HomeMy WebLinkAbout06-4054
Goldberg Katzman, P.C.
Steven E. Grubb, Esquire, l.O,# 75897
Attorney for Plaintiff
320 Market Street, Strawberry Square
P. O. Box 1268
Harrisburg, P A 17108-1268
(717) 234-4161
JOHN M. CADDELL.
Plaintiff
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. Or.. ,-/o(lf ~ T~
ELECTRONICS AND UNIT RECORD :
DATACENTER, INC., d/b/aEUR
SYSTEMS; APTIS, INC.; INTEC USA, :
INC. and INTEC BILLING SERVICES, :
INC., CIVIL ACTION - IN EQUITY
Defendants.
NOTICE TO PLEAD
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 is
served, by entering a written appearance personally or by attorney and filing in writing with the
Court your defenses or objections to the claims set forth against you. You are warned that if you
fail to do so the case may proceed without you and a judgment may be entered against you by the
Court without further notice for any money claimed in the Complaint or for any other claim or
relief requested by the Plaintiff. You may lose money or property or other rights important to
you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
32 S. Bedford Street
Carlisle, Pennsylvania 17013
(717) 249-3166
NOTICIA
Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas
expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de
la demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por
abogado y archivar en la corte en forma escrita sus defensas 0 sus objectiones alas demandas en
contra de su persona. Sea adisado que si usted no se defiende, la sin previo aviso 0 notificacion
y por cualquier quja 0 puede perder dinero 0 sus propiedades 0 otros derechos importantes para
usted.
LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE
ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO,
VA Y A EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUY A DIRECCION SE
ENCUENTRA ESCRIT A ABAJO PARA A VERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
32 S. Bedford Street
Carlisle, Pennsylvania 17013
(717) 249-3166
Goldberg Katzman, P,C.
Steven E. Grubb, Esquire, l.D,# 75g97
Attorney for Plaintiff
320 Market Street, Strawberry Square
p, O. Box 1268
Harrisburg, PA 17108.1268
(717) 234-4161
JOHN M. CADDELL.
Plaintiff
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. O(,'l./{J~'-I ~ Tu.-
ELECTRONICS AND UNIT RECORD :
DATACENTER, INC., d/b/aEUR
SYSTEMS; APTIS, INC.; INTEC USA, :
INe. and INTEC BILLING SERVICES, :
INC.,
Defendants.
CIVIL ACTION - IN EQUITY
VERIFIED COMPLAINT IN EOUlTY
Plaintiff, John M. Caddell (Caddell), by and through his counsel, Goldberg Katzman,
P.C., alleges the following in support of this Complaint:
THE PARTIES
I. Plaintiff is John M. Caddell, an adult individual with an address of 340 North 25th
Street, Camp Hill, Pennsylvania 170 II.
2. Defendant Electronics and Unit Record Datacenter, Inc., t/d/b/a EUR Systems is a
Pennsylvania bllSiness corporation with a registered address of 5040 Ritter Road,
Mechanicsburg, Cumberland County, P A 17055.
I
3. Defendant Aptis, Inc. is a Delaware corporation authorized to do business in
Pennsylvania with an address of74l1 John Smith Drive, Suite 200, San Antonio, TX 78229.
(Aptis, Inc. and Electronics and Unit Record Datacenter, Inc., t/d/b/a EUR Systems will
hereinafter collectively be referred to as "EUR.")
4. Defendant Intec USA, Inc. is a Pennsylvania corporation with a registered office
address of73-16 Drexelbrook Drive, Drexel Hill, Delaware County, PA 19026.
5. Defendant Intec Billing Services, Inc. is a Pennsylvania corporation with a
registered office address of 73-16 Drexel Brook Drive, Drexel Hill, Delaware County, P A
19026. (Intec USA, Inc. and Intec Billing Services, Inc. will hereinafter collectively be referred
to as "Intec.")
6. Plaintiff is employed by EUR and is a party to an "Executive Severance
Agreement" ("Agreement") which is attached hereto as Exhibit A.
7. Plaintiff has been employed for EUR in various officer-level roles since October
16,2000.
8. Pursuant to the Agreement, ifEUR, or EUR's successor, terminates Mr. Caddell
without cause, Mr. Caddell is entitled to the following:
3. Oblil!ation ofthe Comoanv Uoon termination Under Section 1.
If the Executive's employment shall have been terminated by the
Company under Section 1 (other than for Cause) or by the Executive for
Good Reason.
(a) the Company shall make a lump sum cash payment to the
Executive within 30 days after the Date of Termination of the accrued
Amounts earned but unused Paid Time Off and any money that is
normally paid during this time period, except to the extent under the terms
of a Plan they are to be paid at a later date;
2
(b) the Company shall pay to the Executive in equal installments,
made at least monthly, an aggregate amount equal to two times the
Executive's Annual Base Salary in effect on the Date of Termination over
the twenty-four months following the Date of Termination and;
(c) until the earlier of eighteen months following the Date of
Termination or the date the Executive becomes entitled to comparable
benefits from another employer, the Executive shall be entitled to receive
medical coverage and life insurance as provided under the Company's
Plans from time to time and the Executive's cost therefor shall not exceed
the cost paid by the other executives of the Company for comparable
coverage.
9. EUR has entered into an Asset Purchase Agreement dated July 17, 2006, whereby
it has sold substantially all of its assets to Intec.
10. Closing between EUR and Intec is to occur on or about July 27,2006.
11. Within the Agreement, at Section 8(c), EUR agreed to the following:
The Company rEURl will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company prior
to or concurrent with any such event of succession to assume
exoresslv and agree to oerform this Al!I'eement in the same manner
and to the same extent that the Companv would be reauired to
oerform it if no such succession had taken olace and to orovide the
executive with written evidence of such assumotion and al!I'eement
(which may include documents sufficient to evidence a transaction
whereby such assumption and agreement is by operation oflaw).
As used in this Agreement, "Company" shall mean the company as
hereinbefore defined and any successor to its business and/or
assets as aforesaid that assumes and agrees to perform this
agreement by operation oflaw, or otherwise. (Emphasis added.)
12. Thus, as part ofEUR's sale of its assets to Intec, EUR was reauired to assign Mr.
Caddell's Agreement to the successor company as part of the transaction.
13. Intec has not assumed Mr. Caddell's Agreement as part of its purchase of EUR's
assets.
3
14. Once closing in this matter occurs, EUR will cease to have any assets and will
merely be a shell corporation which conducts no further operations.
15. It is believed, and therefore averred, that all proceeds from the sale of EUR's
assets will go directly to investment banks and brokerages which are EUR's creditors.
16. EUR's failure to assign Mr. Caddell's Agreement, and Intec's refusal to assume
the Agreement, is a clear breach of Section 8(c) of the Agreement of July 1, 2002.
COUNT I
BREACH OF CONTRACT - INJUNCTIVE RELIEF
17. The averments of paragraphs 1 through 16 above are incorporated by reference.
18. EUR has breached the Agreement with Mr. Caddell by failing to require Intec, the
successor-in-interest to EUR's assets, to assume Mr. Caddell's Agreement.
19. Relief in the nature of a preliminary, and then permanent, injunction which
commands EUR to require Intec to assume expressly, and agree to perform, the Agreement is
necessary.
20. Mr. Caddell has no adequate remedy at law.
21. Mr. Caddell will experience immediate and irreparable hann in that a direct
contractual obligation he has with EUR is being ignored and violated by both EUR and Intec
through EUR's non-assignment and Intec's non-acceptance of Mr. Caddell's Agreement.
WHEREFORE, the following relief is requested:
a. The court enter an injunction which prohibits the closing between EUR
and Intec, pending written documentation and evidence that Intec is
assuming Mr. Caddell's Agreement;
4
b. Alternatively, if Intec and EUR are not agreeable to the assumption of Mr.
Caddell's Executive Severance Agreement, the court enjoin EUR from
selling its assets to Intec due to its breach of Mr. Caddell's Agreement;
c. Alternatively, order Intec to assume Mr. Caddell's Agreement per the
terms of Section 8 of that Agreement.
d. Whatever other remedy this court deems just and proper.
ALTERNATIVE COUNT II
BREACH OF CONTRACT V. EUR
22. The averments of paragraphs I through 21 above are incorporated by reference.
23. In the alternative, EUR will not retain Mr. Caddell as an employee, especially
where it will be a shell corporation following the sale of its assets to Intec.
24. Mr. Caddell will be terminated without cause by EUR, entitling him to benefits
pursuant to Section 3 of the Agreement, as explained above.
25. EUR has not paid, nor indicated it will pay, any of the promised benefits to Mr.
Caddell.
26. The benefits to which Mr. Caddell is entitled under Section 3 of the Agreement
are "wages" under Pennsylvania's Wage Payment and Collection Law, 43 P.S. ~260.1.
WHEREFORE, it is respectfully requested that this court order:
a. EUR to set aside funds it will receive at closing which will be sufficient to
pay the benefits required under Section 3 of the Agreement, in the time
parameters described in that Section 3;
5
b. EUR be held to account to Mr. Caddell for the setting aside of those funds,
and to pay Mr. Caddell his severance, as described in Section 3 of the
Agreement, out of those funds set aside; and
c. award all costs of court, including attorneys fees, and liquidated damages
under Pennsylvania's Wage Payment and Collection Law, 43 P.S. ~260.1
et seq., and whatever other remedies this court deems just and proper.
Respectfully Submitted,
Date: July 18, 2006
By:
~'P'C
Steven E. bb, Esquire (I.D. #75897)
320 Market Street
P. O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Attorney for Plaintiff
133784,1
6
1< \:+ A
C't'^' D
Executive Severance Agreement
EUR Systems
Confidentia1lnformation
EXECUTIVE SEVERANCE AGREEMENT
~I TIllS EXECUTIVE SEVERANCE AGREEMENT is made effective the. first day of
, 2002, by and between EUR Systems, with principal offices located at 5040 Ritter
P.O. Box 380, Mechanicsburg, Pennsylvania 17055 (hereinafter referred to as the
"Company"), and John M. Caddell, a resident of Camp Hill, Cumberland County, Pennsylvania
(hereinafter referred to as the "Executive'').
WITNESSETH:
WHEREAS, the Executive is now employed by the Company, and the Executive and the
Company desire to enter into an agreement relating to severance:
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein
set forth, it is agreed as follows:
1. Termination. The Company may terminate the Executive's employment with or
without Cause and Executive may terminate his employment with or without Good Reason.
(a) Defmitions. For the purposes of this Section 1.
(i) Termination with cause is a result of
(i) any material breach of a material provision of the Agreement by the Executive, (ii) a violation
of company policy by the Executive, (Hi) the Executive not performing the'duties and
responsibilities of the position or the duties assigned, or (iv) engagement by the Executive in any
criminal activity. ; (v) engagement in any activity which could be detrimental to the business of
the company.
(ii) Termination with good reason means the occurrence of any of the
following events provided that the executive delivers a Notice of Termination to the Company
within 60 days of the occurrence of such event and the Company shall not have cured the
circumstances giving rise to such event within 30 days of its receipt of such Notice of
Termination: (i) any material breach of a material provision of the Agreement by the Company,
(ii) the assignment to the Executive by the Company of duties and responsibilities that are
significantly different from the duties and responsibilities of an executive of the Company or (iii)
the relocation by the Company of the Executive's principal business location to a site that is not
within 50 miles of Mechanicsburg, PeIU1Sylvania.
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Page I of7
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Executive Severance Agreement
EUR Systems
Confidentiallnformation
2. Notice of Termination. Any termination of the Executive's employment with
the Company (other than due to death) shall be effected by written notice delivered to the other
party and, if by the Company for Cause or by the Executive for Good Reason, shall be
communicated by a Notice of Termination to the Executive or the Company, as applicable, given
in accordance with this Agreement. The failure by the Company to set forth in the Notice of
Termination any fact or circumstance that contributes to a showing of Cause shall not waive any
right of the Company hereunder or preclude the Company from asserting such fact or
circumstance in enforcing the Company's rights hereunder. The failure by the Executive to set
forth in the Notice of Termination any fact or circumstance that contributes to a showing of Good
Reason shall not waive any right of the Executive hereunder or preclude the Executive from
asserting such fact or circumstance in enforcing the Executive's rights hereunder.
3. Oblie:ation of the Companv Upon Termination Under Section 1. If the
Executive's employment shall have been terminated by the Company under Section I (other than
for Cause) or by the Executive for Good Reason:
(a) the Company shall make a lump sum cash payment to the Executive within 30
days after the Date of Termination of the accrued Amounts, earned but unused Paid Time Off
and any money that is normally paid during this time period, except to the extent under the terms
of a Plan they are to be paid at a later date;
(b) the Company shall pay to the Executive in equal installments, made at least
monthly, an aggregate amount equal to two times the Executive's Annual Base Salary in effect
on the Date of Termination over the twenty-four months following the Date of Termination and;
(c) until the earlier of eighteen months following the Date of Termination or the
date the Executive becomes entitled to comparable benefits from another employer, the
Executive shall be entitled to receive medical coverage and life insurance as provided under the
Company's Plans from time to time and the Executive's cost therefor shall not exceed the cost
paid by the other executives of the Company for comparable coverage.
4. Voluntary or For Cause Termination. If the Executive's employment shall
be terminated for Cause or the Executive voluntarily terminates employment (other than for
Good Reason) excluding death, Disability or Retirement, such termination shall be without
further obligations to the Executive other than Accrued Amounts.
5. Release Ae:reement. The benefits pursuant to Section I are contingent upon the
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0i-<-
Executive Severance Agreement
BUR Systems
Confidentiallnformation
Executive (I) executing a Separation and Release Agreement (the "Release Agreement") upon or
after any Date of Termination, a copy of which is attached as Exhibit A to this Agreement, and
(II) not revoking or challenging the enforceability of the Release Agreement.
6. No Mitil!:ation. etc. The amounts payable hereunder shall not be subject to
obligations to mitigate for offset by any amounts earned from any future employers. The
Company shall have the right to setoff the amounts required to be paid to the Executive under
this Agreement against any amounts owed by the Executive to the Company or its affiliates and
nothing in this Agreement shall prevent the Company from pursuing any other available remedies
against the Executive.
7. Restrictions and Oblil~ations of the Executive.
00 Considerations for Restrictions and Covenants. The parties hereto
acknowledge and agree that a principal consideration for the agreement to make the payments
provided in Section 3 hereof from the Company to the Executive and the grant to the Executive
of the equity-based compensation as set forth in Section 3 hereof is the Executive's compliance
with the undertakings set forth in this Section 6. Specifically, the Executive agrees to comply
with the provisions of this Section 6 irrespective of whether the Executive is entitled to receive
any payments under Section 1 of this Agreement.
00 Confidentiality. The confidential and proprietary infonnation and trade
secrets of the Company and its affiliates are among their most valuable assets, including but not
limited to, their customer and vendor lists, database, computer programs, frameworks, models,
their marketing programs, their sales, financial, marketing, training, and technical infonnation,
and any other information, whether communicated orally, electronically, in writing or in other
tangible fonns concerning how the Company and its affiliates create, develop, acquire or
maintain their products, services and marketing plans, target their potential customers and
operates their businesses. The Company and its affiliates have invested, and continue to invest,
considerable amounts of time and money in obtaining and developing the goodwill of their
customers, their other external relationships, their data systems and data bases, and all the
infonnation described above (hereinafter collectively referred to as "Confidentiallnfonnation"),
and any misappropriation or unauthorized disclosure of Confidential Infonnation in any fonn
would irreparably harm the Company and its affiliates. The Executive shall hold in a fiduciary
capacity for the benefit of the Company and its affiliates and their businesses, which shall have
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Executive Severance Agreement
EUR Systems
been obtained by the Executive during the Executive's employment by the Company which shall
not be or become public knowledge (other than by acts by the Executive or representatives of the
Executive in violation of this Agreement). After termination of the Executive's employment
with the Company, the Executive shall not, without the prior written consent of the Company or
as may otherwise be required by law or legal process, communicate, divulge or use any such
information, knowledge or data to anyone other than the Company and those designated by it.
!!:l Non-Solicitation or Hire. During the Employment Period and for a two-year
period following the Date of Termination of the Executive's employment for any reason, the
Executive shall not, directly or indirectly, for himself or on the behalf of on in conjunction with
any person, partnership, corporation or other entity, (i) employ or seek to employ any person who
is at the Date of Termination (unless terminated by the Company), an employee of the Company
or any of its affiliates or otherwise solicit, encourage, cause or induce any such employee of the
Company or such affiliates to terminate such employee's employment with the Company or such
affiliate for the employment of another company (including for this purpose the contracting with
any person who was an independent contractor (excluding management consultants of the
Company or an affiliate during such period) or (ii) knowingly take any action (and will cease all
such actions immediately upon obtaining knowledge thereof) that would interfere with the
relationship of the Company or its affiliates with their suppliers or customers, or otherwise solicit
the Company's or its affiliates' customers, with respect to a Restricted Business, without, in
either case, the prior written consent of the Company's Board, or knowingly engage in any other
action or business (and will cease all such engagements immediately upon obtaining knowledge
thereof) that would have an adverse effect on the Company or its affiliates.
@ Non-Competition. During the Employment Period and for a two-year period
following the Date of Termination of the Executive's employment for any reason, the Executive
shall not, directly or indirectly:
(i) engage in any managerial, administrative, advisory, consulting,
operational or sales activities in a Restricted Bnsiness anywhere in the Restricted Area,
including, without limitation, as a director, officer or partner of a business engaging in such
Restricted Business, or
(ii) organize, establish, operate, own, manage, control or have a direct or
Confidentiallnformation
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J'~
Executive Severance Agreement
EUR Systems
Confidentiallnformation
indirect investment or ownership interest in a Restricted Business or in any corporation,
partnership (limited or general), limited liability company enterprise or other business entity that
engages in a Restricted Business anywhere in the Restricted Area. Nothing contained in this
Section 7(d) shall prohibit or otherwise restrict the Executive from acquiring or owning, directly
or indirectly, for passive investment purposes not intended to circumvent this Agreement,
securities of any entity engaged, directly or indirectly, in a Restricted Business if (i) such entity is
a public entity and the Executive (A) is not a controlling person of, or a member of a group that
controls, such entity and (B) owns, directly or indirectly, no more than 3% of any class of equity
securities of such entity; (ii) such entity is not a public entity and the Executive (A) is not a
controlling person of, or a member of a group that controls, such entity and (B) does not own,
directly or indirectly, more than 1% of any class of equity securities of such entity or (iii) such
investment is through a mutual fund, private equity fund or other pooled account ("Pooled
Equity") and Executive satisfies the requirements of (i) (A) and (i) (B) with regard to such
Pooled Entity.
