1
EXHIBIT 10.108
2
12/30/96
NEW YORK SETTLEMENT AGREEMENT
SETTLEMENT AGREEMENT dated December 30, 1996 by and among
BRADLEY S. JACOBS ("Jacobs") of 350 Round Hill Road, Greenwich, Connecticut,
MARC P. SHORE ("Shore") of 68 Talcott Road, Rye Brook, New York, UNITED WASTE
SYSTEMS, INC., a Delaware corporation ("UWS"), and SHOREWOOD PACKAGING
CORPORATION, a Delaware corporation ("SPC").
RECITALS
Bradley S. Jacobs has sued SPC in the United States District
Court for the Southern District of New York (95 Civ. 9414(DC)) (the
"Litigation").
Marc P. Shore is a director and officer of SPC, Bradley S.
Jacobs is a director and officer of UWS.
The parties desire to settle their differences in the manner
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and mutual promises contained
herein, it is hereby agreed as follows:
1. Termination of Litigation; No Disparagement; No Admission
(a) Shore, Jacobs, UWS and SPC shall promptly cause the
Litigation to be permanently and irrevocably dis-
missed with prejudice and without costs or dis-
bursements. In furtherance thereof, counsel for
Jacobs and SPC are concurrently herewith executing
a stipulation to effectuate such dismissal, and
such document shall be duly filed by counsel to the
parties as soon as practicable. Each party agrees
to execute, deliver and file all such additional
instruments, documents, stipulations and certifi-
cates as may be necessary or appropriate fully and
finally to effectuate such dismissal with prejudice
and without costs or disbursements.
(b) Jacobs and UWS, on the one hand, and Shore and SPC,
on the other hand, agree and acknowledge that neither
will make any disparaging remarks, whether publicly
or privately, about the other, or the business,
affairs, practices or performance of the other.
(c) Nothing contained herein shall be deemed to be, or
is intended to be, an admission of liability or
1
3
culpability on the part of any party hereto with
respect to any matter whatsoever.
2. General Releases
(a) Each of Shore and SPC, for themselves, their heirs,
executors, administrators, subsidiaries, successors and assigns, hereby
remise, release, and forever discharge any and all Claims (as
hereinafter defined) against any and all of Bradley S. Jacobs, United
Waste Systems, Inc. and the Associates (as hereinafter defined) of
each such released person or entity.
(b) Each of Jacobs and UWS, for themselves, their heirs,
executors, administrators, subsidiaries, successors and assigns, hereby
remise, release, and forever discharge any and all Claims against any
and all of Marc P. Shore, Shorewood Packaging Corporation and the
Associates of each such released person or entity.
(c) Other than actions to enforce the provisions of this
Agreement, no releasing party hereto shall commence, initiate or make
any charge, complaint, action, suit, proceeding, hearing, Claim or
demand whatsoever, direct or indirect, express or derivative, against
any person or entity released by the releasing party, or any member of
such released party's "immediate family", within the meaning of the
rules promulgated under the Exchange Act of 1934, as amended (the
"Exchange Act"), in respect of any Claim. Should any party breach the
provisions of this Section , the aggrieved party or parties shall be
entitled to recover any resulting legal fees and expenses. The
non-prevailing party or parties in any final judgment of a court (from
which no appeal can be taken) in any action or proceeding brought by
any party under this Agreement against any other party or parties
hereto, shall reimburse the prevailing party or parties in such
judgment for his, her or its attorney's fees and court costs.
(d) As used in this Agreement with respect to the releases
aforesaid:
(i) The term "Claims" means any and all manner
of actions, causes of action, suits, debts,
dues, sums of money, accounts, reckonings,
attorneys' fees, bonds, bills, specialties,
covenants, contracts, controversies, agree-
ments, liabilities, variances, trespasses,
damages, judgments, extents, executions,
claims, demands, costs and expenses
whatsoever, whether based on any federal or
state law or right of action, in law,
admiralty or equity, whether or not arising
from fraud or fraud in the inducement and
whether foreseen or unforeseen, matured or
unmatured, known or unknown, accrued or not
accrued, which any releasing person ever
had, now or hereafter
2
4
can, shall or may, have for, upon, or by
reason of, or relating to, any matter,
action, transaction, omission, practice,
conduct, cause, fact, matter, transaction,
occurrence, event or thing, whatsoever, from
the beginning of the world to the date
hereof.
A. Without limiting the generality of the
foregoing, the term "Claims" also in-
cludes the Litigation and any claims,
rights or liabilities which may arise
pursuant to, by reason of, or in connec-
tion with, any matter, cause or thing
relating to the Litigation (including
any claim that the Litigation, or any
actions, investigations, or motions
therein or in connection therewith, or
any other conduct whatsoever, was
vexatious or unlawful, or otherwise
unwarranted or improper), the Proxy
Solicitation (as hereinafter defined) or
any of the other transactions and
circumstances described in the Recitals
hereto. The "Proxy Solicitation" means
the action undertaken by Bradley S.
