Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
__________________
SUPERIOR SERVICES, INC.
(Exact name of registrant as specified in its charter)
Wisconsin
(State or other jurisdiction 39-1733405
of incorporation or (I.R.S. Employer Identification
organization) No.)
10150 West National Avenue
Suite 350
West Allis, Wisconsin
(Address of principal 53227
executive offices) (Zip Code)
Superior Services, Inc. 1996 Equity Incentive Plan
Superior Services, Inc. 1993 Incentive Stock Option Plan
Various Other Individual Employment, Stock Option
and Stock Purchase Agreements
(Full title of the plan)
____________________
Peter J. Ruud, Esq.
General Counsel and Secretary
Superior Services, Inc.
10150 West National Avenue
Suite 350
West Allis, Wisconsin 53227
(414) 328-2800
(Name, address and telephone number, including area code,
of agent for service)
__________________________
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to to be Price Offering Registration
be Registered Registered Per Share Price Fee
Common Stock,
$.01 par value 2,602,352 $15.625(1) $40,661,750(1) $14,022
(1) Estimated pursuant to Rule 457(c) under the Securities Act of
1933 solely for the purpose of calculating the registration fee
based on the average of the high and low prices for Superior
Services, Inc. Common Stock on Nasdaq on September 24, 1996.
_________________________________
<PAGE>
Explanatory Note
This Registration Statement on Form S-8 relates to the following
number of shares of Common Stock of Superior Services, Inc. issued or
issuable under the following compensatory plans and individual
compensation agreements of the Company:
Document Title Shares Registered Hereby
Superior Services, Inc. 1996
Equity Incentive Plan . . . . . . . . . . . . . 1,200,000
Superior Services, Inc. 1993 Incentive
Stock Option Plan . . . . . . . . . . . . . . . 335,000
Other Individual Employment, Stock Option
and Stock Purchase Agreements
(See Exhibit Index) . . . . . . . . . . . . . . 1,067,352
TOTAL . . . . . 2,602,352
=========
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified in
Part I are not required to be filed with the Securities and Exchange
Commission (the "Commission") as part of this Form S-8 Registration
Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission by Superior
Services, Inc. (the "Company") are hereby incorporated herein by
reference:
1. The Company's latest prospectus, included in the Company's
Registration Statement on Form S-4 (Registration No. 333-06443), filed on
June 20, 1996 pursuant to Rule 424(b) under the Securities Act of 1933, as
amended, which includes audited financial statements as of and for the
year ended December 31, 1995.
2. All other reports filed since December 31, 1995 by the Company
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended.
3. The description of the Company's Common Stock contained in
Item 1 of the Company's Registration Statement on Form 8-A dated January
9, 1996, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934,
as amended, after the date of filing of this Registration Statement and
prior to such time as the Company files a post-effective amendment to this
Registration Statement which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold
shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The exhibits filed herewith or incorporated herein by reference are
set forth in the attached Exhibit Index.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended, that are incorporated by reference in
the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, each such post-effective amendment
shall be deemed to be a new Registration Statement relating to the
securities offered herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, as
amended, each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended,
that is incorporated by reference in this Registration Statement shall be
deemed to be a new Registration Statement relating to the securities
offered herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised that
in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or controlling person of
the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of
such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of West Allis, State of Wisconsin.
SUPERIOR SERVICES, INC.
By:/s/ G. William Dietrich
September 25, 1996 G. William Dietrich
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below as of the date set forth
above, by the following persons in the capacities indicated. Each person
whose signature appears below constitutes and appoints G. William
Dietrich, George K. Farr and Peter J. Ruud, and each of them individually,
his attorneys-in-fact and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective
amendments) to the Registration Statement and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his or her
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
/s/ G. William Dietrich
G. William Dietrich
President, Chief Executive Officer and Director (principal executive
officer)
/s/ Joseph P. Tate
Joseph P. Tate
Chairman of the Board and Director
/s/ George K. Farr
George K. Farr
Chief Financial Officer and Treasurer
(principal financial and accounting officer)
/s/ Stephen G. Woodsum
Stephen G. Woodsum
Director
/s/ Donald Taylor
Donald Taylor
Director
/s/ Walter G. Winding
Walter G. Winding
Director
/s/ Gary G. Edler
Gary G. Edler
Director
/s/ Francis J. Podvin
Francis J. Podvin
Director
<PAGE>
EXHIBIT INDEX
Exhibit No. Exhibit
4.1 Superior Services, Inc. 1996 Equity Incentive Plan.
[Incorporated by reference to Exhibit 10.10 to the Company's
Form S-1 Registration Statement (No. 333-240) originally filed
with the Securities and Exchange Commission on January 11,
1996.]
4.2 Superior Services, Inc. 1993 Incentive Stock Option Plan.
[Incorporated by reference to Exhibit 10.8 to the Company's
Form S-1 Registration Statement (No. 333-240) originally filed
with the Securities and Exchange Commission on January 11,
1996.]
4.3 Form of Stock Option Agreement under 1993 Incentive Stock
Option Agreement. [Incorporated by reference to Exhibit 10.8
to the Company's Form S-1 Registration Statement (No. 333-240)
originally filed with the Securities and Exchange Commission
on January 11, 1996.]
4.4 Form of Nonqualified Stock Option Agreement under 1996 Equity
Incentive Plan. [Incorporated by reference to Exhibit 10.9 to
the Company's Form S-1 Registration Statement (No. 333-240)
originally filed with the Securities and Exchange Commission
on January 11, 1996.]
4.5 Restated Stock Option Agreement with G. William Dietrich dated
November 29, 1995. [Incorporated by reference to Exhibit 10.2
to the Company's Form S-1 Registration Statement (No. 333-240)
originally filed with the Securities and Exchange Commission
on January 11, 1996.]
4.6 Employment Agreement with Peter J. Ruud dated as of September
1, 1993 and as amended August 15, 1995. [Incorporated by
reference to Exhibit 10.3 to the Company's Form S-1
Registration Statement (No. 333-240) originally filed with the
Securities and Exchange Commission on January 11, 1996.]
4.7 Restated Stock Option Agreement with George K. Farr dated
November 29, 1995. [Incorporated by reference to Exhibit 10.1
to the Company's Form S-1 Registration Statement (No. 333-240)
originally filed with the Securities and Exchange Commission
on January 11, 1996.]
4.8 Amendment dated January 5, 1996 to Series A Convertible
Preferred Stock Purchase Agreement.
4.9 Stock Option Agreement dated January 15, 1995 and associated
Settlement Agreement and Release dated April 28, 1996.
4.10 B. Todd Watermolen Stock Option Agreement.
4.11 Fred Radandt Stock Option Agreement.
4.12 Craig Bassuener Stock Option Agreement.
4.13 Darrel P. Bassuener Stock Option Agreement.
5 Opinion of Foley & Lardner.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Foley & Lardner (contained in Exhibit 5 hereto).
Exhibit 4.8
AMENDMENT
This Amendment made and entered into as of January 5, 1996, by and
between Superior Services, Inc. (the "Company"), Summit Ventures III, L.P.
and Summit Investors II, L.P. (collectively referred to as the "Preferred
Stockholders").
RECITALS
WHEREAS, the Company and the Preferred Stockholders previously
entered into the Series A Convertible Preferred Stock Purchase Agreement
dated as of February 24, 1993 (the "Stock Purchase Agreement"); and
WHEREAS, the parties desire to amend the Stock Purchase Agreement as
set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth below, the parties hereto agree as follows:
1. Conversion of Pre-Emptive Options. Section 5.6 of the Stock
Purchase Agreement is amended by deleting such Section in its entirety and
substituting the following in its place:
"5.6 Option to Purchase Common Stock. The Company hereby
grants to the Purchasers the right to purchase, at a price
of $3.85 per share, three hundred twenty-five thousand
(325,000) shares of Common Stock (the number of option
shares and the price per share reflect the 20 for 1 stock
split authorized by the Company on September 16, 1993).
Such right shall be exercisable by the Purchaser in
proportion to the number of Purchased Shares purchased by
each of them. The option granted under this Section 5.6
may be exercised in whole or in part on or before March 31,
1998, by written notice to the Company specifying the
number of shares of Common Stock to be purchased and
accompanied by a certified check or certified check for the
purchase price."
2. Continued Effect of Stock Purchase Agreement. Except as set
forth in this Amendment, the terms of the Stock Purchase Agreement shall
continue unmodified and in full force and effect.