~ Definitions. For purposes of this Section 7:
(i) "Restricted Business" means (i) any business which provides software,
systems, professional services, or outsourced services for billing and customer management to
telecommunications service providers, or (ii) such other business, to be mutually agreed on by
the parties, as may be conducted by the Company after the date hereof during the employment
period. In the case of multi-divisional enterprises in which one division may provide such
services, divisions which do not provide these services are not Restricted Businesses.
(ii) "Restricted Area" means the United States and Canada and any
country where the Company directly provides outsourced billing, billing software, professional
services, and customer management system services for its customers.
ill Relief. The parties hereto hereby acknowledge that the provisions of this
Section 7 are reasonable and necessary for the protection of the Company and its affiliates. The
parties further acknowledge and agree that the Company's business is worldwide and the
definition of "Restricted Business" in Section 7( e) is reasonable and necessary for the protection
of the Company and its affiliates in light of such worldwide business. In addition, the Executive
further acknowledges that the Company and its_affiliates may be irrevocably damaged if such
covenants are not specifically enforced. Accordingly, the Executive agrees that, in addition to
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Executive Severance Agreement Confidential Information
EVR Systems
any other relief to which the Company may be entitled, the Company will be entitled to seek and
obtain (without the requirement of any bond) injunctive relief for the purposes of restraining the
Executive roam any actual or threatened breach of such covenants or such other relief as may be
required to specifically enforce any of such covenants from a court or competent jurisdiction.
The Executive hereby agrees and consents that such injunctive or other relief may be sough ex
parte in any state offederal court of record in the State of Pennsylvania. The Executive agrees to
and hereby does submit to in personam jurisdiction in the State of Pennsylvania. In addition,
without limiting the Company's remedies for any breach of any restriction on the Executive set
forth in this Section 7, except as required by law, the Executive shall not be entitled to any
payments set forth in Section I hereof if the Executive breaches any of the covenants applicable
to the Executive contained in this Section 7, the Executive will immediately return to the
Company any such payments previously received upon such a breach, and, if the event of such
breach, the Company will have no obligation to pay any of the amounts that remain payable by
the Company under Section I.
!gl Exceptions. Any exceptions to Section 7 must be approved by the Chief
Executive Officer and must be documented as an Addendum to this agreement.
(i) If the Executive terminates employment voluntarily without Good
Reason and will not be receiving any type of severance from the company, then it is expected
that the Executive would still abide by the expectations that are covered in Section 7 except for
paragraph 7 (d) "Non-Competition."
8. Successors: Assil!llment.
f!} Bv the Executive. Neither this agreement nor any right, duty, obligation or
interest hereunder shall be assignable or delegable by the Executive without prior written consent
of the Company; provided, however, that nothing in this Section 8(a) shall preclude the
Executive from designating any of his beneficiaries to receive any amount payable hereunder
upon his death, or preclude his executors, administrators, or other personal representatives, from
assigning any such right or interest to the person or persons entitled thereto.
ill Bv the Comoanv. Neither this agreement nor any right, duty, obligation or
interest hereunder shall be assigned or delegable by the Company without prior written consent
of the Executive, other than any assignment to any entity that succeeds to substantially all the
business operations and/or assets of the Company.
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Executive Severance Agreement
EUR Systems
Confidentiallnformation
!!:l The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company prior to or concurrent with any such event of succession to assume
expressly and agree to perform this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such succession had taken place. and to
provide the_Executive with written evidence of such assumption and agreement (which may
include documents sufficient to evidence a transaction whereby such assumption and agreement
is by operation of law). As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as aforesaid that assumes and
agrees to perform this Agreement by operation of law, or otherwise.
9. Miscellaneous.
!!!l Governine: Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Pennsylvania, without reference to principles of conflict
of laws.
.ll!l Captions. The captions of this Agreement are not part of the provisions
hereof and shall have no force or effect.
!!:l Amendment. This Agreement may not be amended or modified otherwise
than by a written agreement executed by the parties hereto or their respective successors and
legal representatives.
The parties to this Agreement have executed this Agreement as of the day and
year first written above.
CUti(!~
ame~__ A . (1,./dt I !
Title: Vf.l'-.<r.h.f,a d (f~sl.......Jf Dev,
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- Name: J lrflJ
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Page 7 of7
Separation and Release Agreement
EUR Systems
Confidentiallnformation
EXHIBIT A
SEPARATION AND RELEASE AGREEMENT
'Ibis Separation and Release Agreement ("Agreement") is entered into as oftbis
day of , between and any successors thereto (collectively, the
"Company) and (the "Executive').
The Executive and the Company agree as follows:
I. The employment relationship between the Executive and Company'
terminated on (the "Termination Date').
2. In accordance with Section 1 of the Executive's Severance Agreement, the
Company has agreed to pay the Executive the payments and to make the benefits
available after the Termination Date, each as required by such Section 3.
3. In consideration of the above, the sufficiency of which the Executive
hereby acknowledges, the Executive, on behalf of the Executive and the Executive's
heirs, executors and assigns, hereby releases and forever discharges the Company and its
members, parents, affi1iates, subsidiaries, divisions, any and all current and former
directors, officers, employees, agents, and contractors and their heirs and assigns, and any
and all employee pension benefit or welfare benefit plans of the Company, including
current and former trustees and administrators of such employee pension benefit and
welfare benefit plans, from all claims, charges, or demands, in law or in equity, whether
known or unknown, which may have existed or which may now exist from the beginning
of time to the date oftbis letter agreement, including, without limitation, any claims the
Executive may have arising from or relating to the Executive's employment or
termination from employment with the Company, including a release of any rights or
claims the Executive may have under Title VII of the Civil Rights Act of 1964, as
amended, and the Civil Rights Act of 1991 (which prohibit discrimination in employment
based upon race, color, sex, religion and national origin);the Americans with Disabilities
Act of 1990, as amended, and the Rehabilitation Act of 1973 (which prohibit
discrimination based upon disability); the Family and Medical Leave Act of 1993 (which
prohibits discrimination based on requesting or taking a family or medical leave ); Section
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Separation and Release Agreement
BUR Systems
Confidentiallnformation
1981 of the Civil Rights Act of 1866 (which prohibits discrimination based upon race);
Section 1985(3) of the Civil Rights Act of 1871 (which prohibits conspiracies to
discriminate); the Employee Retirement Income Security Act of 1974, as amended
(which prohibits discrimination with regard to benefits); any other federal, state or local
laws against discrimination; or any other federal, state or local statue, or common law
relating to employment, wages, hours, or any other terms and conditions of employment.
This includes a release by the Executive of any claims for wrongful discharge, breach of
contract, torts or any other claims in any way related to the Executive's employment with
or resignation or termination from the Company, including any claim. under the
Employment Agreement. This release also includes a release of any claim. for age
discrimination under the Age Discrimination in Employment Act, as amended
("ADEA''). The ADEA requires that the Executive be advised to consult with an
attorney before the Executive waives any claim. under ADEA. In addition, the ADEA
provides the Executive with at least 21 days to decide whether to waive claims under the
ADEA and seven days after the Executive signs the Agreement to revoke that waiver.
This release does not release the Company from any obligations due to the Executive
under the Severance Agreement or under this Agreement. Nothing herein to the contrary
shall effect any rights the Executive may have under the Shareholders' Agreement, dated
May 3, 2000, by and among the Company, the Executive and the other shareholders from
time to time party thereto. This release shall not apply to any rights of the Executive with
respect to indemnification, directors', and officers' insurance.
Additionally, the Company (on its behalf and that of its affiliates) agrees
to discharge and release the Executive and the Executive's heirs from any claims,
demands, and/or causes of action whatsoever, presently known or unknown, that are
based upon facts occurring prior to the date of this Agreement, including, but not limited
to, any claim., matter or action related to the Executive's employment and/or affiliation
with, or termination and separation from the Company; provided that such release shall
not release the Executive from any loan or advance by the Company or any of its
subsidiaries, any act that would constitute "Cause" under the Executive's Severance
Agreement or a breach under Section 7 of the Executive's Severance Agreement;
provided, however, that nothing herein to the contrary shall affect any rights the
Company may have under the Shareholders' Agreement, dated as of May 3,2000, by and
Created on 4/512002 1 :03 PM
Page 2 of4
0r^-"
Separation and Release Agreement
EUR Systems
Confidentiallnformation
among the Company, the Executive and the other shareholders from time to time party
hereto.
4. This Agreement is not an admission by either the Executive or the
Company of any wrongdoing or liability.
5. The Executive waives any right to reinstatement or future employment
with the Company following the Executive's separation from the Company on the
Termination Date.
6. The Executive agrees not to engage in any act after execution of the
Separation and Release Agreement that is intended, or may reasonably be expected to
harm the reputation, business, prospects or operations of the Company, its officers,
directors, stockholders or employees. The Company further agrees that it wilJ engage in
no act which is intended, or may reasonably be expected to harm the reputation, business
or prospects of the Executive.
7. The Executive shall continue to be bound by Section 7 of the Executive's
Severance Agreement.
8. The Executive shall promptly return all the Company property in the
Executive's possession, including, but not limited to, the Company keys, credit cards,
cellular phones, computer equipment, software and peripherals and originals or copies of
books, records, or other infonnation pertaining to the Company business.
9. This Agreement shall be govemed by and collStrued in accordance with
the laws of the State of Pennsylvania, without reference to the principles of conflicts of
laws.
10. This Agreement represents the complete agreement between the Executive
and the Company concerning the subject matter in this Agreement and supersedes all
prior agreements or understandings, written or oral. This agreement may not be amended
or modified otherwise than by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
11. Each of the sectiollS contained in this Agreement shall be enforceable
independently of every other section in this Agreement, and the invalidity or
nonenforceability of any section shall not invalidate or render unenforceable any other
section contained in this Agreement.
Created on 4/512002 I :03 PM
Page 3 of4
(fyC/
Separation and Release Agreement
EUR Systems
Confidential Information
12. It is further understood that for a period of 7 days following the execution
of this Agreement in duplicate originals, the Executive may revoke this Agreement, and
this Agreement shall not become effective or enforceable until the revocation period has
expired. No revocation of this Agreement by the Executive shall be effective unless the
Company has received within the 7 -day revocation period, written notice of any
revocation, all monies received by the Executive under this Agreement and all originals
and copies of this Agreement.
13. This Agreement has been entered into voluntarily and not as a result of
coercion, duress, or undue influence. The Executive acknowledges that the Executive
has read and fully understands the terms of this agreement and has been advised to
consult with an attorney before executing this Agreement. Additionally, the Executive
acknowledges that the Executive has been afforded the opportunity of at least 21 days to
consider this Agreement. To the extent that the Executive executes this Agreement prior
to the expiration of such 2 I-day period, he does so knowingly and voluntarily and
without coercion.
The parties to this Agreement have executed this Agreement as of the day and
year first written above.
Th~:" " ,,1
By: l1l~1
ame:
Title:
:~com2f~~
Name:
Title:
Created on 4/512002 1 :03 PM
Page 4 of4
0fC/
VERIFICATION
I hereby acknowledge that I have read the foregoing Verified Complaint in Equity
and that the facts stated therein are true and correct to the best of my knowledge, information,
and belief.
I understand that any false statements herein are made subject to penalties of 18
Pa. C.S. 94904, relating to unsworn falsification to authorities.
Date: ;-~ $ ? (J (,
BrrJ!! GA~
John M. Caddell
(""' ""...)
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'C!
Goldberg Katzman, P,C.
Steven E, Grubb, Esquire, I.D.# 75897
Attorneys for Plaintiff
320 Market Street, Strawberry Square
P. 0, Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
JOHN M, CADDELL.
Plaintiff
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. (J I.. L/ ()Sl{' Cir;J tu-
ELECTRONICS AND UNIT RECORD :
DATACENTER, INC., d/b/a EUR
SYSTEMS; APTIS, INC.; INTEC USA, :
INC. and INTEC BILLING SERVICES, :
INC.,
CIVIL ACTION - IN EQUITY
Defendants.
MOTION FOR PRELIMINARY INJUNCTION
Plaintiff John M. Caddell, by and through his counsel, Goldberg Katzman, P.C., hereby
moves the Court, pursuant to Pa. R.C.P. 1531, for a preliminary injunction, as set forth in the
attached proposed order.
1. Movant is John M. Caddell, Plaintiff in the above-captioned matter
2. Respondent is Electronics and Unit Record Datacenter, Inc., t/d/b/a EUR Systems
(BUR), Defendant in the above-captioned matter.
3. Respondent is Aptis, Inc., Defendant in the above-captioned matter. (Aptis, Inc.
and Electronics and Unit Record Datacenter, Inc., t/d/b/a EUR Systems will hereinafter
collectively be referred to as "EUR.")
4. Respondent is Intec USA, Inc., Defendant in the above-captioned matter.
1
5. Respondent is Intec Billing Services, Inc., Defendant in the above-captioned
matter. (Intec USA, Inc. and Intec Billing Services, Inc. will hereinafter collectively be referred
to as "Intec.")
6. Simultaneously with the filing of this Motion for Preliminary Injunction, Plaintiff
has filed a Verified Complaint in Equity requesting preliminary and permanent injunctive relief.
The verified Complaint in Equity is attached hereto as Exhibit A, and incorporated by reference
as if set out in full.
7. For the reasons explained therein, as well as in this Motion, a preliminary
injunction is warranted in this case.
8. A contract that contains clear and unambiguous language must be interpreted in
accordance with its plainly expressed intent. Hahalvak v. A. Frost. Inc., 444 Pa. Super. 494, 503,
664 A.2d 545, 549 (Pa. Super. 1994).
9, An injunction enforcing compliance with the terms of an agreement is within the
court's equitable powers. Id.; See also. International Union of ODe rating Engineers v. Linesville
Construction Co., 457 Pa. 220, 322 A.2d 353 (1974) (equitable enforcement of collective
bargaining agreement permitted through use of injunction), Langston v. National Media Com.,
420 Pa. Super. 611, 619, 617 A.2d 354,358 (1992).
10. In this case, the clear language of Mr. Caddell's Executive Severance Agreement
reauires EUR to assign his Executive Severance Agreement to any successor who purchases
substantially all of EUR' s assets.
2
II. EUR, in blatant disregard of this provision, has not assigned Mr. Caddell its
contract, nor has Intec accepted the assignment of Mr. Caddell's Executive Severance
Agreement.
12. Preliminary injunctions are mandated where six essential prerequisites are proven:
(1) a strong likelihood of success on the merits; (2) a showing of immediate and irreparable harm
that cannot be compensated by money damages; (3) a showing that greater injury will result if
preliminary injunctive relief is denied then if such injunctive relief is granted; (4) a showing that
a preliminary injunction would restore the status quo; (5) the injunction Mr. Caddell seeks is
reasonably suited to abate the offending activity; and (6) there is no adverse affect on the public
interest. Kessler v, Broder, 851 A.2d 944, 947 (Fa. Super. 2004) anneal denied. 582 A.2d 676,
868 A.2d 1201 (2005); Allel!henv Anesthesiolol!v Assocs. v. Allel!henv Gen. Hosn., 826 A.2d
886, 891 (Pa. Super. 2003), anneal denied 577 Pa. 684,644 A.2d 550 (2004).
13. In this situation, all requirements are met.
14. First, Mr. Caddell has a strong likelihood of success on the merits since EUR is
clearly and blatantly violating the clear language of the contract by not upholding its contractual
obligation to assign Mr. Caddell's Agreement.
15. Second, without proper assignment, Mr. Caddell's contractual rights, as a whole,
are jeopardized particularly where, after the asset sale, EUR will cease to operate as a business.
Thus, there is no possibility that Mr. Caddell can be compensated by monetary damages.
16. Third, greater injury will result if injunctive relief is denied, then if such
injunctive relief is granted, in that denial of a preliminary injunction will permit the closing to go
3
forward, in contravention of Mr. Caddell's contractual rights, whereas granting the injunction
only forces compliance with contractual terms and is less injurious than the alternative.
17. Fourth, a preliminary injunction will only maintain the status quo by compelling
the parties to do what is called for in the Executive Severance Agreement.
18. Finally, the requested injunction is reasonably suited to abate the offending
activity in that it compels the outcome mandated in the Agreement. The public interest is not
affected by the injunction.
WHEREFORE, it is respectfully requested that the court enforce the clear words of the
Executive Severance Agreement attached to the verified Complaint in Equity and order:
I. an injunction which stays the closing between EUR and Intec, pending
written documentation and evidence that Intec is assuming Mr. Caddell's
Agreement;
2. alternatively, ifIntec and EUR are not agreeable to the assumption of Mr.
Caddell's Executive Severance Agreement, the court enjoin EUR from
selling its assets to Intec due to its breach of Mr. Caddell's Agreement;
3. alternatively, order Intec to assume Mr. Caddell's Agreement per the
terms of Section 8 of that Agreement.
Respectfully Submitted,
Date: July ~ 2006
By:
en E. Grubb, uire (1. . #75897)
320 Market Street, P. O. Box 1268
Harrisburg, P A 17108-1268
(717) 234-4161
Attorneys for Plaintiff
4
b. EUR be held to account to Mr. Caddell for the setting aside of those funds,
and to pay Mr. Caddell his severance, as described in Section 3 of the
Agreement, out of those funds set aside; and
c. award all costs of court, including attorneys fees, and liquidated damages
under Pennsylvania's Wage Payment and Collection Law, 43 P.S. ~260.l
et seq., and whatever other remedies this court deems just and proper.
Respectfully Submitted,
Date: July 18, 2006
,P.C.
By:
l-
Steven E. bb, Esquire (I.D. #75897)
320 Market Street
P. O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Attorney for Plaintiff
133784,1
6
b. Alternatively, if Intec and EUR are not agreeable to the assumption of Mr.
Caddell's Executive Severance Agreement, the court enjoin EUR from
selling its assets to Intec due to its breach of Mr. Caddell's Agreement;
c. Alternatively, order Intec to assume Mr. Caddell's Agreement per the
terms of Section 8 of that Agreement.
d. Whatever other remedy this court deems just and proper.
ALTERNATIVE COUNT II
BREACH OF CONTRACT V. EUR
22. The averments of paragraphs I through 21 above are incorporated by reference.
23. In the alternative, EUR will not retain Mr. Caddell as an employee, especially
where it will be a shell corporation following the sale of its assets to Intec.
24. Mr. Caddell will be terminated without cause by EUR, entitling him to benefits
pursuant to Section 3 of the Agreement, as explained above.
25. EUR has not paid, nor indicated it will pay, any of the promised benefits to Mr.
Caddell.
26. The benefits to which Mr. Caddell is entitled under Section 3 of the Agreement
are "wages" under Pennsylvania's Wage Payment and Collection Law, 43 P.S. ~260.1.