Jacobs to seek one seat on the Board of
Directors of SPC and to solicit proxies
on behalf of himself and in opposition
to management's proposals being
submitted for stockholder approval at
SPC's 1996 annual meeting.
B. Notwithstanding the foregoing, the term
"Claims" does not include any rights or
liabilities arising under this Agreement
or any agreement, instrument or document
which is signed by any of the parties on
the date hereof, or out of any breach
thereof.
(ii) The term "Associate" as used herein with
respect to any person means, as applicable,
all of such person's directors, officers,
proxy solicitors, attorneys with respect to
all or any part of the Litigation or any
Claim, private investigators, subsidiaries,
personal representatives, successors and
assigns. Notwithstanding the foregoing:
(1) the term "Associate" as used in the
release aforesaid in favor of SPC and
Shore shall not include any director or
officer of SPC who at any time asserts
against UWS or Jacobs any matter which
would have been released hereby were
such director or officer to have joined
as a releasor
3
5
in the release aforesaid in favor of UWS
and Jacobs; and
(2) the term "Associate" as used in the
release aforesaid in favor of UWS and
Jacobs shall not include any director or
officer of UWS who at any time asserts
against SPC or Shore any matter which
would have been released hereby were
such director or officer to have joined
as a releasor in the release aforesaid
in favor SPC and Shore.
3. Related Agreements
(a) Jacobs and UWS hereby represent and warrant to Shore and SPC that,
as of the date hereof, none of them, directly or indirectly through one
or more "Affiliates" (defined below), owns of record or beneficially
any options to acquire shares of capital stock of SPC or any shares of
capital stock of SPC. Each of Jacobs and UWS hereby covenants and
agrees that for five years from the date hereof, neither one of them
nor any of their "Affiliates" (regardless of whether such person or
entity is an Affiliate as of the date hereof) will at any time, (i)
acquire, offer to acquire, or agree to acquire or own any securities,
or options to acquire securities, of SPC or any SPC Affiliated
Corporation (as hereinafter defined), (ii) make, or in any way
participate, directly or indirectly, in any "solicitation" of "Proxies"
to vote (as such terms are used in the proxy rules of the Securities
and Exchange Commission), or seek to advise or influence any person or
entity with respect to, the voting of any voting securities of SPC or
any SPC Affiliated Corporation, or (iii) form, join or in any way
participate in a "group" within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934 with respect to any voting securities
of SPC or any SPC Affiliated Corporation, or (iv) otherwise act, alone
or in concert with others, to seek to control or influence the
management, board of directors or policies of SPC or any SPC Affiliated
Corporation. An "SPC Affiliated Corporation" means a corporation whose
stock is traded publicly and as to which SPC sends to Jacobs and UWS a
notice which advises that SPC or Shore owns not less than 5% of the
outstanding common stock and of which SPC or Shore or their Affiliates
continues to own not less than 5% of the outstanding common stock.
(b) Shore and SPC hereby represent and warrant to Jacobs and UWS that,
as of the date hereof, none of them, directly or indirectly through one
or more Affiliates, owns of record or beneficially any options to
acquire shares of capital stock of UWS or any shares of capital stock
of UWS. Each of Shore and SPC hereby covenants and agrees that for five
years from the date hereof neither one of them nor any of their
Affiliates (regardless of whether such person or entity is an Affiliate
as of the date hereof) will at any time, (i) acquire, offer to acquire,
or agree to acquire or own any securities, or options
4
6
to acquire securities, of UWS or any UWS Affiliated Corporation (as
hereinafter defined), (ii) make, or in any way participate, directly or
indirectly, in any "solicitation" of "Proxies" to vote (as such terms
are used in the proxy rules of the Securities and Exchange Commission),
or seek to advise or influence any person or entity with respect to,
the voting of any voting securities of UWS or any UWS Affiliated
Corporation, or (iii) form, join or in any way participate in a "group"
within the meaning of Section 13(d)(3) of the Securities Exchange Act
of 1934 with respect to any voting securities of UWS, or (iv) otherwise
act, alone or in concert with others, to seek to control or influence
the management, board of directors or policies of UWS or any UWS
Affiliated Corporation. A "UWS Affiliated Corporation" means a
corporation whose stock is traded publicly and as to which UWS sends to
Shore and SPC a notice which advises that UWS or Jacobs owns not less
than 5% of the outstanding common stock and of which UWS or Jacobs or
their Affiliates continues to own not less than 5% of the outstanding
common stock.
