it is confidential and sensitive information in which a party has a privacy and property interest. For purposes of this order, the term "document" means all written, electronic, recorded or graphic material, whether produced or created by a party or another person, whether produced in discovery, subpoena, by agreement, or otherwise. Interrogatory answers, responses to requests for admission, and deposition transcripts may be accorded status as a confidential document, and exhibits, pleadings, motions, ?9s affidavits, and briefs that quote, summarize, or contain materials entitled to protection may be accorded status as a confidential document. 2. Permissible Disclosures, Notwithstanding paragraph 1, confidential documents and information may be disclosed to (a) the parties or employees of the parties to this litigation; (b) to counsel for the parties in this litigation; (c) to the partners, associates, secretaries, paralegal assistants, and employees of such counsel; (d) to consultants and experts retained for the purpose of assisting counsel in this litigation; (e) to persons employed or consulted by counsel for litigation management purposes in this litigation, including, but not limited to, copying services and computerized litigation support services; (f) to deponents pursuant to paragraph 3 hereinafter; (g) to witnesses at any proceeding including trial of this case; (h) to court officials involved in this litigation (including court reporters, persons operating video recording equipment at depositions, and any special master appointed by the Court); and (i) to any person designated by the Court, upon such terms as the Court may deem proper. For purposes of this paragraph, this "litigation" shall mean the case captioned above. To the extent any party intends to disclose confidential documents or information to any person identified in items (d), (f) and (g) above, the party seeking to make such disclosure shall provide a copy of this Agreement and the Order confirming this Agreement to such person prior to such disclosure and shall affirmatively advise such person that this Agreement and the Order apply to that person. With respect to categories (d), (f) and (g) above, counsel for the party wishing to make the disclosure shall first obtain a signed consent and joinder from the person to whom such disclosure is to be made in the form attached as Exhibit "A" and shall maintain such signed consent(s) and joinder(s). Counsel shall deliver all such consent(s) and joinder(s) to counsel for the opposing party at the conclusion of the trial in this litigation. 2 3. Confidential Documents and Information in Depositions. (a) A deponent may during the deposition be shown, and examined about, confidential documents and information. Deponents shall not retain or copy confidential documents or portions of the transcript of their depositions that contain confidential information provided to them or the entities they represent under other provisions of this Order. (b) The parties anticipate that some or all of the depositions taken in this case will contain discussions of confidential information and therefore, unless the parties agree otherwise, or until further order of this Court, all transcripts of depositions taken in these cases will be regarded as confidential documents for a period of twenty (20) days following receipt of the transcript by both parties. A party may designate some or all of the transcript as "Confidential" by notifying the other party any time within the twenty day period. 4. Subpoena by Other Courts or Agencies. If another court or an administrative agency subpoenas or orders production of confidential documents which a party has obtained under the terms of this order, such party shall promptly notify the party or other person who designated the document as confidential of the pendency of such subpoena or order. 5. Filing. Confidential documents need not be filed with the Court except when required in connection with applicable discovery motions or other matters pending before the Court. If filed, they shall be filed under seal and shall remain sealed with the Court so long as they retain their status as stamped confidential documents. All documents filed under seal shall be placed in a box or envelope and marked "sealed by order of court." 6. Use. Persons obtaining access to confidential documents under this order shall use the information only for preparation and trial of this litigation (including appeals and retrials), and shall not use such information for any other purpose, including business, governmental, commercial, or administrative or judicial proceedings; nor shall such persons disclose the 3 information contained in such documents to any persons other than those to whom disclosures of such documents can be made under this order. 7. Non-Termination. The provisions of this order shall not terminate at the conclusion of this action. After final conclusion of all aspects of this litigation, confidential documents and all copies of same, including all electronic media (other than exhibits of record) shall be returned to the party or person which produced such documents. Alternatively, the party to whom confidential documents have been provided may produce a certificate signed by the party indicating that any confidential documents have been destroyed and the manner of destruction. 8. Modification Permitted. Nothing in this order shall prevent any party or other person from seeking modification of this order or from objecting to discovery that it believes to be otherwise conclusive. 9. No Waiver of Objections or Privilege. Nothing in this order shall be construed to waive the attorney-client or work product privileges or any other objection or privilege to or from discovery with respect to any document or information. 10. No Waiver of Claims or Defenses. (a) The failure of any party to stamp any document with the legend required by paragraph 1 hereof shall not be construed as an admission or waiver of any claim that the document is confidential as it relates to the claims and defenses asserted in this action. (b) The provisions of this order are for the convenience of the parties and the protection of their interests in maintaining the confidential nature of information produced in discovery, and this order shall not be construed in a way which limits any parties' claims or defenses. 11. Enforcement. This Agreement shall be enforceable in the court in which the above- captioned action is pending at the time of its execution, regardless of whether the above-captioned action is pending at the time of its enforcement. The parties and anyone who executes a consent 4 and joinder under paragraph 2 hereof hereby consent to the issuance of injunctive relief for the enforcement of this Agreement, including temporary, preliminary and permanent injunctive relief, in addition to any other remedies or relief which may properly be sought for the enforcement hereof. It is further agreed that the party or individual found to be in violation of this Agreement shall pay the reasonable attorneys fees and expenses of the prevailing party associated with the enforcement of this Agreement. 