WHEREFORE, it is respectfully requested that this court order:
a. EUR to set aside funds it will receive at closing which will be sufficient to
pay the benefits required under Section 3 of the Agreement, in the time
parameters described in that Section 3;
5
14. Once closing in this matter occurs, EUR will cease to have any assets and will
merely be a shell corporation which conducts no further operations.
15. It is believed, and therefore averred, that all proceeds from the sale ofEUR's
assets will go directly to investment banks and brokerages which are EUR's creditors.
16. EUR's failure to assign Mr. Caddell's Agreement, and Intec's refusal to assume
the Agreement, is a clear breach of Section 8( c) of the Agreement of July 1, 2002.
COUNT I
BREACH OF CONTRACT - INJUNCTIVE RELIEF
17. The averments of paragraphs 1 through 16 above are incorporated by reference.
18. EUR has breached the Agreement with Mr. Caddell by failing to require Intec, the
successor-in-interest to EUR's assets, to assume Mr. Caddell's Agreement.
19. Relief in the nature of a preliminary, and then permanent, injunction which
commands EUR to require Intec to assume expressly, and agree to perform, the Agreement is
necessary.
20. Mr. Caddell has no adequate remedy at law.
21. Mr. Caddell will experience immediate and irreparable harm in that a direct
contractual obligation he has with EUR is being ignored and violated by both EUR and Intec
through EUR's non-assignment and Intec's non-acceptance of Mr. Caddell's Agreement.
WHEREFORE, the following relief is requested:
a. The court enter an injunction which prohibits the closing between EUR
and Intec, pending written documentation and evidence that Intec is
assuming Mr. Caddell's Agreement;
4
(b) the Company shall pay to the Executive in equal installments,
made at least monthly, an aggregate amount equal to two times the
Executive's Annual Base Salary in effect on the Date of Termination over
the twenty-four months following the Date of Tennination and;
(c) until the earlier of eighteen months following the Date of
Termination or the date the Executive becomes entitled to comparable
benefits from another employer, the Executive shall be entitled to receive
medical coverage and life insurance as provided under the Company's
Plans from time to time and the Executive's cost therefor shall not exceed
the cost paid by the other executives of the Company for comparable
coverage.
9. EUR has entered into an Asset Purchase Agreement dated July 17, 2006, whereby
it has sold substantially all of its assets to Intec.
10. Closing between EUR and Intec is to occur on or about July 27, 2006.
11. Within the Agreement, at Section 8(c), EUR agreed to the following:
The Company [BURl will reauire any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company prior
to or concurrent with any such event of succession to assume
expresslv and al!ree to perform this AlZI'eement in the same manner
and to the same extent that the Companv would be required to
perform it if no such succession had taken place and to provide the
executive with written evidence of such assumotion and al!reement
(which may include documents sufficient to evidence a transaction
whereby such assumption and agreement is by operation oflaw).
As used in this Agreement, "Company" shall mean the company as
hereinbefore defined and any successor to its business and/or
assets as aforesaid that assumes and agrees to perform this
agreement by operation oflaw, or otherwise. (Emphasis added.)
12. Thus, as part of EUR's sale of its assets to Intec, EUR was required to assign Mr.
Caddell's Agreement to the successor company as part of the transaction.
13. Intec has not assumed Mr. Caddell's Agreement as part of its purchase ofEUR's
assets.
3
3. Defendant Aptis, Inc. is a Delaware corporation authorized to do business in
Pennsylvania with an address of741l John Smith Drive, Suite 200, San Antonio, TX 78229.
(Aptis, Inc. and Electronics and Unit Record Datacenter, Inc., t/d/b/a EUR Systems will
hereinafter collectively be referred to as "EUR.")
4. Defendant Intec USA, Inc. is a Pennsylvania corporation with a registered office
address of73-l6 Drexelbrook Drive, Drexel Hill, Delaware Connty, PA 19026.
5. Defendant Intec Billing Services, Inc. is a Pennsylvania corporation with a
registered office address of73-l6 Drexel Brook Drive, Drexel Hill, Delaware County, PA
19026. (Intec USA, Inc. and Intec Billing Services, Inc. will hereinafter collectively be referred
to as "Intec.")
6. Plaintiff is employed by EUR and is a party to an "Executive Severance
Agreement" ("Agreement") which is attached hereto as Exhibit A.
7. Plaintiff has been employed for EUR in various officer-level roles since October
16,2000.
8. Pursuant to the Agreement, ifEUR, or EUR's successor, terminates Mr. Caddell
without cause, Mr. Caddell is entitled to the following:
3. Oblil!ation of the ComDanv UDon termination Under Section 1.
If the Executive's employment shall have been terminated by the
Company under Section 1 (other than for Cause) or by the Executive for
Good Reason.
(a) the Company shall make a lump sum cash payment to the
Executive within 30 days after the Date of Termination of the accrued
Amounts earned but unused Paid Time Off and any money that is
normally paid during this time period, except to the extent under the terms
of a Plan they are to be paid at a later date;
2
Goldberg Katzman, P .C.
Steven E. Grubb, Esquire, l.D.# 75897
Attorney for Plaintiff
320 Market Street, Strawberry Square
P. O. Box 1268
Harrisburg, P A 171 08-1268
(717) 234-4161
JOHN M. CADDELL.
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO.
ELECTRONICS AND UNIT RECORD :
DATACENTER, INC., d/b/a EUR
SYSTEMS; APTIS, INC.; INTEC USA, :
INC. and INTEC BILLING SERVICES, :
INC.,
CIVIL ACTION - IN EQUITY
Defendants.
VERIFIED COMPLAINT IN EOUITY
Plaintiff, John M. Caddell (Caddell), by and through his counsel, Goldberg Katzman,
P.C., alleges the following in support of this Complaint:
THE PARTIES
1. Plaintiff is John M. Caddell, an adult individual with an address of 340 North 25th
Street, Camp Hill, Pennsylvania 17011.
2. Defendant Electronics and Unit Record Datacenter, Inc., t/d/b/a EUR Systems is a
Pennsylvania business corporation with a registered address of 5040 Ritter Road,
Mechanicsburg, Cumberland County, P A 17055.
1
NOT/CIA
Le han demandado a usted en la corte. Si usted qui ere defenderse de estas demandas
expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de
la demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por
abogado y archivar en la corte en forma escrita sus defensas 0 sus objectiones a las demandas en
contra de su persona. Sea adisado que si usted no se defiende, la sin previo aviso 0 notificacion
y por cualquier quja 0 puede perder dinero 0 sus propiedades 0 otros derechos importantes para
usted.
LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TffiNE
ABOGADO 0 SI NO TIENE EL DINERO SUFICffiNTE DE PAGAR TAL SERVICIO,
VA Y A EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUY A DIRECCION SE
ENCUENTRA ESCRITA ABAJO PARA A VERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
32 S. Bedford Street
Carlisle, Pennsylvania 17013
(717) 249-3166
Goldberg Katzman, P .C.
Steven E. Grubb, Esquire, l.D.# 75897
Attorney for Plaintiff
320 Market Street, Strawberry Square
p, O. Box 1268
Harrisburg. PA 17108-1268
(717) 234-4161
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO.
JOHN M. CADDELL.
Plaintiff
ELECTRONICS AND UNIT RECORD :
DATACENTER, INC., d/b/a EUR
SYSTEMS; APTIS, INC.; INTEC USA, :
INC. and INTEC BILLING SERVICES, :
INC.,
CIVIL ACTION - IN EQUITY
Defendants.
NOTICE TO PLEAD
YOU HA VB 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 is
served, by entering a written appearance personally or by attorney and filing in writing with the
Court your defenses or objections to the claims set forth against you. You are warned that if you
fail to do so the case may proceed without you and a judgment may be entered against you by the
Court without further notice for any money claimed in the Complaint or for any other claim or
relief requested by the Plaintiff. You may lose money or property or other rights important to
you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HA VB A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
32 S. Bedford Street
Carlisle, Pennsylvania 17013
(717) 249-3166
Executive Severance Agreement
EUR Systems
Confidentiallnformation
EXECUTIVE SEVERANCE AGREEMENT
-<'I TInS EXECUTIVE SEVERANCE AGREEMENT is made effective the.first day of
...:J'"
, 2002, by and between EUR Systems, with principal offices located at 5040 Ritter
Road, P.O. Box 380, Mechanicsburg, Pennsylvania 17055 (hereinafter referred to as the
"Company"), and John M. Caddell, a resident of Camp Hill, Cumberland County, Pennsylvania
(hereinafter referred to as the "Executive").
WIT N E SSE T H:
WHEREAS, the Executive is now employed by the Company, and the Executive and the
Company desire to enter into an agreement relating to severance:
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein
set forth, it is agreed as follows:
1. Termination. The Company may terminate the Executive's employment with or
without Cause and Executive may terminate his employment with or without Good Reason.
(a) Defmitions. For the purposes of this Section 1.
(i) Termination with cause is a result of
(i) any material breach of a material provision of the Agreement by the Executive, (ii) a violation
of company policy by the Executive, (iii) the Executive not performing the duties and
responsibilities of the position or the duties assigned, or (iv) engagement by the Executive in any
criminal activity. ; (v) engagement in any activity which could be detrimental to the business of
the company.
(ii) Termination with good reason means the occurrence of any of the
following events provided that the executive delivers a Notice of Termination to the Company
within 60 days of the occurrence of such event and the Company shall not have cured the
circumstances giving rise to such event within 30 days of its receipt of such Notice of
Termination: (i) any material breach of a material provision of the Agreement by the Company,
(ii) the assignment to the Executive by the Company of duties and responsibilities that are
significantly different from the duties and responsibilities of an executive of the Company or (iii)
the relocation by the Company of the Executive's principal business location to a site that is not
within 50 miles of Mechanicsburg, Pennsylvania.
Revised on 7/03/02
Page 1 of7
/r-'
'-
Executive Severance Agreement
EUR Systems
Confidentiallnformation
2. Notice of Termination. Any termination of the Executive's employment with
the Company (other than due to death) shaH be effected by written notice delivered to the other
party and, if by the Company for Cause or by the Executive for Good Reason, shaH be
communicated by a Notice of Termination to the Executive or the Company, as applicable, given
in accordance with this Agreement. The failure by the Company to set forth in the Notice of
Termination any fact or circumstance that contributes to a showing of Cause shall not waive any
right of the Company hereunder or preclude the Company from asserting such fact or
circumstance in enforcing the Company's rights hereunder. The failure by the Executive to set
forth in the Notice of Termination any fact or circumstance that contributes to a showing of Good
Reason shall not waive any right of the Executive hereunder or preclude the Executive from
asserting such fact or circumstance in enforcing the Executive's rights hereunder.
3. Oblieation of the Companv Upon Termination Under Section 1. If the
Executive's employment shall have been terminated by the Company under Section I (other than
for Cause) or by the Executive for Good Reason:
(a) the Company shall make a lump sum cash payment to the Executive within 30
days after the Date of Termination of the accrued Amounts, earned but unused Paid Time Off
and any money that is nonnally paid during this time period, except to the extent under the terms
of a Plan they are to be paid at a later date;
(b) the Company shall pay to the Executive in equal installments, made at least
monthly, an aggregate amount equal to two times the Executive's Annual Base Salary in effect
on the Date of Termination over the twenty-four months following the Date of Tennination and;
(c) until the earlier of eighteen months following the Date of Termination or the
date the Executive becomes entitled to comparable benefits from another employer, the
Executive shall be entitled to receive medical coverage and life insurance as provided under the
Company's Plans from time to time and the Executive's cost therefor shall not exceed the cost
paid by the other executives of the Company for comparable coverage.
4. Voluntarv or For Cause Termination. If the Executive's employment shall
be terminated for Cause or the Executive voluntarily terminates employment (other than for
Good Reason) excluding death, Disability or Retirement, such tennination shall be without
further obligations to the Executive other than Accrued Amounts.
5. Release A2I'eement. The benefits pursuant to Section I are contingent upon the
Revised on 7/03/02 Page 2 of 7
0r<:.-
Executive Severance Agreement
EUR Systems
Confidential Information
Executive (I) executing a Separation and Release Agreement (the "Release Agreement") upon or
after any Date of Termination, a copy of which is attached as Exhibit A to this Agreement, and
(II) not revoking or challenging the enforceability of the Release Agreement.
6. No Miti2ation. etc. The amounts payable hereunder shall not be subject to
obligations to mitigate for offset by any amounts earned from any future employers. The
Company shall have the right to setoff the amounts required to be paid to the Executive under
this Agreement against any amounts owed by the Executive to the Company or its affiliates and
nothing in this Agreement shall prevent the Company from pursuing any other available remedies
against the Executive.
7. Restrictions and Obli2ations of the Executive.
!!l Considerations for Restrictions and Covenants. The parties hereto
acknowledge and agree that a principal consideration for the agreement to make the payments
provided in Section 3 hereof from the Company to the Executive and the grant to the Executive
of the equity-based compensation as set forth in Section 3 hereof is the Executive's compliance
with the undertakings set forth in this Section 6. Specifically, the Executive agrees to comply
with the provisions of this Section 6 irrespective of whether the Executive is entitled to receive
any payments under Section I of this Agreement.
ill Confidentiality. The confidential and proprietary information and trade
secrets of the Company and its affiliates are among their most valuable assets, including but not
limited to, their customer and vendor lists, database, computer programs, frameworks, models,
their marketing programs, their sales, financial, marketing, training, and technical information,
and any other information, whether communicated orally, electronically, in writing or in other
tangible forms conceming how the Company and its affiliates create, develop, acquire or
maintain their products, services and marketing plans, target their potential customers and
operates their businesses. The Company and its affiliates have invested, and continue to invest,
considerable amounts of time and money in obtaining and developing the goodwill of their
customers, their other external relationships, their data systems and data bases, and all the
information described above (hereinafter collectively referred to as "Confidential Information"),
and any misappropriation or unauthorized disclosure of Confidential Information in any form
would irreparably harm the Company and its affiliates. The Executive shall hold in a fiduciary
capacity for the benefit of the Company and its affiliates and their businesses, which shall have
Revised on 7/03/02
Page 3 of7
<f~
Executive Severance Agreement
EUR Systems
Confidentiallnformation
been obtained by the Executive during the Executive's employment by the Company which shall
not be or become public knowledge (other than by acts by the Executive or representatives of the
Executive in violation of this Agreement). After termination of the Executive's employment
with the Company, the Executive shall not, without the prior written consent of the Company or
as may otherwise be required by law or legal process, communicate, divulge or use any such
information, knowledge or data to anyone other than the Company and those designated by it.
!!:} Non-Solicitation or Hire. During the Employment Period and for a two-year
period following the Date of Termination of the Executive's employment for any reason, the
Executive shall not, directly or indirectly, for himself or on the behalf of on in conjunction with
any person, partnership, corporation or other entity, (i) employ or seek to employ any person who
is at the Date of Termination (unless terminated by the Company), an employee of the Company
or any of its affiliates or otherwise solicit, encourage, cause or induce any such employee of the
Company or such affiliates to terminate such employee's employment with the Company or such
affiliate for the employment of another company (including for this purpose the contracting with
any person who was an independent contractor (excluding management consultants of the
Company or an affiliate during such period) or (ii) knowingly take any action (and will cease all
such actions immediately upon obtaining knowledge thereof) that would interfere with the
relationship of the Company or its affiliates with their suppliers or customers, or otherwise solicit
the Company's or its affiliates' customers, with respect to a Restricted Business, without, in
either case, the prior written consent of the Company's Board, or knowingly engage in any other
action or business (and will cease all such engagements immediately upon obtaining knowledge
thereof) that would have an adverse effect on the Company or its affiliates.
@ Non-Competition. During the Employment Period and for a two-year period
following the Date of Termination of the Executive's employment for any reason, the Executive
shall not, directly or indirectly:
(i) engage in any managerial, administrative, advisory, consulting,
operational or sales activities in a Restricted Business anywhere in the Restricted Area,
including, without limitation, as a director, officer or partner of a business engaging in such
Restricted Business, or
(ii) organize, establish, operate, own, manage, control or have a direct or
Revised on 7/03/02
Page 4 of?
J~
Executive Severance Agreement
EUR Systems
Confidentiallnformation
indirect investment or ownership interest in a Restricted Business or in any corporation,
partnership (limited or general), limited liability company enterprise or other business entity that
engages in a Restricted Business anywhere in the Restricted Area. Nothing contained in this
Section 7(d) shall prohibit or otherwise restrict the Executive from acquiring or owning, directly
or indirectly, for passive investment purposes not intended to circumvent this Agreement,
securities of any entity engaged, directly or indirectly, in a Restricted Business if (i) such entity is
a public entity and the Executive (A) is not a controlling person of, or a member of a group that
controls, such entity and (B) owns, directly or indirectly, no more than 3% of any class of equity
securities of such entity; (ii) such entity is not a public entity and the Executive (A) is not a
controlling person of, or a member of a group that controls, such entity and (B) does not own,
directly or indirectly, more than 1 % of any class of equity securities of such entity or (iii) such
investment is through a mutual fund, private equity fund or other pooled account ("Pooled
Equity") and Executive satisfies the requirements of (i) (A) and (i) (B) with regard to such
Pooled Entity.
~ Definitions. For purposes of this Section 7:
(i) "Restricted Business" means (i) any business which provides software,
systems, professional services, or outsourced services for billing and customer management to
telecommunications service providers, or (ii) such other business, to be mutually agreed on by
the parties, as may be conducted by the Company after the date hereof during the employment
period. In the case of multi-divisional enterprises in which one division may provide such
services, divisions which do not provide these services are not Restricted Businesses.
(ii) "Restricted Area" means the United States and Canada and any
country where the Company directly provides outsourced billing, billing software, professional
services, and customer management system services for its customers.
ill Relief. The parties hereto hereby acknowledge that the provisions of this
Section 7 are reasonable and necessary for the protection of the Company and its affiliates. The
parties further acknowledge and agree that the Company's business is worldwide and the
definition of "Restricted Business" in Section 7(e) is reasonable and necessary for the protection
of the Company and its affiliates in light of such worldwide business. In addition, the Executive
further acknowledges that the Company and its_affiliates may be irrevocably damaged if such
covenants are not specifically enforced. Accordingly, the Executive agrees that, in addition to
Revised on 7/03/02
Page 5 of7
J~
Executive Severance Agreement
EUR Systems
Confidentiallnfonnation
any other relief to which the Company may be entitled, the Company will be entitled to seek and
obtain (without the requirement of any bond) injunctive relief for the purposes of restraining the
Executive roam any actual or threatened breach of such covenants or such other relief as may be
required to specifically enforce any of such covenants from a court or competent jurisdiction.
