STIPULATION OF SETTLEMENT AND RELEASE
This Stipulation of Settlement and Release, is entered into as of the 23rd
day of December, 1997 (the "Effective Date"), by and between Transtech
Industries, Inc., Xxxxxxx X. Xxxxx, Xxxxxx X. XxXxx, Xxxxxx X. Xxxxx, Xxxxxx X.
Xxxxx, Xxxxx & Company, a New York partnership, Xxxxx & Company Incorporated, a
New York corporation, Xxxxx Xxxxx, Xxxxx X. Xxxxx, Xxxx X. Xxxxx, Xxxxxx X.
XxXxx and Xxxxxx X. Xxxxxxx as Trustees of Trust f/b/o Xxxxx Xxxxx, Xxxxxx X.
Xxxxxxxx, Xxxxxx Xxxxx, Inmar Associates, Inc. and Tang Realty, Inc. (the
"Fraudulent Conveyance Defendants") and Waste Management, Inc., a Delaware
corporation (formerly named WMX Technologies, Inc.), SCA Services, Inc., a
Delaware corporation, Chemical Waste Management of New Jersey, Inc., a New
Jersey corporation (formerly named SCA Scientific Services, Inc., SCA Services
of Edison, Inc. and SCA Services of Passaic, Inc.), for and as to itself and as
a general partner of Earthline Company, formerly a New Jersey general
partnership (which partnership was also called Environmental Services Company
and Gaess Environmental Services Company), Chemical Waste Management, Inc., a
Delaware corporation, for and as to itself and as successor to CWM Consolidation
Sub, Inc., a Delaware corporation, which is, in turn, the successor by merger to
Xxxx Xxxxxx, Inc., a New Jersey corporation, and to Wastequid, Inc., a New
Jersey corporation, for and as to itself and as a general partner of Earthline
Company, Waste Management of New Jersey, Inc., a New Jersey corporation,
successor by merger to United Carting, Inc., a New Jersey corporation, CWM
Chemical Services, Inc., a Delaware corporation (formerly named SCA Chemical
Services, Inc. and Chem- Trol Pollution Services, Inc.), successor by merger to
Xxxx Xxxxxx, Inc., a New Jersey corporation, and to R&R Sanitation Service,
Inc., a New Jersey corporation (the "SCA Parties"); and
WHEREAS, Transtech Industries, Inc. ("Transtech") instituted an action
pursuant to the Comprehensive Environmental Response Compensation and Liability
Act of 1980 ("CERCLA"), 42 U.S.C. ss.ss.9607 and 9613 on or about June 25, 1990
in the United States
District Court for the District of New Jersey styled TRANSTECH INDUSTRIES, INC.
V. A&Z SEPTIC CLEAN, INC., ET AL., Civil Action No. 2-90-2578 (HAA)
(the "CERCLA Action"); and
WHEREAS, Transtech has alleged that various defendants were generators of
hazardous substances disposed of at the Kin-Buc Landfill in Edison, New Jersey,
which was owned and operated by Transtech and/or its subsidiaries; and
WHEREAS, on November 9, 1992, and February 9, 1996, respectively, certain
parties (the "AFP Group") and the SCA Parties filed fraudulent conveyance
counterclaims against the Fraudulent Conveyance Defendants, seeking to have
certain alleged fraudulent transfers or conveyances voided (the "Fraudulent
Conveyances Counterclaims Litigation"); and
WHEREAS, the Fraudulent Conveyances Counterclaims Litigation alleges that
Transtech knowingly, intentionally and fraudulently transferred or conveyed
substantial assets to the other Fraudulent Conveyance Defendants, with the
intent of rendering itself incapable of (1) performing the future clean-up of
the Kin-Buc Landfill and/or (2) reimbursing the United States for the cost of
performing such a clean-up; and
WHEREAS, the Fraudulent Conveyance Defendants denied all the allegations
asserted against them in the Fraudulent Conveyance Counterclaims Litigation; and
WHEREAS, the Fraudulent Conveyance Defendants are simultaneously entering
into a separate agreement with the AFP Group settling and dismissing the AFP
Group's claims in the Fraudulent Conveyance Counterclaims Litigation (the "AFP
Settlement Agreement"); and
WHEREAS, the Fraudulent Conveyance Defendants and the SCA Parties now
desire to settle and dismiss the SCA Parties' claims in the Fraudulent
Conveyance Counterclaims Litigation, with prejudice and without costs, and
without admission of liability or wrongdoing on the part of any party; and
WHEREAS, certain Fraudulent Conveyance Defendants wish to release all
claims which they may have against Transtech arising
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from the Fraudulent Conveyance Counterclaims Litigation; and
WHEREAS, the SCA Parties are simultaneously entering into a
separate agreement with Transtech and some of its affiliates settling and
dismissing, among other things, the SCA Parties' claims against Transtech and
such affiliates in the CERCLA Action (the "SCA-Transtech Settlement Agreement");
NOW THEREFORE, in consideration of the agreements and undertakings being
made by Transtech and some of its affiliates in the SCA-Transtech Settlement
Agreement, and for other good and valuable consideration and the mutual promises
and covenants contained herein, the receipt and sufficiency of which the parties
acknowledge, the SCA Parties and the Fraudulent Conveyance Defendants do hereby
agree as follows:
1. RELEASE BY THE SCA PARTIES
Without in any way limiting the application of the provisions of the
SCA-Transtech Settlement Agreement, the SCA Parties hereby release and discharge
all claims, rights, causes of action and demands which they, or any of them,
have made or brought or could have made or brought, against the Fraudulent
Conveyance Defendants, or any of them, relating to, or in any way connected with
the CERCLA Action and the Fraudulent Conveyances Counterclaims Litigation.
