As filed with the Securities and Exchange Commission on August 7, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
___________________
Superior Services, Inc.
(Exact name of registrant as specified in its charter)
Wisconsin 4953 39-1733405
(State of incorporation) (Primary Standard (I.R.S. Employer
Industrial Classification Identification No.)
Code Number)
10150 West National Avenue, Suite 350
West Allis, Wisconsin 53227
(414) 328-2800
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
______________________________
Scott S. Cramer, Esq.
Vice President and General Counsel
Superior Services, Inc.
10150 West National Avenue, Suite 350
West Allis, Wisconsin 53227
(414) 328-2800
Facsimile (414) 328-2899
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
______________________________
Copies to:
Steven R. Barth, Esq.
Foley & Lardner
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
(414) 271-2400
Facsimile: (414) 297-4900
Approximate date of commencement of proposed sale to the public:
From time to time after this Registration Statement becomes effective as
determined by market conditions and other factors.
____________________________
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. [X]
____________________________
CALCULATION OF REGISTRATION FEE
Proposed
Maximum
Aggregate Proposed
Title of Each Class Offering Maximum Amount of
of Securities to be Amount To Be Price Per Offering Registra-
Registered Registered Share(1) Price tion Fee
Common Stock, $.01
par value . . . . 5,000,000 $26.00 $130,000,000 $39,394
shares
Common Stock
Purchase Rights . 5,000,000 (2) (2) (2)
rights
(1) Estimated in accordance with Rule 457 under the Securities Act of
1933 solely for the purpose of calculating the registration fee
pursuant to Section 6(b) hereunder, and includes the proposed maximum
aggregate offering price associated with shares issuable upon
exercise of an option granted by the Registrant to the Underwriters
to cover over-allotments.
(2) The value attributed to the Common Stock Purchase Rights is reflected
in the market price of the Common Stock to which the Rights are
attached.
______________________
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until the
Registration Statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
<PAGE>
PROSPECTUS
5,000,000 Shares
SUPERIOR SERVICES, INC.
Common Stock
____________________
Superior Services, Inc. (the "Company") may offer and sell from time to
time up to 5,000,000 shares of its Common Stock, par value $.01 per share
("Common Stock"), in one or more issuances at prices and on terms to be
determined at the time of sale. The number of shares being sold, the
public offering price, the proceeds to the Company, the intended use of
such proceeds and the other terms of the offering of such shares of Common
Stock will be set forth in an accompanying supplement to this Prospectus
(each, a "Prospectus Supplement") to be delivered at the time of any such
offering.
The Common Stock of the Company is traded on the Nasdaq National Market
under the symbol "SUPR." Any Common Stock sold pursuant to a Prospectus
Supplement will be listed on the Nasdaq National Market, subject to
official notice of issuance.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The shares of Common Stock offered hereby may be offered and sold directly
by the Company or through agents, underwriters or dealers designated from
time to time. If any agent of the Company or any underwriters are
involved in the sale of shares of Common Stock in respect of which this
Prospectus is being delivered, the names of such agents or underwriters
and any applicable discounts or commissions with respect to such shares of
Common Stock will also be set forth in a Prospectus Supplement. See "Plan
of Distribution."
This Prospectus may not be used to consummate sales of the Common Stock
offered hereby unless accompanied by a Prospectus Supplement.
The date of this Prospectus is August 7, 1997
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended, ("Exchange Act"), and in
accordance therewith files reports, proxy and other information
statements, and other information with the Securities and Exchange
Commission ("Commission"). Such reports, proxy and other information
statements, and other information filed by the Company may be inspected
and copied at the public reference facilities maintained by the Commission
at 450 Fifth Street, N.W., Washington, D.C. 20549-1004 and at its Regional
Offices located at Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511; and Seven World Trade Center, Suite 1300,
New York, New York 10048. Copies of such materials can be obtained at
prescribed rates from the Public Reference Section of the Commission, 450
Fifth Street, N.W., Washington, D.C. 20549-1004. In addition, such
reports, proxy statements and other information can be inspected at the
offices of The Nasdaq Stock Association of Securities Dealers, Inc.,
1735 K Street, N.W., Washington, D.C. 20006-1500.
In addition, the Commission maintains a Web site that contains
reports, proxy and information statements and other information regarding
registrants that file electronically with the Commission. The address of
such Web site is http://www.sec.gov.
This Prospectus constitutes a part of a Registration Statement
on Form S-3 ("Registration Statement") filed by the Company with the
Commission under the Securities Act of 1933, as amended (the "Securities
Act"). This Prospectus omits certain of the information contained in the
Registration Statement in accordance with the rules and regulations of the
Commission. Reference is hereby made to the Registration Statement and
exhibits thereto for further information with respect to the Company and
the securities offered hereby. Any statements contained herein concerning
the provisions of any document filed as an exhibit to the Registration
Statement or otherwise filed with the Commission are not necessarily
complete, and in each instance reference is made to the copy of such
document so filed. Each such statement is qualified in its entirety by
such reference.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by the Company with the Commission
pursuant to the Exchange Act are incorporated herein by reference:
1. Form 8-K/A (Amendment No. 2), dated June 30, 1997.
2. Form 8-K/A (Amendment No. 1), dated June 27, 1997.
3. Quarterly Report on Form 10-Q, dated May 14, 1997.
4. Current Report on Form 8-K, dated May 2, 1997.
5. Current Report on Form 8-K, dated February 28, 1997.
6. Registration Statement on Form 8-A, dated February 28,
1997.
7. Annual Report on Form 10-K for the year ended December 31,
1996.
All other reports filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of this Prospectus and prior to the termination of
the offering of the Common Stock offered hereby shall be deemed to be
incorporated herein by reference and to be part hereof from the date of
filing of such documents.
Any statement contained herein or in a document all or a portion
of which is incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated
by reference herein or in any Prospectus Supplement relating to the shares
of Common Stock offered hereby modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
The Company will furnish without charge to each person,
including any beneficial owner, to whom this Prospectus is delivered, upon
the request of such person, a copy of any of the documents incorporated by
reference herein, except for the exhibits to such documents (unless such
exhibits are specifically incorporated by reference into such documents).
Requests should be directed to Superior Services, Inc., 10150 West
National Avenue, Suite 350, West Allis, Wisconsin 53227, Attention:
Investor and Public Relations Manager, telephone number 414/328-2800.