(c) Simultaneously herewith or promptly hereafter, Bradley S. Jacobs
shall return to SPC all tangible forms in his possession of SPC's
omnibus proxies, list of record stockholders and list of non-objecting
and acquiescing beneficial owners, which have heretofore been furnished
by SPC to Bradley S. Jacobs (collectively, the "SPC Documents").
Bradley S. Jacobs agrees not to use the SPC Documents or the
information contained therein.
(d) Bradley S. Jacobs shall as soon as practicable hereafter request of
Katten, Muchin & Zavis, McKenzie Partners and any of his agents to whom
he conveyed the SPC Documents, to return to SPC all tangible forms of
the SPC Documents in their respective possessions, and not to use the
SPC Documents or the information contained therein.
(e) Shore and SPC, on the one hand, and Jacobs and UWS, on the other
hand, each agree that the other parties hereto would not have an
adequate remedy at law for money damages in the event that such
parties' covenants under this Section were not performed in accordance
with the terms hereof. Accordingly, such other parties shall be
entitled to specific enforcement of the terms hereof in addition to any
other remedy to which they may be entitled, at law or in equity.
(f) As used herein, the term "Affiliate" means, with respect to any
party, any person or entity acting on behalf of such party or which is
controlled, directly or indirectly, by such party and, in the case of
any individual, his wife and any other member of such party's
"immediate family" the meaning of the rules promulgated under the
Exchange Act.
4. Disclosure
(a) After consultation with its counsel, SPC and Shore have
determined that the transactions set forth in this Agreement
5
7
and any agreements of even date among any or all of the parties will be
described in SPC's filings with the Securities and Exchange Commission
and in its press releases and other communications with shareholders
and other third parties only as follows: "A stockholder of the company
previously brought a suit in the United States District Court, Southern
District of New York, seeking to enjoin payment of performance bonuses
under the Company's 1995 performance bonus plan. That suit has been
dismissed with prejudice pursuant to a settlement agreement between the
Company and such stockholder."
(b) Except for this Agreement, neither SPC nor UWS shall publicly
(whether as an exhibit to filings under the Exchange Act or otherwise)
file any agreement, instrument or document which was executed by the
parties or any of them on the date hereof. The preceding sentence shall
not apply to the extent such filing is required by law in the opinion
of counsel to SPC or UWS, in which event such counsel shall give
reasonable prior notice of such filing to the other party.
5. Representations and Warranties
(a) Each of UWS and Jacobs hereby represents to SPC and Shore
as follows:
(i) UWS is a corporation duly organized, validly exist-
ing and in good standing under the laws of the
state of its incorporation or formation, and has
the full legal right and power and all authority
and approval required to enter into, execute,
deliver and perform its obligations, under this
Agreement. The execution and delivery of this
Agreement, and the consummation of the transactions
contemplated hereby, has been duly authorized by
all necessary corporate action on the part of UWS.
This Agreement has been duly executed and delivered
by and is the valid and binding obligation of UWS
and Jacobs, enforceable against each of them in
accordance with its terms.
(ii) Jacobs has the requisite legal capacity to execute
and deliver this Agreement, and to bind themselves by
so doing.
(iii) The execution, delivery and performance of this
Agreement by UWS and Jacobs and the consummation by
them of the transactions contemplated hereby will not
conflict with, or constitute or result in a breach,
default or violation of (with or without the giving
of notice or the passage of time) any of the terms,
provisions or conditions of, a) the Certificate of
Incorporation, By-laws or other organizational
documents of UWS; b) any law, ordinance, regulation
or rule applicable to UWS, Jacobs or any of them; c)
any order,
6
8
judgment, injunction or other decree by which UWS,
Jacobs, or any of them, or any of their respective
assets or properties are bound; or d) any written or
oral contract, agreement, or commitment to which UWS
and Jacobs, or any of them, is a party or by which
they or any of their respective assets or properties
are bound.
(b) Each of SPC and Shore hereby jointly and severally represents to
UWS and Jacobs as follows:
(i) SPC is a corporation duly organized, validly exist-
ing and in good standing under the laws of the
state of its incorporation or formation, and has
the full legal right and power and all authority
and approval required to enter into, execute,
deliver and perform its obligations, under this
Agreement. The execution and delivery of this
Agreement, and the consummation of the transactions
contemplated hereby, has been duly authorized by
all necessary corporate action on the part of SPC.
This Agreement has been duly executed and delivered
by and is the valid and binding obligation of SPC
and Shore, enforceable against each of them in
accordance with its terms.
(ii) Shore has the requisite legal capacity to execute
and deliver this Agreement, and to bind themselves
by so doing.