12. Execution. This Agreement may be executed in counterparts and may be executed and copies thereof exchanged by facsimile. JOHN W. TOWNE By: eZA4t C . 6'e ? Carl C. Risch, Esquire I.D. No. 75901 Christopher E. Rice, Esquire I.D. No. 90916 ASSOCIATED SPRING CORPORATION and BARNES GROUP INC. By Thomas G. Collins, Esquire I.D. No. 75896 Stephen Moniak, Esquire I.D. No. 80035 Martson, Deardorff, Williams & Otto 10 East High Street Carlisle, PA 17013 717/243-3341 SO ORDERED: ow,E 1 ob J. Buchanan Ingersoll, PC One South Market Square 213 Market Street, 3rd Floor Harrisburg, PA 17101 (717) 237-4800 * A '01Y r I V, 5 rj\V ,,, ?? ?.1 ?t? f .° ?? , iii ?.L `?', _ ?L% BUCHANAN INGERSOLL & ROONEY, P.C. Thomas G. Collins I.D. No. 75896 Nicole L. Borda I.D. No. 89214 213 Market Street, 3rd Floor Harrisburg, PA 17101 (717) 237-4800 Attorneys for Defendants JOHN W. TOWNE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. 05-201- Civil Term CIVIL ACTION - LAW ASSOCIATED SPRING CORPORATION and BARNES GROUP INC., JURY TRIAL OF TWELVE DEMANDED Defendants OBJECTIONS TO SUBPOENA PURSUANT TO RULE 4009.21 Defendants, Associated Spring Corporation ("Associated Spring") and Barnes Group, Inc. ("Barnes") (collectively "Defendants")1, by and through their attorneys, Buchanan Ingersoll & Rooney Professional Corporation, object to the proposed Subpoena that is attached to these Objections for the following reasons: 1. Plaintiff, John W. Towne, served upon Defendants the attached Notice Of Intent To Serve A Subpoena To Produce Documents And Things For Discovery Pursuant to Rule 4009.21 on March 27, 2007 (the "Notice"). (A copy of the Notice is attached hereto along with the relevant Subpoena.) 2. A proposed Subpoena directed to E-Team Communications, Inc. was attached to the Notice (the "Subpoena"). (As noted, a copy of the Notice and Subpoena are attached hereto.) 1 Associated Spring is an inactive subsidiary of Barnes. Plaintiff was employed by Barnes and not Associated Spring. 3. The address listed on the Subpoena for E-Team Communications, Inc. is 13729 Research Blvd., Suite 610-160, Austin, Texas 78760. 4. In the Subpoena, Plaintiff seeks the following records from E-Team Communications, Inc.: "[a]ny and all reports, documents, memoranda, drafts, surveys or other information or documents whether preliminary or final that were prepared or obtained in regard to services [] provided to or as a result of your engagement with the Barnes Group, Inc., Associated Spring Corporation and/or its division, Corry." 5. By way of background, E-Team Communications, Inc. is a consulting firm that was engaged at the direction of Defendants' in-house counsel to perform a Climate Assessment with respect to Defendants' plant located in Corry, Pennsylvania. Such Climate Assessment was commissioned by Defendants' in-house counsel following the filing of Grievance No. 433-7-04 on July 1, 2004, by UAW Local No. 629. 6. Grievance No. 433-7-04 dealt specifically with the conduct of Plaintiff, John W. Towne, in that the Grievance alleged specifically: We the members of Local 629 are aggrieved by the actions of John Towne. Since John has come to the division he has degraded us, threatened us, intimidated us, and treated us with disrespect. We have found him to be untruthful and impossible to work with. We feel harassed by his actions during on floor discussions and plant meetings. We demand that this harassment stop. We the members of Local 629 have and will cooperate with the company in areas of productivity and efficiencies in the plant. The issue contained in this grievance is one of John Towne's harassment, not of defiance from the direction the company is taking the division's business. 7. As the Climate Assessment was commissioned by Defendants' in-house counsel to assist in the evaluation of the legal risk to Defendants, if any, the information sought in the Subpoena is subject to the attorney-client and work-product privileges and not subject to discovery by Plaintiff.' Moreover, given the open ended and broad nature of the requests set forth in the Subpoena, the information sought is likely to contain the mental impressions, conclusions or opinions of Defendants' consultant respecting the value or merit of a claim or defense or respecting strategy or tactics which would not be subject to discovery pursuant to Pa. R. Civ. P. 4003.3. 8. Accordingly, Defendants hereby object to the Subpoena on the basis of the attorney-client and work-product privileges, as well as the limitation on discovery set forth in Pa. R. Civ. P. 4003.3. 9. Defendants further object to the Subpoena on grounds that the request are impermissibly broad and/or include confidential information. 10. Defendants further respectfully object on grounds that the Subpoena seeks the records of an entity located in Texas and outside the jurisdiction of this Honorable Court. As to objections, BU AN INGERSOLL & ROONEY, PC By: ?,oR.r- 4 n. Thomas G. Collins I.D. No. 75896 Nicole L. Borda I.D. No. 81924 213 Market Street, Third Floor Harrisburg, PA 17101 (717) 237-4800 Attorneys for Defendants DATE: April 16, 2007 i Defendants note that the Climate Assessment prepared by E-Team Communications, Inc. and dated September, 2004, has already been produced to Plaintiff as D000010 - D000016. Defendants object here to the production of the underlying files of E-Team Communications, Inc. which are likely to contain the mental impressions, conclusions or opinions of Defendants' consultant respecting the value or merit of a claim or defense or respecting strategy or tactics which would not be subject to discovery pursuant to Pa. R. Civ. P. 4003.3. R F:\FILES\DAT AFILE\General\Current\l 1437\11437. l . sub. notice Created: 12/22/97 10:14:24 AM Revised: 03127/07 08:58:06 AM Carl C. Risch, Esquire I.D. No. 75901 Christopher E. Rice, Esquire I.D. No. 90916 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs JOHN W. TOWNE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 05-201 Civil Term CIVIL ACTION -LAW ASSOCIATED SPRING CORPORATION and BARNES GROUP INC., Defendants JURY TRIAL OF TWELVE DEMANDED NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendant intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made, the subpoena may be served. MARTSON LAW OFFICES Christopher E. Rice, Esquire Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Attorneys for Plaintiff Date: 3-Z7.01 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND JOHN W. TOWNE, Plaintiff V. File No. 05-201 CIVIL, TERM ASSOCIATED SPRING CORPORATION and BARNES