THE COMPANY
Superior Services, Inc. (the "Company") is an acquisition-
oriented integrated solid waste company providing solid waste collection,
transfer, recycling and disposal services to residential, commercial and
industrial customers. The Company's Common Stock is listed on the Nasdaq
National Market and trades under the symbol "SUPR." The Company is a
Wisconsin corporation with its principal executive offices located at
10150 West National Avenue, Suite 350, West Allis, Wisconsin 53227, and
its telephone number is (414) 328-2800.
RISK FACTORS
Any Prospectus Supplement with respect to shares of the Common
Stock offered hereby will set forth certain risk factors, in addition to
other information contained in the Prospectus Supplement, that prospective
investors should carefully consider in evaluating the Company and its
business before purchasing shares of the Common Stock offered pursuant to
such Prospectus Supplement and this Prospectus.
USE OF PROCEEDS
The net proceeds to the Company from the sale of Common Stock
being offered hereby will be used to support directly or indirectly the
Company's strategy to grow through the acquisition of other solid waste
businesses. Specific information concerning the use of proceeds from any
sale of Common Stock offered hereby will be set forth in any Prospectus
Supplement relating to such shares.
DESCRIPTION OF CAPITAL STOCK
General
The authorized capital stock of the Company consists of
100,000,000 shares of Common Stock, par value $0.01 per share, and 500,000
shares of undesignated preferred stock, par value $.01 per share. All
currently outstanding and newly issued shares of Common Stock include an
attached Common Stock Purchase Right which trades with each such share of
Common Stock. As of June 30, 1997, the Company believes there were
approximately 238 holders of record of the Company's Common Stock and
there were in excess of 2,800 beneficial owners.
Common Stock
As of June 30, 1997, there were 19,256,095 shares of Common
Stock outstanding. Holders of Common Stock are entitled to one vote for
each share of Common Stock held by them on all matters properly submitted
to a vote of shareholders, subject to Section 180.1150 of the Wisconsin
Business Corporation Law ("WBCL") described below. Shareholders have no
cumulative voting rights, which means that the holders of shares entitled
to exercise more than 50% of the voting power are able to elect all of the
directors to be elected. The Company's Restated Articles of Incorporation
("Restated Articles") and Restated By-Laws provide that the Board of
Directors are divided into three substantially equal classes, with
staggered three-year terms. Subject to the prior rights of the holders of
any class or series of preferred stock then outstanding, and any
contractual restrictions on the payment of dividends, the Board of
Directors may in its discretion declare and pay dividends on the Common
Stock out of legally available earnings or assets of the Company. Subject
to the prior rights of the holders of any class or series of preferred
stock then outstanding, in the event the Company is liquidated, any
amounts remaining after the discharge of all outstanding debt will be paid
pro rata to the holders of Common Stock. The outstanding shares of Common
Stock are, and the Common Stock to be issued pursuant to this Prospectus
and any Prospectus Supplement will be, legally issued, fully paid and
nonassessable, except for certain statutory liabilities which may be
imposed by Section 180.0622(2)(b) of the WBCL for unpaid employee wages.
Holders of Common Stock have no preemptive rights to acquire unissued
shares of capital stock of the Company.
Preferred Stock
The Board of Directors is authorized to issue from time to time,
without shareholder authorization, up to 500,000 shares of preferred stock
in one or more designated series, with such voting, dividend, redemption,
conversion and exchange provisions as are provided in the particular
series. No dividends or other distributions are to be payable on the
Common Stock unless dividends are paid in full on any then outstanding
preferred stock and all sinking fund obligations for any then outstanding
preferred stock, if any, are fully funded. In the event of a liquidation
or dissolution of the Company, the outstanding shares of any then
outstanding preferred stock would have priority over the Common Stock to
receive the amount specified in each particular series out of the
remaining assets of the Company. Any future issuance of preferred stock
may have the effect of deferring, delaying or preventing a change in
control of the Company, or decreasing the market price of the Common
Stock, and may adversely affect the voting and other rights of the holders
of Common Stock. As of June 30, 1997, no shares of preferred stock were
outstanding.
Common Stock Purchase Rights
On February 21, 1997, the Board of Directors of the Company
declared a dividend of one common share purchase right (a "Right") for
each outstanding share of Common Stock. The dividend was paid on
March 24, 1997 to the shareholders of record on March 10, 1997. The
description and terms of the Rights are set forth in a Rights Agreement
(the "Rights Agreement") between the Company and LaSalle National Bank, as
rights agent. The description of the Rights contained herein is qualified
in its entirety by reference to the Rights Agreement set forth in the
Form 8-A Registration Statement dated February 28, 1997.
The Rights Agreement provides that, until the Distribution Date
(defined as the earlier to occur of (i) the public announcement that a
person or group of affiliated or associated persons (other than the
Company, a subsidiary of the Company, an employee benefit plan of the
company or a subsidiary, or certain existing shareholders (an "Acquiring
Person") has acquired beneficial ownership of 15% or more of the
outstanding shares of Common Stock (the "Shares Acquisition Date") or
(ii) 10 business days following the commencement of, or announcement of
an intention to make, a tender offer or exchange offer the consummation
of which would result in the beneficial ownership by a person or group
(other than the Company, a subsidiary of the Company, an employee benefit
plan of the Company or a subsidiary, or certain existing shareholders as
described below) of 15% or more of such outstanding shares), the Rights
will be transferred with and only with the shares. The Rights are not
exercisable until the Distribution Date. Upon a Distribution Date, each
Right entitles the registered holder to purchase from the Company one
share at a price of $90.00 per share, subject to adjustment (the "Purchase
Price").
In the event that any person becomes an Acquiring Person (a
"Flip-In Event"), each holder of a Right will thereafter generally have
the right to receive upon exercise that number of shares of Common Stock
having a market value of two times the then current Purchase Price.
Notwithstanding any of the foregoing, following the occurrence of a Flip-
In Event all Rights that are, or (under certain circumstances specified in
the Rights Agreement) were, or subsequently becomes beneficially owned by
an Acquiring Person, related persons and transferees will be null and
void.
In the event that, at any time following the Shares Acquisition
Date, (i) the Company is acquired in a merger or other business
combination transaction or (ii) 50% or more of its consolidated assets or
earnings power are sold (the events described in clauses (i) and (ii) are
herein referred to as "Flip-Over Events"), proper provision will be made
so that each holder of a Right will thereafter have the right to receive,
upon the exercise thereof at the then current Purchase Price, that number
of shares of common stock of the acquiring company which at the time of
such transaction will have a market value of two times the then current
Purchase Price.
At any time after a person becomes an Acquiring Person and prior
to the acquisition by any Acquiring Person of 50% or more of the
outstanding shares of Common Stock, the Board of Directors of the Company
may exchange the Rights (other than Rights owned by any Acquiring Person
which have become void), in whole or in part, at an exchange ratio of one
share, per Right (subject to adjustment).