The Executive hereby agrees and consents that such injunctive or other relief may be sough ex
parte in any state of federal court of record in the State of Pennsylvania. The Executive agrees to
and hereby does submit to in personam jurisdiction in the State of Pennsylvania. In addition,
without limiting the Company's remedies for any breach of any restriction on the Executive set
forth in this Section 7, except as required by law, the Executive shall not be entitled to any
payments set forth in Section 1 hereof if the Executive breaches any of the covenants applicable
to the Executive contained in this Section 7, the Executive will immediately return to the
Company any such payments previously received upon such a breach, and, if the event of such
breach, the Company will have no obligation to pay any of the amounts that remain payable by
the Company under Section 1.
!g} Exceutions. Any exceptions to Section 7 must be approved by the Chief
Executive Officer and must be documented as an Addendum to this agreement.
(i) If the Executive terminates employment voluntarily without Good
Reason and will not be receiving any type of severance from the company, then it is expected
that the Executive would still abide by the expectations that are covered in Section 7 except for
paragraph 7 (d) ''Non-Competition.''
8. Successors: Assil!llment.
!!} Bv the Executive. Neither this agreement nor any right, duty, obligation or
interest hereunder shall be assignable or delegable by the Executive without prior written consent
of the Company; provided, however, that nothing in this Section 8(a) shall preclude the
Executive from designating any of his beneficiaries to receive any amount payable hereunder
upon his death, or preclude his executors, administrators, or other personal representatives, from
assigning any such right or interest to the person or persons entitled thereto.
ill Bv the ComDanv. Neither this agreement nor any right, duty, obligation or
interest hereunder shall be assigned or delegable by the Company without prior written consent
of the Executive, other than any assignment to any entity that succeeds to substantially all the
business operations and/or assets of the Company.
Revised on 7/03/02 Page 6 of7
-1~
Executive Severance Agreement
EUR Systems
Confidential Information
!!:} The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company prior to or concurrent with any such event of succession to assume
expressly and agree to perform this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such succession had taken place. and to
provide the_Executive with written evidence of such assumption and agreement (which may
include documents sufficient to evidence a transaction whereby such assumption and agreement
is by operation of law). As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as aforesaid that assumes and
agrees to perform this Agreement by operation of law, or otherwise.
9. Miscellaneous.
!!l Goveminl! Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Pennsylvania, without reference to principles of conflict
oflaws.
ill Captions. The captions of this Agreement are not part of the provisions
hereof and shall have no force or effect.
!!:} Amendment. This Agreement may not be amended or modified otherwise
than by a written agreement executed by the parties hereto or their respective successors and
legal representatives.
The parties to this Agreement have executed this Agreement as of the day and
year first written above.
CUti~~
ame~", A . a~dl ( !
Title: vr.;t..<r,u-h(J J (fd.--...Jf J;>ev,
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Title: ~
Revised on 7/03/02
Page 7 of7
Separation and Release Agreement
EUR Systems
Confidentiallnformation
EXHIBIT A
SEPARATION AND RELEASE AGREEMENT
This Separation and Release Agreement ("Agreement") is entered into as of this
day of , between and any successors thereto (collectively, the
"Company) and (the "Executive').
The Executive and the Company agree as follows:
I. The employment relationship between the Executive and Company
terminated on (the "Termination Date').
2. In accordance with Section 1 of the Executive's Severance Agreement, the
Company has agreed to pay the Executive the payments and to make the benefits
available after the Termination Date, each as required by such Section 3.
3. In consideration of the above, the sufficiency of which the Executive
hereby acknowledges, the Executive, on behalf of the Executive and the Executive's
heirs, executors and assigns, hereby releases and forever discharges the Company and its
members, parents, affi1iates, subsidiaries, divisions, any and all current and former
directors, officers, employees, agents, and contractors and their heirs and assigns, and any
and all employee pension benefit or welfare benefit plans of the Company, including
current and former trustees and administrators of such employee pension benefit and
welfare benefit plans, from all claims, charges, or demands, in law or in equity, whether
known or unknown, which may have existed or which may now exist from the beginning
of time to the date of this letter agreement, including, without limitation, any claims the
Executive may have arising from or relating to the Executive's employment or
termination from employment with the Company, including a release of any rights or
claims the Executive may have under Title VII of the Civil Rights Act of 1964, as
amended, and the Civil Rights Act of 1991 (which prohibit discrimination in employment
based upon race, color, sex, religion and national origin);the Americans with Disabilities
Act of 1990, as amended, and the Rehabilitation Act of 1973 (which prohibit
discrimination based upon disability); the Family and Medical Leave Act of 1993 (which
prohibits discrimination based on requesting or taking a family or medical leave); Section
Created on 4/512002 1 :03 PM
Page I of4
/,0-/
'0
Separation and Release Agreement
EUR Systems
Confidentiallnformation
1981 of the Civil Rights Act of 1866 (which prohibits discrimination based upon race);
Section 1985(3) of the Civil Rights Act of 1871 (which prohibits conspiracies to
discriminate); the Employee Retirement Income Security Act of 1974, as amended
(which prohibits discrimination with regard to benefits); any other federal, state or local
laws against discrimination; or any other federal, state or local statue, or common law
relating to employment, wages, hours, or any other terms and conditions of employment.
This includes a release by the Executive of any claims for wrongful discharge, breach of
contract, torts or any other claims in any way related to the Executive's employment with
or resignation or termination from the Company, including any claim under the
Employment Agreement. This release also includes a release of any claim for age
discrimination under the Age Discrimination in Employment Act, as amended
("ADEA"). The ADEA requires that the Executive be advised to consult with an
attorney before the Executive waives any claim under ADEA. In addition, the ADEA
provides the Executive with at least 21 days to decide whether to waive claims under the
ADEA and seven days after the Executive signs the Agreement to revoke that waiver.
This release does not release the Company from any obligations due to the Executive
under the Severance Agreement or under this Agreement. Nothing herein to the contrary
shall effect any rights the Executive may have under the Shareholders' Agreement, dated
May 3, 2000, by and among the Company, the Executive and the other shareholders from
time to time party thereto. This release shall not apply to any rights of the Executive with
respect to indemnification, directors', and officers' insurance.
Additionally, the Company (on its behalf and that of its affiliates) agrees
to discharge and release the Executive and the Executive's heirs from any claims,
demands, and/or causes of action whatsoever, presently known or unknown, that are
based upon facts occurring prior to the date of this Agreement, including, but not limited
to, any claim, matter or action related to the Executive's employment and/or affiliation
with, or termination and separation from the Company; provided that such release shall
not release the Executive from any loan or advance by the Company or any of its
subsidiaries, any act that would constitute "Cause" under the Executive's Severance
Agreement or a breach under Section 7 of the Executive's Severance Agreement;
provided, however, that nothing herein to the contrary shall affect any rights the
Company may have under the Shareholders' Agreement, dated as of May 3, 2000, by and
Created on 4/512002 1 :03 PM
Page 2 of4
0f^-/
Separation and Release Agreement
EUR Systems
Confidentiallnfonnation
among the Company, the Executive and the other shareholders from time to time party
hereto.
4. This Agreement is not an admission by either the Executive or the
Company of any wrongdoing or liability.
5. The Executive waives any right to reinstatement or future employment
with the Company following the Executive's separation from the Company on the
Termination Date.
6. The Executive agrees not to engage in any act after execution of the
Separation and Release Agreement that is intended, or may reasonably be expected to
harm the reputation, business, prospects or operations of the Company, its officers,
directors, stockholders or employees. The Company further agrees that it will engage in
no act which is intended, or may reasonably be expected to harm the reputation, business
or prospects of the Executive.
7. The Executive shall continue to be bound by Section 7 of the Executive's
Severance Agreement.
8. The Executive shall promptly return all the Company property in the
Executive's possession, including, but not limited to, the Company keys, credit cards,
cellular phones, computer equipment, software and peripherals and originals or copies of
books, records, or other information pertaining to the Company business.
9. This Agreement shall be governed by and construed in accordance with
the laws of the State of Pennsylvania, without reference to the principles of conflicts of
laws.
10. This Agreement represents the complete agreement between the Executive
and the Company concerning the subject matter in this Agreement and supersedes all
prior agreements or understandings, written or oral. This agreement may not be amended
or modified otherwise than by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
11. Each of the sections contained in this Agreement shall be enforceable
independently of every other section in this Agreement, and the invalidity or
nonenforceability of any section shall not invalidate or render unenforceable any other
section contained in this Agreement.
Created on 4/512002 I :03 PM
Page 3 of4
0'~
Separation and Release Agreement
EUR Systems
Confidentiallnformation
12. It is further understood that for a period of 7 days following the execution
of this Agreement in duplicate originals, the Executive may revoke this Agreement, and
this Agreement shall not become effective or enforceable until the revocation period has
expired. No revocation of this Agreement by the Executive shall be effective unless the
Company has received within the 7-day revocation period, written notice of any
revocation, all monies received by the Executive under this Agreement and all originals
and copies of this Agreement.
13. This Agreement has been entered into voluntarily and not as a result of
coercion, duress, or undue influence. The Executive acknowledges that the Executive
has read and fully understands the terms of this agreement and has been advised to
consult with an attorney before executing this Agreement. Additionally, the Executive
acknowledges that the Executive has been afforded the opportunity of at least 21 days to
consider this Agreement. To the extent that the Executive executes this Agreement prior
to the expiration of such 21-day period, he does so knowingly and voluntarily and
without coercion.
The parties to this Agreement have executed this Agreement as of the day and
year first written above.
Tho~:' " ,A
By: Lk7~,
ame:
Title:
:~com2f~
Name:
Title:
Created on 4/5/2002 I :03 PM
Page 4 of4
~f'<-./
VERIFICATION
I hereby acknowledge that I have read the foregoing Verified Complaint in Equity
and that the facts stated therein are true and correct to the best of my knowledge, information,
and belief.
I understand that any false statements herein are made subject to penalties of 18
Pa. C.S. ~4904, relating to unsworn falsification to authorities.
Date: }-:;$) 6{,
BYcfif~
John M. Caddell
.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I served a true and correct copy of the foregoing document
upon all parties or counsel of record via facsimile and by depositing a copy of same in the United
States Mail at Harrisburg, Pennsylvania, with frrst-c1ass postage prepaid, addressed to the
following:
Electronics and Unit Record Datacenter, Inc.
t/d/b/a EUR Systems
5040 Ritter Road
Mechanicsburg, P A 17055
Aptis, Inc.
7411 John Smith Drive, Suite 200
San Antonio, TX 78229
Intec USA, Inc.
73-16 Drexelbrook Drive
Drexel Hill, P A 19026
Intec Billing Services, Inc.
73-16 Drexel Brook Drive
Drexel Hill, P A 19026
By:
Date: July /<6. 2006
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Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. A /- _ .I~,,;r:" / C. 'L
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ELEC1RONICS AND UNIT RECORD :
DATACENTER, INC., d/b/a EUR
SYSTEMS; APTIS, INC.; INTEC USA, :
INC. and INTEC BILLING SERVICES, :
INC., CIVIL ACTION - IN EQUITY
Defendants.
ORDER
It is hereby ordered this ~ day of July, 2006 that a hearing on Plaintiff's Motion
for Preliminary Injunction is scheduled for July ~ 10 , 2006 at 3 ~~.Ip.m. in court room
number 3 .
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JOHN M. CADDELL.
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 06-4054
ELECTRONICS AND UNIT RECORD :
DATACENTER, INC., d/b/a EUR
SYSTEMS; APTIS, INC.; INTEC USA, :
INC. and INTEC BILLING SERVICES, :
INC., CIVIL ACTION - IN EQUITY
Defendants.
ORDER OF COURT
Considering the Joint Request of Counsel, the Preliminary Injunction Hearing scheduled
for July 26, 2006 is hereby postponed until August .J./ ,2006 at J : () I -6J
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Goldberg Katzman, p.e,
Steven E. Grubb, Esquire,l.D,# 75897
Attorney for Plaintiff
320 Market Street, P. O. Box 1268
Harrisburg, P A 17108-1268
(717) 234-4161
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
NO. ~4054 Civil Term
JOHN M. CADDELL.
Plaintiff
ELECTRONICS AND UNIT RECORD :
DATACENTER, INC., d/b/a EUR
SYSTEMS; APTIS, INC.; INTEC USA, :
INC. and INTEC BILLING SERVICES, :
INC.,
CIVIL ACTION - IN EQUITY
Defendants.
CERTIFICATE OF SERVICE
The Complaint in this matter was issued by Certified Mail, Return Receipt Requested on
July21, 2006 upon Defendant Aptis, Inc., and on August 11, 2006 upon Defendants Intec USA,
Inc. and Intec Billing Services, Inc., and the same was received and accepted by the Defendants, as
reflected on the return receipt cards attached hereto.
Respectfully submitted,
GOLDBERG KATZMAN, P.C.
Date:
~/l5/0b
By:..__
Steven E. Grubb, Esq' (I.D. # 75897)
320 Market Street, P.O. Box 1268
Harrisburg, P A 17108-1268
Telephone: (717) 234-4161
Attorneys for Plaintiff
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11Im 4 N f\oetllct8d DeUvwy Is deIInld.
. JIlInt your IWI'I8 and 8dcInlea on the reveIlI8
10 _ we cen retum the card to you.
. Mach 1hIs card to the back 01 the mallp1ece,
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Intec USA, Inc. ' '~~~
Attn: Nonn Halvorson \ ~<.' /
301 Perimeter Center North, ~ ;:~
Atlanta, GA 30346 .
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Attn: Norm HalVOI1lOIl \':""'1
301 Perimeter Center North, Suit.'~ .,'
AIlanta, GA 30346
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Jeffrey T. McGuire, Esquire
Attorney LD. No. 73617
Caldwell & Kearns, P.c.
3631 North Front Street
Harrisburg, PA 17110
(717) 232-7661
(717) 232-2766 (fax)
Attorney for Electronics and Unit Record Datacenter, Inc., d/b/a EUR Systems and Aptis, Inc.
JOHN M. CADDELL,
Plaintiff,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs,
No. 06-4054 Civil Tenn
ELECTRONICS AND UNIT RECORD
DATACENTER, INC" d/b/a EUR
SYSTEMS; APTIS, INC.; INTEC USA,
INC. and INTEC BILLING SERVICES,
INe.
Defendants
CIVIL ACTION - LAW
PRAECIPE FOR
ENTRY OF NOTICE OF REMOVAL FILED WITH THE
MIDDLE DISTRICT OF PENNSYL VANIA
TO THE PROTHONOTARY:
Please enter the attached Notice of Removal that was filed with the Middle District of
Pennsylvania Court on May 16,2006, on behalf of the above named Defendants, Electronics and
Unit Record Datacenter, Inc" d/b/a EUR Systems and Aptis, Inc.
Respectfully submitted,
D"" IS/liP ,2006
By:
J ex. McGuire, Esquire
tto ey l.D. No. 73617
3631 North Front Street
Harrisburg, PA 17110
(717) 232-7661
79521-00211 05298
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">'544 (R" 11104) CJVJL COVER SHEET
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The JS 44 civil cover sheet and the information ~(}nt3ined herein neil\1n replact' nOf supplemem the filing and service ofp1e:ldings or other papers as required by law, excepl as provided
by local rules of court_ ThiS form, approved by Ine JudicIa] Conferencf' 01 the Umted Sliltes In September 1974, IS reqUIred for the use oflheCJerk orCoun forthe purpose ofmitialing
the civil docket sheet (SEE INSTRU(TIONSO/,< THE REVERSE OF THE: FORM,)
/. (a) PLAINTIFFS
Caddell, John M.
(b) County of Residence offirst Listed Plaintiff Cumberland
(EXCEPT IN US PLAINTIFF CASES)
DEFENDANTS
Electronics and unit Record Datacenter, Inc.