3. Defined Terms. Unless otherwise specifically defined herein,
all capitalized terms used in this Amendment shall have the meanings
ascribed to them in the Stock Purchase Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the day and year first above written.
Superior Services, Inc.
By:/s/ Peter J. Ruud
Peter J. Ruud, Vice-President
Summit Investors II, L.P.
By:/s/ Stephen Woodsum
Authorized Signatory
Summit Ventures III, L.P.
By: Summit Partners III, L.P., its general
partner
By: Stamps, Woodsum & Co. III, its general
partner
By:/s/ Stephen Woodsum
General Partner
Exhibit 4.9
STOCK OPTION AGREEMENT
This Agreement is made as of January 15, 1995, by and between
Superior Services, Inc., a Wisconsin corporation (the "Company") and
Robert T. Glebs ("Employee").
WHEREAS, Employee is a valuable and trusted employee of the Company,
and the Company considers it desirable and in its best interest that
Employee be given an inducement to acquire a further proprietary interest
in the Company, and an added incentive to advance the interests of the
Company by possessing an option to purchase common stock of the Company;
and
WHEREAS, except as otherwise set forth herein, the parties intend to
terminate and replace any options previously issued to Employee.
NOW, THEREFORE, it is agreed between the parties as follows:
1. Grant of Option. The Company hereby grants to Employee the
right, privilege and option (the "Option" or "Options") to purchase
407,300 shares of its Common Stock, $0.01 par value (the "Option Shares")
at the purchase price of Three and 85/100 Dollars ($3.85) per share (the
"Option Price"), in the manner and subject to the conditions hereinafter
provided.
2. Termination of Prior Options. Except as set forth herein and
except for those options granted pursuant to the Company's Incentive Stock
Option Plan, all Options previously granted by the Company under any
Employment Agreement or amendment thereto, and any other agreements
regarding the option or opportunity to purchase common stock, are hereby
revoked and terminated in all respects, whether or not vested.
3. Method of Exercise. A Vested Option may be exercised, so long
as Options are outstanding, from time to time, in part or as a whole;
provided, however, that any exercise with respect to a portion of the
Options shall be made for no less than Two Thousand Five Hundred (2,500)
shares of Option Shares. The Option shall be exercised by written notice
to the Company, at the Company's principal place of business, accompanied
by certified check, bank draft or postal or express money order in payment
of the Option Price for the number of shares specified and paid for.
Alternatively, in order to pay all or a portion of the Option Price for
the Option Shares, the Employee shall have the right to surrender to the
Company the Option with respect to a portion of the Option Shares, for an
amount equal to the difference between the then fair market value of the
Option Shares for which the rights are surrendered and the Option Price
for such Option Shares. For purposes of this Agreement only, the fair
market value per share of the Option Shares shall mean: (i) if shares of
the common stock are publicly traded, the closing bid price per share for
the common stock on the day the Option is exercised, or (ii) if shares of
the common stock are not publicly traded, at the price per share paid in
the most recent arms-length stock sales transaction prior to the date of
the exercise of the Option. The amount so determined shall be applied to
payment of the Option Price of the Option Shares to be purchased and the
Employee shall have no other right to surrender the Option for payment in
cash. Upon the surrender of the Option with respect to a portion of the
Option Shares, the number of Option Shares for which the Option may be
exercised shall be reduced by that number of shares for which the Option
is surrendered pursuant to this paragraph.
4. Termination of Option. Except as herein otherwise stated, the
Option to the extent not heretofore exercised, shall terminate upon the
first to occur of the following dates:
(a) The expiration of ninety (90) days after the date on which
Employee's employment by the Company or its subsidiaries is
terminated (except if such termination is by reason of death);
(b) In the event of Employee's death while in the employ of the
Company or its subsidiaries or within ninety (90) days after
termination of employment, his executors or administrators may
exercise the Option in whole or in part to the extent Employee was
entitled to do so at the date of his death, at any time prior to one
(1) year following the date of death or the expiration of such
Option, whichever is first to occur;
(c) One (1) year after the date on which the Option Shares
become freely transferable on a national or regional stock exchange,
through any system of automated quotations or by "over-the-counter"
public trading (whichever shall first occur) of the registration by
the Company of its shares under the Securities Exchange Act of 1933,
as amended, in connection with a public offering; or
(d) January 31, 2000.
5. Reclassification, Consolidation or Merger. The existence of
outstanding Options shall not affect in any way the right or power of the
Company or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's
capital structure or its business, or any merger or consolidation of the
Company, or any issue of bonds, debentures, preferred or prior preference
stock ahead of or affecting the common stock or the rights thereof, or the
dissolution or liquidation of the Company, or any sale or transfer of all
or any part of its assets or business, or any other corporate act or
proceeding, whether of a similar character or otherwise.
If, while there are outstanding Options, the Company shall effect a
subdivision or consolidation of shares or other increase or reduction of
the number of shares of the common stock outstanding without receiving
compensation thereof in money, services or property, then (a) in the event
of an increase in the number of such shares outstanding, the number of
Option Shares hereunder shall be proportionately increased; and (b) in the
event of a decrease in the number of such shares outstanding the number of
Option Shares hereunder shall be proportionately decreased.
After a merger of one or more corporations into the Company, or after
a consolidation of the Company and one or more corporations in which the
Company shall be the surviving corporation, Employee shall, at no
additional cost, be entitled upon exercise of his Option to receive
(subject to any required action by stockholders) in lieu of the number of
shares as to which such Option shall then be so exercisable, the number
and class of shares of stock or other securities to which Employee would
have been entitled pursuant to the terms of the agreement of merger or
consolidation if, immediately prior to such merger or consolidation,
Employee had been the holder of record of a number of shares of common
stock equal to the number of Option Shares as to which such Option shall
be so exercised.
If the Company is merged into or consolidated with another
corporation under circumstances where the Company is not the surviving
corporation, or if the Company sells or otherwise disposes of
substantially all its assets to another corporation while unexercised
Options remain outstanding under this Agreement, (i) subject to the
provisions of clause (iii) below, and so long as the successor entity is
willing to assume the obligation to deliver shares of such stock or other
securities, after the effective date of such merger, consolidation or
sale, as the case may be, Employee shall be entitled, upon exercise of his
Option, to receive, in lieu of shares of common stock, shares of such
stock or other securities, the holders of shares of common stock received
pursuant to the terms of the merger, consolidation or sale, and if
Employee is subsequently terminated subsequent to the merger,
consolidation or sale, then he shall have the right, at any time prior to
ninety (90) days following the date of termination to exercise the Option,
in whole or in part; (ii) the Board of Directors may waive any limitations
set forth in or imposed pursuant to Paragraph 2 hereof so that all
Options, from and after a date (not less than thirty (30) days prior to
the effective date of such merger, consolidation or sale as the case may
be) specified by the Board, shall be exercisable in full; or (iii) all
outstanding Options may be cancelled by the Board of Directors as of the
effective date of any such merger, consolidation or sale provided that (x)
notice of any such cancellation shall be given to Employee and (y)
Employee shall have the right to exercise such Option in full during a 30-
day period preceding the effective date of such merger, consolidation,
sale or acquisition.
Except as hereinbefore expressly provided, the issue by the Company
of shares of stock of any class, or securities convertible into shares of
stock of any class, for cash or property, or for labor or services either
upon direct sale or upon the exercise of rights or warrants to subscribe
therefor, or upon conversion of shares or obligations of the Company
convertible into such shares or other securities, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or
price of shares of Common Stock then subject to outstanding Options.
6. Rights Prior to Exercise of Option. This Option is
nontransferable by Employee except in the event of his death as provided
in Paragraph 4 above, and during his lifetime is exercisable only by him.
Employee shall have no rights as a stockholder with respect to the Option
Shares until payment of the Exercise Price and delivery to him of such
shares as herein provided. As a condition to the Employee's exercise of
the Option, the Employee, or his heirs or beneficiaries, shall be required
to enter into a Subscription Agreement and a Shareholders Agreement in
form and substance satisfactory to the Company, which shall include, among
other things, provisions restricting the resale of the Option Shares
except in accordance with state and federal securities laws.
7. Limited "Lock Up" of Common Stock. In the event the Company
seeks to register its shares under the Securities Act of 1933, as amended,
in connection with a public offering, the Employee, or his heirs or
beneficiaries, agree that, in connection with any such registration,
Employee, his heirs or beneficiaries shall not sell, make any short sale
of, loan, grant any option for the purchase of, or otherwise dispose of or
otherwise transfer any shares of Option Shares (other than those included
in registration) without the prior written consent of the Company and its
underwriters for such period of time from the effective date of such
registration as the Company and its underwriters may specify, which period
of time shall not exceed two hundred seventy (270) days.