At any time prior to a person becoming an Acquiring Person, the
Board of Directors of the Company may redeem the Rights in whole, but not
in part, at a price of $.01 per Right (the "Redemption Price"). The
redemption of the Rights may be made effective at such time, on such basis
and with such conditions as the Board of Directors in its sole discretion
may establish. Immediately upon any redemption of the Rights, the right
to exercise the Rights will terminate and the only right of the holders of
Rights will be to receive the Redemption Price.
Other than provisions relating to principal economic terms of
the Rights, the terms of the Rights may be amended by the Board of
Directors of the Company without the consent of the holders of the Rights,
including an amendment to lower the threshold for exercisability of the
Rights from 15% to not less than 10%, with appropriate exceptions for any
person then beneficially owning a percentage of the number of shares of
Common Stock then outstanding equal to or in excess of the new threshold,
except that from and after the Distribution Date no such amendment may
adversely affect the interests of the holders of the Rights. The Board of
Directors of the Company may also amend the Rights Plan to exclude certain
potential acquirors proposing to acquire the Company in a transaction that
the Board of Directors deems to be in the best interests of the Company,
its shareholders and other constituencies of the Company.
Until a Right is exercised, the holder thereof, as such, will
have no rights as a shareholder of the Company, including, without
limitation, the right to vote or to receive dividends.
Certain Statutory and Other Provisions
Statutory Provisions
Section 180.1150 of the WBCL provides that the voting power of
shares of public Wisconsin corporations, such as the Company, held by any
person or persons acting as a group in excess of 20% of the voting power
in the election of directors is limited to 10% of the full voting power of
those shares. This statutory voting restriction does not apply to shares
acquired directly from the Company or shares for which full voting power
has been restored pursuant to a vote of shareholders.
Sections 180.1140 to 180.1144 of the WBCL (the "Wisconsin
Business Combination Statute") regulate a broad range of "business
combinations" between a Wisconsin corporation and an "interested
stockholder." The Wisconsin Business Combination Statute defines a
"business combination" to include a merger or share exchange, sale, lease,
exchange, mortgage, pledge, transfer or other disposition of assets equal
to at least 5% of the market value of the stock or assets of a corporation
or 10% of its earning power, issuance of stock or rights to purchase stock
with a market value equal to at least 5% of the outstanding stock,
adoption of a plan of liquidation, and certain other transactions
involving an "interested stockholder." An "interested stockholder" is
defined as a person who beneficially owns, directly or indirectly, 10% of
the voting power of the outstanding voting stock of a corporation or who
is an affiliate or associate of the corporation and beneficially owned 10%
of the voting power of the then outstanding voting stock within the last
three years. The Wisconsin Business Combination Statute prohibits a
corporation from engaging in a business combination (other than a business
combination of a type specifically excluded from the coverage of the
statute) with an interested stockholder for a period of three years
following the date such person becomes an interested stockholder, unless
the board of directors approved the business combination or the
acquisition of the stock that resulted in a person becoming an interested
stockholder before such acquisition. Business combinations after the
three-year period following the stock acquisition date are permitted only
if (i) the board of directors approved the acquisition of the stock prior
to the acquisition date; (ii) the business combination is approved by a
majority of the outstanding voting stock not beneficially owned by the
interested stockholder; or (iii) the consideration to be received by
shareholders meets certain requirements of the Wisconsin Business
Combination Statute with respect to form and amount. The Restated
Articles include a provision substantially identical to the Wisconsin
Business Corporation Statute.
Sections 180.1130 to 180.1133 of the WBCL provide that certain
"business combinations" not meeting specified adequacy-of-price standards
must be approved by a vote of at least 80% of the votes entitled to be
cast by all shareholders and by two-thirds of the votes entitled to be
cast by shareholders other than a "significant shareholder" who is a party
to the transaction. The term "business combination" is defined to
include, subject to certain exceptions, a merger or consolidation of the
corporation (or any subsidiary thereof) with, or the sale or other
disposition of substantially all of the assets of the corporation to, any
significant shareholder or affiliate thereof. "Significant shareholder"
is defined generally to include a person that is the beneficial owner of
10% or more of the voting power of the corporation.
Section 180.1134 of the WBCL (the "Wisconsin Defensive Action
Restrictions") provides that, in addition to the vote otherwise required
by law or the articles of incorporation of an issuing public corporation,
the approval of the holders of a majority of the shares entitled to vote
is required before such corporation can take certain action while a
takeover offer is being made or after a takeover offer has been publicly
announced and before it is concluded. Under the Wisconsin Defensive
Action Restrictions, shareholder approval is required for the corporation
to (i) acquire more than 5% of its outstanding voting shares at a price
above the market price from any individual or organization that owns more
than 3% of the outstanding voting shares and has held such shares for less
than two years, unless a similar offer is made to acquire all voting
shares or (ii) sell or option assets of the corporation which amount to at
least 10% of the market value of the corporation, unless the corporation
has at least three independent directors or a majority of the independent
directors vote not to have this provision apply to the corporation. The
restrictions described in clause (i) above may have the effect of
deterring a shareholder from acquiring shares of the Company with the goal
of seeking to have the Company repurchase such shares at a premium over
the market price.
Restated Articles of Incorporation and Restated By-Laws of the
Company
The Restated Articles and Restated By-Laws of the Company divide
the Board of Directors of the Company into three substantially equal
classes with staggered terms. The Restated Articles provide that any
vacancies on the Board of Directors may be filled only by the affirmative
vote of the "requisite number" of directors then in office, even if less
than a quorum exists. Any director so elected will serve until the next
election of the class for which such director is chosen and until his or
her successor is duly elected. The "requisite number" of directors is
defined in the Restated Articles to constitute two-thirds of the then
serving directors.
The Restated Articles incorporate the provisions of the
Wisconsin Business Combination Statute and require that, for the Wisconsin
Business Combination Statute provisions not to apply, the Board of
Directors must approve a business combination with an "interested
stockholder" before the stock acquisition date. The affirmative vote of
at least 66 % of the voting power of shares entitled to vote is required
to amend, repeal or adopt any provision inconsistent with the Wisconsin
Business Combination Statute provisions contained in the Restated
Articles.