d/b/a EUR Systems;
@>tis( Inc., i . Intec USA, Inc.,
County 0 Residence 01 FIrst Listed Defendanl
\!N us. PLAINTIFF CASESONL Y)
NOTE It\' lA1\'D CONDEMNATION CASES. USE THE LOCATION OF THE
LA\'.:D INVOLVED
and Intec Billin'
SPrvices. Inc:
(c) Attorney's (fiml N<lme, Addre~~, and Telephone Number) 717-234-4161
Steven E. Grubb, Esg. 320 Market Street
Goldberg Katzman, P.C. Harrisburg, PA 17108
IJ. BASIS OF JURISDICTION (Place an "X' ill One 80\ Only)
AlIomeys (IfKIIO\\ll)
See attachment
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Plai1l1iff
i! 3 FednalQuestion
(US Govemmem NOI a ParI)')
III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an "X' in Ont 80)( fOf Plaintiff
ifm Din'T~ity La5es OII]Y) and One 80\ for Defendalll)
PH DH PTF DH
0] CJ I hKorpmated or PT\ncipal Nan~ 0 4 0 4
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Cirizt'llorSubjeclofa 03 0 3 for,ign Nation a 6 06
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IV NATURE OF SUIT (Place all "X"inOne Boll. Oulv)
CONTRACT TORTS FORFEITliR[/P[NAL TY BANKRUPTCY OTHER STATUTES
o 1I011lsurallce r[RSONi\,L INJllRY PERSONAL INJl:RY 0 610 AgnclllnlTe 0422 Appeal 28 l',SC 153 0 400 Slate Reapportionmenl
o 120 Marine 0 3JO.A.irplane 0 362 Persona] Injmy- 0 6200llleT Food & Dmg o 423 Wilhdra\\al 0 410 AmitnlSI
o 130 Millt'r Ael 0 3]5 Airplane ProduCl I\lrdi\lalpractice 0 675 Dmg Relaled .xizlIrt' 23 USC 1)7 0 430 Banks and B:llIking
o 140 Negotiable In'i>tnnnent liabilil)' 0 }b~ Personal Injury - ofPropeny21 USC331 0 450CollllJ1<<ce
o 150Reco\'eryofO\t'Tpaymell1 0 320 AssauJr. L-ibel& Produclliabitirv 0 630 Liqllor Laws PROPERTY RI HT5 0 460 Deportalioll
& EnforcemelllofJlIdgmenl Slandel 0 3M!/lsbeSlOsPersonal 0 640 R.R. & T~lCk o 320 Copyriglws 0 4iQRackeleerlnOuC'ncedand
o 151 MedicarcAn 0 330 Fe-deral Employers In,inryProducl 0 650 AirJille Regs o 330Palenl ComlplOrganizations
o ]52 RecO\eryofDefaulred Liabilirv Liability ., 6600ccnpational o 340 Trademark 0 430 ConSlllller Credil
Smdent Loans 0 340 Marine PERSON_-\L rROPE:RTY SafelyilJealrh 0 490 Cabk:Sal TV
(E~cl. VeTerans) 0 345 Marine ProdtlCl 0 3700lherFrand ,0 69001her 0 810Sekcri\-eSe-rvict
o /53RC'co\er)"ofOverpaYIllt'1l1 Liabilir} 0 371 Trllrh in Lendillf' lABOR SO fAL SECliRITY 0 350 SecmitieS'(OlllllmdiriC'l>-'
ofVeteran.s Benefits 0 3S0MotDJVehicle 0 3SDOrherPcrsolJal :1 7]OFair Labor Standards 086] H]A{1395ff) E~change
o /60$10ckholdels. Snils 0 355fVlolorV,hick rfOpel1~ Damage .tIel o 367 Black lung ((23) 0 375 CllSl0l11er Chatlm!!e
o ]900lherConrrael Producl Liabilil\ 0 3R5 Pll1perh' Damage 0 iiOLabor:('l.'tgml, RetalKmS o ~63 OIWC'DIWW 14O)(g)) 12l'SC 3410
o 1'1) ConlTact Producl Liabilily 0 36001hfT Personal Product Liabitil~ 0 730 Labor/Mgml.Reporting o RM ssm Tilk XVI 0 8900lhel SraMor:_ AnionS
o 196 FranchisC' In'llrv & DisclosureAcl " 365 RSl (405(l.')) 0 R91 AJ:,'TiculturaIAcls
REAL PROPERTY ClVlL RIGHTS PRISON'f.R PETITIONS n 740 Railway Labor ACI FEDERAL TAX SVITS a 891 Economic SlabilizaliOll An
o 210 Land Condemnation 0 44] VOling 0 510r'-1orio1J$loVacale 0 7900lher Labor Liligation o 370Ta.~es(l'_S. Plaintiff 0 39) EnlirOllnJeutalMaller'i>
CJ 220 fort'c1ostlTe 0 4~2 EmploYllIelll Selltence JiI 791 EmpL Rel.lne oIOeft'\1danl) 0 394 Energ\ Allocation!\cl
CJ 230 Relll Lease &: EjecrllltTIr 0 443 Housingi HabtasCorpus: SecllriryAcl o 871 IRS- Third Parry 0 395 FrftdOllJof]nfonnalion
o 240 Tons 10 Land !\ccommodations 0 530 Genera] 26 use 7609 ACI
o 245Tor1ProduelLiabiJilv 0 444 Welfare 0 535 Dea\\IPellally 0 900Appeal of Fee DC'lemJinalion
o 290 All 01her Real Prop~rty 0 445Amerv,.-;Disabilities- 0 540 )\1;l11damus & OlheT Under (qual Access
ErnploY1Jlt'lIl 0 550 Ci\il Righl~ 10 j\l~nce
0 446.iI,merw/Disabiliries- 0 555 Prisoll Condilion a 950 ConSlirulionatily of
Olner $lale$ralulC'S
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Y. ORIGIN
:Jl
Orieinal
Proceedine
(Pbce an '.X" i" Olle Bo~ Ollly)
ro 2 Remoyed from 0
3 0 4 0 5 T ransfened from 0 6
Remanded from Reinstated or anolher district Multidislricl
Stale Court A ellate Court Reo ened s lOcif" lili~alion
Cite the U.S. Civil Slat ute under which you are filinl? (Do nol dte jurisdictional statutes unless di\'f'rsit:v):
29 U.S.C. 1001 et s . "
Brief description of cause:
Suit for ERISA benefits
o CHECK iF THIS IS A CLASS ACTION
UNDER F_R,C.P_ 23
07
.t..ppeallo DiSlriCI
Jud12e from
Ma2istr3le
Jud2menl
VI. CAUSE OF ACTION
VII. REQUESTED IN
COMPLAINT:
VIII. RELATED CASE(S)
IFANY
DEMAND $
Preliminary
. CHECK YES only if demanded in complaint:
InjunCtl0~t:RY DEMAND: 0 Ye, XJ No
(Seeinsmrctions)
JUDGE
Guido
DOCKET NUMBER
06-4054-Cumberland
)ATE
August 15, 2006
'OR OFFICE USE ONl y
RECEIPT Ii
AMOUNT
APPL YING ]FP
JUDGE
MAG_JUDGE
,
.
John M, Caddell, Plaintiffv. Electronics and Unit Record Datacenter, Inc" d/b/a EUR
SYSTEMS, Inc., Aptis, Inc., Intec USA, Inc., and Intec Billing Services, Inc.
Attorney for Defendant, Electronics and
Unit Record Datacenter, Inc" d/b/a EUR Services and
Aptis, Inc.:
Jeffrey T, McGuire, Esquire
Caldwell & Kearns
3631 North Front Street
Harrisburg, P A 17 1] 0- 1533
(717) 232-7661
(717) 232-2766 (Fax)
Attorney for Defendant, Intec USA, Inc, and Intec Billing Services:
Robert A. Graci, Esquire
Matthew D, Coble, Esquire
James A. Diamond, Esquire
Eckert Seamans Cherin & Mellott, LLC
213 Market Street
Harrisburg, PA 17101
.
,
.
UNITED STATES DlSTRlCT COURT FOR
THE MIDDLE DlSTRlCT OF PENNSYLVANIA
JOHN M. CADDELL,
Plaintiff,
v,
NO.
ELECTRONICS AND UNIT RECORD
DATACENTER, INC., d/b/a EUR
SYSTEMS; APTIS, INC.; INTEC USA,
INC. AND INTEC BILLING SERVICES,
INC.
CIVIL ACTION
Defendants,
DEFENDANT, EUR SYTEMS', APTIS, INC.'S NOTICE OF REMOV AL
TO: THE UNITED SA TES DISTRICT COURT FOR THE MIDDLE DISTRICT OF
PENNSYLVANIA
Electronics and Unit Record Datacenter, Inc., d/b/a EUR Systems and Aptis, Inc.,
Defendants in the above-captioned matter, hereby file a Notice of Removal of said case
from the Court of Common Pleas of Cumberland County of the Commonwealth of
Pennsylvania, in which it is now pending, to the United States District Court for the
Middle District of Pennsylvania and in support hereof, state as fonows:
,
.
1.
This action was commenced by way of a Complaint - Civil Action in the
Court of Common Pleas of Cumberland County of the Commonwealth of Pennsylvania
on July 18, 2006, and is docketed No. 06-4054. The Complaint was served on
Defendant, EUR Systems no earlier than July 18, 2006.
2. The Plaintiff is John M. Caddell.
3. The Complaint alleges that:
a. Plaintiff is an employee ofEUR Systems.
b. Plaintiff is a party to an "Executive Severance Agreement".
c. EUR Systems has entered into an Asset Purchase Agreement dated
July 17,2006, whereby it has sold substantially all of its assets to Intec USA,
Inc.
d. Closing is to occur on or before July 27, 2006.
e. EUR Systems failed to assign Mr. Caddell's Agreement to Intec USA,
Inc.
f. Intec USA, Inc., has not assumed Mr. Caddell's Agreement.
g. Once closing in this matter occurs, EUR Systems will cease to have
any assets and will merely be a shell corporation.
h. That all proceeds from the sale ofEUR Systems' assets will go directly
to investment banks and brokerages which are EUR Systems' creditors.
2
.
I. In Count I of his Complaint, Plaintiff requested injunctive relief
claiming no adequate remedy at law.
j. In Count II of his Complaint, Plaintiff sued for benefits and/or wages
under Pennsylvania's Wage Payment and Collection Law, 43 P.S. S 260.1.
4. Plaintiff further filed a Motion for Preliminary Injunction and a hearing is
currently scheduled for Monday, August 2 I, 2006, at 2:00 p.m.
5. Plaintiff's Complaint involves claims under the Employment Retirement
Income Security Act ("ERISA"), 29 U.S.c. S 1001 et seq. since the claims related to
benefits which include an employee pension plan covered by ERISA. Plaintiff's state
law claims are entirely preempted by ERISA.
6. The present lawsuit is removable from State Court to the District Court of
the United States pursuant to 28 U.S.c. SS 144 I (b) and 1446. Copies of all process,
pleadings and orders which have been received by Defendant EUR Systems are filed
herein and attached as Exhibit "A".
7. Defendants lntec USA, Inc. and lntec Billing Services consent to the
removal of this action and their Consent and Joinder of Removal is attached hereto as
Exhibit "B".
8. This Notice is timely, it being filed within thirty (30) days of the receipt of
Petitioner, EUR Systems of a copy of the Complaint and setting forth the claims for
relief upon which this action is based.
3
,
WHEREFORE, Notice is given that this action is removed from the Court of
Common Pleas of Cumberland County, Pennsylvania to the United States District
Court for the Middle District of Pennsylvania.
Date:
cg //5!Dfo
I I
By:
~
cGuire, Esquire
yl.D.#73617
dwell & Kearns, P.C.
3631 North Front Street
Harrisburg, PAl 7 I 10- I 533
(7 17) 232-766 I
Attorney for EUR System
]05204
4
. .
~ l<~MI- ,4
07/2G/~OOS i2'~6 ~~X 111 23Q 6808
>
GOLOBrRB KAllMAN
~ .
'_ ,':'..-r,-.')
1.'1 Oc-'.I' ~,L v
. ~,"~" .., r:... .-
.Iq
<'rJ
<'.?oo>
JOHN M. CADDELL.
Plaintiff
v.
ELECTRONICS AND lTh1T RECORD :
DATACENTER, INC, dIb/aEUR
SYSTEMS: APTIS, me; INTEC USA, :
lNC. and INTEC BILLING SERVICES, :
INe..
- . ... Defen&nts. --. .
IN THE COURT OF COMMON PLEAS
CUMBERL.AND COUNTY. PEN>\SYL V AN1A
NO.
CIVIL ACTION - IN EQUITY
- . - --. - - ,'-'
ORDER
It is hereby ordered this ~ day of July, 2006 that a hearing on Plaintiffs Motion
for Preliminary Injunction is scheduled for July ~ 10 ,2006 at 3 :Aji8.1p.m. in court room
number 3 .
T:
J.
JOHN M. CADDELL.
Plaintiff
IN TI1E COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL V ANLA
v.
NO.
O~ - c/Oj V r/",-I ~/""
ELECTRONICS AND lJ'NlT RECORD :
DA T ACENiER, INC., d1b!a EUR
SYSTEMS; APTIS, INC.; INTEC USA, :
INC. and INTEC BILLING SERVICES, :
INC., CIVlL ACTION - IN EQU1TY
Defendants.
ORDER
Having \;onsidered Plaintiff John M. Caddell's Motion for Preliminary Lnjun\;tion, it is
hereby ordered this _ day of
,2006, that said injunction is GRANTED.
The follov.ing relief is ordered:
Electronics and Unit Re\;ord Datacenter, Inc., tfdlb/a EUR Systems; Aptis. lne. Inke
USA, Inc.; and Intec Billing Services, Inc. are hereby enjoined from closing on the asset
pur\;hase, as contemplated by their Asset Purchase Agreement dated July J 7, 2006, until
John Caddell is provided written documentation evidencing !ntee lJSA, Inc.' sand lntec
Billing Services, Inc. assumption of Mr. Caddell's Executive Severance Agreement.
By the Court,
J.
JOHN M. CADDELL.
Plaintiff
IN 1HE COURT OF COMMON PLEAS
CUMBERLA},lI) COUNTY, PENNSYL V ANL>\
v.
NO.
ELECTRONICS AND UNIT RECORD :
DA TACENTER, INC-, d/b/a EUR
SYSTEMS; APTIS, lNe.; INTEC USA, :
INC. and INTEC BILLING SERVICES, :
INC
CIVIL ACTION - IN EQU1TY
Defendants.
ORDER
It is hereby ordered this
day of July, 2006 that a hearing on Plaintiff s Motion
fOJ Preliminary Injunction is scheduled for July
, 2006 at _ a.rnJp.m_ in court room
number _
BY THE COURT:
1.
Goldberg Katzman, r.c.
Steven E. Grubb, Esquire, J.D.# 75897
Attorneys for Plaintiff
320 Markei Street, Strawberry Square
P O. Bo, i268
Harrisburg, PA 17108-1268
(717) 234-4161
JOHN M. CADDELL
Plaintiff
TN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL V ANlA .
v_
NO.
ELECTRONICS AND UNIT RECORD :
DATACENTER, lNC, d/b/a EUR
SYSTEMS; APIIS, fNC_; INTEC USA, :
lNe. and fNTEC BILLING SERVICES,:
INC.,
CIVIL ACTION -- IN EQUITY
Defendants.
MOTION FOR PRELIMINARY INJUNCTION
Plaintiff JOM M. Caddell, by and through his counsel, Goldberg K2tzman, P.c.. hereby
moves the Court, purSl11llt to Pa R.C.P. 1 53!. for a preliminary injunction, as set forth in the
attached proposed order.
I. Movant is John M. Caddell, Plaintiff in the above-captioned maner
2. Respondent is Electronics and Unit Record Datacenter, Inc., tJdIb/a EUR Systems
(EUR), Defendant in the above-<:aptioned matter.
3. Respondent is Aptis. Inc., Defendant in the above-<;aptioned matter. (A ptis, Inc.
and Electronics and Unit Record Datacenter, Inc., Vd/b/a EUR Systems will hereinafter
collectively be referred to as "EUR.")
4. Respondent is Intec USA, Inc., Defendant in the above-captioned matter.
1
5. Respondent is Intec Billing Services, Inc., Defendant in the above-captioned
maner. (Intec USA, Inc. and Intec Billing Services, Inc. will hereinafter collectively be referred
10 as "Inlec.")
6. SirnuJUllleously v.ith the filing of this Motion for Preliminary Injunction, Plaintiff
has filed a Verified Complaint in Equity requesting preliminary and permanent injunctive relief.
The verified Complaint in Equity is attached hereto as Exhibit A, and incorporated by reference
as if set out in full.
7. For the reasons explained therein, as well as in this MotioD, a preliminary
injunction is warranted in this case.
S A contract that contains clear and unambiguous language must be interpreted in
accordance v,'ith its plainly expressed intent. Hahalvak v. A. Frost. Inc.. 444 Pa. Super. 494, 503,
664 A.2d 545, 549 (Pa. Super. ] 994).
9. An injunction enforcing compliance with the term s of an agreement is within the
court's equitable powers. Id.; See also, International Union of()peratinE En2ineers v. Linesville
Construction Co.. 457 Pa. 220. 322 A,2d 353 (1974) (equitable enforcement ofcoJlective
bargaining agreement pennitted through use of injunction), LanEston v. National Media Com.,
420 Pa. Super. 611, 619, 617 A.2d 354, 358 (1992).
10. In this case, the clear language of Mr. Caddell's Executive Severance Agreement
requires EUR to assign his Executive Severance Agreement to any successor who purchases
subsumtially all ofEUR's assets.
2
I I. fUR, in blatant disregard of this provision, has not assigned lI-fr. Caddell its
contract, nor has Intec accepted the assignment of Mr. Caddell's Executive Severance
Agreement.
] 2. Preliminary injunctions are mandated where six essential prerequisites are proven:
(1) a strong likelihood of success on the merits; (2) a showing of immediate and ineparable harm
Ll)at cannot be compensated by money damages; (3) a showing that greater injury will result if
preliminary injunctive relief is denied then if such inj\Dlctive relief is granted; (4) a showing that
a preliminary injunction would restore the status quo; (5) the injunction Mr. Caddell seeks is
reasonably suited to abate the offending ac~ivity; and (6) there is no adverse affect on the public
interest. )<.essler v. Broder. 85] A.2d 944, 947 (pa. Super. 2004) ;mpeq! denied. 582 A.2d 676.
868 A.2d ]201 (2005); Allegheny Anesthesiology Assocs. v. Allegheny Gen. Hosp.. 826 A.2d
886, 89J (pa. Super. 2003), appeal denied 577 Pa. 684,644 A.2d 550 (2004)-
13. In Ihis situaIion, all requirements are met.
]4. First, Mr. Caddell has a strong likelihood of success on the merits since EUR is
clearly and blatantly violating the clear language of the contract by not upholding iIs contractual
obligalion to assign Mr. Caddell's Agreement.
15. Second, without proper assignment, Mr. Caddell's contractual rights, as a whole,
are jeopardized particularly where, after the asset sale, EUR will cease to operate as a business.
Thus, there is no possibility that Mr. Caddell can be compensated by monetary damages.
] 6. Third, greater injllI)' will result if injunctive relief is denied, then if s\lch
injunctive relief is granted, in that denial of a preliminary injunction will permit the closing to go
3
forward, in contravention ofMr Caddell's contractual rights, whereas granting the injunction
only forces compliance v,;th contractual terms and is less injurious than the alternative.
17. Fourth, a preliminary injunction will only maintain the status quo by compelling
the panies 10 do whar is called for in the Executive Severance Agreernenl.
18. Finally. the requested injunction is reasonably suited to abate the offending
activity in that it compels the outcome mandated in the Agreement The public interest is not
affected by the injunction.
WHEREFORE, it is respectfully requested that the court enforce the clear words oflhe
Executive Severance Agreement attached to the verified Complaint in Equity and order:
I . an injilllction which stays the closing between EUR and lntec, pending
-",Tilten documentation and evidence that Intec is assuming Mr. Caddell's
Agreement;
2. alternatively, iflnlec and EUR are not agreeable to the assumption ofMr.
Caddell's Executive Severance Agreement, the court enjoin EUR from
selling its assets to Inlec due to its breach of Mr. Caddell's Agreement;
J. alternatively, order Intee to assume Mr. Caddell's Agreement per the
lerms of Section 8 of that Agreement.
Respectfully Submitted,
Date: JulY~, 2006
By: ~
en E. Grubb, . e (I.D( #75897)
320 Market Street, P. O. Box 1268
Hanisburg,PA 17108-1268
(717) 234-4161
Attorneys for Plaintiff
4
Goldberg Kamnan. PC.
Sleven E. Grubb, E"luire, I.D.# 75897
Anorney for Plaintiff
;20 Market Street. Str,,"'"err:' Square
P. O. Box 1268
Hamsburg, PA 17108-1268
(717)234-4161
~--"
JOHN M. CADDELL
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL V ANlA
v,
NO.
ELECTRONlCS AND UNlT RECORD :
DATACEl'nER, INC., d/b/a EUR
SYSTEMS; APTIS, INe.; INTEC USA, :
INC. and lNTIC Bll..LTNG SERVICES, :
INe.,
CML ACTION - IN EQUITY
Defendants.
:'IOnCE TO PLEAD
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 is
served, by entering a ".-linen appearance personally or by attorney and filing in writing with the
Court your defenses or objections to the claims set forth against you. You are warned that if you
fail to do so the case may proceed without you and a judgment may be entered against you by the
Court without further notice for any money claimed in the Complaint or for any other claim or
relief requested by the Plaintiff. You may lose money or property or other rights important to
you.