8. Binding Effect. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective heirs,
executors, administrators, successors and permitted assigns.
9. Employment Not Affected. Neither the granting of the Option or
its exercise shall be construed as granting to the Employee any right with
respect to continuance of employment of the Company. Except as may
otherwise be limited by a written agreement between the Employee and the
Company, the right of the Company to terminate at will the Employee's
employment with it at any time (whether by dismissal, discharge,
retirement or otherwise) is specifically reserved by Company, and
acknowledged by the Employee.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on the day and year first above written.
SUPERIOR SERVICES, INC. EMPLOYEE:
By: /s/ G.W. Dietrich /s/ Robert T. Glebs
G.W. Dietrich, President Robert T. Glebs
<PAGE>
SETTLEMENT AGREEMENT AND RELEASE
THIS SETTLEMENT AGREEMENT AND RELEASE (the "Agreement") is made
as of April 28, 1996 by and between ROBERT T. GLEBS ("Glebs"), an adult
citizen of Wisconsin residing at 5822 Windsona Circle, Madison, Wisconsin
53711 and SUPERIOR SERVICES, INC. ("Superior"), a Wisconsin corporation
with its executive offices located at 10150 West National Avenue, West
Allis, Wisconsin 53227. For purposes of this Agreement, the term
"Superior" includes Superior Services, Inc. and all of its affiliates and
subsidiaries.
WHEREAS, Glebs and Superior entered into a Stock Option
Agreement dated as of January 15, 1995 and amended by letter agreement
dated March 31, 1995 (collectively referred to as the "1995 Option
Agreement"); and
WHEREAS, Superior attempted to terminate the 1995 Option
Agreement in August 1995; and
WHEREAS, Glebs commenced an action against Superior in Dane
County Circuit Court requesting, among other things, a declaration of his
rights under the 1995 Option Agreement; and
WHEREAS, the parties seek to resolve the issues raised in the
litigation and other matters between them without further proceedings
before the Court;
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Glebs and
Superior agree as follows:
1. Superior's August 1995 attempt to terminate the 1995 Option
Agreement is null and void.
2. The 1995 Option Agreement continues and is amended by this
Agreement as follows:
a. Numbered paragraph 1 is amended and restated in full
as follows:
1. Grant of Option. The Company hereby grants to
Employee the right, privilege and option (the "Option"
or "Options") to purchase 162,920 shares of its Common
Stock, $0.01 par value (the "Option Shares") at the
purchase price of Seven and 70/100 Dollars ($7.70) per
share (the "Option Price"), in the manner and subject
to the conditions hereinafter provided. The Option
Shares represent 80% of the number of shares issuable
to Employee upon the exercise of options originally
granted to Employee, after giving effect to the 1-for-
2 reverse stock split effected by the Company on March
8, 1996.
b. Numbered paragraph 3 is amended and restated in full
as follows:
3. Method of Exercise. A Vested Option may be
exercised, so long as Options are outstanding, from
time to time, in part or as a whole; provided,
however, that any exercise with respect to a portion
of the Options shall be made for no less than Two
Thousand Five Hundred (2,500) shares of Option Shares.
The Option shall be exercised by written notice to the
Company, at the Company's principal place of business,
accompanied by certified check, bank draft or postal
or express money order in payment of the Option Price
for the number of shares specified and paid for.
Alternatively, in order to pay all or a portion of the
Option Price for the Option Shares, the Employee shall
have the right to use a cashless exercise program with
Robert W. Baird & Co. or Alex Brown & Sons by which
Baird or Brown sells some or all of the Option Shares
under instructions to remit to Superior cash proceeds
for an amount equal to the Option Price for the total
number of Options exercised.
c. Numbered paragraph 4(a) is amended and restated in
full as follows and numbered paragraphs 4(b), (c) and
(d) are deleted:
(a) March 31, 1997.
The previous paragraph 4(e) is renumbered as 4(b) and
amended and restated in full as follows:
(b) upon Employee's breach of his obligations
under the Noncompetition Agreement dated April,
1996 and attached as Exhibit A to the Settlement
Agreement and Release.
d. Numbered paragraph 7 is amended and restated in full
as follows:
7. Limited "Lock-Up" of Common Stock. In the event
the Company seeks to register its shares under the
Securities Act of 1933, as amended, in connection with
a public offering (other than registration on Form S-8
of the Securities and Exchange Commission (the "SEC")
or in connection with a transaction to which Rule 145
of the SEC applies), the Employee, or his heirs or
beneficiaries, agree that, in connection with any such
registration, Employee, his heirs or beneficiaries
shall not sell, make any short sale of, loan, grant
any option for the purchase of, or otherwise dispose
of or otherwise transfer any Option Shares (other than
those included in any such registration) without the
prior written consent of the Company and its
underwriters for such period of time from the
effective date of such registration as the Company and
its underwriters may specify, which period of time
shall not exceed one hundred eighty (180) days.
e. A new numbered paragraph 10 is added as follows:
10. The Company will include the Option Shares in the
registration statement filed with respect to its 1993
Incentive Stock Option Plan, 1996 Equity Incentive
Plan and certain individual stock option agreements,
which the Company currently intends to file
approximately 180 days after the date of the Company's
final prospectus relating to its initial public
offering of common stock, as described in the
preliminary prospectus, dated January 9, 1996, under
the heading "Shares Eligible for Future Sale;
Subsequent Registrations" or in the registration
statement filed with respect to any similar plan or
agreement.
f. A new numbered paragraph 11 is added as follows:
11. Upon exercise of the Options, in whole or in
part, and within the time required by Internal Revenue
Service regulations, the Company shall issue to
Employee an IRS Form W-2 reflecting the income
realized by Employee on the exercise of the Options
(or portion thereof), which income for purposes of the
amount to be reported on the form W-2 shall be either
(a) if the Options are exercised and the Option Shares
sold on the same day, the difference between the
Option Price and the sale price of the Option Shares,
or (b) if the Option Shares are not sold on the same
day the Options are exercised, the difference between
the Option Price and the average of the high and low
trade prices for the day the Options are exercised.
On each date on which Employee shall exercise any
Options, the Employee shall pay to the Company in cash
an amount equal to the amount of withholding that the
Company must pay to the Internal Revenue Service. For
purposes of paragraph 11, the use of a cashless
exercise program through Robert W. Baird & Co. or Alex
Brown & Sons by which Baird or Brown sells some or all
of the Option Shares under instructions to remit to
Superior cash proceeds sufficient to pay the
withholding shall constitute payment by Glebs to
Superior in cash for the withholding.
3. Glebs agrees to the Noncompetition Agreement attached as
Exhibit A hereto and will execute and abide by that Noncompetition
Agreement. This new Noncompetition Agreement will replace and supersede
the noncompetition provisions of Glebs' July, 1992 employment agreement
and the Noncompetition Agreement signed by Glebs on January 6, 1995.
4. Glebs, on his own behalf and for his heirs, administrators,
successors and assigns (hereinafter collectively referred to as "Glebs
Releasers") hereby releases and discharges Superior and its insurers,
predecessors, successors, assigns, directors, officers, employees,
attorneys and agents (hereinafter "Superior Releasees"), from any and all
claims, obligations and liabilities which Glebs Releasers had, now have or
in the future may have arising from (1) the attempted
termination/revocation of Glebs' options in August, 1995 and the letter
advising Glebs of that action; (2) any alleged overbroad enforcement,
threatened enforcement or interpretation of Glebs' noncompete obligations
to Superior through the date of this Agreement; (3) any business,
investment or employment opportunities that Glebs alleges he lost as a
result of the noncompetition provisions (or the Superior Releasees'
interpretation thereof) of his 1992 employment agreement and/or the 1995
Noncompetition Agreement; and (4) all claims that were brought or could
have been brought in the action in Dane County Circuit Court, Case No. 95-
CV-3226, entitled Robert T. Glebs, Plaintiff, vs. Superior Services,
Inc., a Wisconsin corporation, Defendant. This paragraph is intended to
be a complete release of Superior Releasees with respect to the above
matters, and in the event of any dispute as to its meaning, is to be
construed in favor of Superior Releasees.