In addition, the Restated By-Laws of the Company establish a
procedure which must be satisfied by shareholders seeking to call a
special meeting of shareholders. This procedure involves notice to the
Company, the receipt by the Company of a written demand for a special
meeting from holders of 10% or more of the issued and outstanding shares
of Common Stock, a review of the validity of any such demand by an
independent inspector appointed by the Company and the fixing of the
record and meeting dates by the Board of Directors. In addition,
shareholders demanding such a special meeting must deliver to the Company
a written agreement to pay the costs incurred by the Company in holding a
special meeting, including the costs of preparing and mailing the notice
of meeting and the proxy materials for the solicitation by the Company of
proxies for use at such meeting, in the event such shareholder are
unsuccessful in their proxy solicitation. The Restated By-Laws also
contain strict time deadlines and procedures applicable to shareholders
seeking to nominate a person for election as a director or to otherwise
bring business before a meeting. A shareholder may nominate a person for
election to the Board of Directors of the Company at an annual meeting or
bring other business before an annual meeting only by giving notice to the
Secretary of the Company not less than 60 days nor more than 90 days prior
to the second Tuesday in the month of May and such notice must also be
received not earlier than the 90th day prior to the date of such annual
meeting and not later than the close of business or the later of (i) the
60th day prior to such annual meeting and (ii) the 10th day following the
day on which public announcement of the date of such meeting is first
made. In order to nominate a person for election to the Board of
Directors at a special meeting of shareholders, a shareholder must deliver
written notice to the Secretary of the Company not more than 90 days prior
to the special meeting and not later than the close of business on the
later of (i) the sixtieth day prior to such special meeting or (ii) the
tenth day following the date on which a public announcement is first made
of such special meeting and of the nominees proposed by the Board of
Directors to be elected at the meeting.
Transfer Agent
The transfer agent for the Common Stock is LaSalle National
Bank, Chicago, Illinois.
PLAN OF DISTRIBUTION
The Company may offer and sell the Common Stock offered hereby
in any of three ways: (i) through underwriters or dealers; (ii) directly
to a limited number of purchasers or to a single purchaser; or (iii)
through agents. Any Prospectus Supplement with respect to shares of the
Common Stock offered hereby will set forth the terms of the offering and
amount of the proceeds to the Company from the sale thereof, any
underwriting discounts and other items constituting underwriters'
compensation, any public offering price, and any discounts or concessions
allowed or reallowed or paid to dealers. Any public offering price and
any discounts or concessions allowed or reallowed or paid to dealers may
be changed from time to time.
If underwriters are utilized, the Common Stock being sold to
them will be acquired by the underwriters for their own account and may be
resold from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices
determined at the time of sale. The underwriter or underwriters with
respect to the Common Stock being offered will be named in the Prospectus
Supplement relating to such offering and, if any underwriting syndicate is
used, the managing underwriter or underwriters will be set forth on the
cover page of such Prospectus Supplement. Any underwriting agreement will
provide that the obligations of the underwriters are subject to certain
conditions precedent, and that, in general, the underwriters will be
obligated to purchase all of the shares of Common Stock to which such
underwriting agreement relates if any is purchased. The Company will
agree to indemnify any underwriters against certain civil liabilities,
including liabilities under the Securities Act.
If a dealer is used in the sale of the Common Stock, the Company
would sell such Common Stock to the dealer, as principal. The dealer
could then resell such Common Stock to the public at varying prices to be
determined by such dealer at the time of resale. The name of any dealer
involved in a particular offering of Common Stock and any discounts or
concessions allowed or reallowed or paid to the dealer will be set forth
in the Prospectus Supplement relating to such offering.
The Common Stock offered hereby may be sold directly by the
Company or through agents designated by the Company from time to time.
Any agent involved in the offer or sale of the Common Stock in respect of
which this Prospectus is delivered will be named, any commissions payable
by the Company to such agent will be set forth, in the Prospectus
Supplement.
LEGAL MATTERS
The validity of the issuances of the shares of Common Stock
offered hereby will be passed upon for the Company by Foley & Lardner,
Milwaukee, Wisconsin and if shares are to be offered for and sold through
underwriters, will be passed upon by counsel of any underwriters named in
any Prospectus Supplement.
EXPERTS
The consolidated financial statements of the Company as of
December 31, 1996 and 1995 and for each of the three years in the period
ended December 31, 1996 which are included in the Company's Annual Report
on Form 10-K for its year ended December 31, 1996 have been audited by
Ernst & Young LLP, independent auditors, as set forth in their report
thereon included therein and incorporated herein by reference. Such
consolidated financial statements are incorporated by reference in
reliance upon such report given upon the authority of such firm as experts
in accounting and auditing.
The statement of net assets acquired by the Company from
Browning-Ferris Industries, Inc. as of September 30, 1996 and the related
statements of revenues and direct operating expenses of the operations
acquired by the Company for the year then ended appearing in the Company's
Form 8-K/A dated June 27, 1997 (Amendment No. 1) amending the Company's
Current Report on Form 8-K dated May 2, 1997, and as amended by its
Form 8-K/A filed June 30, 1997 (Amendment No. 2), incorporated by
reference in this Prospectus have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their report with respect
thereto, and are incorporated herein by reference in reliance upon the
authority of such firm as experts in accounting and auditing in giving
said report.
<PAGE>
No person has been authorized to give information or make any
representation not contained or incorporated by reference in
this Prospectus in connection with the offer made hereby. If
given or made, such information or representation must not be
relied upon as having been authorized by the Company, any
Selling Shareholders, or any underwriter, agent or dealer. This
Prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any of the securities offered
hereby in any jurisdiction to any person to whom it is unlawful
to make such offer in such jurisdiction. Neither the delivery
of this Prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that there has been no
change in the affairs of the Company since the date hereof.
TABLE OF CONTENTS
Page
AVAILABLE INFORMATION . . . . . . . . . . . . . . . . . . . . 2
INCORPORATION OF CERTAIN
INFORMATION BY REFERENCE . . . . . . . . . . . . . . . . . . 2
THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . 3
RISK FACTORS . . . . . . . . . . . . . . . . . . . . . . . . 3
USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . 3
DESCRIPTION OF CAPITAL STOCK . . . . . . . . . . . . . . . . 4
PLAN OF DISTRIBUTION . . . . . . . . . . . . . . . . . . . . 9
LEGAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . 10
EXPERTS . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5,000,000 SHARES
SUPERIOR SERVICES, INC.
COMMON STOCK
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PROSPECTUS
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August 7, 1997
<PAGE>
SUPERIOR SERVICES, INC.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Securities and Exchange Commission filing fee . $ 39,394
Nasdaq National Market listing fees . . . . . . . 17,500
Transfer agent's fees* . . . . . . . . . . . . . 5,000
Costs of printing and engraving* . . . . . . . . 10,000
Legal fees and expenses* . . . . . . . . . . . . 10,000
Accounting fees and expenses* . . . . . . . . . . 5,000
Miscellaneous* . . . . . . . . . . . . . . . . . 3,106
Total . . . . . . . . . . . . . . . . . . $90,000
____________________
* Estimated.