YOU SHOULD TAKE THIS PAPER TO YOUR LA WYER AT ONCE. IF YOU DO
NOT HAVE A LA \\'YER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERlAND COUNTY LAWYER REFERRAL SER VICE
32 S. Bedford Street
Carlisle, Pennsylvania 17013
(717) 249-3166
NOT/CIA
Le ban demandado a lISted en la corte. Si usted quiere defenderse de estas demandas
expuestas en Jas paginas siguientes, usted tiene vicnte (20) dias de plazo al partiI de la fecha de
la demands. y la notificacion. Usled debe presentar una apariencia esenta 0 en persona 0 por
abogado y arcbivar en la corte en forma esents sus defensas 0 sus objeetiones a las dernandas en
contra de su persona. Sea adisado que si usled no se defiende, \a sin previa aviso 0 notificacion
y por cuaJquier quja 0 puede perder dinero 0 sus propiedades 0 otros derechos importantes para
usted.
LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIA T AMENTE. SI NO TlENE
ABOGADO 0 Sl NO TIENE Et DINERO SUFICIENTE DE P AGAR TAL SER VIClO,
VA YA EN PERSONA 0 LLAME POR TELEFONO A LA OFICJNA CUY A DIRECCION SE
ENCUENTRA ESCRlTA ABAJO PARA A VERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENClA LEGAL.
CUMBERLA.ND COUNTY LAWYER REFERRAL SERVICE
32 S. Bedford Street
Carlisle, Pennsylvania] 701 3
(717) 249-3166
Goldberg K.tlzman. P.e.
Steven E. Grubb, Esquire, l.D.# 75897
ADorney for Plaintiff
320 MarUI Street, Smwbm)' Square
P. O. Bo. 1268
HmTisburg, PA lilO&-1268
(717) 234-4161
]OHN M. CADDELL.
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVA.'-.'LA..
v.
NO.
ELECTRONICS AND UNIT RECORD :
DATACENTER, INC., d/b/a EUR
SYSTEMS; APT IS, INC; INTEC USA, :
mc. and INTEC BIllING SERVICES, :
INC.,
CNIL ACTION - IN EQUITY
Defendants.
VERIFIED COMPLAINT IN EOIDTY
Plaintiff, ]ohn M. Caddell (Caddell), by and through his counsel, Goldberg IUtzman,
P.e., alleges the following in support of this Complaint:
THE PARTIES
I. Plaintiff is John M. Caddell, an adult individual with an address of340 North 25th
Street, Camp HilL Pennsylvania 17011.
2. Defendant Electronics and Unit Record Datacenter, Inc., tldlb/a EUR Systems is a
Pennsylvani a business corporation with a registered address of 5040 Ritter Road,
Mechanicsburg, Cumberland County, PA 17055.
I
3. Defendant Aptis, Inc. is a Delaware cmporation authorized to do business in
Pennsylvania with an address 0[741 1 John Smith Drive, Suite 200, San Anlonio, TX 78229.
(Aptis, Inc. and Electronics and Unit Record Datacenter, Inc., tJd/b/a EUR Systems will
hereinas'1er collectively be referred to as "EUR.")
4. Defendant Intec USA, Inc. is a Pennsylvania corporation with a registered office
address of73-16 ~xelbro()k Drive, Drexel Hill, Delaware County, P A 19026.
5. Defendant wtec Billing Services, Inc. is a Pennsylvania corporation with a
registered office address of13-16 Drexel Brook Drive, Drexel Hill, Delaware County, PA
19026. (Intec USA, Inc. and wtec Billing Services, we. will hereinaf\er collectively be referred
to as "lntec.")
6. Plaintiff is employed by EUR and is a party to an "Executive Severance
Agreement" ("Agreement") which is attached hereto as Exhibit A.
7. Plaintiff has been employed for EUR in various officer-level roles since October
16,2000.
8. Pursuant to the Agreement, ifEUR, or EUR's successor, tenninates Mr. Caddell
without cause, Mr. Caddell is entitled to the following:
3. Oblil!ation oftbe ComV3nvUDon termination Under Section L
lfthe Executive's employment shall have been terminated by the
Company under Section] (other than for Cause) or by the Executive for
Good Reason.
(8) the Company shall make a lump sum cash payment to the
Executive within 30 days after the Date of Termination of the accrued
Amounts earned but unused Paid Time Off and any money that is
nonnally paid during this time period, except to the extent under the terms
of a Plan they are 10 be paid at a later date;
2
(b) the Company shall pay to the Executive in equal installments,
made at least monthly, an aggregate amount equal to two times the
Executive's Annual Base Salary in effect on the Date ofT=ination over
the twenty-four months following the Date of Termination and;
(c) until the earlier of eighteen months following the Date of
Termination or the date the Executive becomes entitled to comparable
benefits from another employer, the Executive shall be entitled to receive
medical coverage and life insurance as provided under the Company's
Plans from time to time and the Executive's cost therefor shall not exceed
the cost paid by the other executives of the Company for comparable
coverage.
9. EIJR has entered into an Asset Purchase Agreement dated July 17. 2006. whereby
it has sold subst.mtially all of its assets to Intec.
10. Closing between EUR and Intec is to occur on or about July 27, 2006.
11. Within the Agreement, at Section 8(c), EUR agreed to the following:
The Company rEURl will renuire any successor (wbether direct or
indirect, by purchase, merger, consoJid3tion or othe1Wise) to all or
substantially all oftbe business and/oT assets of lhe Company prior
to or concurrent with any such event of succession to assume
expresslY and am-ee to perform this Agreement in the same manner
and to the same extent that the Coml>3UY would be required to
perform it if no such succession had taken Dlace and to provide the
executive with written evidence of such assumPtion and agreement
(wlUch may include documents sufficient to evidence a transaction
whereby such assumption and agreement is by operation of law).
As used in this Agreement, "Company" shall mean the company as
hereinbefore defined and any successor to its business and/or
assets as aforesaid that assumes and agrees to perform this
agreement by operation of law, or otherwise, (Emphasis added,)
12, Thus, as pan ofEUR's sale of its assets to Intce, EUR was required to assign Mr.
Caddell's Agreemellt to the successor company as part of the transaction.
13. Intec has not assumed Mr. Caddell's Agreement as pan of its purchase ofEUR's
assets .
3
] 4. Once closing in this matter occurs, EUR will cease to have any assets and will
merely be a shell corporation which conducts no further operations.
1 S. It is believed, and therefore averred, that all proceeds from the sale of EUR's
assets will go directly to investment banks and brokerages which are EUR' s creditors.
J6. EUR's failure to assign Mr. Caddell's Agreement, and Intec's refusal to assume
the Agreement, is a clear breach of Section 8(e) of the Agreement ofJuly 1, 2002.
COUNT I
BREACH OF CONTRACT - INJUNCTIVE RELIEF
17. The averments ofparagrapbs 1 through 16 above are incorporated by reference.
18. EUR has breached the Agreement with Mr. Caddell by failing to require Intee, the
successor-in-interest to EUR's assets, to assume Mr. Caddell's Agreement.
] 9. Relief in the nature of a preliminary, and then permanent, injunction which
commands EUR to require Intec to assume expressly, and agree to perform. the Agreement j,
necessary.
20. Mr. Caddell has no adequate remedy at law.
21. Mr. Caddell will experience immediate and iueparable hann in that a direct
conlractlliil obligation he has with EUR is being ignored and violated by both EUR and Intec
through EUR's non-assignment and Intee's non-acceptance of Mr. Caddell's Agreement.
WHEREFORE, the following relief is requested:
a. The court enter an injunction whieh prohibits the closing between EUR
and !ntec, pending written documentation and evidence that Intec is
assuming Mr. Caddell's Agreement;
4
b. Alternatively, if Intec and EUR are not agreeable to the assumption ofMr.
Caddell's Executive Severance Agreement, the court enjoin EUR from
selling its assets to lnte<; due to its breach of Mr. Caddell's Agreement;
e. ,llJternatively, order Intec to assume Mr. Caddell's Agreement per the
terms of Section 8 of IMt Agreement.
d. V,rhatever other remedy this court deems just and proper.
ALTERNATIVE COUNT II
BREACH OF CONTRACT V. ElJlt
22. The averments of paragraphs 1 through 21 above are incorporated by reference.
23. In the alternative, EUR will not retain Mr. Caddell as an employee, especially
where it will be a shell corporation following the sale of its assets to lntee.
24. Mr. Caddell will be tenninated without cause by EUR. entitling him to benefits
pursuant to Section 3 of the Agreement, as explained above.
25. EUR has not paid, nor indicated it will pay, any of the promised benefits to Mr.
Caddell.
26. The benefits to which Mr. Caddell is entitled under Section 3 of the Agreement
are "wages" under Pennsylvania's Wage Payment and Collection Law, 43 P.S. 9260.].
\VHEREFORE, it is respectfully requested that this court order:
a. EUR 10 set aside funds it will receive at closing which will be sufficient to
pay the benefits required under Section 3 of the Agreement, in the time
parameters described in 1M! Section 3;
5
b. EUR be held to account to Mr. Caddell for the setting a~ide of those funds,
and to pay Mr. Caddell his severance, as described in Section 3 of ihe
Agreement, out of those funds set aside; and
c. award all costs of court, including attorneys fees, and liquidated damages
under Pennsylvania's Wage Payment and Collection Law, 43 P.S. ~260.1
et seg., and whatever other remedies this court deems just and proper.
Respectfully Submitted,
Date: July 18, 2006
~
Steven E. bb, Esquire (1.0. #75897)
320 Market Street
P. O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Arrorney for Plaintiff
By:
133i84.1
6
Executive Seve=ce Agreement
EUR Systell'..!
Confidential InfofIDatio~
EXECUTIVE SEVERANCE AGREEMENT
~I THIS EXECUTIVE SEVERANCE AGREEMENT is made effective the fust dav of
2002, by and between EUR Systems, with principal offices located at 5040 Ritter
P.O. Box 380, Mechanicsburg, Pennsylvania 17055 (hereinafter referred to as the
"Company"), and John M. Caddell, a resident of Camp Hill, Cumberland County, Pennsylvania
(hereinafter referred to as the "Executive").
WI TNES SETH:
WHERE.'\S, the Executive is now employed by the Company, and the Executive and the
Company desire to enter into an agreement relating to severance:
NOW, TIlEREFORE, in consideration of the premises and the mutual covenants herem
set forth, it is agreed as follows:
1. Termination. The Company may t=inate the Executive's employment with Or
without Cause and Executive may terminate his empJoyment with or without Good Reason.
(a) Defmitions. For the purposes of this Section J.
(i) Termination with cause is a result of
(i) any material breach of a material provision of the Agreement by the Executive, (ii) a violatioll
of company policy by the Executive, (iii) the Executive not performing the duties and
responsibilities of the position or the duties assigned, or (iv) engagement by the Executive in any
criminal activity. ; (v) engagement in any activity which could be detrimental to the business of
the company.
(ii) Termination with good reason means the occurrence of any of the
following events provided that the executive delivers a Notice of Termination to the Company
within 60 days of the occurrencc of such event and the Company shall not have cured the
circumstances giving rise to such event within 30 days of its receipt of such Notice of
Tennination: (i) any material breach of a material provision of the Agreement by the Company,
(ii) the assignment to the Executive by the Company of duties and responsibilities that are
significantly different from the duties and responsibilities of an executive of the Company or (iii)
the relocation by the Company of the Executive's principal business location to a site that is not
within 50 miles of Mechanicsburg, Pennsylvania.
Revised on 7/03/02
Page J of1
./i-'--
"
Ex=tivt StvtlOT/ce Agreement
EUR SystemS
Ccnfidentiallnformtlion
2. Notice of Termination. Any termination of the Executive's employment \>,.;t.'1
the Company (otber than due to death) shall be effected by wrinen notice delivered to the other
party and, if by the Company for Cause or by the Executive for Good Reason, sball be
communicated by a Notice of Termination to the Executive or the Company, as applicable, given
in accordance with this Agreement. The failure by the Company to set forth in tbe l\otice of
Termination any fact or circumstance that contributes to a showing of Cause shall not v,'aive any
right of the Company hereunder or preclude Ihe Company from assening such fact or
circumstance in enforcing the Company's rights hereunder. The failure by the Executive to set
forth in the Notice of Termination any fact or circumstance that contributes to a showing of Good
Reason shall not waive any right of the Executive hereunder or preclude the Executive from
asserting such fact or circumstance in enforcing the EXel:Utive's rights hereunder.
3. Obli!!9tion of the Company Upon Termination Under Section 1. If the
Executive's employment shaH have been termirulled by the Company under Section I (other than
for Cause) or by the Executive for Good Reason:
ea) the Company shall make a lump sum cash payment to the Executive v,ithin 30
days after the Date of Termination of the accrued Amounts, earned but unused Paid Time Off
and any money that is normally paid during this time period, except to the extent under the terms
of a Plan they are to be paid at a later date;
(b) the Company shall pay to the Executive in equal installments, made at least
monthly, an aggregate amount equal to two times the Executive's Annual Base Salary in effect
on the Date of Termination over the twenty-four months following the Date of Termination and;
(e) until the earlier of eighteen months following the Date of Termination or the
date the Executive becomes entitled to comparable benefits from another employer, the
Executive shall be entitled to receive medical coverage and life insurance as provided under the
Company's Plans from time to time and the Executive's cost therefor shall Dot exceed the cost
paid by the other executives of the Company for comparable coverage.
4. VoluntaIY or For Cause Termination. lithe Executive's employment shall
be terminated for Cause or the ExecutiVe voluntarily terminates employment (other than for
Good Reason) excIuding death., Disability or Retirement, such termination shall be v,ithout
further obligations to the Executive other than Accrued Amounts.
5. Release Al!Teement. The benefits pursuant to Section l are contingent upon the
Revised on 7103/02 Page 2 of?
0'~
EXeoltive Severance Agreement
EUR S)"s""'IDS
Confidentizl Information
Exewtive (I) executing a Separation and Release Agreement (the "Release Agreement") upon or
after any Date of Termination, a copy of which is attached as Exhibit A to this Agreement, and
(IJ) not revoking or challenging the enforceability of the Release Agreement.
6. No Miti!!ation. etc. The amounts payable hereunder shall not be subject to
obligations to mitigate for offset by any amounts earned from any future employers. The
Company shall have the right to setoff the amounts required to be paid to the Executive under
this Agreement against any amounts owed by the Executive to the Company or its affiliates and
nothing in this Agreement shall prevent the Company from pursuing any other available remedies
against the Executive.
7. Restrictions and ObJi!!ations oftbe Executive.
f!!} Considerations for Restrictions and Covenants. The parties hereto
acknowledge and agree tllllt a principal consideration for the agreement to make the payments
provided in Section 3 hereof from the Company to the Executive and the grant to the Executive
of the equity-base<! compensation as set forth in Section 3 hereof is the Executive's compliance
with the undertakings set forth in this Section 6. Specifically, the Executive agrees to comply
v.-ith the provisions of this Section 6 irrespective of whether the Executive is entitled to receive
any payments under Section I of this Agreement.
fQ2 Confidentiality. The confidential and proprietary information and trade
secrets of the Company and its affiliates are among their most valuable assets, including but not
limited to, their cUS10mer and vendor lists, database, computer programs, frameworks, models,
their marketing programs, their sales, financial, marketing, training, and technical information,
and any other information, whether communicated orally, electronically, in writing or in other
tangible forms concerning how the Company and its afliJiates create, develop, acquire or
maintain their products, services and marketing plans, wget their potential customers and
operates their businesses. The Company and its affiliates have invested, and continue to invest,
considerable amounts of time and money in obtaining and developing the goodwill of their
customers, their oilier external relationships, their data systems and data bases, and all the
information described above (hereinafter collectively referred to as "Confidential Information''),
and any misappropriation or unauthorized disclosure of Confidential Information in any form
would irreparably harm the Company 3JJd its affiliates. The Executive shall hold in a fiduciary
capacity for the benefit of the Company and its affiliates and their businesses, which shall have
Revised OD 7/03/02
Page 3 of7
<f(U
.
Executive Severanee Agrumenl
EUR Sys=
Confidentiallnform2tion
been obtained by the Executive during the Executive's employment by the Company which shall
not be or become public knowledge (other than by acts by the Executive or representatives of the
Executive in violation of this Agreement). After termination of the Executive's employment
with the Company, the Executive shall not, without the prior written consent of the Company or
as may otherwise be required by law or legal process, communicate, divulge or use any such
information, knowledge or data to anyone other than the Company and those designated by it.
~ Non-Solicitation or Hire. During the Employment Period and for a two-ye;rr
period following the Date of Termination of the Executive's employment for any reason, the
Executive shall not, directly or indirectly, for himself or on the behalf of on in conjunction with
any person, partnership, corporation or other entity, (i) employ or seek to employ any person who
is at the Date of Termination (unless terminated by the Company), an employee of the Company
or any of its affiliates or otherwise solicit, encourage, cause or induce any such employee of the
Company or such affiliates to tenninate such employee's employment with the Company or such
affiliate for the employment of another company (including for this purpose the contracting y"ith
any person who was an independent contractor (excluding management consultants of the
Company or an affiliate during such period) or (ii) knowingly take any action (and will cease all
such actions immediately upon obtaining knowledge thereof) that would interfere with the
relationship of the Company or its affiliates with their suppliers or customers, or otherwise solicit
the Company's or its affiliates' customers, with respect to a Restricted Business, v.ithout, in
either case, the prior wrinen consent of the Company's Board, or knowingly engage in any other
action or business (and will cease all such engagements immediately upon obtaining knowledge
thereof) that would have an adverse effect On the Company or its affiliates.
@ Non-Competition. During the Employment Period and for a two-year period
folIov,1ng the Date of Termination oflhe Executive's employment for any reason, the Executive
shall not, directly or indirectly:
(i) engage in any managerial, administrative, advisory, consulting,
operational or sales activities in a Restricted Business anywhC)1: in The Restricted Area,
including, without limitation, as a director, officer or partner of a business engaging in such
Restricted Business, or
(ii)
organize, establish, operate, own, manage, control or have a direct or
Revised 00 7/03/02
Page 4 00
Jrc/
Executive Severance Agreement
EER Systems
Confidonti,llnfol1illltion
indirect investment or ownership interest in a Restricted Business or in any corporation,
partnership (limited or generil), limited liability company enterprise or other business entity that
engages in a Restricted Business anywhere in the Restricted Area. Nothing contained in this
Section 7(d) shall prohibit or otherwise restrict the Executive from acquiring or o"ming, directly
or indirectly, for passive investment pwposes Dot intended to circumvent this Agreement,
securities of any entity engaged, directly or indirectly, in B Restricted Business if (i) such entity is
a public entity and the Executive (A) is not a controlling person of, or a member of a group that
controls, such entity and (B) owns, directly or indirectly, no more than 3% of any class of equity
securities of such entity; (ii) such entity is not a public entity and the Executive (A) is not a
controlling person of, or B member of a group that controls, such entity and (B) does Dot own,
directly or indirectly, more than 1 % of any class of equity securities of such entity or (iii) such
investment is through a mutual fund, private equity fund or other pooled account ("Pooled
Equity") and Executive satisfies the requirements of (i) (A) and (i) (B) with regard to such
Pooled Entity.