5. Superior, on its own behalf and for its insurers,
predecessors, successors, assigns, directors, officers, employees and
agents (hereinafter "Superior Releasers") hereby releases and discharges
Glebs and his heirs, assigns, attorneys and agents (hereinafter "Glebs
Releasees"), from any and all claims, obligations and liabilities which
Superior had, now has or in the future may have arising from (a) Glebs'
distribution in July, 1995 of a document entitled "Investment Proposal," a
copy of which is attached as Exhibit B; (b) any alleged violations of the
noncompetition provisions of Glebs' July, 1992 employment agreement or the
Noncompetition Agreement signed by Glebs on January 6, 1995 based on any
conduct described in paragraphs 9(a) through 9(c) of this Agreement; and
(c) all claims that were brought or could have been brought in defense of
the action in Dane County Circuit Court, Case No. 95-CV-3226, entitled
Robert T. Glebs, Plaintiff, vs. Superior Services, Inc., a Wisconsin
corporation, Defendant. This paragraph is intended to be a complete
release of Glebs Releasees with respect to the above matters, and in the
event of any dispute as to its meaning, is to be construed in favor of
Glebs Releasees. Nothing in this Agreement shall be construed as a
release of Ravi Kalla.
6. Glebs and Superior do not release one another from their
respective obligations under this Agreement, the new Noncompetition
Agreement or the 1995 Option Agreement as amended.
7. Glebe agrees to cause his complaint in Dane County Circuit
Court case number 95-CV-3226 to be dismissed with prejudice and without
costs to any party.
8. The parties recognize that this agreement is the compromise
of a dispute between the parties and agree that none of the consideration
provided is to be construed as an admission of any fault or liability with
respect to any claim, obligation or liability released.
9. Glebs makes the following further representations and
warranties for the benefit of Superior and upon which Superior is
expressly relying in entering into this Agreement. These representations
and warranties shall survive the execution of this Agreement.
a. The only two persons to whom Glebs provided a copy of
the "Investment Proposal" attached as Exhibit B are
Ravi Kalla and James Carley, and Glebs is unaware of
any further distribution of the "Investment Proposal";
b. Other than the communications referenced in subpart
(a) and other than any conversations with his
attorneys, Glebs has made no other disclosure of any
information regarding Superior's financial
performance, sources of revenue, acquisition
candidates and/or business plans since March 31, 1995;
c. Other than discussions about the initial public
offering after receiving the January 9 preliminary
prospectus, which discussions were limited to the
content of that prospectus and during which Glebs
disclosed no confidential information, and other than
the communications referenced in subparts (a) and (b),
Glebs has had no discussions regarding Superior's
financial performance, sources of revenue, acquisition
candidates and/or business plans since March 31, 1995.
d. Glebs has had a reasonable opportunity to consult with
counsel concerning this Agreement;
e. Glebs' spouse agrees to the terms of this Agreement,
Glebs will provide within 30 days after execution of
this Agreement a marital property consent in the form
attached as Exhibit D executed by his spouse, and
Glebs warrants that no claim will be made by his
spouse against Superior based on anything released by
Glebs under this Agreement;
f. This Agreement does not violate any of Glebs' other
obligations and will be valid and binding upon and
fully enforceable against him according to its terms;
and
g. Neither Glebs nor his spouse has assigned,
transferred, pledged, or hypothecated, or purported to
assign, transfer, pledge or hypothecate, any actual or
alleged claims, obligations or liabilities which, but
for such assignment, would have been released
hereunder.
10. Superior makes the following further representations and
warranties for the benefit of Glebs and upon which Glebs is expressly
relying in entering into this Agreement. These representations and
warranties shall survive the execution of this Agreement:
a. Superior has had a reasonable opportunity to consult
with counsel concerning this Agreement;
b. Superior is unaware of any violations of the
noncompetition provisions of Glebs' July 1992
Employment Agreement or the Noncompetition Agreement
signed by Glebs on January 6, 1995, that is based on
conduct not described within paragraphs 9(a) through
9(c) of this Agreement;
c. The individual executing this Agreement on behalf of
Superior is duly authorized to do so;
d. This Agreement does not violate any of Superior's
other obligations and will be valid and binding upon
and fully enforceable against Superior according to
its terms;
e. To the best knowledge of Superior, the 180 day lock-up
period under the underwriting agreement with Alex
Brown & Sons is the only lock-up agreement that would
affect the Option Shares; and
f. Superior has not assigned, transferred, pledged, or
hypothecated, or purported to assign, transfer, pledge
or hypothecate, any actual or alleged claims,
obligations or liabilities which, but for such
assignment, would have been released hereunder.
11. Glebs and Superior acknowledge and represent that they have
had complete and adequate access to all material information concerning
this Agreement and that, in executing this Agreement, Glebs and Superior
have performed and relied solely upon their own investigations and
inquiries and have not relied upon any representation, opinion or
statement not contained in this Agreement.
12. If any party to this Agreement is found in any action to
have breached any of the terms of the Agreement, the other parties shall
be entitled to recover the actual costs, including attorneys' fees, they
incurred as a result of the breach from such breaching party.
13. This Agreement shall be governed by, construed and
interpreted in accordance with, the internal laws of the State of
Wisconsin.
14. Whenever possible, each paragraph of this Agreement shall
be interpreted in such manner as to be effective and valid under
applicable law, but if any provision shall be held to be prohibited or
invalid, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of such
provision or the other remaining provisions of this Agreement.
15. This Agreement represents the entire agreement between the
parties concerning the amendment of Glebs' options, the exhibits hereto,
and the claims released under paragraphs 4 and 5. This Agreement
supersedes all prior negotiations, representations or agreements between
the parties, whether written or oral, on the subject hereof. This
Agreement may be amended only by written instruments designated as an
amendment to this Agreement and executed by the signatories or their
successors. However, notwithstanding the foregoing, this Agreement shall
not affect the terms of Glebs' January 15, 1995 Stock Option Agreement and
the March 31, 1995 letter agreement with Superior except as those
documents are specifically amended by this Agreement.
16. This Agreement may be executed in counterparts and, if so
executed, shall be effective as if all parties signed the same document.
/s/ ROBERT T. GLEBS
ROBERT T. GLEBS
DATE: 4/26/90
Subscribed and sworn to before me
this 26th day of April, 1996
/s/ Deana B. Frank
Deana B. Frank
Notary Public, State of Wisconsin
My Commission: expires 2/28/99
SUPERIOR SERVICES, INC.
By: /s/ G.W. Dietrich
G.W. Dietrich
Title: President
Subscribed and sworn to before me
this 8th day of May, 1996
/s/ Peter J. Ruud
Peter J. Ruud
Notary Public, State of Wisconsin
My Commission: is permanent
Exhibit 4.10
STOCK OPTION AGREEMENT
This Agreement is made as of January 15, 1995, by and between
Superior Services, Inc., a Wisconsin corporation (the "Company") and B.
Todd Watermolen ("Employee").
WHEREAS, Employee is a valuable and trusted employee of the Company,
and the Company considers it desirable and in its best interest that
Employee be given an inducement to acquire a further proprietary interest
in the Company, and an added incentive to advance the interests of the
Company by possessing an option to purchase common stock of the Company;
and
WHEREAS, except as otherwise set forth herein, the parties intend to
terminate and replace any options previously issued to Employee.
NOW, THEREFORE, it is agreed between the parties as follows:
1. Grant of Option. The Company hereby grants to Employee the
right, privilege and option (the "Option" or "Options") to purchase 50,920
shares of its Common Stock, $0.01 par value (the "Common Stock") at the
purchase price of Three and 85/100 Dollars ($3.85) per share (the "Option
Price"), in the manner and subject to the conditions hereinafter provided.
2. Termination of Prior Options. Except as set forth herein and
except for those options granted pursuant to the Company's Incentive Stock
Option Plan, all Options previously granted by the Company under any
Employment Agreement or amendment thereto, and any other agreements
regarding the option or opportunity to purchase common stock, are hereby
revoked and terminated in all respects, whether or not vested.
3. Method of Exercise. A Vested Option may be exercised, so long
as Options are outstanding, from time to time, in part or as a whole;
provided, however, that any exercise with respect to a portion of the
Options shall be made for no less than Two Thousand Five Hundred (2,500)
shares of Option Shares. The Option shall be exercised by written notice
to the Company, at the Company's principal place of business, accompanied
by certified check, bank draft or postal or express money order in payment
of the Option Price for the number of shares specified and paid for.