Item 15. Indemnification of Directors and Officers.
Pursuant to the Wisconsin Business Corporation Law and the
Company's Restated By-Laws, directors and officers of the Company are
entitled to mandatory indemnification from the company against certain
liabilities and expenses (i) to the extent such officers or directors are
successful in the defense of a proceeding; and (ii) in proceedings in
which the director or officer is not successful in defense thereof, unless
(in the latter case only) it is determined that the director or officer
breached or failed to perform his duties to the Company and such breach or
failure constituted: (a) a willful failure to deal fairly with the
Company or its shareholders in connection with a matter in which the
director or officer had a material conflict of interest; (b) a violation
of the criminal law unless the director or officer had reasonable cause to
believe his or her conduct was lawful or had no reasonable cause to
believe his or her conduct was unlawful; (c) a transaction from which the
director or officer derived an improper personal profit; or (d) willful
misconduct. The Wisconsin Business Corporation Law specifically states
that it is the public policy of Wisconsin to require or permit
indemnification, allowance of expenses and insurance in connection with a
proceeding involving securities regulation, as described therein, to the
extent required or permitted as described above. Additionally, under the
Wisconsin Business Corporation Law, directors of the Company are not
subject to personal liability to the Company, its shareholders or any
person asserting rights on behalf thereof for certain breaches or failures
to perform any duty resulting solely from their status as directors,
except in circumstances paralleling those in subparagraphs (a) through (d)
outlined above.
Expenses for the defense of any action for which indemnification
may be available are required to be advanced by the Company under certain
circumstances.
The Company also maintains director and officer liability
insurance against certain claims and liabilities which may be made against
the Company's former, current or future directors or officers.
The indemnification provided by the Wisconsin Business
Corporation Law and the Company's Restated By-Laws is not exclusive of any
other rights to which a director or officer may be entitled. The general
effect of the foregoing provisions may be to reduce the circumstances
under which an officer or director may be required to bear the economic
burden of the foregoing liabilities and expense.
Item 16. List of Exhibits
(a) Exhibits. The exhibits filed herewith are as specified on
the Exhibit Index included herein.
(b) Financial Statement Schedule. Incorporated by reference to
Schedule II filed with the Company's Form 10-K for the year ended December
31, 1996.
Item 17. Undertakings
(A) Rule 415 offering. 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; unless the information required to be
included in such post-effective amendment is contained in a
periodic period filed by the registrant pursuant to Section 13
or Section 15(d) of the Exchange Act and incorporated herein by
reference;
(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,
unless the information required to be included in such post-
effective amendment is contained in a periodic report filed by
the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act and incorporated herein by reference; provided
that, notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed in the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(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;
(B) Filings incorporating subsequent Exchange Act documents by
reference. The undersigned registrant hereby undertakes that, for
the purpose of determining any liability under the Securities Act,
each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(H) Acceleration of effectiveness. Insofar as indemnification
for liabilities arising under the Securities Act may be permitted to
directors, officers and controlling persons of the registrant pursuant to
the provisions described under Item 15 above 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 Securities 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 has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of West
Allis, and State of Wisconsin, on this 6th day of August, 1997.
SUPERIOR SERVICES, INC.
By: /s/ G. William Dietrich
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 August 6, 1997 by the
following persons in the capacities indicated. Each person whose
signature appears below constitutes and appoints G. William Dietrich,
George K. Farr and Scott S. Cramer, and each of them individually, his or
her true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or her and in his or her name,
place and stead, in any and all capacities, to sign any all amendments and
any post-effective amendments 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 either of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
/s/ Joseph P. Tate /s/ G. William Dietrich /s/ George K. Farr
Joseph P. Tate G. William Dietrich George K. Farr
Chairman of the Board President, Chief Chief Financial
and Director Executive Officer and Officer (Principal
Director (Principal Financial and
Executive Officer) Accounting Officer)
/s/ Gary G. Edler /s/ Walter G. Winding /s/ Francis J. Podvin
Gary G. Edler Walter G. Winding Francis J. Podvin
Vice President and Director Director
Director
/s/ Warner C. Frazier /s/ Donald Taylor
Warner C. Frazier Donald Taylor
Director Director
<PAGE>
SUPERIOR SERVICES, INC.
FORM S-3 REGISTRATION STATEMENT
EXHIBIT INDEX
Exhibit No. Exhibit Description
1.0 Form of Underwriting Agreement.
3.0 Restated Articles of Incorporation. [Incorporated by
reference to Exhibit 3.0 filed with the Company's
Form S-1 Registration Statement No. 333-240, dated
January 9, 1996, as amended.]
3.1 Restated By-Laws. [Incorporated by reference to
Exhibit 3.1 filed with the Company's Form S-1
Registration Statement No. 333-240, dated January 9,
1996, as amended.]
4.0 Revolving Credit Agreement, dated as of September 1,
1993 between the Company and The First National Bank
of Boston, LaSalle National Bank and Bank One, Texas,
National Association. [Incorporated by reference to
Exhibit 4.0 filed with the Company's Form S-1
Registration Statement No. 333-240, dated January 9,
1996, as amended.]
4.1 First Amendment to Revolving Credit Agreement, dated
as of June 24, 1994 between the Company and The First
National Bank of Boston, LaSalle National Bank and
Bank One, Texas, National Association. [Incorporated
by reference to Exhibit 4.1 filed with the Company's
Form S-1 Registration Statement No. 333-240, dated
January 9, 1996, as amended.]
4.2 Second Amendment to Revolving Credit Agreement, dated
as of August 28, 1995, between the Company and the
First National Bank of Boston, LaSalle National Bank
and Bank One, Texas, National Association.
[Incorporated by reference to Exhibit 4.2 filed with
the Company's Form S-1 Registration Statement No.
333-240, dated January 9, 1996, as amended.]
4.3 Third Amendment to Revolving Credit Agreement, dated
as of December 29, 1995, between the Company and the
First National Bank of Boston, LaSalle National Bank
and Bank One, Texas, National Association.
[Incorporated by reference to Exhibit 4.3 filed with
the Company's Form S-1 Registration Statement No.
333-240, dated January 9, 1996, as amended.]