GROUP, INC., Defendant SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 "E" Team Communications, Inc., 13729 Research Blvd., Suite 610-160, Austin, TO: (Name of Person or Entity) TX 78 760 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all reports, documents, memoranda, drafts, surveys or other information or documents whether preliminary or final that were prepared or obtained in regard to services you provided to or as a result o your engag m n with the Barnes Group, Inc., Associated Spring Corporation and/or its division, Corry. artson Law Offices at 10 East High Street, Carlisle, PA 17013 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Christopher E. Rice, Esquire ADDRESS: 10 East High Street Carlisle, PA 17013 TELEPHONE: 717-243-3341 SUPREME COURT M # 90916 ATTORNEY FOR: Plaintiff Date: 'Seal of the Court BY THE COURT: Prothonotary, Civil Division Deputy CERTIFICATE OF SERVICE I, Thomas G. Collins, hereby certify that I am this day serving a copy of the foregoing document by United States First Class Mail, Postage Prepaid, upon the person indicated below: Christopher E. Rice, Esquire Martson Law Offices Ten East High Street Carlisle, PA 17013 CHA N INGERSOLL & ROONEY, PC Thomas G. Collins DATE: April 16, 2007 #1007601-v1 ? ?? ??? l (,7? _ j ^f''^' { +S'} i ?, ? ? 3 ?? ...., BUCHANAN INGERSOLL P.C. Thomas G. Collins, Esquire I.D. No. 75896 213 Market Street, 3rd Floor Harrisburg, PA 17101 (717) 237-4800 Attorneys for Defendants JOHN W. TOWNE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. 05-201 - Civil Term CIVIL ACTION - LAW ASSOCIATED SPRING CORPORATION and BARNES GROUP INC., JURY TRIAL OF TWELVE DEMANDED Defendants MOTION FOR SUMMARY JUDGMENT OF ASSOCIATED SPRING CORPORATION AND BARNES GROUP INC. Defendants, Associated Spring Corporation and Barnes Group Inc. (collectively "Barnes Group" or "Defendants")', by and through their attorneys, Buchanan Ingersoll & Rooney PC, file the following Motion for Summary Judgment pursuant to Pa. R. Civ. P. 1035.2, and state as follows: Procedural History 1. Plaintiff, John W. Towne, commenced this action by Complaint on January 10, 2005 (the "Original Complaint"). ' Associated Spring Corporation is an inactive subsidiary of Barnes Group Inc. Plaintiff was employed by Barnes Group Inc. and not Associated Spring Corporation. Given the inherent factual nature of any inquiry into Plaintiff s employment relationship with Associated Spring Corporation, the dispositive arguments set forth in the instant Motion for Summary Judgment are being raised on behalf of both Associated Spring Corporation and Barnes Group Inc. Defendants reserve the right, however, to raise the lack of privity between Plaintiff and Associated Spring Corporation, should Plaintiffs Complaint survive the instant Motion for Summary Judgment. 2. Defendants timely filed Preliminary Objections to the Original Complaint, pursuant to Pa. R.C.P. 1028, on February 2, 2005. 3. In response to Defendant's Preliminary Objections to the Original Complaint, Plaintiff filed his First Amended Complaint on or about February 14, 2005. 4. Defendants timely filed Preliminary Objections to the First Amended Complaint, pursuant to Pa. R.C.P. 1028, on March 7, 2005. 5. In response to Defendant's Preliminary Objections to the First Amended Complaint, Plaintiff filed his Second Amended Complaint on or about March 22, 2005. (A copy of Plaintiff's Second Amended Complaint is attached hereto as Exhibit "A", and will hereinafter be referred to as the "Complaint" for ease of reference.) 6. Defendants timely filed their Answer to the Complaint on April *11, 2005. Factual Background 7. Plaintiff was hired by Barnes Group Inc. in or about December of 2003, to work as "Division Manager, Associated Spring-Corry." (Complaint, ¶¶ 4, 6) (Complaint, Exhibit «A „) 8. Plaintiff alleges specifically in the Complaint that "[o]n or about December 17, 2003, Plaintiff was presented with a written offer for a position with Associated Spring and/or Barnes Group Inc. of Division Manager, Associated Spring-Corry ("offer"). A true and correct copy of the offer is attached hereto as Exhibit `A."' (Complaint, ¶ 4.) 9. Plaintiff has further alleged that "/t/he offer was accepted and signed by Plaintiff in Cumberland County." (Complaint, ¶ 6) (emphasis added.) 2 10. In fact, Plaintiff alleges specifically that "Plaintiff entered into an employment agreement with Defendants by accepting the offer in Cumberland County, Pennsylvania." (Complaint, ¶ 7) (emphasis added.) 11. Plaintiff's claims in the instant action are thus premised exclusively upon the letter agreement dated December 17, 2003, and attached to Plaintiff's Complaint as Exhibit "A" (hereinafter the "Letter Agreement"). (Complaint, ¶T 9, 10.)2 12. Plaintiff commenced employment with Barnes Group in January of 2004. (Complaint, ¶ 11.) 13. Plaintiff's employment with Barnes Group was terminated on December 3, 2004. (Original Complaint, ¶ 16) (See also First Amended Complaint, ¶ 16.) 14. Plaintiff seeks to recover separate lump sum and incentive bonuses alleged to be due and owing under the terms of the Letter Agreement. (Complaint, ¶¶ 9, 10.) 15. Plaintiff alleges causes of action for Breach of Contract (Count I) (Complaint, ¶¶ 21-30), Unjust Enrichment (Count II) (Complaint, ¶¶ 31-34), and violations of the Pennsylvania Wage Payment and Collection Law ("WPCL") (Count III) (Complaint, ¶¶ 35-39). Depositions and Discovery 16. Defendants submitted interrogatories and requests for production to Plaintiff on April 20, 2005.3 Defendants specifically asked Plaintiff to "[i]dentify each individual who has knowledge of any facts relevant to the allegations in the Complaint, or any defense thereto, and briefly describe the substance of each person's knowledge." 17. Plaintiff responded to Defendants' Interrogatory 14 as follows: z Defendants note in this regard that the Letter Agreement is referred to by Plaintiff throughout the Complaint as the "employment agreement." Complaint, 17, 8, 9, 10, 26, 29, 30. 3 Defendants' First Set of Interrogatories Directed to Plaintiff John W. Towne will be filed of record with the Court in support of this Motion. 3 Richard McCorry - Mr. McCorry supervised Plaintiff and is aware of his performance at work. Larry Johnson - Mr. Johnson supervised Plaintiff and is aware of his performance at work. Plaintiff may supplement this response.4 18. Richard P. McCorry was deposed by Plaintiff on August 7, 2007.5 19. Mr. McCorry testified that he served as "President of Associated Spring, Incorporated" and "Vice President of Barnes Group [] Inc." (McCorry Dep. pg. 6, Ins. 19-21.) 20. Mr. McCorry had responsibility for the Corry, Pennsylvania, operations "from a hierarchy perspective." (McCorry Dep. pg. 8, Ins. 3-4.) 21. Mr. McCorry hired Plaintiff. (McCorry Dep. pg. 8, Ins. 21-23.) 