2. INDEMNIFICATION BY THE SCA PARTIES
The SCA Parties, jointly and severally, hereby shall defend and indemnify
the Fraudulent Conveyance Defendants, or any of them (the "Indemnitees") from
and against (i) all claims, demands and causes of action which have been made or
brought, or hereafter may be made or brought, against the Indemnitees in the
Fraudulent Conveyance Counterclaims Litigation, and (ii) all liability, loss,
cost and expense (including reasonable attorneys' fees), which may be suffered
or incurred by the Indemnitees, or any of them, arising from or in any way
relating to the Fraudulent Conveyance Counterclaims Litigation. Nothing
contained herein shall be deemed to obligate the SCA Parties, or any of them, to
reimburse the Indemnitees, or any of them, for
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(i) settlement amounts or response costs paid or incurred by the Indemnitees, or
any of them, on or before the Effective Date, or (ii) attorneys' fees,
disbursements, or other costs and expenses paid or incurred by the Indemnitees,
or any of them, on or before the Effective Date, arising from the Indemnitees'
prosecution, defense or settlement of the CERCLA Action or the Fraudulent
Conveyance Counterclaims Litigation.
3. RELEASE OF THE SCA PARTIES BY THE FRAUDULENT CONVEYANCE DEFENDANTS
The Fraudulent Conveyance Defendants hereby release and discharge all
claims, rights, causes of action and demands which they, or any of them, have
made or brought, or could have made or brought, against the SCA Parties, their
subsidiaries, and their respective officers, directors, employees and agents,
or any of them, relating to, or in any way connected with the CERCLA Action
and the Fraudulent Conveyance Counterclaims Litigation.
4. RELEASE OF TRANSTECH BY CERTAIN FRAUDULENT CONVEYANCE DEFENDANTS
The Fraudulent Conveyance Defendants (except Transtech) hereby release
and discharge all claims, rights, causes of action and demands which they, or
any of them, have made or brought, or could have made or brought, against
Transtech, and its subsidiaries, and its or their respective officers,
directors, employees and agents relating to, or in any way connected with
the Fraudulent Conveyance Counterclaims Litigation, the AFP
Settlement Agreement, the SCA-Transtech Settlement Agreement and
this Stipulation of Settlement and Release.
5. GOVERNING LAW
This Stipulation of Settlement and Release shall be construed and
governed in all respects by the laws of the State of New Jersey.
6. FORUM SELECTION
Any action, suit or other proceeding initiated for the purposes of
interpreting, enforcing or avoiding any provision hereof by any Party shall be
instituted in either the United
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Xxxxxx Xxxxxxxx Xxxxx for the District of New Jersey, or, if subject matter
jurisdiction in such court does not exist, in the Courts of the State of New
Jersey, and all Parties hereby submit to the jurisdiction of such courts.
7. BINDING AUTHORITY
The Parties hereby mutually represent and warrant to each other that each
signatory to this Stipulation of Settlement and Release has the full power,
authority and legal right to execute this document on its own behalf as well as
on behalf of the corporate or other entities referred to herein. Moreover, the
Parties hereby represent to each other that neither has executed this document
under any duress, undue pressure, or fraud and that each hereby expressly agrees
to be legally and equitably bound by the express terms, covenants and conditions
contained herein. Lastly, the Parties mutually represent to each other that each
has entered into this Stipulation of Settlement and Release with the assistance
of competent counsel of their own choosing.