4.4 Amended and Restated Revolving Credit Agreement among
the Company, First National Bank of Boston, Bank One
Wisconsin, Bank of America Illinois, including First
National Bank of Boston as agent dated March 26,
1997. [Incorporated by reference to Exhibit 4.5
filed with the Company's Quarterly Report on Form 10-
Q for the quarter ended March 31, 1997.]
4.5 Form of Certificate for Common Stock. [Incorporated
by reference to Exhibit 4.4 to Amendment No. 1 to the
Company's Form S-1 Registration Statement No. 333-
240, dated January 9, 1996, as amended.]
4.6 Rights Agreement dated February 21, 1997 between the
Company and LaSalle National Bank, Chicago, Illinois.
[Incorporated by reference to Exhibit 4.1 to the
Company's Current Report on Form 8-K, dated February
28, 1997.]
5.0 Opinion of Foley & Lardner regarding the validity of
Common Stock and associated Common Stock Purchase
Rights issuable by the Company under this
Registration Statement.
10.0 Stock Option Agreement, dated as of February 25, 1993
and as amended as of May 5, 1995 and August 15, 1995,
and November 29, 1995 between George K. Farr and the
Company. [Incorporated by reference to Exhibit 10.1
filed with the Company's Form S-1 Registration
Statement No. 333-240, dated January 9, 1996, as
amended.]
10.1 Stock Option Agreement, dated as of February 14, 1995
and as amended as of May 16, 1995, August 15, 1995
and November 29, 1995 between G. William Dietrich and
the Company. [Incorporated by reference to Exhibit
10.2 filed with the Company's Form S-1 Registration
Statement No. 333-240, dated January 9, 1996, as
amended.]
10.2 Amendment to Restated Option Agreement dated November
26, 1996 between G. William Dietrich and the Company.
[Incorporated by reference to Exhibit 10.2 filed with
the Company's Form 10-K, for the year ended December
31, 1996.]
10.3 Employment Agreement, dated as of September 1, 1993,
and as amended August 15, 1995 between Peter J. Ruud
and the Company. [Incorporated by reference to
Exhibit 10.3 filed with the Company's Form S-1
Registration Statement No. 333-240, dated January 9,
1996, as amended.]
10.4 Noncompetition Agreement, dated February 14, 1995,
between G. William Dietrich and the Company.
[Incorporated by reference to Exhibit 10.4 filed with
the Company's Form S-1 Registration Statement No.
333-240, dated January 9, 1996, as amended.]
10.5 Key Executive Employment and Severance Agreement,
dated August 15, 1995, between G. William Dietrich
and the Company. [Incorporated by reference to
Exhibit 10.5 filed with the Company's Form S-1
Registration Statement No. 333-240, dated January 9,
1996, as amended.]
10.6 Key Executive Employment and Severance Agreement,
dated August 15, 1995, between George K. Farr and the
Company. [Incorporated by reference to Exhibit 10.6
filed with the Company's Form S-1 Registration
Statement No. 333-240, dated January 9, 1996, as
amended.]
10.7 Key Executive Employment and Severance Agreement,
dated August 15, 1995, between Peter J. Ruud and the
Company. [Incorporated by reference to Exhibit 10.7
filed with the Company's Form S-1 Registration
Statement No. 333-240, dated January 9, 1996, as
amended.]
10.8 1993 Incentive Stock Option Plan. [Incorporated by
reference to Exhibit 10.8 filed with the Company's
Form S-1 Registration Statement No. 333-240, dated
January 9, 1996, as amended.]
10.9 Form of Stock Option Agreement under 1993 Incentive
Stock Option Plan. [Incorporated by reference to
Exhibit 10.9 filed with the Company's Form S-1
Registration Statement No. 333-240, dated January 9,
1996, as amended.]
10.10 1996 Equity Incentive Plan. [Incorporated by
reference to Exhibit 10.10 filed with the Company's
Form S-1 Registration Statement No. 333-240, dated
January 9, 1996, as amended.]
10.11 Form of Non-Employee Director Non-Qualified Stock
Option Agreement under 1996 Equity Incentive Plan.
[Incorporated by reference to Exhibit 10.11 filed
with the Company's Form S-1 Registration Statement
No. 333-240, dated January 9, 1996, as amended.]
10.12 Form of Key Employee Non-Qualified Stock Option
Agreement under 1996 Equity Incentive Plan.
[Incorporated by reference to Exhibit 10.12 filed
with the Company's Form S-1 Registration Statement
No. 333-240, dated January 9, 1996, as amended.]
10.13 Form of Key Employee Incentive Stock Option Agreement
under 1996 Equity Incentive Plan. [Incorporated by
reference to Exhibit 10.13 filed with the Company's
Form S-1 Registration Statement No. 333-240, dated
January 9, 1996, as amended.]
11 Statement regarding computation of per share
earnings. [Incorporated by reference to Exhibit 11
filed with the Company's Form 10-K for the year ended
December 31, 1996.]
21 List of subsidiaries as of June 30, 1997.
23.1 Consent of Foley & Lardner (included in Exhibit 5).
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Arthur Andersen LLP.
24 Power of Attorney relating to subsequent amendments
(included on the signature page of this Registration
Statement).
_______________ Shares
Superior Services, Inc.
Common Stock
($.01 Par Value)
UNDERWRITING AGREEMENT
_______________, 1997
______________________________
______________________________
______________________________
______________________________
c/o ___________________________
______________________________
______________________________
Ladies and Gentlemen:
Superior Services, Inc., a Wisconsin corporation (the
"Company"), proposes to sell to you (herein referred to as the
"Underwriters" or the "Representatives") an aggregate of __________ shares
of the Company's Common Stock, without par value (the "Firm Shares"). The
respective amounts of the Firm Shares to be so purchased by the several
Underwriters are set forth opposite their names in Schedule I hereto. The
Company also proposes to sell at the Underwriters' option an aggregate of
up to __________ additional shares of the Company's Common Stock (the
"Option Shares") as set forth below.
You have advised the Company (a) that you are authorized to
enter into this Agreement, and (b) that the several Underwriters are
willing, acting severally and not jointly, to purchase the numbers of Firm
Shares set forth opposite their respective names in Schedule I, plus their
pro rata portion of the Option Shares if you elect to exercise the over-
allotment option in whole or in part for the accounts of the several
Underwriters. The Firm Shares and the Option Shares (to the extent the
aforementioned option is exercised) are herein collectively called the
"Shares."