22. Mr. McCorry testified as follows as to the reporting hierarchy with respect to the Corry operation: Q. Okay. And did you have anybody working for you that was managing this company at the Corry, Pennsylvania location? A. Well, I had a person report to me named Larry Johnson. He was Vice President of Operations, which, I call it, a mini portfolio of some of our US plants. And reporting directly to Larry was John. (McCorry Dep. pg. 8, Ins. 9-15) (emphasis added.) 23. Larry E. Johnson was deposed by Plaintiff on April 28, 2006.6 24. Mr. Johnson confirmed at his deposition that Plaintiff reported to him directly. (Johnson Dep. pg. 28, Ins. 8-17.) a Plaintiff's Response to Defendant's First Set of Interrogatories Directed to Plaintiff John W. Towne will be filed of record with the Court in support of this Motion. 5 Mr. McCorry's deposition will be filed of record with the Court in support of this Motion. 6 Mr. Johnson's deposition will be filed of record with the Court in support of this Motion. 4 I. PLAINTIFF'S BREACH OF CONTRACT (COUNT I) CLAIMS MUST FAIL AS PLAINTIFF CLEARLY FAILED TO MEET THE MINIMUM CRITERIA EXPRESSLY SET FORTH IN THE LETTER AGREEMENT FOR EITHER THE LUMP SUM OR INCENTIVE BONUSES. A. Lump Sum Bonus 25. The averments in Paragraphs 1 through 24 above are incorporated herein by reference. 26. Plaintiff has alleged that "[a]ccording to the employment agreement, Defendants agreed to pay Plaintiff a lump sum bonus of $25,000.00 (`bonus') each year on December 31, for services provided that year." (Complaint, ¶ 9.) 27. The Letter Agreement provides as follows with respect to the lump sum bonus: In addition, we will provide you with a lump sum bonus of $25,000 (less applicable federal and state withholdings) each year on December 31, through 2005, as long as you remain continuously employed with Associated Spring or Barnes Group Inc. and your performance is rated as exceeds expectations or better. (Letter Agreement, ¶ 2) (emphasis added.) 28. Thus, pursuant to the express terms of the Letter Agreement - upon which Plaintiff's claim for the lump sum bonus is premised - there were two distinct conditions precedent relative to the payment obligation: (1) continuous employment through December 31; and (2) a performance rating of "exceeds expectations or better." 29. As to the second requirement, Mr. McCorry has clearly testified that Plaintiff reported directly to Mr. Johnson. (McCorry Dep. pg. 58, Ins. 6-14.) 30. Mr. Johnson confirmed at his deposition that Plaintiff reported directly to him. (Johnson Dep. pg. 28, Ins. 8-17.) 31. Mr. Johnson was in fact responsible for completing Plaintiff's Annual Performance Assessment and Development Review. (Johnson Dep., Defendant's Exhibit No. 1.) 5 32. As Plaintiff's immediate supervisor, Mr. Johnson has clearly testified that Plaintiff did not achieve a performance rating of "exceeds expectations or better." To the contrary, Mr. Johnson expressed a number of serious concerns with respect to Plaintiff's performance at his deposition concluding ultimately as follows on the point: Q. Would it be fair to say, then, that your assessment as of December 3rd, 2004 was that John's performance rating was "partially meets expectations"? A. Yes, that's correct. Q. Is that still your opinion here today? A. Yes, it is. (Johnson Dep. pg. 72, Ins. 10-13) (emphasis added.) 33. Mr. Johnson's position was accurately reflected on Plaintiff's Annual Performance Assessment and Development Review provided to Plaintiff on December 3, 2004. (Johnson Dep., Defendant's Exhibit No. 1) ("PERFORMANCE RATING Partially Meets Expectations") ("John's current performance is not satisfactory and as such his employment with the company is being terminated") (emphasis added.) 34. In sum, there is no reasonable dispute that Plaintiff's direct supervisor had serious concerns with respect to Plaintiff's performance based upon reasonable and objective criteria and awarded Plaintiff a rating of less than "exceeds expectations or better." In fact, Plaintiff's employment was terminated as a result of these concerns. Plaintiff's failure to obtain a rating of "exceeds expectations or better" is fatal to his claim for the lump sum bonus. 35. Moreover, as to the first requirement for the lump sum bonus, Plaintiff has correctly pled in both his Original Complaint and the First Amended Complaint that his employment was terminated on December 3, 2004. (Original Complaint, ¶ 16) (First Amended Complaint, ¶ 16.) Plaintiff creatively alleges in the most recent Complaint that "Defendants 6 employed Plaintiff through December 31, 2004." This bald assertion appears disingenuous in light of Plaintiff's prior allegations and the clear testimony of Mr. Johnson: Q. And you said John Towne worked here until December 3rd of 2004. Why was he no longer working here after that date? A. I relieved John of his position December 3rd based on poor performance of the division. (McCorry Dep. pg. 13, Ins. 21-25.) 36. Plaintiff's claim that he was "employed through December 31, 2004" appears to be premised on the fact that he was compensated through such date. (First Amended Complaint, ¶ 16.) The Letter Agreement provides expressly, however, that Plaintiff will be "paid monthly in advance." (Letter Agreement, ¶ 2.) The fact that Plaintiff was paid "monthly in advance" does not alter the undisputed fact that Mr. Johnson terminated Plaintiff's employment on December 3, 2004. As such, the first condition precedent for the lump sum bonus payment obligation also fails as a matter of law as Plaintiff simply was not "continuously employed" through December 31, 2004. B. The Incentive Bonus 37. The Letter Agreement provides as follows with respect to the incentive bonus: You will participate in the Company's annual incentive program effective on your date of employment on a prorated basis ... The incentive payout is achieved by Associated Spring - Corry Division successfully attaining its profitability and revenue targets, and your successfully attaining individual performance goals and criteria that we establish from time to time. Eighty percent (80%) of the payout amount generated for 2004, if any, will be payable to you in late February, 2005. The remaining twenty percent (20%) of the 2004 payout will be paid, along with the payout generated for 2005, if any, in late February, 2006, provided you have remained continuously employed through December 31, 2005, even if your term of employment has subsequently ended ... Payouts to participants are subject to the provisions of the plan. (Letter Agreement, ¶ 4) (emphasis added.) 7 3 8. Thus, pursuant to the express terms of the Letter Agreement - upon which Plaintiff's claim to the incentive bonus is premised - there were two distinct conditions precedent relative to the payment obligation: (1) the Corry Division successfully attaining its profitability and revenue targets; and (2) Plaintiff successfully attaining individual performance goals and criteria." 