(iii) The execution, delivery and performance of this
Agreement by SPC and Shore and the consummation by
them of the transactions contemplated hereby will
not conflict with, or constitute or result in a
breach, default or violation of (with or without the
giving of notice or the passage of time) any of the
terms, provisions or conditions of, a) the
Certificate of Incorporation, By-laws or other
organizational documents of SPC; b) any law,
ordinance, regulation or rule applicable to SPC,
Shore or any of them; c) any order, judgment,
injunction or other decree by which Jacobs, or his
assets or properties are bound; or d) any written or
oral contract, agreement, or commitment to which SPC
and Shore, or any of them, is a party or by which
they or any of their respective assets or properties
are bound.
6. Miscellaneous Provisions
(a) This Agreement shall be binding upon and inure to the
benefit of the heirs, executors, administrators, successors,
and permitted assigns of the respective parties. No person
7
9
shall be entitled to any rights as a third party beneficiary
of this Agreement.
(b) Each party waives rescission of this Agreement, or of the general
releases or any other provision of this Agreement, or of any agreement,
instrument or document signed on this date or any provision thereof, or
revival of any Claim released hereunder, as a remedy for any breach of
this Agreement or of any agreement, instrument or document signed on
this date.
(c) This Agreement contains the entire agreement between the parties
hereto and cannot be modified or waived except in a writing executed by
all the parties hereto. Any and all prior agreements, understandings or
representations, whether oral or written, are hereby terminated and
cancelled in their entirety.
(d) This Agreement may be signed in one or more counterparts, each of
which when so executed shall be considered an original. Such
counterparts shall, together, constitute and be one document. This
Agreement may be signed by facsimile.
(e) The parties agree that this Settlement Agreement and all documents
and instruments to be executed and delivered pursuant to the terms
hereof will be governed by and interpreted in accordance with the
internal laws of the State of New York. The parties hereby agree to be
subject to the personal jurisdiction of the federal and state courts in
the City of New York, and that any disputes arising from or in relation
to this Settlement Agreement may only be commenced in a Federal or
State Court with appropriate jurisdiction in the Borough of Manhattan,
City of New York by making service of process as set forth in the
notice provisions of subparagraph (f) below.
(f) Any notice to be given to the parties hereto shall be by a
nationally recognized overnight express courier, or by certified
first-class mail return receipt requested addressed to, or by hand
delivery delivered to, the respective parties at their addresses set
forth in the heading of this Agreement, or at such other address as
either party hereto shall subsequently direct in writing, with copies
to counsel for the respective parties which may be given in the manner
stated:
If notice is to any of Shore or SPC, to:
Peter A. Eisenberg, Esq.
Bryan Cave LLP
245 Park Avenue
New York, New York 10167-0034
If notice is to Jacobs or UWS, to:
James F. Stapleton, Esq.
Day Berry & Howard
One Canterbury Green
8
10
Stamford, CT 06901
Facsimile: (203) 977-7301,
and
Oscar D. Folger, Esq.
521 Fifth Avenue, 24th Floor
New York, New York 10175
Facsimile: (212) 697-7833
Dated this 30th day of December, 1996.
/s/ Bradley S. Jacobs
- ---------------------
BRADLEY S. JACOBS
/s/ Marc P. Shore
- -----------------
MARC P. SHORE
UNITED WASTE SYSTEMS, INC.
By:/s/ signature illegible
-----------------------
SHOREWOOD PACKAGING CORPORATION
By:/s/ Marc P. Shore
-----------------
9
11
STATE OF CONNECTICUT
COUNTY OF FAIRFIELD ss:
On the 30th day of December 1996, before me personally came Oscar D. Folger as
attorney in fact for Bradley S. Jacobs to me known to be the individual
described in and who executed the foregoing instrument, and acknowledged that he
or she executed the same.
/s/ Rose Anna Miller
- --------------------
Notary Public
STATE OF CONNECTICUT
COUNTY OF FAIRFIELD ss:
On the 30th day of December 1996, before me personally came Marc P. Shore, to me
known to be the individual described in and who executed the foregoing
instrument, and acknowledged that he or she executed the same.
/s/ signature illegible
- -----------------------
Commissioner of Superior Court
STATE OF CONNECTICUT
COUNTY OF FAIRFIELD ss:
On the 30th day of December 1996, before me personally came Marc P. Shore, to me
known, who, being by me duly sworn, did depose and say that he is the President
of Shorewood Packaging Corporation, the corporation described in and which
executed the foregoing instrument; and that he signed his name thereto by order
of the board of directors of said corporation.
/s/ signature illegible
- -----------------------
Commissioner of Superior Court
STATE OF CONNECTICUT, COUNTY OF FAIRFIELD ss: Greenwich
On the 30th day of December 1996, before me personally came John name illegible
to me known, who, being by me duly sworn, did depose and say that he is an
officer of United Waste Systems, Inc., the corporation described in and which
executed the foregoing instrument; and that he signed his name thereto by order
of the board of directors of said corporation.
/s/ signature illegible
- -----------------------
Commissioner of the Superior Court
10