In consideration of the mutual agreements contained herein and
of the interests of the parties in the transactions contemplated hereby,
the parties hereto agree as follows:
1. Representations and Warranties of the Company.
The Company represents and warrants as follows:
(a) A registration statement on Form S-3 (File No. 333-
_____) with respect to the Shares has been carefully prepared by
the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "Act"), and the Rules
and Regulations (the "Rules and Regulations") of the Securities
and Exchange Commission (the "Commission") thereunder and has
been filed with the Commission under the Act. Copies of such
registration statement, including any amendments thereto, the
preliminary prospectuses contained therein and the exhibits,
financial statements and schedules, as finally amended and
revised, have heretofore been delivered by the Company to you.
Such registration statement, herein referred to as the
"Registration Statement," has been declared effective by the
Commission under the Act and no post-effective amendment to the
Registration Statement has been filed as of the date of this
Agreement. The prospectus constituting a part of the
Registration Statement and the prospectus supplement relating to
the offering of the Shares (the "Prospectus Supplement"),
including all documents incorporated by reference therein, as
from time to time amended or supplemented pursuant to the Act,
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or otherwise, are collectively referred to herein as the
"Prospectus." Each preliminary prospectus supplement related to
the offering of the Shares, including the preliminary prospectus
supplement dated _______________, is herein referred to as a
"Preliminary Prospectus Supplement." Any reference herein to
the Registration Statement, the Prospectus or the Preliminary
Prospectus Supplement shall be deemed to refer to and include
the documents incorporated by reference therein, as of the date
of such Registration Statement, Prospectus or Preliminary
Prospectus Supplement, as the case may be, and, in the case of
any reference herein to any Prospectus or Preliminary Prospectus
Supplement, also shall be deemed to include any documents
incorporated by reference therein, and any supplements or
amendments relating to the Shares being issued and sold pursuant
hereto, filed with the Commission after the date of filing of
the Prospectus or Preliminary Prospectus Supplement under Rules
424(b) and prior to the termination of the offering of the
Shares by the Underwriters.
(b) A registration statement on Form S-3 (File No. 333-
_____) with respect to the Shares has been carefully prepared by
the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "Act"), and the Rules
and Regulations (the "Rules and Regulations") of the Securities
and Exchange Commission (the "Commission") thereunder and has
been filed with the Commission. Copies of such registration
statement, including any amendments thereto, the preliminary
prospectuses (meeting the requirements of the Rules and
Regulations) contained therein and the exhibits, financial
statements and schedules, as finally amended and revised, have
heretofore been delivered by the Company to you. Such
registration statement, together with any registration statement
filed by the Company pursuant to Rule 462 (b) of the Act, herein
referred to as the "Registration Statement," which shall be
deemed to include all information omitted therefrom in reliance
upon Rule 430A and contained in the Prospectus referred to
below, has become effective under the Act and no post-effective
amendment to the Registration Statement has been filed as of the
date of this Agreement. "Prospectus" means (a) the form of
prospectus first filed with the Commission pursuant to
Rule 424(b) or (b) the last preliminary prospectus included in
the Registration Statement filed prior to the time it becomes
effective or filed pursuant to Rule 424(a) under the Act that is
delivered by the Company to the Underwriters for delivery to
purchasers of the Shares, together with any term sheet or
abbreviated term sheet filed with the Commission pursuant to
Rule 424(b)(7) under the Act. Each preliminary prospectus
included in the Registration Statement prior to the time it
becomes effective is herein referred to as a "Preliminary
Prospectus."
(c) The Company has been duly organized and is validly
existing as a corporation in current status under the laws of
the State of Wisconsin, with corporate power and authority to
own or lease its properties and conduct its business as
described in the Registration Statement. The Subsidiaries of
the Company as listed in Exhibit 21 to Item 16(a) of the
Registration Statement (the "Subsidiaries") have been duly
organized and are validly existing as corporations in good
standing under the laws of the jurisdiction of their
incorporation, with corporate power and authority to own or
lease their properties and conduct their business as described
in the Registration Statement. The Subsidiaries are the only
Subsidiaries, direct or indirect, of the Company. The Company
and the Subsidiaries are duly qualified to transact business in
all jurisdictions in which the conduct of their business
requires such qualification. The outstanding shares of capital
stock of the Subsidiaries have been duly authorized and validly
issued, are fully paid and non-assessable (except as provided
under Wisconsin statutes Section 180.0622(2)(b)) and are owned
by the Company free and clear of all liens, encumbrances and
equities and claims; (other than liens and encumbrances under
the Company's bank revolving credit agreement referred to in the
Registration Statement and the right of first refusal with
respect to the outstanding capital stock of Superior Lamp
Recycling, Inc.) and no options, warrants or other rights to
purchase, agreements or other obligations to issue or other
rights to convert any obligations into shares of capital stock
or ownership interests in the Subsidiaries are outstanding.
(d) The outstanding shares of Common Stock of the Company
have been duly authorized and validly issued and are fully paid
and non-assessable (except as provided under Wisconsin statutes
Section 180.0622(2)(b)); the Shares to be issued and sold by the
Company have been duly authorized and when issued and paid for
as contemplated herein will be validly issued, fully paid and
non-assessable (except as provided under Wisconsin statutes
Section 180.0622(2)(b)); and no preemptive rights of
stockholders exist with respect to any of the Shares or the
issue and sale thereof. Neither the filing of the Registration
Statement nor the offering or sale of the Shares as contemplated
by this Agreement gives rise to any rights, other than those
which have been waived or satisfied, for or relating to the
registration of any shares of Common Stock.
(e) The information set forth under the caption
"Capitalization" in the Prospectus is true and correct as of the
dates thereof. All of the Shares conform to the description
thereof contained in the Registration Statement. The form of
certificates for the Shares conforms to the corporate law of the
jurisdiction of the Company's incorporation.
(f) The Commission has not issued an order preventing or
suspending the use of any Prospectus relating to the proposed
offering of the Shares nor instituted proceedings for that
purpose. The Registration Statement contains, and the
Prospectus and any amendments or supplements thereto will
contain, all statements which are required to be stated therein
by, and will conform to, the requirements of the Act and the
Rules and Regulations. The Registration Statement and any
amendment thereto do not contain as of their respective dates
and the Closing Date or the Option Closing Date, as the case may
be, and will not contain as of their respective dates and the
Closing Date or the Option Closing Date, as the case may be, any
untrue statement of a material fact and do not omit, and will
not omit, to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading. The Prospectus and any amendments and supplements
thereto do not contain as of their respective dates and the
Closing Date or the Option Closing Date, as the case may be, and
will not contain as of their respective dates and the Closing
Date or the Option Closing Date, as the case may be, any untrue
statement of material fact; and do not omit as of their
respective dates and the Closing Date, and will not omit as of
their respective dates and the Closing Date or the Option
Closing Date, as the case may be, to state any material fact
required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that
the Company makes no representations or warranties as to
information contained in or omitted from the Registration
Statement or the Prospectus, or any such amendment or
supplement, in reliance upon, and in conformity with, written
information furnished to the Company by or on behalf of any
Underwriter through the Representatives, specifically for use in
the preparation thereof.