39. Mr. McCorry has testified as follows with respect to whether the Corry Division attained its profitability targets: Q. The incentive payout. I'm going to start on, I guess, the third line. It says the incentive payout is achieved by Associated Spring Corry division successfully attaining it's profitability and revenue targets. A. Correct. Q. Did you consider that a condition to payment of the incentive bonus? A. Yes. Q. And, again, do you have any knowledge as to whether or not the Corry division met it's profitability and revenue targets for 2004? A. I know they did not. However, I do know that John had proposed changes that we overrode at a division in the group level. Q. Okay. And I don't mean to be blunt. But the answer is that the Corry division did not obtain it's profitability targets for 2004. Is that correct? A. That's correct within their --yes. (McCorry Dep. pg. 43, Ins. 20-25, pg. 44, Ins. 1-9, 21-24.) 40. Mr. Johnson's testimony confirms that the Corry Division failed to meet its minimum profitability and revenue targets under Plaintiff's direction. (Johnson Dep. pg. 48, Ins. 5-6,17-20.) 8 41. There appears to be no factual dispute that the Corry Division failed to meet even its minimum profitability and revenue targets. This fact alone defeats Plaintiff's claim to the incentive bonus. 42. As to the second condition precedent for the incentive bonus, Plaintiff also failed to meet his individual performance goals. Mr. Johnson has testified as follows as to his expectations of Plaintiff's individual performance: Q. The sentence goes on, "Successfully attaining individual performance goals." Do you know what John Towne's individual performance goals were for 2004? A. None, other than to meet the revenue and the profit line and continue the enhancement of the working relationship with the UAW and successfully negotiate a three-year contract. Q. Did he successfully negotiate a three-year contract? A. No. Q. Did he successfully enhance the relation with the United Auto Workers? A. No. Q. Did the Corry division of Associated Spring reach its profitability goals? A. No. (Johnson Dep. pg. 80, Ins. 9-24.) 43. In sum, Plaintiff's individual performance also failed to meet Mr. Johnson's expectations. Plaintiff has thus failed to satisfy the second condition for payment of the incentive bonus. This failure is independently fatal to his claim for the incentive bonus. 44. In addition to the above, payouts of the incentive bonus "are subject to" the Barnes Group Inc. Management Incentive Compensation Plan (the "Plan"). (Complaint, Exhibit "A", Letter Agreement, ¶ 4.) The Plan expressly provides in this regard that "a person must be 9 employed by the Company or one of its subsidiaries on the date when an award is paid in order to be eligible to receive an Award ..." 45. In light of the foregoing, continuous employment through the date of payment was an additional condition precedent to the incentive bonus payment obligation. 46. Plaintiff has alleged that the incentive bonus was "payable in late February (`incentive') for the proceeding year." (Complaint, ¶ 10.) Plaintiff has further alleged that he was employed no later than December 31, 2004.8 (Complaint, ¶ 16.) 47. As such, Plaintiff has failed to satisfy this additional condition precedent for the incentive bonus payment. C. Anticipatory Breach 48. Plaintiff further alleges that "Defendants have anticipatorily breached their obligations under the employment agreement by stating that they will not pay Plaintiff either his bonus or incentive." (Complaint, ¶ 29.) 49. The Letter Agreement expressly provided as follows as to the term of Plaintiff's employment: This letter sets forth our offer of employment and is not intended to create an expressed or implied contract of any kind, nor shall it be construed to constitute a promise or contract of lifetime or continuing employment. Your employment with Barnes Group Inc. is at will and may be terminated at any time, with or without cause, by either you or the Company. (Letter Agreement, pg. 4) (emphasis added.) The Plan, as amended on December 12, 2001, will be filed of record with the Court in support of this Motion. Such document forms a part of the Letter Agreement attached to Plaintiff's Complaint as Exhibit "A." 8 As discussed above, Defendants contend that Plaintiff was in fact terminated on December 3, 2004, as previously alleged by Plaintiff. (Original Complaint, 116.) 10 50. Plaintiff has alleged that: The offer dated December 17, 2003, and attached hereto as Exhibit "A" became the employment agreement. See Exhibit "A." (Complaint, 18) (emphasis added.) 51. The Letter Agreement- attached to Plaintiff's First Amended Complaint as Exhibit "A" - clearly established the "at-will" nature of Plaintiff's employment. 52. Thus, Defendants were free to terminate Plaintiff's employment on December 3, 2004. 53. Such termination was not in breach of the Letter Agreement. 54. As Plaintiff's employment was properly terminated under the Letter Agreement on December 3, 2004, there can be no "anticipatory breach" relative to the lump sum or incentive bonus payments. 55. As a condition precedent has not been met by Plaintiff for the lump sum and incentive bonuses under the terms of the Letter Agreement, Defendants have no obligation to pay either as a matter of law. Stebok v. American General Life Ins. Co., 715 F. Supp. 711 (W.D. Pa. 1989). 56. No material facts are in dispute and Defendants are entitled to judgment as a matter of law. WHEREFORE, the Barnes Group Defendants respectfully request that this Honorable Court grant their Motion for Summary Judgment in the form of the proposed Order attached hereto as Exhibit "B." 11 II. PLAINTIFF'S CLAIMS FOR UNJUST ENRICHMENT (COUNT II) FAIL AS A MATTER OF LAW AS HIS CLAIMS ARE PREMISED UPON THE EXPRESS TERMS OF THE LETTER AGREEMENT 57. The averments in paragraphs 1 through 56 above are incorporated herein by reference. 58. In Paragraphs 31-34 of the Complaint, Plaintiff purports to state an equitable claim for "Unjust Enrichment." 59. To state a claim for unjust enrichment, Plaintiff must demonstrate "benefits conferred on defendant by plaintiff, appreciation of such benefits by defendant, and acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value." Temple Univ. Hosp., Inc. v. Healthcare Management Alternatives, Inc., 832 A.2d 501, 507 (Pa. Super. 2003). 60. Plaintiff's claims are clearly premised, however, on the alleged breach by Defendants of the terms of the Letter Agreement. (Complaint, ¶¶ 1-30.) Plaintiff has alleged specifically that: The offer dated December 17, 2003, and attached hereto as Exhibit "A" became the employment agreement. See Exhibit "A." (Complaint, ¶ 8.) 