Alternatively, in order to pay all or a portion of the Option Price for
the Option Shares, the Employee shall have the right to surrender to the
Company the Option with respect to a portion of the Option Shares, for an
amount equal to the difference between the then fair market value of the
Option Shares for which the rights are surrendered and the Option Price
for such Option Shares. For purposes of this Agreement only, the fair
market value per share of the Option Shares shall mean: (i) if shares of
the common stock are publicly traded, the closing bid price per share for
the common stock on the day the Option is exercised, or (ii) if shares of
the common stock are not publicly traded, at the price per share paid in
the most recent arms-length stock sales transaction prior to the date of
the exercise of the Option. The amount so determined shall be applied to
payment of the Option Price of the Option Shares to be purchased and the
Employee shall have no other right to surrender the Option for payment in
cash. Upon the surrender of the Option with respect to a portion of the
Option Shares, the number of Option Shares for which the Option may be
exercised shall be reduced by that number of shares for which the Option
is surrendered pursuant to this paragraph.
4. Termination of Option. Except as herein otherwise stated, the
Option to the extent not heretofore exercised, shall terminate upon the
first to occur of the following dates:
(a) The expiration of ninety (90) days after the date on which
Employee's employment by the Company or its subsidiaries is
terminated (except if such termination is by reason of death);
(b) In the event of Employee's death while in the employ of the
Company or its subsidiaries or within ninety (90) days after
termination of employment, his executors or administrators may
exercise the Option in whole or in part to the extent Employee was
entitled to do so at the date of his death, at any time prior to one
(1) year following the date of death or the expiration of such
Option, whichever is first to occur;
(c) One (1) year after the date on which the Option Shares
become freely transferable on a national or regional stock exchange,
through any system of automated quotations or by "over-the-counter"
public trading (whichever shall first occur) of the registration by
the Company of its shares under the Securities Exchange Act of 1933,
as amended, in connection with a public offering; or
(d) January 31, 2000.
5. Reclassification, Consolidation or Merger. The existence of
outstanding Options shall not affect in any way the right or power of the
Company or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's
capital structure or its business, or any merger or consolidation of the
Company, or any issue of bonds, debentures, preferred or prior preference
stock ahead of or affecting the common stock or the rights thereof, or the
dissolution or liquidation of the Company, or any sale or transfer of all
or any part of its assets or business, or any other corporate act or
proceeding, whether of a similar character or otherwise.
If, while there are outstanding Options, the Company shall effect a
subdivision or consolidation of shares or other increase or reduction of
the number of shares of the common stock outstanding without receiving
compensation thereof in money, services or property, then (a) in the event
of an increase in the number of such shares outstanding, the number of
Option Shares hereunder shall be proportionately increased; and (b) in the
event of a decrease in the number of such shares outstanding the number of
Option Shares hereunder shall be proportionately decreased.
After a merger of one or more corporations into the Company, or after
a consolidation of the Company and one or more corporations in which the
Company shall be the surviving corporation, Employee shall, at no
additional cost, be entitled upon exercise of his Option to receive
(subject to any required action by stockholders) in lieu of the number of
shares as to which such Option shall then be so exercisable, the number
and class of shares of stock or other securities to which Employee would
have been entitled pursuant to the terms of the agreement of merger or
consolidation if, immediately prior to such merger or consolidation,
Employee had been the holder of record of a number of shares of common
stock equal to the number of Option Shares as to which such Option shall
be so exercised.
If the Company is merged into or consolidated with another
corporation under circumstances where the Company is not the surviving
corporation, or if the Company sells or otherwise disposes of
substantially all its assets to another corporation while unexercised
Options remain outstanding under this Agreement, (i) subject to the
provisions of clause (iii) below, and so long as the successor entity is
willing to assume the obligation to deliver shares of such stock or other
securities, after the effective date of such merger, consolidation or
sale, as the case may be, Employee shall be entitled, upon exercise of his
Option, to receive, in lieu of shares of common stock, shares of such
stock or other securities, the holders of shares of common stock received
pursuant to the terms of the merger, consolidation or sale, and if
Employee is subsequently terminated subsequent to the merger,
consolidation or sale, then he shall have the right, at any time prior to
ninety (90) days following the date of termination to exercise the Option,
in whole or in part; (ii) the Board of Directors may waive any limitations
set forth in or imposed pursuant to Paragraph 2 hereof so that all
Options, from and after a date (not less than thirty (30) days prior to
the effective date of such merger, consolidation or sale as the case may
be) specified by the Board, shall be exercisable in full; or (iii) all
outstanding Options may be cancelled by the Board of Directors as of the
effective date of any such merger, consolidation or sale provided that (x)
notice of any such cancellation shall be given to Employee and (y)
Employee shall have the right to exercise such Option in full during a 30-
day period preceding the effective date of such merger, consolidation,
sale or acquisition.
Except as hereinbefore expressly provided, the issue by the Company
of shares of stock of any class, or securities convertible into shares of
stock of any class, for cash or property, or for labor or services either
upon direct sale or upon the exercise of rights or warrants to subscribe
therefor, or upon conversion of shares or obligations of the Company
convertible into such shares or other securities, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or
price of shares of common stock then subject to outstanding Options.
6. Rights Prior to Exercise of Option. This Option is
nontransferable by Employee except in the event of his death as provided
in Paragraph 4 above, and during his lifetime is exercisable only by him.
Employee shall have no rights as a stockholder with respect to the Option
Shares until payment of the Exercise Price and delivery to him of such
shares as herein provided. As a condition to the Employee's exercise of
the Option, the Employee, or his heirs or beneficiaries, shall be required
to enter into a Subscription Agreement and a Shareholders Agreement in
form and substance satisfactory to the Company, which shall include, among
other things, provisions restricting the resale of the Option Shares
except in accordance with state and federal securities laws.
7. Limited "Lock Up" of Common Stock. In the event the Company
seeks to register its shares under the Securities Act of 1933, as amended,
in connection with a public offering, the Employee, or his heirs or
beneficiaries, agree that, in connection with any such registration,
Employee, his heirs or beneficiaries shall not sell, make any short sale
of, loan, grant any option for the purchase of, or otherwise dispose of or
otherwise transfer any shares of Option Shares (other than those included
in registration) without the prior written consent of the Company and its
underwriters for such period of time from the effective date of such
registration as the Company and its underwriters may specify, which period
of time shall not exceed two hundred seventy (270) days.
8. Binding Effect. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective heirs,
executors, administrators, successors and permitted assigns.
9. Employment Not Affected. Neither the granting of the Option or
its exercise shall be construed as granting to the Employee any right with
respect to continuance of employment of the Company. Except as may
otherwise be limited by a written agreement between the Employee and the
Company, the right of the Company to terminate at will the Employee's
employment with it at any time (whether by dismissal, discharge,
retirement or otherwise) is specifically reserved by Company, and
acknowledged by the Employee.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on the day and year first above written.
SUPERIOR SERVICES, INC. EMPLOYEE:
By: /s/ G.W. Dietrich /s/ B. Todd Watermolen
G.W. "Bill" Dietrich B. Todd Watermolen
President
<PAGE>
FIRST AMENDMENT TO STOCK OPTION AGREEMENT
This Amendment is made as of the 15th day of August, 1995, by and
between Superior Services, Inc., a Wisconsin Corporation (the
"Corporation"), and B. Todd Watermolen (the "Employee").
Witnesseth
Whereas, the Corporation and Employee have entered into a Stock
Option Agreement dated as of January 15, 1995, (the "Agreement"); and
Whereas, the parties desire to Amend the Agreement as set forth
herein.
Now, therefore, in consideration of the mutual promises contained
herein, the parties agree as follows:
1. Subsection 4(c) of the Agreement is deleted.
2. Except as set forth herein the terms of the Agreement shall
remain unaltered and in full force and effect.
In Witness Whereof, the parties have entered into this Amendment as
of the day and year set forth above.
Superior Services, Inc. Employee:
By: /s/ G.W. Dietrich /s/ B. Todd Watermolen
G.W. "Bill" Dietrich B. Todd Watermolen
President
Exhibit 4.11
STOCK OPTION AGREEMENT
This Agreement is made as of July 1, 1995, by and between Superior
Services, Inc. a Wisconsin corporation ("Company") and Fred Radandt
("Employee").
Whereas Employee is a valuable and trusted employee of the Company
and the Company considers it desirable and in its best interest that
Employee be given an inducement to acquire a further proprietary interest
in the Company, and an added incentive to advance the interests of the
Company by possessing an option to purchase Common Stock of the Company.