~ Definitions. For pUlposes of this Section 7:
(i) "Restricted Business" means (i) any business which provides software,
systems, professional services, or outsourced services for billing and customer management to
telecommunications service providers, or (ii) such other business, to be mumally agreed on by
the parties, as may be conducted by the Company after the date hereof during the employment
period. In the case of multi-divisional enterprises in which one division may provide such
services, divisions which do not provide these services are not Restricted Businesses.
(ii) "Restricted Area" means the United States and Canada and any
country where the Company directly provides oUlSourced billing, billing software, professional
services, and customer management system services for its customers.
ill Relief. The parties hereto hereby acknowledge that the provisions of this
Section 7 are reasonable and necessary for the protection of the Company and its affiliates. The
parties further acknowledge and agree that the Company's business is world,,~de and the
definition of "Restriqed Business" in Section 7( e) is reasonable and necessary for the protection
of the Company and its affiliates in light of such worldwide business. In addition, the Executive
further acknowledges that the Company and its_affiliates may be irrevocably damaged if such
covenants are not specifically enforced. Accordingly, the Executive agrees that, in addition to
Revised OD 7/03/02
rage 5 of7
--f~
.
Executive Sev=ce Agreement
EUR System,
Conndentiallnfonnation
any other relief to which the Company may be entitled, the Company will be entitled to seek and
obtain (without the requirement of any bond) injunctive relief for the purposes of restraining the
Executive roam any actual or threatened breacb of such wvenants or such other relief as may be
required to specifically enforce any of such covenants from a woo or competent jurisdiction.
The Executive hereby agrees and consents that such injunctive or other relief may be sough ex
parte in any state of federal court ofrecord in the State of Pennsylvania. The Executive agrees to
and hereby does submit to in personam jurisdiction in IDe State of Pennsylvania. In additio14
without limiting the Company's remedies for any breach of any restriction on the Executive set
forth in this Section 7, except as required by law, the Executive shall not be entitled to any
payments set forth in Section I hereof if the Executive breaches any of the covenants applicable
to the Executive contained in this Section 7, the Executive will immediately return to the
Company any such payments previously received upon such a breach, and, if the event of such
breach, the Company will have no obligation to pay any of the amounts that remain payable by
the Company under Section L
(g} Exceptions. AJJy exceptions to Section 7 must be approved by the Chief
Executive Officer and must be documented as an Addendum to this agreement.
(i) If the Executive terminates employment voluntarily without Good
Reason and will not be receiving any type of severance from the company, then it is expected
that the Executive would still abide by the expectations that are covered in Section 7 except for
paragraph 7 (d) "Non-Competition."
8. Successors; Assi!!llment.
U!1 By the Executive. Neither this agreement nor any right duty, obligation or
interest hereunder shall be assignable or delegable by the Executive without prior written consent
of the Company; provided, however, that nothing in this Section 8(a) shall preclude the
Executive from designating any of his beneficiaries to receive any amount payable hereunder
upon his death, or preclurle his executors, administrators, or other personal representatives, from
assigning any such right or interest to the person or persons entitled thereto.
.au By the Company, Neither this agreement Dor any right., duty, obligation or
interest hereunder shall be assigned or delegable by the Company without prior writ1en consent
of the Executive, other than any assignment to any entity that succeeds to substantially all the
business operations and/or assets of the Company.
Revised on 7/03102 Page 6 on
4~
E~ecutiYe Severance Agreement
EUR Sys-=s
Confidential ~Jonn.tion
ftl The Company will require any successor (whetlm direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the bll$iness and/or
assets of the Company prior to or concurrent wi1h any such event of succession to assume
expressly and agree to peIforrn this Agreement in the same manner and to the same extent that
the Company would be Rquired to perform it if no sucb succession had taken place and to
provide the_Executive with written evidence of such assumption and agreement (which may
include dOC1lments sufficient to evidence a transaction whereby such assumption and agreement
is by operation of law). As used in this Agreement, "Company"' shaD rnea.'1 the Company as
hereinbefore defined and any successor to its business and/or assets as aforesaid that assumes "nd
agrees to perform Lllls Agreement by operation of law, or otherwise.
9. Miscellaneous.
!!U Guvernin" Law. This Agreement shall be governed by and construed in
accordance with the laws of the SUite of Pennsylvania, without reference to principles of conflict
afla"'".
l11l Captions. The captiollS oftms Agreement are not part of the provisions
hereof and shall have no force or effect.
ftl Amendment. This Agreement may Dot be amended or modified otheIWise
than by a written agreement executed by the parties hereto or their respective successors and
legal representatives.
The parties to this Agreement have executed '\his Agreement as of the day and
year first written above.
The
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Title: V(.I'~,...b.f,() ,;(fd}.r.-fJ DeVI
:ff~
Name: J E eq/J
Title: CE.i)
Revised on 7/03/02
Page 7 of7
Separation and Release AglUInent
BUR System<
Confidenti.llnfOTlD2tiOD
EXHIBIT A
SEPARATION AND RELEASE AGREEMENT
1bis Separation and Release Agreement ("Agreement") is entered into as of this
day of , between and any successors thereto (ooUectively, the
"Company) and (the "Executive').
The Executive and the Company agree as follows:
). The employment relationship between the Executive and Company
terminated on (the "Termination Date').
2. In accordance with Section I of the Executive's Severance Agreement, the
Company has agreed to pay the Executive the payments and to make the benefil~
available after the Termination Date, each as required by such Section 3.
3. In consideration of lbe above, the sufficiency of which the Executive
hereby acknowledges, the Executive, on behalf of the Executive and the Executive's
heirs, executors and assigns, hereby releases and forever discharges the Company and its
members, parents, affiliates, subsidiaries, divisions, any and all C1l1Tent and former
directors, officers, employees, agents, and contractors and their heirs and assigns, and any
and all employee pension benefit or welfare benefit plans of the Company, including
current and former trustees and administrators of such employee pension benefit and
welfare benefit plans, from all claims, clwges, or demands, in law or in equity, whether
known or unknown, which may have existed or which may now exist from the beginning
of time to the date of this letter agreement, including, V.ithOUllimitation, any claims the
Executive may have arising from or relating 10 the Executive's employment or
termination from employment with the Company, including a release of any rights or
claims the Executive may have under Title vn of the Civil Rights Act of 1964, as
amended, and the Civil Rights Act of 1991 (which prohibit discrimination in employment
based upon race, color, sex, religion and national origin);the Americans with Disabilities
Act of ]990, as amended, and the Rehabilitation Act of ]973 (which prohibit
discrimination based upon disability); the Family and Medical Leave Act of 1993 (which
prohibits discrimination based on requesting or taking a family or medical !eave); Section
Crall:d on 41512002 1:03 PM
Page I of4
/;~
'0
Separation and Relea", Agreement
EUR SystemS
Coniidentillllnformatioo
1981 of the Civil Rights Act of 1 866 (which prohibits discrimination based upon race);
Section 1985(3) of the Civil Rights Act of 1871 (which prolllbits conspiracies to
discriminate); the Employee Retirement Income Security Act of 1974, as amended
(which prohibits discrimination with regard to benefits); any other federal, state or local
laws against discrimination; or any other federal, state or local statue, or co=on law
relating to employment, wages, hours, or any other terms and conditions of employment.
Ibis includes a release by the Executive of any claims for wrongful discharge, breach of
contract, torts or any other claims in any way related to the ExecutiVe's employment v,ith
or resignation or termination from the Company, including any claim under the
Employment Agreement. This release also includes a release of any claim for age
discrimination under the Age Discrimination in Employment Act, as amended
("ADEN'). The ADEA requires that the Executive be advised to wnsult with an
attorney before the Executive waives any claim under ADEA. In addition, the ADEA
provides the Executive with at least 21 days to decide whether to waive claims under the
ADEA and seven da)'s after me Executive signs the Agreement to revoke that waiver.
This release does not release the Company from any obligations due to the Executive
under the Severance Agreement or under this Agreement. N othIDg herein to the contrary
shall effect any rights the Executive may have lllIder the Shareholders' Agreement, dated
May 3, 2000, by and among the Company, the Executive and the other ~hareholders from
time to time party thereto. This release sball not apply to any rights of the Executive with
respect to indemnification, directors', and officers' insurance.
Additionally, the Company (on its behalf and that of its affiliates) agrees
to discharge and release the Executive and the Executive' 5 heirs from any claims,
demands, and/or causes of action whatsoever, presently known or unknown, that are
based upon facts occurring prior to the date of this Agreement, including, but not limited
to, any claim, matter or action related to the Executive's employment and/or affiliation
with, or termination and separation from the Company; provided that such release shall
not relE!aSe the Executive from any loan or advance by the Company or any of its
subsidiaries, any act that would constitute "Cause" under the Executive's Severance
Agreement or a breach under Section 7 of the Executive'5 Severance Agreement;
provided, however, that nothing herein to the COlltrary shall affect any rights the
Company may have under the Shareholders' Agreement, dated as of May 3, 2000, by and
Crearut on 41512002 J :03 PM
Page 2 of4
d~
Separnion and ReI"",. Agrumenl
EUR System,
Confid:ntiallnformanon
among the Company, the Executive and the other shareholder;; from time to time party
hereto.
4. TIlis Agreement is Dot an admiSSioD by either the Executive or the
Company of any wrongdoing or liabiljty.
S. The Executive waives any right to reinstatement Dr future employment
v.ith the Company folJo",ing the Executive's separation from the Company on the
Termination Date.
6. The Executive agrees not to engage in any act after execution of the
Separation and Release Agreement that is intended, Dr may reasonably be expected to
harm the reputation, business, prospects or operations of the Company, its officers,
directors, stockholders or employees. The Company further agrees that it will engage in
no act which is intended, or lllllY reasonably be expected to harm the reputation, business
or prospects of the Executive.
7. The Executive shall continue to be bound by Section 7 of the Executive's
Severance Agreement..
8. The Executive shall promptly return all the Company property in the
Executive's possession, including, but oot limited to, the Company keys, credit card.s,
cellular phones, computer equipment., software and peripherals and orig'nals or wpies of
books, records, or other information pertaining to the Company business.
9. Ibis Agreement shall be governed by and construed in accordance with
the laws of the State of Pennsylvania, without reference to the principles of conflicts of
laws.
10. Ibis Agreement represents the complete agreement betweeo the Executive
and the Company conceming the subject matter in this Agreement and supersedes all
prior agreements or understandings, written or oral. 'This agreement may not be amended
or modified otherwise than by a written agreement executed by the parties hereto or their
respective successors and legal rejlTesentatives.
1 1 . Each of the sections contained in this Agreement shall be enforceable
independently of every other section in this Agreement, and the invalidity or
nonenforceability of any section shall Dot invalidate or render unenforceable any other
section contained in this Agreement.
Created on 41512002 1 :03 PM
Page3 of 4
'-1rC-'
Separation and Release Agn:ement
EUR Systems
Confidential Information
12. It is further understood that for a period of 7 days foUowing the execution
of this Agreement in duplicate on gi.rulIs, the Exe<;ut1ve may revoke this Agreement, and
this Agreement shall not become effective or enforceable Imtil the revocation period h.as
expired. No revocation of Ibis Agreement by the Executive shall be effective Ullless the
Company has received witllln the 7-day revocation period, written notice of any
revocation, all monies received by the E.xecutive under this Agreement and all originals
and copies of this Agreement
13. This Agreement has been entered into yoluntarily and not as a result of
coercion, duress, or undue influence. The Executive acknowledges that the Executive
has read and fully understands the terms of this agreement and has been advised 10
consult with an anomey before executing this Agreement. Additionally, the Executive
acknowledges that the Executive h.as been afforded the opportunity of at least 21 days to
consider tlris Agreement. To the extent that the Executive executes this Agreement prior
to the expiration of such 21-day period, he does so knowingly and YOhllltarily and
without coercion.
The parties to this Agreement have executed this Agreement as of the day and
yeal first written above.
utive .. f /J
{ {/:J...A.VV I
ritle:
~~com2f~
Name:
Title:
Creaied on 4/5(2002 1:03 PM
Page 4 of4
0f'--/
VERIfiCATION
I hereby acknowledge that I have read the foregoing Verified Complaint in Equity
and that the facts stated therein are true and correct to the best of my knowledge, information,
a.'ld belief.
J understand that any false statements herein are made subject to penalties of 18
Pa. C.S. ~4904. relating to unsworn falsification to authorities.
Date: /7vC i, 6(,
~
Il
, rI L. CuUJv{
By./-
lohn M. Caddell
CERTlFlCA TE OF SERVICE
1 HEREBY CERTIFY that I served a trUe and correct copy of the foregoing document
upon all parties or counsel of record via facsimile and by depositing a copy of same in the United
States Maj] at Harrisburg, Pennsylvania, with first-class postage prepaid, addressed to the
follov.~ng:
Electronics and Unit Record Datacenter, Inc.
tld/b/a EUR Systems
5040 Ritter Road
Mechanicsburg, PA 17055
Aptis, Inc.
7411 John Smith Drive, Suite 200
San Antonio, TX 78229
InleC USA, Inc.
73- 16 Drexelbrook Drive
Drexel Hill, P A 19026
lntec Billing Services, lnc.
73-16 Drexel Brook Drive
Drexel Hill, PA 19026
By:
S
Date: July /<6. 2006
JH789.J
.
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. .
.
UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN M. CADDELL,
Plaintiff,
v.
NO.
ELECTRONICS AND UNIT RECORD
DATACENTER, INC., d/b/a EUR
SYSTEMS; APTlS, INe.; INTEC USA,
INe. AND INTEC BILLING SERVICES,
INC.
CIVIL ACTION
Defendants.
CONSENT AND JOINDER OF REMOVAL
TO THE CLERK:
We, Intec USA, Inc., and Intec Billing Services, Inc., Defendants in the
above-captioned case, hereby consent and join in the removal of the case, Caddell
v. Electronics and Unit Record Datacenter. Inc., et aI., 06-4054 (Court of Common
Pleas docket number) from the Court of Common Pleas of Cumberland County of
the Commonwealth of Pennsylvania to the United States District Court for the
Middle District of Pennsylvania. In consenting to and joining in the removal of
, ,
~ l ~.
.
.
this case, neither lntec USA, Inc. nor lntec Billing Services, Inc. waive any defects
in or defenses to this case, including whether or not they have been properly
served.
-
obert A. Grac' J.D. #26722)
James A. Diamond (J.D. #43902)
Matthew D. Coble (J.D. #89603)
Eckert Seamans Cherin & Mellott, LLC
213 Market Street, 8th Floor
Harrisburg, PA l7l01
Telephone: 717.237.6000
Facsimile: 717.237.6019
Attorneys for Defendant
Intec U c.
,
Robert A, Gra i (J.D. #26722)
James A. Diamond (J.D. #43902)
Matthew D. Coble (I.D. 89603)
Eckert Seamans Cherin & Mellott, LLC
213 Market Street, 8th Floor
Harrisburg, PA 17101
Telephone: 717.237.6000
Facsimile: 7]7.237.6019
Attorneys for Defendant
Intec Billing Services, Inc.
Dated:
August 15, 2006
2
,,' ..
, ,
, ,
.
..
CERTIFICATE OF SERVICE
AND NOW, this j(;tt day of August 2006, I hereby certify that I have
served a copy of the within document on the following by depositing a true and
correct copy of the same in the U.S. Mail at Harrisburg, Pennsylvania, postage
prepaid, addressed to:
Steven E. Grubb, Esquire
GOLDSBERG KATZMAN, P.c.
320 Market Street
Harrisburg, PAl 71 08
Robert A. Graci, Esquire
Matthew D. Coble, Esquire
James A. Diamond, Esquire
Eckert Seamans Cherin & Mellott, LLC
2 I 3 Market Street
Harrisburg,PA ]7101
CALDWELL & KEARNS
By:
'PfJ
)t j ~ .
. ,
_ J t .
.
CERTIFICATE OF SERVICE
AND NOW, this l~ay of August 2006, I hereby certify that] have served a copy of
the within document on the following by depositing a true and correct copy of the same via Hand
Delivery to:
Steven E. Grubb, Esquire
GOLDSBERG KATZMAN, PoCo
320 Market Street
Harrisburg, PAl 71 08
and in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to:
Robert A. Graci, Esquire
Matthew Do Coble, Esquire
James A. Diamond, Esquire
Eckert Seamans Cherin & Mellott, LLC
213 Market Street
Harrisburg, PAl 710 1
CALDWELL & KEARNS
By:
.
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JOHN M. CADDEll
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
: NO. 06-4054 CIVil
ELECTRONICS AND UNIT
RECORD DATACENTER,
INC., d/b/a EUR SYSTEMS
INTEC, USA, INC.,
INTEC BilLING SERVICES
INC., SARATOGA
PARTNERS, AND WHITBY
SANTARLASCI & CO. : CIVil ACTION - LAW
ORDER OF COURT
AND NOW, this 29th day of August, 2006, after conference with counsel, IT IS
HEREBY ORDERED AND DIRECTED that the above captioned case is DISMISSED in
as much as an identical action has been now filed at 06-4952 of the civil term.
By the Court,
\'l
M. l. Ebert, Jr.,
Aven E. Grubb, Esquire
Attorney for Plaintiff
~ffrey T. McGuire, Esquire
Attorney for Defendant EUR System
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Pennsylvania Middle District Version 2.5 - Docket Report
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Page I of3
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CLOSED, HBG
U.S. District Court
Middle District of Pennsylvania (Harrisburg)
CIVIL DOCKET FOR CASE #: 1:06-cv-01592-CCC
~O(p- t.{Oolf (!;J; (
Caddell v. Electronics and Unit Record Datacenter, Inc. et al
Assigned to: Honorable Christopher C. Conner
Cause: 29:1001 E.R.I.S.A.: Employee Retirement
Date Filed: 08/16/2006
Jury Demand: None
Nature of Suit: 791 Labor: E.R.I.S.A.
Jurisdiction: Federal Question
Plaintiff
John M. Caddell
represented by Steven E. Grubb
Goldberg, Katzman, P.C.