8. SEVERABILITY
This Stipulation of Settlement and Release shall be severable such that
the invalidity or unenforceability of any portion or provision contained herein
shall in no way affect the validity or enforceability of any other portion or
provision of this Stipulation of Settlement and Release. If any portion or
provision of this Stipulation of Settlement and Release is held to be invalid or
unenforceable by any court of competent jurisdiction, then, in that event, such
portion or provision shall be deemed amended to the extent, but only to the
extent, necessary to make it valid and enforceable.
9. REPRESENTATIONS AND WARRANTIES
This Stipulation of Settlement and Release is knowingly and voluntarily
entered into by the signatories hereto, and each of them declares and represents
that no payments, promises, representations or inducements for the execution of
this Stipulation of Settlement and Release have been made or in any way relied
upon, except as provided herein.
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10. NO ADMISSION OF LIABILITY
It is further agreed and understood that the Stipulation of Settlement and
Release set forth herein is in the best interest of the Parties hereto. This
Stipulation of Settlement and Release is given in compromise of disputed claims,
and nothing contained herein shall be construed or offered as an admission of
liability on behalf of or with respect to any claims asserted by or against the
Released Parties, the Parties or any other person in the CERCLA Action and the
Released Parties deny any liability and intend merely to avoid litigation and
all such alleged liability is hereby expressly denied.
11. AMENDMENTS OR MODIFICATIONS
To be legally binding, any amendments or modifications to this
Stipulation of Settlement and Release must be in writing, must refer
specifically to this Stipulation of Settlement and Release and must be signed
by duly-authorized representatives of all parties hereto.
12. COUNTERPARTS
This Stipulation of Settlement and Release may be executed in
counterparts, each such counterpart to be deemed an original, and all such
counterparts to constitute one single instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Stipulation of
Settlement and Release as of the day and year first above written.
TRANSTECH INDUSTRIES, INC.
By:/s/ Xxxxxx X. Xxxxx
-------------------
Title: President and Chief
Executive Officer
XXXXXXX X. XXXXX XXXXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxx
-------------------- -------------------
[Signatures continued on next page]
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XXXXXX X. XXXXX XXXXXX X. XXXXX
/s/ Xxxxxx X. XxXxx /s/ Xxxxxx X. Xxxxx
------------------- -------------------
XXXXX & COMPANY XXXXX & COMPANY
a New York partnership INCORPORATED,
a New York corporation
By:/s/ Xxxxxxxx Xxxxxxxxx By:/s/ Xxx X. Xxxxxxx
---------------------- -------------------
Xxx Xxxxxxx
Title: Authorized Signatory Title: Managing Director
XXXXX XXXXX XXXXX X. XXXXX
/s/ Xxxxx Xxxxx /s/ Xxxxx X. Xxxxx
--------------- ------------------
XXXX X. XXXXX XXXXXX X. XXXXX
as Trustee of Trust f/b/o Xxxxx
Xxxxx
/s/ Xxxx X. Xxxxx /s/ Xxxxxx X. XxXxx
------------------ -------------------
XXXXXX X. XXXXXXX XXXXXX X. XXXXXXXX
as Trustee of Trust f/b/o
Xxxxx Xxxxx
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxxxx
--------------------- ----------------------
XXXXXX XXXXX INMAR ASSOCIATES, INC.
/s/ Xxxxxx X. Xxxxx By:/s/ Xxxxxx X. Xxxxx
------------------- -------------------
Title: President
[Signatures continued on next page]
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TANG REALTY, INC.
By:/s/ Xxxxxx X. Xxxxx
---------------------
Title: President
WASTE MANAGEMENT, INC. SCA SERVICES, INC.
a Delaware corporation a Delaware corporation
By:/s/ Xxxxxxx X. Xxxxx By:/s/ Xxxxxxx X. Xxxxx
-------------------- --------------------
Title: Manager - Closed Sites Title: Manager - Closed Sites
----------------------- -----------------------
CHEMICAL WASTE MANAGEMENT CHEMICAL WASTE
OF NEW JERSEY, INC. MANAGEMENT, INC.
a New Jersey corporation a Delaware corporation
(for and as to itself and as (for and as to itself and as
a general partner of successor to CWM Consolidation
Earthline Company) Sub, Inc.)
By:/s/ Xxxxxxx X. Xxxxx By:/s/ Xxxxxxx X. Xxxxx
-------------------- ---------------------
Title: Manager - Closed Sites Title: Manager - Closed Sites
----------------------- -----------------------
WASTE MANAGEMENT OF CWM CHEMICAL SERVICES, INC.
NEW JERSEY, INC. a Delaware corporation
a New Jersey corporation
By:/s/ Xxxxxxx X. Xxxxx By:/s/ Xxxxxxx X. Xxxxx
--------------------- ---------------------
Title: Manager - Closed Sites Title: Manager - Closed Sites
----------------------- -----------------------
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