Now therefore, it is agreed between the parties as follows:
1. Grant of Option. The Company hereby grants to Employee the
right, privilege, and option (the "Option" or "Options") to purchase up to
18,200 shares of its Common Stock, $.01 par value (the "Common Stock") at
the purchase price of Five and 50/100 Dollars ($5.50) per share (the
"Option Price"), in the manner and subject to the conditions hereinafter
provided.
2. Time of Exercise of Option. Options granted under this
Agreement shall become exercisable immediately upon successful achievement
of the following objectives at, or as of, the respective date defined
below:
Options (shares
Potential Acquisition EBIT of 20%
Closing Revenues Total
Adelmann Hauling, Inc. 2,730 2,730 5,460
Pozorski 1,820 1,820 3,640
Mastalir Services, Inc. 2,275 2,275 4,550
Going Garbage, Inc. 2,275 2,275 4,550
----- ----- ------
9,100 9,100 18,200
===== ===== ======
For purposes of this Agreement, "Closing" shall mean the completion
of the acquisition of the outstanding stock or substantially all the
assets of each potential acquisition candidate by Company or one of its
subsidiaries on or before June 30, 1996. In the event the Closing of a
proposed acquisition candidate does not take place on or before June 30,
1996, the total Options relating to such potential acquisition (both those
which become exercisable upon Closing and those exercisable upon
achievement of the EBIT target) shall be forfeited. As used herein, the
term "EBIT" shall mean the earnings before interest and taxes or gains
(losses) recognized on sales of assets of the Company's operations
currently known as the Superior Lakeshore Division of Superior of
Wisconsin, Inc. for the first full twelve (12) calendar months following
the Closing of each individual acquisition, as determined by the Company's
accountants.
The Employee must be employed by the Company on the date of the
respective Closing and the expiration of twelve (12) months following the
respective Closing to vest in the number of Option shares specified for
that date. A Vested Option may be exercised, so long as the Option is
valid and outstanding, from time to time in part or as a whole.
3. Method of Exercise. The Option shall be exercised by written
notice to the Company, at the Company's principal place of business,
accompanied by certified check, bank draft or postal or express money
order in payment of the Option Price for the number of shares specified
and paid for. The Company shall make immediate delivery of such shares,
provided, that if any law or regulation requires the Company to take any
action with respect to the shares specified in such notice before the
issuance thereof, then the date of delivery of such shares shall be
extended for the period necessary to take such action.
4. Termination of Option. Except as herein otherwise stated, any
unexercised Options shall terminate upon the first to occur of the
following dates:
(a) The expiration of three (3) months after the date on which
Employee's employment by the Company or its subsidiaries is
terminated (except if such termination is by reason of death);
(b) In the event of Employee's death while in the employ of the
Company or its subsidiaries or within ninety (90) days after
termination of employment, his executors or administrators may
exercise the Option in whole or in part to the extent Employee was
entitled to do so at the date of his death, at any time prior to one
(1) year following the date of death or the expiration of such
option, whichever is first to occur; or
(c) One (1) year after the registration by the Company of its
shares under the Securities Exchange Act of 1933, as amended;
(d) June 30, 2000.
5. Reclassification, Consolidation, or Merger. The existence of
outstanding Options shall not affect in any way the right or power of the
Company or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's
capital structure or its business, or any merger or consolidation of the
Company, or any issue of bonds, debentures, preferred or prior preference
stock ahead of or affecting the Common Stock or the rights thereof, or the
dissolution or liquidation of the Company, or any sale or transfer of all
or any part of its assets or business, or any other corporate act or
proceeding, whether of a similar character or otherwise.
If, while there are outstanding Options, the Company shall effect a
subdivision or consolidation of shares or other increase or reduction of
the number of shares of the Common Stock outstanding without receiving
compensation therefor in money, services or property, then (a) in the
event of an increase in the number of such shares outstanding, the number
of shares of Common Stock then subject to Options hereunder shall be
proportionately increased; and (b) in the event of a decrease in the
number of such shares outstanding the number of shares subject to Options
hereunder shall be proportionately decreased.
After a merger of one or more corporations into the Company, or after
a consolidation of the Company and one or more corporations in which the
Company shall be the surviving corporation, Employee shall, at no
additional cost, be entitled upon exercise of his Option to receive
(subject to any required action by stockholders) in lieu of the number of
shares as to which such Option shall then be so exercisable, the number
and class of shares of stock or other securities to which Employee would
have been entitled pursuant to the terms of the agreement of merger or
consolidation if, immediately prior to such merger or consolidation,
Employee had been the holder of record of a number of shares of Common
Stock equal to the number of shares as to which such Option shall be so
exercised.
If the Company is merged into or consolidated with another
corporation under circumstances where the Company is not the surviving
corporation, or if the Company sells or otherwise disposes of
substantially all its assets to another corporation while unexercised
Options remain outstanding under this Agreement, (i) subject to the
provisions of clause (iii) below, and so long as the successor entity is
willing to assume the obligation to deliver shares of such stock or other
securities, after the effective date of such merger, consolidation or
sale, as the case may be, Employee shall be entitled, upon exercise of
this Option, to receive, in lieu of shares of Common Stock, shares of such
stock or other securities, the holders of shares of Common Stock received
pursuant to the terms of the merger, consolidation or sale, and if
Employee is subsequently terminated subsequent to the merger,
consolidation or sale, then he shall have the right, at any time prior to
ninety (90) days following the date of termination to exercise the Option,
in whole or in part; (ii) the Board of Directors may waive any limitations
set forth in or imposed pursuant to Paragraph 2 hereof so that all
Options, from and after a date (not less than thirty (30) days prior to
the effective date of such merger, consolidation or sale as the case may
be) specified by the Board, shall be exercisable in full; or (iii) all
outstanding Options may be canceled by the Board of Directors as of the
effective date of any such merger, consolidation or sale provided that (x)
notice of any such cancellation shall be given to Employee and (y)
Employee shall have the right to exercise such Option in full during a 30-
day period preceding the effective date of such merger, consolidation,
sale or acquisition.
Except as hereinbefore expressly provided, the issue by the Company
of shares of stock of any class, or securities convertible into shares of
stock of any class, for cash or property, or for labor or services either
upon direct sale or upon the exercise of rights or warrants to subscribe
therefor, or upon conversion of shares or obligations of the Company
convertible into such shares or other securities, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or
price of shares of Common Stock then subject to outstanding Options.
6. Rights Prior to Exercise of Option. This Option is
nontransferable by Employee, without the Company's prior written consent,
except that in the event of his death as provided in Paragraph 4(b) by
will or the laws of descent and distribution to Employee's spouse or
immediate family or a trust established for their benefit. Such consent
may be withheld by the Company in its sole discretion. Employee shall
have no rights as a stockholder with respect to the Option shares until
payment of the Option Price and delivery to him of such shares as herein
provided.
7. Binding Effect. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective heirs,
executors, administrators, successors, and assigns.
8. Employment Not Affected. Neither the granting of the Option nor
its exercise shall be construed as granting to the Employee any right with
respect to continuance of employment by the Company. Except as may
otherwise be limited by written agreement between the Employee and the
Company, the right of the Company to terminate at will the Employee's
employment with it at any time (whether by dismissal, discharge,
retirement or otherwise) is specifically reserved by Company (whichever
the case may be), and acknowledged by the Employee.
9. Restrictions on Transfer.
(a) As a condition to the Employee's exercise of the Option,
the Employee, or his heirs or beneficiaries, shall be required to
enter into a Subscription Agreement and a Shareholders Agreement in
form and substance satisfactory to the Company, which shall include,
among other things, provisions restricting the resale of the Option
shares, except in accordance with state and federal securities laws.
(b) In the event the Company seeks to register its shares under
the Securities Act of 1933, as amended in connection with a public
offering, the Employee, or his heirs or beneficiaries, agree that, in
connection with any such registration, Employee, his heirs or
beneficiaries shall not sell, make any short sale of, loan, grant any
option for the purchase of, or otherwise dispose of or otherwise
transfer any shares (other than those included in the registration)
without the prior written consent of the Company and its underwriters
for such period of time from the effective date of such registration
as the Company and its underwriters may specify, which period of time
shall not exceed 270 days.
In witness whereof the parties hereto have caused this Agreement to
be executed on the day and year first above written.