320 Market Street
P.O. Box 1268
Harrisburg, P A 17108-1268
717-234-4161
Fax: 717-234-6808
Email: seg@gkslaw.com
LEAD A1TORNEY
A1TORNEY TO BE NOTICED
V.
Defendant
Electronics and Unit Record
Datacenter, Inc.
d/b/a EUR Systems
represented by Jeffrey T. McGuire
Caldwell & Kearns
3631 North Front Street
Harrisburg, PA 17110
717-232-7661
Fax: 717-232-2766
Emllil: jmcguire@caldwellkearns.com
LEAD A1TORNEY
A1TORNEY TO BE NOTICED
Defendant
Aptis, Inc.
Pe~
represented by Jeffrey T. McGuire
(See above for address)
LEAD A1TORNEY
A1TORNEY TO BE NOTICED
Defendant
Intec USA, Inc.
represented by Robert A. Graci
Eckert Seamans Cherin & Mellott, LLC
213 Market Street
8th Floor
https://ecf.pamd.circ3.dcn/cgi-bin/DktRpt.pl?891819972278558-L_923 _ 0-1
08/24/2006
,
Pennsylvania Middle District Version 2.5 - Docket Report
r
Page 2 of3
I
Harrisburg, PA 17101
usa
717-237-6067
Fax: 7l7-237-6019
Email: rgraci@eckertseamans.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Defendant
Intec Billing Services, Inc.
represented by Robert A. Graci
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Date FRed # Docket Text
08/16/2006 ~l NOTICE OF REMOVAL from Cumberland County Court, Case Number
06-4054. (Filing fee $ 350 receipt number 843858); no jury trial
demanded. (Attachments: # 1 Exhibit(s) A# 2. Exhibit(s) B# .3. Civil
Cover Sheet)Gc) (Entered: 08/17/2006)
08/17/2006 ~2. Emergency MOTION to Remand to the Court of Common Pleas of
Cumberland County and Alternative Motion for Hearing Date by John
M. Caddell. (Attachments: # 1 Proposed Order)(Grubb, Steven) (Entered:
08/17/2006)
08/17/2006 ~.3. BRIEF IN SUPPORT re 2. Emergency MOTION to Remand to the Court
of Common Pleas of Cumberland County and Alternative Motion for
Hearing Date filed by John M. Caddell.(Grubb, Steven) (Entered:
08/17/2006)
08/17/2006 ~~ SCHEDULING ORDER setting telephone conference re: pItfs ER
motion to remand case to Ct of Common Pleas of Cumberland Co. 2. for
8/17/2006 @ 02:00 PM. (See order for complete details.) Signed by
Judge Christopher C. Conner on 08/17/06. (ki) (Entered: 08/17/2006)
08/21/2006 ~Q BRIEF IN OPPOSITION re 2. Emergency MOTION to Remand to the
Court of Common Pleas of Cumberland County and Alternative Motion
for Hearing Date d/b/a EUR Systems and Aptis. Inc. 's Reply
Memorandum of Law in Opposition to Plaintiffs Motion to Remand filed
by Electronics and Unit Record Datacenter, Inc., Aptis, Inc..
(Attachments: # 1 # 2.)(McGuire, Jeffrey) (Entered: 08/21/2006)
08/22/2006 "1 BRIEF IN OPPOSITION re 2. Emergency MOTION to Remand to the
Court of Common Pleas of Cumberland County and Alternative Motion
for Hearing Date Joinder to Reply Memorandum of Law in Opposition to
Plaintiffs Motion to Remand filed by Intec Billing Services, Inc., Intec
USA, Inc..(Graci, Robert) (Entered: 08/22/2006)
08/23/2006 ~2 REPLY BRIEF re 2. Emergency MOTION to Remand to the Court of
Common Pleas of Cumberland County and Alternative Motion for
https://ecf.pamd.circ3.dcn/cgi-binlDktRpt.pl?8918l9972278558-L _923_0-1
08/24/2006
Pennsylvania Middle District Version 2.5 - Docket Report
,.
Page 3 of3
!
Hearing Date filed by John M. Caddell.(Grubb, Steven) (Entered:
08/23/2006)
08/23/2006 a Document #8 deleted, replaced by #9(Reply Brief) per Atty. (ga. )
(Entered: 08/23/2006)
08/2412006 alO MEMORANDUM & ORDER granting plaintiff's emergency motion to
remand 2. action to Ct of Common Pleas of Cumberland Co., directing
Clrk of Ct to fax copy of order & transfer case to Cumb Co. CCP & to
CLOSE this case. (See order for complete details.) Signed by Judge
Christopher C. Conner on 08/24/06. (ki) (Entered: 08/24/2006)
https://ecf.pamd.circ3.dcn/cgi-binlDktRpt.pl?891819972278558-L _923_0-1
08/24/2006
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
A O~- '-fD51r Gul/
JOHN M. CADDELL. CIVIL ACTION NO, 1:06-CV-1592
Plaintiff
(Judge Conner)
Defendants
v,
ELECTRONICS AND UNIT RECORD
DATACENTER. INC., et aI.,
Presently before the court is an emergency motion to remand (Doc. 2) in
which plaintiff, John M. Caddell ("Caddell"), asserts that defendants improperly
removed the above-captioned action, commenced originally in a Pennsylvania state
court. Caddell contends that his claims, premised on the alleged breach of an
executive severance agreement ("ESA"), do not include a federal cause of action,
and hence this court is without jurisdiction. Defendants counter that Caddell's
claims are governed by the Employee Retirement Income Security Act ("ERISA"),
29 U.S.C. ~~ 1001-1401, permitting removal to this court. The question presented is
whether the ESA is an ERISA plan. For the reasons that follow, the court finds that
it is not and will grant the motion to remand,
I, Statement of Facts
Caddell is employed by defendant Electronics and Unit Record Datacenter,
Inc. ("EUR"). (Doc. 1, Ex. A ~ 6 at 12.) On July 1, 2002, Caddell and EUR entered
into an ESA (Doc. 1, Ex. A ~ 6 at 17), which, in pertinent part, provides:
,
3. Oblil!ation of the Comoanv Uoon Termination Under Section 1. If the
Executive's employment shall have been terminated by [EUR] under
Section 1 (other than for Cause) or by the Executive for Good Reason:'
(a) [EUR] shall make a lump sum cash payment to the Executive
within 30 days after the Date of Termination of the accrued
Amounts, earned by unused Paid Time Off and any money that
is normally paid during this time period, except to the extent
under the terms of a Plan they are to be paid at a later date;
(b) [EUR] shall pay to the Executive in equal installments, made at
least monthly, an aggregate amount equal to two times the
Executive's Annual Base Salary in effect on the Date of
Termination over the twenty-four months following the Date of
Termination and;
(c) until the earlier of eighteen months following the Date of
Termination or the date the Executive becomes entitled to
comparable benefits from another employer, the Executive shall
be entitled to receive medical coverage and life insurance as
provided under [EUR's] Plans from time to time and the
Executive's cost therefor shall not exceed the cost paid by the
other executives of [EUR] for comparable coverage.
* * *
8. Successors: Assil!nment.
* * *
(c) [EUR] will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of [EUR] prior to
or concurrent with any such event of succession to assume
expressly and agree to perform this Agreement in the same
manner and to the same extent that [EUR] would be required to
perform it if no such succession had taken place and to provide
the Executive with written evidence of such assumption and
agreement (which may include documents sufficient to evidence
a transaction whereby such assumption and agreement is by
operation oflaw). . . .
(Doc. 1, Ex. A ~~ 3, 8 at 18, 22-23.)
, The ESA includes definitions of "termination with cause" and "termination
with good reason." ~ Doc. 1, Ex. A ~ l(a) at 17.)
2
,
On July 18, 2006, Caddell filed a complaint in the Court of Common Pleas of
Cumberland County, Pennsylvania.2 (Doc. 1, Ex. A at 9-27). The complaint alleges
that EUR entered into an asset purchase agreement to sell substantially all of its
assets to defendants Intec USA, Inc. and Intec Billing Services, Inc. (collectively,
"Intec"), without providing that Intec will assume Caddell's ESA or that EUR will
pay any of the promised benefits upon Caddell's termination, in violation of the
terms of the ESA. (Doc. 1, Ex. A ~ 9 at 13.) Caddell asserts claims based on
common law breach of contract and seeks injunctive relief.
On August 16, 2006, defendants removed the case to this court, asserting that
Caddell's claims were preempted by ERISA and thus subject to removal under
federallaw.3 On August 17, 2006, Caddell filed an emergency motion to remand
(Doc. 2),' asserting that the ESA is not an ERISA plan and, therefore, ERISA
preemption does not apply. The motion has been fully briefed5 and is now ripe for
disposition.
2 Caddell attached a copy of the ESA to the complaint. (Doc. 1, Ex. A at 17-
27.)
3 According to the notice of removal, "[p]laintifrs [c]omplaint involves claims
under [ERISA] since the claims related (sic) to benefits which include an employee
pension plan covered by ERISA. Plaintiffs state law claims are entirely preempted
by ERISA." (Doc. 1 ~ 5.)
· A preliminary injunction hearing had been scheduled in the state court for
August 21, 2006. (Doc. 2 ~ 2.)
5 Following a telephone conference with the parties on August 17, 2006, the
court ordered expedited briefing. ~ Doc,S.)
3
,
II. Discussion
Removal serves as a procedural method by which defendants, brought before
a state tribunal on claims otherwise within the scope of federal jurisdiction, may
compel transfer of the case to federal court. See 28 U.s.C. ~ 1441(a); Allbritton
Communications Co, v. NLRB. 766 F.2d 812, 820 (3d Cir. 1985). Once the defendant
removes the case to federal court, the plaintiff may challenge the action through a
motion to remand. See 28 U.S.C. ~ 1447(c). This motion does not ask whether the
case is removable, since removal is complete when the federal court receives it, but
whether the case was removable as presented to the state court. See id. ~~ 1441(a),
1446(d); see also U.S. Exoress Lines, Ltd. v. Hil!l!ins, 281 F.3d 383, 389 (3d Cir. 2002);
Meritcare Inc. v. St. Paul Mercurv Ins. Co., 166 F.3d 214, 217-18 (3d Cir. 1999).
Accordingly, the analysis properly focuses on the case as it developed before the
state tribunal, not as it stands before the district court. ~ Steel Vallev Auth. v.
Union Switch & Sil!nal Div., 809 F.2d 1006, 1010 (3d Cir. 1987).
Under the well-pleaded complaint rule, federal courts have federal question
jurisdiction6 when a federal claim appears in the complaint. ~ Levine v. United
Healthcare Corn., 402 F.3d 156,162 (3d Cir. 2005). Therefore, a possible federal
preemption defense generally does not confer federal question jurisdiction, See id.
However, "the doctrine of complete preemption provides federal jurisdiction and
allows removal to federal court." Id. (citing Metro. Life Ins. Co. v. Tavlor, 481 U.S.
6 Defendants' basis for removal is the court's federal question jurisdiction, not
diversity jurisdiction. ~ Doc. 1.)
4
,
58,63-64 (1987)). This doctrine applies to state law claims that seek relief within the
scope of ~ 502(a) of ERISA. See id. (citing Metro. Life, 481 U.S. at 62-66),
Section 502(a) provides a civil cause of action by a participant or beneficiary:
(1) "to recover benefits due to him under the terms of his plan, to enforce his rights
under the terms of the plan, or to clarify his rights to future benefits under the
terms of the plan," (2) "to enjoin any act or practice which violates any provision
of . . . the terms of the plan," or (3) "to enforce any provisions of . . . the terms of the
plan." 29 U.S.C. ~ 1132(a)(1)(B), (a)(3) (emphasis added). Hence, the threshold
question in the instant case is whether the ESA is a "plan" under ERISA because
ERISA covers plans, not all employee benefits. See Fort Halifax Packinl! Co. v.
Covne, 482 U.S. 1, 11-12 (1987).
An ERISA plan "is established if from the surrounding circumstances a
reasonable person can ascertain the intended benefits, a class of beneficiaries, the
source of financing, and procedures for receiving benefits." Deibler v. United Food
& Commercial Workers' Local Union 23. 973 F.2d 206, 209 (3d Cir. 1992). A
severance agreement is an ERISA plan only if it "requires an ongoing
administrative program to meet the employer's obligation." Fort Halifax, 482 U.S.
at 11.
In the matter sub judice, the record as presented in the state court reveals no
evidence of an ERISA plan, It does not provide for a class of beneficiaries, the
source of financing, or procedures for receiving benefits. See id.; see also Fetterolf
v. Harcourt Genu Inc., No. 01-1112, 2001 WL 1622196, at *3 (E.D. Pa. Dec. 18,2001).
5
,
The ESA at issue is a contract between one employee and EUR and does not
involve an ongoing administrative program. ~ Fort Halifax, 482 U.S. at 11. That
Caddell is only entitled to severance benefits if he is terminated other than for
cause or terminated for good reason does not establish an administrative scheme.
The existence of this triggering event is insufficient to transform the agreement into
an ERISA plan. See. e.IZ., Fetterolf, 2001 WL 1622196, at *3 (finding that a
severance agreement for one employee was not an ERISA plan despite the
"triggering events" required for entitlement to payment, including "dismissal for
any reason other than cause or resignation").7 An ongoing administrative program
is also not required to calculate the benefits owed Caddell-the ESA provides a
simple, objective formula for such calculations. ~ Middleton v. Phila, Elec. Co.,
850 F. Supp. 348, 353 (E.D. Pa. 1994). Hence, Caddell's claims "relate[] only to
entitlement to post-termination benefits, not to how those benefits are to be
administered." Jacob v. Beecham. 824 F. Supp. 552, 558 (E.D, Pa. 1993).
7 Defendants rely primarily on Pane v. RCA Corn., 868 F,2d 631 (3d Cir. 1989),
for the proposition that Caddell's ESA is an ERISA plan. However, the principal
issue in Pane was whether the plaintifrs state claims were preempted by an
existing ERISA claim. In Pane, the employee initiated a claim under ERISA
alleging that his employer had "adopted an employee severance plan, under which
its Vice Presidents and General Managers were to receive" severance benefits.
Pane v. RCA CorD" 667 F. Supp. 168, 169 (D.N.J. 1987). In the instant case, the
complaint is devoid of any allegations that Caddell's ESA was made pursuant to an
overall severance plan adopted by EUR. In addition, the Pane court found an
ongoing administrative system, and, therefore, an ERISA plan, because "the
circumstances of each employee's termination must be analyzed in light or' the
triggering event criteria. Id. at 171 (emphasis added). Such an ongoing
administrative system is not implicated within the four corners of the complaint,
which alleges an agreement with only one employee.
6
.
.'
Given the case as it was developed in the state court at the time of removal,
the court finds that Caddell's ESA cannot be characterized as an ERISA plan. And,
defendants do not assert any other basis for this court's jurisdiction. Accordingly,
the court must remand the above-captioned case to state court.
An appropriate order will issue.
SI Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge
Dated:
August 24, 2006
.
.,
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN M. CADDELL,
CIVIL ACTION NO, 1:06-CV-1592
Plaintiff
(Judge Conner)
v,
ELECTRONICS AND UNIT RECORD
DATACENTER. INC., et aI..
Defendants
ORDER
AND NOW, this 24th day of August, 2006, upon consideration ofplaintifrs
emergency motion (Doc, 2) to remand the above-captioned action to the Court of
Common Pleas of Cumberland County, and for the reasons set forth in the
accompanying memorandum, it is hereby ORDERED that:
1. The emergency motion to remand (Doc. 2) is GRANTED.
2. The Clerk of Court is directed to FAX a copy of this order and
TRANSFER the above-captioned case to the Court of Common Pleas
of Cumberland County. See 28 U.S.C. ~ 1447(c).
3. The Clerk of Court is directed to CLOSE this case.
SI Christooher C. Conner
CHRISTOPHER C. CONNER
United States District Judge
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SHERIFF'S RETURN - OUT OF COUNTY
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CASE NO: 2006-04054 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
CADDELL JOHN M
VS
ELECTRONICS & UNIT RECORD DATA
R. Thomas Kline
, Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT
, to wit:
INTEC USA INC
but was unable to locate Them
in his bailiwick. He therefore
deputized the sheriff of DELAWARE
County, Pennsylvania, to
serve the within COMPLAINT - EQUITY
On August
18th , 2006 , this office was in receipt of the
attached return from DELAWARE
Sheriff's Costs:
Docketing
Out of County
Surcharge
Dep Delaware Co
Postage
6.00
9.00
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08/18/2006
GOLDBERG KATZMAN
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R. Thomas Kline
Sheriff of Cumberland County
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Sworn and subscribe to before me
day of
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A.D.
SHERIFF'S RETURN - OUT OF COUNTY
..
CASE NO: 2006-04054 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
CADDELL JOHN M
VS
ELECTRONICS & UNIT RECORD DATA
R. Thomas Kline
, Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT
, to wit:
INTEC BILLING SERVICES INC
but was unable to locate Them
in his bailiwick. He therefore
deputized the sheriff of DELAWARE
County, Pennsylvania, to
serve the within COMPLAINT - EQUITY
On August
18th , 2006 , this office was in receipt of the
attached return from DELAWARE
Sheriff's Costs:
Docketing
Out of County
Surcharge
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08/18/2006
GOLDBERG KATZMAN
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R. Thomas Kline
Sheriff of Cumbe land County
9-
Sworn and subscribe to before me
this
day of
A.D.
SHERIFF'S RETURN - REGULAR
CASE NO: 2006-04054 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
CADDELL JOHN M
VS
ELECTRONICS & UNIT RECORD DATA
DAVID MCKINNEY
, Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT - EQUITY
was served upon
ELECTRONICS & UNIT RECORD DATA CENTER INC DBA EUR SYSTEMS the
DEFENDANT
, at 1548:00 HOURS, on the 21st day of July
, 2006
at 5040 RITTER ROAD
MECHANICSBURG, PA 17055
by handing to
CHARLES ACHUFF, COO
ADULT IN CHARGE
a true and attested copy of COMPLAINT - EQUITY
together with
and at the same time directing His attention to the contents thereof.
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R. Thomas Kline
08/18/2006
GOLDBERG KATZMAN
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'In The Court of Common Pleas of Cumberland 'County, Penljlsylvania
John M. Caddell -, II ~/o~ ~q:iiQ
VS. ,,,vi! IOca3Y J ~~
, Elec~ronics and Unit Record Datacenter Inc et al
SERVE: <D No. 06-4054 civil
Now,
Julu 21, 2006
, I, SHERIFF OF CUMBERLAND COUNTY, P A, do
hereby deputize the Sheriff of Delaware
County to execute this Writ, this
deputation being made at the request and risk of the Plaintiff.
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SERVE: J. No.
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