61. Pennsylvania courts have held that the doctrine of unjust enrichment "is clearly `inapplicable when the relationship between the parties is founded on a written agreement or express contract."' Roman Mosaic and Tile Co. v. Vollrath, 313 A.2d 305, 307 (Pa. Super. 1974) (quoting Third Nat'l Bank & Trust Co. of Scranton v. Lehigh Valley Coal Co., 353 Pa. 185, 44 A.2d 571 (1945)). 62. Thus, because Plaintiffs claims are clearly premised upon the terms of the Letter Agreement, Plaintiff fails to state a claim for unjust enrichment as a matter of law. 12 63. No material facts are in dispute and Defendants are entitled to judgment as a matter of law. WHEREFORE, the Barnes Group Defendants respectfully request that this Honorable Court grant their Motion for Summary Judgment in the form of the proposed Order attached hereto as Exhibit "B." III. PLAINTIFF'S CLAIM UNDER THE WPCL ALSO MUST FAIL WHERE HE CAN NOT ESTABLISH THAT HE IS ENTITLED TO EITHER THE INCENTIVE OR LUMP SUM BONUSES. 64. The averments in paragraphs 1 through 63 above are incorporated herein by reference. 65. As Plaintiff is not contractually entitled to either the lump sum or incentive bonuses, there can be no violation of the Pennsylvania Wage Payment and Collection Law. 66. No material facts are in dispute and Defendants are entitled to judgment as a matter of law. WHEREFORE, the Barnes Group Defendants respectfully request that this Honorable Court grant their Motion for Summary Judgment in the form of the proposed Order attached hereto as Exhibit "B." Respectfully submitted, B HAN INGERSOLL PC By: Thomas G. Col ins, squire I.D. No. 75896 213 Market Street, Third Floor Harrisburg, PA 17101 (717) 237-4800 Attorneys for Defendants DATE: October 4, 2007 13 CERTIFICATE OF SERVICE I, Thomas G. Collins, hereby certify that I am this day serving a copy of the foregoing document by United States First Class Mail, Postage Prepaid, upon the person indicated below: Christopher E. Rice, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 BUCHANAN INGERSOLL PC By: Thomas G. Collins DATE: October 4, 2007 F:\FILES\DATAFILE\General\Current\ 11437. I . com. Created: 3/30104 0:48PM Revised: 3/15/05 1 1:3 3 AM MARTSON DEARDORFF WILLIAMS & OTTO Carl C. Risch, Esquire I.D. No. 75901 Christopher E. Rice, Esquire T.D. No. 90916 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs JOHN W. TOWNE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 05-201 Civil Term CIVIL ACTION - LAW ASSOCIATED SPRING CORPORATION and BARNES GROUP INC., Defendants JURY TRIAL OF TWELVE DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 JOHN W. TOWNE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 05-201 Civil Term CIVIL ACTION - LAW ASSOCIATED SPRING CORPORATION and BARNES GROUP INC., Defendants JURY TRIAL OF TWELVE DEMANDED SECOND AMENDED COMPLAINT 1. Plaintiff, John W. Towne, is an adult individual residing at 32 Liberty Court, Carlisle, Cumberland County, Pennsylvania. 2. Defendant Associated Spring Corporation is a Delaware business with a business address of Group Headquarters, 80 Scott Swamp Road, Farmington, Connecticut 06032. Defendant Associated Spring's registered agent is Barnes Group Inc., 123 Main Street, Bristol, Connecticut 06010. 3. Defendant Barnes Group Inc., is a Delaware business with a business address of 123 Main Street, Bristol, Connecticut 06010. Defendant Barnes Group's registered agent is National Registered Agents, Inc., 12 Old Boston Post Road, Old Saybrook, Connecticut 06475. 4. On or about December 17, 2003, Plaintiff was presented with a written offer for a position with Associated Spring and/or Barnes Group Inc. of Division Manager, Associated Spring- Corry ("offer"). A true and correct copy of the offer is attached hereto as Exhibit "A." 5. The offer was mailed to and received by Plaintiff at his residential address listed above. 6. The offer was accepted and signed by Plaintiff in Cumberland County, Pennsylvania. 7. Plaintiff entered into an employment agreement with Defendants by accepting the offer in Cumberland County, Pennsylvania. 8. The offer dated December 17, 2003, and attached hereto as Exhibit "A" became the employment agreement. See Exhibit "A." 9. According to the employment agreement, Defendants agreed to pay Plaintiff a lump sum bonus of $25,000.00 ("bonus") each year on December 31, for services provided that year. 10. Further, according to the employment agreement, Defendants agreed to pay Plaintiff a sum pursuant to an incentive program payable in late February ("incentive") for the proceeding year. 11. Plaintiff began working for Defendants on or about January of 2004. 12. Plaintiff worked at Defendants' office located at 226 South Center Street, Corry, Pennsylvania, while maintaining his domicile in Cumberland County, Pennsylvania. 13. Plaintiff provided, among other things, consulting services to Defendants during his 2004 employment with Defendants. 14. At all relevant times during Plaintiff's employment with Defendants, Plaintiff faithfully discharged his duties as directed by Defendants' President, Richard McCorry, and Defendants' Vice President of Manufacturing, Larry Johnson. 15. At all relevant times during Plaintiff's employment with Defendants, Plaintiff exceeded expectation as defined by Defendants' President, Richard McCorry, and Defendants' Vice President of Manufacturing, Larry Johnson. 16. Defendants employed Plaintiff through December 31, 2004. 17. Defendants paid Plaintiff through December 31, 2004. 18. Therefore, for purposes of entitlement to the bonus and incentive, Plaintiff was an employee of Defendant until December 31, 2004. 19. Plaintiff's bonus and incentive are fair and reasonable. 20. Plaintiff's bonus and incentive are earned income for 2004. COUNTI Breach of Contract 21. Paragraphs 1-20 are incorporated herein by reference as is full set forth below. 22. Plaintiff was terminated by Defendant without cause or reason that would prohibit Plaintiff from being entitled to his bonus and incentive. 23. Plaintiff has earned and is entitled to his bonus of $25,000.00 for the services he provided to Defendants as an employee during 2004. 24. Plaintiff believes, and therefore avers, that the incentive calculation for 2004 is 18%. 25. Plaintiff has earned and is entitled to the full incentive of 18% of his base salary ($125,000.00), which is $22,500.00. The actual payout under the incentive program to Plaintiff in February of 2005 would be 80% of the $22,500.00, or $18,000.00. The remaining 20% or $4,500.00 would be paid out to Plaintiff in late February of 2006. 26. Including, but not limited to, the satisfactory provision of services in accordance with the employment agreement, Plaintiff has satisfied all conditions in order to receive the bonus and incentive. 27. Defendants, on or about December 20, 2004, informed Plaintiff's counsel that they will not pay Plaintiff either his bonus or incentive. 