SUPERIOR SERVICES, INC. EMPLOYEE:
By: /s/ G.W. Dietrich /s/ Fred Radandt
G.W. Dietrich Fred Radandt
President
Exhibit 4.12
STOCK OPTION AGREEMENT
This Agreement is made as of November 29, 1995, by and between
Superior Services, Inc., a Wisconsin corporation (the "Company") and Craig
Bassuener ("Employee").
WHEREAS, Employee has been a valuable and trusted employee of the
Company, and the Company considers it desirable and in its best interest
that Employee be provided with the opportunity to acquire a further
proprietary interest in the Company, by possessing a nonqualified option
to purchase common stock of the Company; and
WHEREAS, except as otherwise set forth herein, the parties intend to
terminate and replace any options previously issued to Employee.
NOW, THEREFORE, it is agreed between the parties as follows:
1. Grant of Option. The Company hereby grants to Employee the
right, privilege and option (the "Option" or "Options") to purchase 3,333
shares of its Common Stock, $0.01 par value (the "Common Stock") at the
purchase price of Five and 50/100 Dollars ($5.50) per share (the "Option
Price"), in the manner and subject to the conditions hereinafter provided.
2. Method of Exercise. The Option may be exercised, so long as
Options are outstanding, from time to time, in part or as a whole. The
Option shall be exercised by written notice to the Company, at the
Company's principal place of business, accompanied by certified check,
bank draft or postal or express money order in payment of the Option Price
for the number of shares specified and paid for.
3. Termination of Option. Except as herein otherwise stated, the
Option to the extent not heretofore exercised, shall terminate upon the
first to occur of the following dates:
(a) a violation of Employee's noncompetition agreement with the
Company; or
(b) March 7, 1999.
4. Reclassification, Consolidation or Merger. The existence of
outstanding Options shall not affect in any way the right or power of the
Company or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's
capital structure or its business, or any merger or consolidation of the
Company, or any issue of bonds, debentures, preferred or prior preference
stock ahead of or affecting the common stock or the rights thereof, or the
dissolution or liquidation of the Company, or any sale or transfer of all
or any part of its assets or business, or any other corporate act or
proceeding, whether of a similar character or otherwise.
If, while there are outstanding Options, the Company shall effect a
subdivision or consolidation of shares or other increase or reduction of
the number of shares of the common stock outstanding without receiving
compensation thereof in money, services or property, then (a) in the event
of an increase in the number of such shares outstanding, the number of
Option Shares hereunder shall be proportionately increased; and (b) in the
event of a decrease in the number of such shares outstanding the number of
Option Shares hereunder shall be proportionately decreased.
After a merger of one or more corporations into the Company, or after
a consolidation of the Company and one or more corporations in which the
Company shall be the surviving corporation, Employee shall, at no
additional cost, be entitled upon exercise of his Option to receive
(subject to any required action by stockholders) in lieu of the number of
shares as to which such Option shall then be so exercisable, the number
and class of shares of stock or other securities to which Employee would
have been entitled pursuant to the terms of the agreement of merger or
consolidation if, immediately prior to such merger or consolidation,
Employee had been the holder of record of a number of shares of common
stock equal to the number of Option Shares as to which such Option shall
be so exercised.
If the Company is merged into or consolidated with another
corporation under circumstances where the Company is not the surviving
corporation, or if the Company sells or otherwise disposes of
substantially all its assets to another corporation while unexercised
Options remain outstanding under this Agreement, (i) subject to the
provisions of clause (iii) below, and so long as the successor entity is
willing to assume the obligation to deliver shares of such stock or other
securities, after the effective date of such merger, consolidation or
sale, as the case may be, Employee shall be entitled, upon exercise of his
Option, to receive, in lieu of shares of common stock, shares of such
stock or other securities, the holders of shares of common stock received
pursuant to the terms of the merger, consolidation or sale, and if
Employee is subsequently terminated subsequent to the merger,
consolidation or sale, then he shall have the right, at any time prior to
ninety (90) days following the date of termination to exercise the Option,
in whole or in part; (ii) the Board of Directors may waive any limitations
set forth in or imposed pursuant to Paragraph 2 hereof so that all
Options, from and after a date (not less than thirty (30) days prior to
the effective date of such merger, consolidation or sale as the case may
be) specified by the Board, shall be exercisable in full; or (iii) all
outstanding Options may be cancelled by the Board of Directors as of the
effective date of any such merger, consolidation or sale provided that (x)
notice of any such cancellation shall be given to Employee and (y)
Employee shall have the right to exercise such Option in full during a 30-
day period preceding the effective date of such merger, consolidation,
sale or acquisition.
Except as hereinbefore expressly provided, the issue by the Company
of shares of stock of any class, or securities convertible into shares of
stock of any class, for cash or property, or for labor or services either
upon direct sale or upon the exercise of rights or warrants to subscribe
therefor, or upon conversion of shares or obligations of the Company
convertible into such shares or other securities, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or
price of shares of common stock then subject to outstanding Options.
5. Rights Prior to Exercise of Option. This Option is
nontransferable by Employee and during his lifetime is exercisable only by
him. Employee shall have no rights as a stockholder with respect to the
Option Shares until payment of the Option Price and delivery to him of
such shares as herein provided. As a condition to the Employee's exercise
of the Option, the Employee, or his heirs or beneficiaries, shall be
required to enter into a Subscription Agreement in form and substance
satisfactory to the Company, which shall include, among other things,
provisions restricting the resale of the Common Stock except in accordance
with state and federal securities laws.
6. Limited "Lock Up" of Common Stock. In the event the Company
seeks to register its shares under the Securities Act of 1933, as amended,
in connection with a public offering, the Employee, or his heirs or
beneficiaries, agree that, in connection with any such registration,
Employee, his heirs or beneficiaries shall not sell, make any short sale
of, loan, grant any option for the purchase of, or otherwise dispose of or
otherwise transfer any shares of Common Stock (other than those included
in registration) without the prior written consent of the Company and its
underwriters for such period of time from the effective date of such
registration as the Company and its underwriters may specify, which period
of time shall not exceed two hundred seventy (270) days.
7. Binding Effect. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective heirs,
executors, administrators, successors and permitted assigns.
8. Employment Not Affected. Neither the granting of the Option or
its exercise shall be construed as granting to the Employee any right with
respect to continuance of employment of the Company. Except as may
otherwise be limited by a written agreement between the Employee and the
Company, the right of the Company to terminate at will the Employee's
employment with it at any time (whether by dismissal, discharge,
retirement or otherwise) is specifically reserved by Company, and
acknowledged by the Employee.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on the day and year first above written.
SUPERIOR SERVICES, INC. EMPLOYEE:
By:/s/ G.W. Dietrich /s/ Craig Bassuener
G.W. Dietrich, President Craig Bassuener
Exhibit 4.13
STOCK OPTION AGREEMENT
THIS AGREEMENT is made as of July 25, 1995, by and between Superior
Services, Inc., a Wisconsin corporation ("Company") and Darrel P.
Bassuener ("Employee").
WHEREAS, the Company considers it desirable and in its best interest
that Employee be given an inducement to acquire a further proprietary
interest in the Company, and an added incentive to advance the interest of
the Company by possessing an option to purchase Common Stock of the
Company.
NOW, THEREFORE, it is agreed between the parties as follows:
1. Grant of Option. The Company hereby grants to Employee the
right, privilege, and option (the "Option" or "Options") to purchase up to
113,333 shares of its Common Stock, $0.01 par value (the "Common Stock")
at the purchase price of Five and 50/100 Dollars ($5.50) per share (the
"Option Price"), in the manner and subject to the conditions hereinafter
provided.
2. Time of Exercise of Option. Options granted under this
Agreement shall become vested and exercisable immediately on December 31,
1995, unless the Employee's employment is terminated prior to such date
for Cause. For purposes of this Agreement, "Cause" shall mean (i) the
willful and continued failure to substantially perform Employee's duties
with the Company after written demand for substantial performance is
delivered to Employee, or (ii) any willful act of misconduct by Employee
which evinces a want of integrity, an intentional breach of trust,
dishonesty or deliberate disregard of the interest of the Company. A
vested Option may be exercised, so long as the Option is valid and
outstanding, from time to time in part or as a whole.
3. Method of Exercise. The Option shall be exercised by written
notice to the Company, at the Company's principal place of business,
accompanied by certified check, bank draft or postal or express money
order in payment of the Option Price for the number of shares specified
and paid for. The Company shall make immediate delivery of such shares,
provided, that if any law or regulation requires the Company to take any
action with respect to the shares specified in such notice before the
issuance thereof, then the date of delivery of such shares shall be
extended for the period necessary to take such action.