28. Defendants made an absolute and unequivocal refusal to pay Plaintiff both his bonus and incentive. 29. Defendants have anticipatorily breached their obligations under the employment agreement by stating that they will not pay Plaintiff either his bonus or incentive. 30. Defendants have breached the employment agreement by failing to pay Plaintiff both his bonus and incentive. WHEREFORE, Plaintiff demands that Defendants pay Plaintiff both his bonus of $25,000.00, and his incentive, $22,500.00, plus costs, interest, and any other relief that the court deems appropriate. COUNT II Unjust Enrichment 31. Paragraphs 1-30 are incorporated herein by reference as is full set forth below. 32. In the alternative, if no written agreement is in effect between Defendants and Plaintiff, Defendants have been unjustly enriched by their refusal to pay the bonus and/or the incentive. 33. Plaintiff has provided services to Defendant. 34. Defendants have received the benefit of Plaintiff's services. WHEREFORE, Plaintiff demands that Defendants pay Plaintiff both his bonus of $25,000.00, and his incentive, $22,500.00, plus costs, interest, and any other relief that the court deems appropriate. COUNT III Pennsylvania Wage Payment and Collection Law 35. Paragraphs 1-36 are incorporated herein by reference as is full set forth below. 36. Defendants are in violation of the Pennsylvania Wage Payment and Collection Law ("WPCL") 37. Defendants have failed to pay and/or denied payment of the bonus to Plaintiff. 38. Defendants have failed to pay and/or denied payment of the incentive to Plaintiff. 39. Underthe WPCL, Plaintiff is entitledto attorneyfees, specifically43 P.S. § 260.9a(f), costs and fees associated with this lawsuit, and any other relief under the WPCL. WHEREFORE, Plaintiff demands that Defendants pay Plaintiff both his bonus of $25,000.00, and his incentive, $22,500.00, plus attorney's fees, costs, interest, and any other relief that the court deems appropriate. MARTSON DEARDORFF WILLIAMS & OTTO . By J Carl C. Risch, Esquire I.D. Number 75901 Christopher E. Rice, Esquire I.D. Number 90916 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs Dated: March 15, 2005 Associated' December 17, 2003 Mr. John W. Towne 32 Liberty Court Carlisle, PA 17013 Dear John: We are pleased to offer you the position of Division Manager, Associated Spring - Corry effective January 19, 2004, or your date of employment. The expected duration of your employment will be 24 months, through December 2005. The terms or conditions of this offer as set out below will not be affected if the length or nature of your employment is extended or changed. In this position you will report to me and be headquartered in Corry, PA. Your annual salary will be $125,000, paid monthly in advance. In addition, we will provide you with a lump sum bonus of $25,000 (less applicable federal and state withholdings) each year on December 31, through 2005, as long as you remain continuously employed with Associated Spring or Barnes Group Inc. and your performance is rated as exceeds expectations or better. You will also receive at the beginning of each calendar year, through 2005, a lump sum Universal Allowance of $15,000 annually (less applicable federal and state withholdings). This allowance is yours to use however you choose, and is intended to compensate you for additional personal expenses you may incur in connection with your assignment at Associated Spring - Corry. You will participate in the Company's annual incentive program effective on your date of employment on a prorated basis. Your target incentive under this plan is 30% of base salary, with a maximum payout of 90% of salary. The incentive payout is achieved by Associated Spring - Corry Division successfully attaining its profitability and revenue targets, and your successfully attaining individual performance goals and criteria that we establish from time to time. Eighty percent (80%) of the payout amount generated for 2004, if any, will be payable to you in late February, 2005. The remaining twenty percent (20%) of the 2004 payout will be paid, along with the payout generated for 2005, if any, in late February, 2006, EXHIBIT A December 17, 2003 Mr. Joluz W. Towne provided you have remained continuously employed through December 31, 2005, even if your teen of employment has subsequently ended. Participation in the Company's short-term incentive plan brings your total cash compensation for 2004, including your lump sum bonus, to $187,500 at target, and to a maximum of $262,500. Payouts to participants are subject to the provisions of the plan. Your employee benefits will include the following: ? Health Insurance Plan (contributory on a pre-tax cost-sharing basis). ? Dental Assistance Plan (contributory on a pre-tax cost-sharing basis). ? Employee Stock Purchase Plan with a purchase price of 85% of fair market value, subject to statutory limits. ? Retirement Savings Plan [401(k)] with a Company matching contribution of 50% of the amount you contribute on a pre-tax basis, up to 6% of eligible earnings (i.e., Company match is capped at 3% of eligible earnings). The Plan offers a wide range of investment funds for both your own contributions and your company match. ? Salaried Retirement Income Plan (a qualified defined benefit retirement income plan). ? Group Term Life Insurance of 1.5 times salary (noncontributory). ? Optional Group Term Life Insurance of one to four times salary (contributory). ? Optional Dependent Term Life Insurance of up to $100,000 and $10,000 for a spouse and each dependent child, respectively, as applicable (contributory). ? Short-tern disability coverage, with a benefit of up to 26 weeks' salary continuation (non-contributory). ? Long-Term Disability coverage, with a benefit of 40% of covered earnings being provided by the Company. You have the option to purchase additional coverage to 50% and 66 2/3% of covered earnings, subject to plan limits. ? $100,000 Accidental Death & Dismemberinert Insurance. ? Business Travel Accident Insurance. December 17, 2003 Mr. John W. Towne You will receive a package containing all enrollment information for the above- mentioned benefits. Coverage under the Health Insurance Plan, Dental Benefit Plan, and life and accident insurance plans, if you choose to enroll, is effective on the first day of the first full month of employment (February 1 st, assuming a January 19th start date). Coverage under the Long-Term and Short-Term Disability plans begins on the first day of the calendar month following the completion of 90 days' continuous service (May 1 st, assuming a January 19th start date). Participation in the RSP is effective on the first day of the month that falls at least 30 days after you file your enrollment form (March 1st, assuming you enroll by January 30th). You are eligible to participate in the ESPP on your employment date. Employees hired after January 1, 1993 are not entitled to participate in any retiree health care insurance plans. A company-leased automobile assigned to the Corry facility will be provided to you during your assignment. You will receive taxable compensation annually based on personal use, including commutation miles, in accordance with IRS regulations. Upon successful conclusion of this assignment, the Company may, at its sole discretion, renew your assignment or, in good faith, attempt to transfer you to a position of comparable responsibility, salary, benefits and grade level within the United States. If a suitable position is not available at that time, you will be eligible for appropriate benefits under the Barnes Group Inc. Executive Separation Pay Plan as is in effect at that time. This plan currently provides, in addition to other separation benefits, additional separation pay of four months of base salary (without consideration of any bonuses and allowances), subject to the provisions of the plan. In addition, you would be provided with outplacement assistance consistent with the Company's practice for positions of comparable level. In the event that you resign from Associated Spring or Barnes Group Inc. or are discharged for cause, the Company will not be obligated to provide you with separation benefits, absent special circumstances, under which the Company, at its sole discretion, may decide to provide you with partial or full benefits as it determines are reasonable. You will be entitled to three weeks' vacation annually, and three "floating" holidays, beginning in 2004 in accordance with the policy. All prospective Barnes Group employees are required to pass a urinalysis test for the presence of drugs, and to undergo a standard physical examination. This offer of employment is contingent upon your drug test and physical examination yielding satisfactory results. December 17, 2003 Mr. John W. Towne This letter sets forth our offer of employment and is not intended to create an expressed or implied contract of any kind, nor shall it be construed to constitute a promise or contract of lifetime or continuing employment. Your employment with Barnes Group inc. is at will and maybe terminated at any time, with or without cause, by either you or the Company. The terms of this offer supersede and take the place of any prior written or oral offers of employment. Barnes Group Inc. also has the right to change, interpret, withdraw, or add to any of the policies, benefits, terms or conditions of employment at any time. The terms and conditions of this letter may only be amended or modified in writing by myself. Should you have any questions with regard to the above, please contact Dawn N. Edwards, Group Director, Human Resources directly at (860) 409-4626. To accept this offer, please sign, date, and return the enclosed duplicate copy of this letter to Dawn Edwards within three (3) days of receipt. John, I look forward to your becoming a part of the Associated Spring team and contributing to our growth and profitability. Sincerely, Richard P. McCorry? President, Associated Spring Agreed to and accepted: John W. Towne Date q1 - L r fA ? Fri + ` VERIFICATION Christopher E. Rice, Esquire, of the firm of MARTSON DEARDORFF WILLIAMS & OTTO, attorneys for Plaintiff John W. Towne in the within action, certifies that the statements made in the foregoing First Amended Complaint are true and correct to the best of his knowledge, information and belief. He understands that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unworn falsification to authorities. This Verification is being made by Plaintiff's attorney because Plaintiff is located out-of- state. Plaintiff will substitute this verification with one of his own. Christopher E. Rice Date: March 22, 2005 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Second Amended Complaint was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Thomas G. Collins, Esquire BUCHANAN INGERSOLL PC 213 Market Street, Third Floor Harrisburg, PA 17101 By MARTSON DEARDORFF WILLIAMS & OTTO Christopher E. Rice Dated: March 22, 2005 JOHN W. TOWNE, Plaintiff V. ASSOCIATED SPRING CORPORATION and BARNES GROUP INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 05-201 - Civil Term CIVIL ACTION - LAW JURY TRIAL OF TWELVE DEMANDED ORDER AND NOW, this day of 2007, upon consideration of Defendants Associated Spring Corporation and Barnes Group Inc.'s Motion for Summary Judgment, it is hereby ORDERED that said Motion is GRANTED. Plaintiff's Complaint is DISMISSED in its entirety with prejudice. BY THE COURT: J #1015434-v1 BUCHANAN INGERSOLL & ROONEY, P.C. Thomas G. Collins, Esquire I.D. No. 75896 213 Market Street, 3rd Floor Harrisburg, PA 17101 (717) 237-4843 Attorneys for Defendants JOHN W. TOWNE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. 05-201- Civil Term CIVIL ACTION - LAW ASSOCIATED SPRING CORPORATION and BARNES GROUP INC., JURY TRIAL OF TWELVE DEMANDED Defendants PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: 1. Please list Defendants Associated Spring Corporation and Barnes Group, Inc.'s Motion for Summary Judgment filed on October 5, 2007, for argument on November 21, 2007. 2. Identify counsel who will argue case: (a) for plaintiff Christopher E. Rice Martson Deardorff Williams Otto Gilroy & Faller 10 E. High Street Carlisle, PA 17013 (b) for defendant Thomas G. Collins Buchanan Ingersoll & Rooney, PC. 213 Market Street, 3rd Floor Harrisburg, PA 17101 L 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: November 21, 2007 BU A? N INGERSOLL & ROONEY, PC By: Thomas G. Collins, Esquire I.D. No. 75896 213 Market Street, Third Floor Harrisburg, PA 17101 (717) 237-4843 Attorneys for Defendants Associated Spring Corporation and Barnes Group, Inc. DATE: October 29, 2007 2 CERTIFICATE OF SERVICE I, Cynthia L. Ziegler, hereby certify that I am this day serving a copy of the Praecipe for Listing Case For Argument by United States First Class Mail, Postage Prepaid, upon the person indicated below: Christopher E. Rice, Esquire Martson Deardorff Williams Otto Gilroy & Faller 10 East High Street Carlisle, PA 17013 94" d . ynthia L. Ziegler DATE: October 29, 2007 r 4.i. kJ ' 't tIO ` j F:\FILES\Clients\11437\I1437.I.pra Created: 5(2!05 &23AM Revised: 12117107 I I :14AM Christopher E. Rice, Esquire I.D. No. 90916 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs JOHN W. TOWNE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 05-201 CIVIL TERM CIVIL ACTION - LAW ASSOCIATED SPRING CORPORATION and BARNES GROUP INC., Defendants JURY TRIAL OF TWELVE DEMANDED PRAECIPE To the Prothonotary: Please mark the above-captioned matter settled and discontinued with prejudice. MARTSON LAW OFFICES Date: f7, -/7-07 gy 2,44? S /L, Christopher E. Rice, Esquire Attorney I.D. 90916 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorney for Plaintiff