4. Termination of Option. Except as herein otherwise stated, any
unexercised Options shall terminate upon the first to occur of the
following dates:
(a) Immediately upon the termination of Employee's employment
by the Company on or before December 31, 1995 for Cause as set forth
above; or
(b) Three (3) years after the effective date of the
registration by the Company of its shares under the Securities
Exchange Act of 1933, as amended, in connection with a public
offering of its Common Stock.
5. Reclassification, Consolidation, or Merger. The existence of
outstanding Options shall not affect in any way the right or power of the
Company or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's
capital structure or its business, or any merger or consolidation of the
Company, or any issue of bonds, debentures, preferred or prior preference
stock ahead of or affecting the Common Stock or the rights thereof, or the
dissolution or liquidation of the Company, or any sale or transfer of all
or any part of its assets or business, or any other corporate act or
proceeding, whether of a similar character or otherwise.
If, while there are outstanding Options, the Company shall effect a
subdivision or consolidation of shares or other increase or reduction of
the number of shares of the Common Stock outstanding without receiving
compensation therefor in money, services or property, then (a) in the
event of an increase in the number of such shares outstanding, the number
of shares of Common Stock then subject to Options hereunder shall be
proportionately increased; and (b) in the event of a decrease in the
number of such shares outstanding, the number of shares subject to Options
hereunder shall be proportionately decreased.
After a merger of one or more corporations into the Company, or after
a consolidation of the Company and one or more corporations in which the
Company shall be the surviving corporation, Employee shall, at no
additional cost, be entitled upon exercise of his Option to receive
(subject to any required action by stockholders) in lieu of the number of
shares as to which such Option shall then be so exercisable, the number
and class of shares of stock or other securities to which Employee would
have been entitled pursuant to the terms of the agreement of merger or
consolidation if, immediately prior to such merger or consolidation,
Employee had been the holder of record of a number of shares of Common
Stock equal to the number of shares as to which such Option shall be so
exercised.
If the Company is merged into or consolidated with another
corporation under circumstances where the Company is not the surviving
corporation, or if the Company sells or otherwise disposes of
substantially all its assets to another corporation while unexercised
Options remain outstanding under this Agreement, (i) subject to the
provisions of clause (iii) below, and so long as the successor entity is
willing to assume the obligation to deliver shares of such stock or other
securities, after the effective date of such merger, consolidation or
sale, as the case may be, Employee shall be entitled, upon exercise of his
Option, to receive, in lieu of shares of Common Stock, shares of such
stock or other securities, the holders of shares of Common Stock received
pursuant to the terms of the merger, consolidation or sale, and if
Employee is subsequently terminated subsequent to the merger,
consolidation or sale, then he shall have the right, at any time prior to
ninety (90) days following the date of termination to exercise the Option,
in whole or in part; (ii) the Board of Directors may waive any limitations
set forth in or imposed pursuant to Paragraph 2 hereof so that all
Options, from and after a date (not less than thirty (30) days prior to
the effective date of such merger, consolidation or sale as the case may
be), specified by the Board, shall be exercisable in full; or (iii) all
outstanding Options may be cancelled by the Board of Directors as of the
effective date of any such merger, consolidation or sale provided that (x)
notice of any such cancellation shall be given to Employee and (y)
Employee shall have the right to exercise such Option in full during a 30-
day period preceding the effective date of such merger, consolidation,
sale or acquisition.
Except as hereinbefore expressly provided, the issue by the Company
of shares of stock of any class, or securities convertible into shares of
stock of any class, for cash or property, or for labor or services either
upon direct sale or upon the exercise of rights or warrants to subscribe
therefor, or upon conversion of shares or obligations of the Company
convertible into such shares or other securities, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or
price of shares of Common Stock then subject to outstanding Options.
6. Rights Prior to Exercise of Option. This Option is
nontransferable by Employee, except by will or intestate succession,
without the Company's prior written consent. Such consent may be withheld
by the Company in its sole discretion. Employee shall have no rights as a
stockholder with respect to the Option shares until payment of the Option
Price and delivery to him of such shares as herein provided.
7. Binding Effect. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective heirs,
executors, administrators, successors, and assigns.
8. Employment Not Affected. Neither the granting of the Option nor
its exercise shall be construed as granting to the Employee any right with
respect to continuance of employment by the Company. Except as may
otherwise be limited by written agreement between the Employee and the
Company, the right of the Company to terminate at will the Employee's
employment with it at any time (whether by dismissal, discharge,
retirement or otherwise) is specifically reserved by Company (whichever
the case may be), and acknowledged by the Employee.
9. Restrictions on Transfer.
(a) As a condition to the Employee's exercise of the Option,
the Employee, or his heirs or beneficiaries, shall be required to
enter into a Subscription Agreement and a Shareholders Agreement in
form and substance satisfactory to the Company, which shall include,
among other things, provisions restricting the resale of the Option
shares.
(b) In the event the Company seeks to register its shares under
the Securities Act of 1933, as amended, in connection with a public
offering, the Employee, or his heirs or beneficiaries, agree that, in
connection with any such registration, Employee, his heirs or
beneficiaries shall not sell, make any short sale of, loan, grant any
option for the purchase of, or otherwise dispose of or otherwise
transfer any shares (other than those included in the registration)
without the prior written consent of the Company and its underwriters
for such period of time from the effective date of such registration
as the Company and its underwriters may specify, which period of time
shall not exceed 270 days.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on the day and year first above written.
SUPERIOR SERVICES, INC. EMPLOYEE:
By: /s/ Peter J. Ruud /s/ Darrel P. Bassuener
Peter J. Ruud, Vice President Darrel P. Bassuener
Exhibit 5
F O L E Y & L A R D N E R
A T T O R N E Y S A T L A W
CHICAGO FIRSTAR CENTER SAN DIEGO
JACKSONVILLE 777 EAST WISCONSIN AVENUE SAN FRANCISCO
LOS ANGELES MILWAUKEE, WISCONSIN 53202-5367 TALLAHASSEE
MADISON TELEPHONE (414) 271-2400 TAMPA
ORLANDO FACSIMILE (414) 297-4900 WASHINGTON, D.C.
SACRAMENTO WEST PALM BEACH
WRITER'S DIRECT LINE
September 25, 1996
Superior Services, Inc.
10150 West National Avenue
Suite 350
West Allis, Wisconsin 53227
Gentlemen:
We have acted as counsel for Superior Services, Inc., a
Wisconsin corporation (the "Company"), in conjunction with the preparation
of a Form S-8 Registration Statement (the "Registration Statement") to be
filed by the Company with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"), relating to
2,602,352 shares of the Company's common stock, $0.01 par value (the
"Common Stock"), which may be issued pursuant to the Superior Services,
Inc. 1996 Equity Incentive Plan, the Superior Services, Inc. 1993
Incentive Stock Option Plan and various individual stock option,
employment and other agreements (collectively, "Option Documents").
We have examined: (i) the Option Documents; (ii) the
Registration Statement; (iii) the Company's Restated Articles of
Incorporation and Bylaws, as amended to date; (iv) resolutions of the
Company's Board of Directors relating to the Option Documents; and (v)
such other documents and records as we have deemed necessary to enable us
to render this opinion.
Based on the foregoing, we are of the opinion that:
1. The Company is a corporation validly existing under the
laws of the State of Wisconsin.
2. The Common Stock, when issued and paid for in the manner
set forth in the Option Documents, will be validly issued, fully paid and
nonassessable and no personal liability will attach to the ownership
thereof, except with respect to wage claims of employees of the Company
for services performed not to exceed six (6) months service in any one
case, as provided in Section 180.0622(2)(b) of the Wisconsin Business
Corporation Law.
We consent to the use of this opinion as an Exhibit to the
Registration Statement. In giving our consent, we do not admit that we
are "experts" within the meaning of Section 11 of the Securities Act or
within the category of persons whose consent is required by Section 7 of
said Act.
Very truly yours,
/s/ FOLEY & LARDNER
FOLEY & LARDNER
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
on Form S-8 pertaining to the Superior Services, Inc. 1996 Equity
Incentive Plan, 1993 Incentive Stock Option Plan and Various Other
Individual Employment, Stock Option, Stock Purchase and Settlement
Agreements of our report dated February 2, 1996, with respect to the
consolidated financial statements of Superior Services, Inc. included in
its Registration Statement on Form S-4 (No. 333-06443), filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
Milwaukee, Wisconsin
September 26, 1996