(g) The consolidated financial statements of the Company
and the Subsidiaries, together with related notes and schedules
as set forth in the Registration Statement, present fairly the
financial position and the results of operations and cash flows
of the Company and the consolidated Subsidiaries, at the
indicated dates and for the indicated periods. Such financial
statements and related schedules have been prepared in
accordance with generally accepted principles of accounting,
consistently applied throughout the periods involved, except as
disclosed herein, and all adjustments necessary for a fair
presentation of results for such periods have been made. The
summary financial and statistical data of the Company included
in the Registration Statement presents fairly the information
shown therein and such data has been compiled on a basis
consistent with the financial statements presented therein and
the books and records of the Company.
(h) ____________________, who have certified certain of
the financial statements filed with the Commission as part of
the Registration Statement, are independent public accountants
as required by the Act and the Rules and Regulations.
(i) There is no action, suit, claim or proceeding pending
or, to the knowledge of the Company, threatened against the
Company or the Subsidiaries before any court or administrative
agency or otherwise which if determined adversely to the Company
or its Subsidiaries might result in any material adverse change
in the earnings, business, management, properties, assets,
rights, operations, condition (financial or otherwise) or
prospects of the Company and of the Subsidiaries taken as a
whole or to prevent the consummation of the transactions
contemplated hereby, except as set forth in the Registration
Statement.
(j) The Company and the Subsidiaries have good and
marketable title to all of the properties and assets reflected
in the financial statements (or as described in the Registration
Statement) hereinabove described, subject to no lien, mortgage,
pledge, charge or encumbrance of any kind except those reflected
in such financial statements (or as described in the
Registration Statement) or which are not material in amount to
the business of the Company and the Subsidiaries taken as a
whole. The Company and the Subsidiaries occupy their leased
properties under valid and binding leases conforming in all
material respects to the description thereof set forth in the
Registration Statement.
(k) The Company and the Subsidiaries have filed all
Federal, State, local and foreign income tax returns which have
been required to be filed and have paid all taxes indicated by
said returns and all assessments received by them or any of them
to the extent that such taxes have become due and are not being
contested in good faith. All tax liabilities have been
adequately provided for in the financial statements of the
Company.
(l) To the Company's knowledge, since the respective dates
as of which information is given in the Registration Statement,
as it may be amended or supplemented, there has not been any
material adverse change or any development involving a
prospective material adverse change in or affecting the
earnings, business, management, properties, assets, rights,
operations, condition (financial or otherwise), or prospects of
the Company and its Subsidiaries taken as a whole, whether or
not occurring in the ordinary course of business, and there has
not been any material transaction entered into by the Company or
the Subsidiaries, other than transactions in the ordinary course
of business and changes and transactions described in the
Registration Statement, as it may be amended or supplemented.
The Company and the Subsidiaries have no material (to the
business of the Company and the Subsidiaries taken as a whole)
contingent obligations which are not disclosed in the
Registration Statement.
(m) Neither the Company nor any of the Subsidiaries is or
with the giving of notice or lapse of time or both, will be, in
violation of or in default under its Charter or By-Laws or
under any agreement, lease, contract, indenture or other
instrument or obligation to which it is a party or by which it,
or any of its properties, is bound and which default is of
material significance in respect of the condition, financial or
otherwise of the Company and the Subsidiaries taken as a whole
or the business, management, properties, assets, rights,
operations, condition (financial or otherwise) or prospects of
the Company and the Subsidiaries taken as a whole. The
execution and delivery of this Agreement and the consummation of
the transactions herein contemplated and the fulfillment of the
terms hereof will not conflict with or result in a breach of any
of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust or other agreement or
instrument to which the Company or any of the Subsidiaries is a
party, or of the Charter or By-Laws of the Company or any order,
rule or regulation applicable to the Company or any of the
Subsidiaries of any court or of any regulatory body or
administrative agency or other governmental body having
jurisdiction.
(n) Each approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body necessary in
connection with the execution and delivery by the Company of
this Agreement and the consummation of the transactions herein
contemplated (except such additional steps as may be required by
the Commission, the National Association of Securities Dealers,
Inc. (the "NASD"), The Nasdaq Stock Market or such additional
steps as may be necessary to qualify the Shares for public
offering by the Underwriters under state securities or Blue Sky
laws) has been obtained or made and is in full force and effect.
(o) The Company and the Subsidiaries hold all material
licenses, certificates and permits from federal and/or state
governmental authorities which are necessary to the conduct of
their businesses; and, to the Company's knowledge, neither the
Company nor any of the Subsidiaries has infringed any patents,
patent rights, trade names, trademarks or copyrights, which
infringement is material to the business of the Company and the
Subsidiaries taken as a whole. The Company knows of no material
infringement by others of patents, patent rights, trade names,
trademarks or copyrights owned by or licensed to the Company.
(p) Neither the Company, nor to the Company's best
knowledge, any of its affiliates, has taken or may take,
directly or indirectly, any action designed to cause or result
in, or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the
price of the shares of Common Stock to facilitate the sale or
resale of the Shares.
(q) Neither the Company nor any of the Subsidiaries is an
"investment company" within the meaning of such term under the
Investment Company Act of 1940 and the rules and regulations of
the Commission thereunder.
(r) The Company maintains a system of internal accounting
controls sufficient in all material respects to provide
reasonable assurances that (i) transactions are executed in
accordance with management's general or specific authorization;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability
for assets; (iii) access to demand deposit accounts is permitted
only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for
[inventory] is compared with existing [inventory] at reasonable
intervals and appropriate action is taken with respect to any
differences.
(s) The Company and its Subsidiaries carry, or are covered
by, insurance in such amounts and covering such risks as is
adequate for the conduct of their respective businesses and the
value of their respective properties.
(t) The Company is in compliance in all material respects
with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including
the regulations and published interpretations thereunder
("ERISA"); no "reportable event" (as defined in ERISA) has
occurred with respect to any "pension plan" (as defined in
ERISA) for which the Company would have any liability; the
Company has not incurred and does not expect to incur liability
under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971
of the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the
"Code"); and each "pension plan" for which the Company would
have any liability that is intended to be qualified under
Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by
failure to act, which would cause the loss of such
qualification.
(u) The Company's application for designation of the
Shares on The Nasdaq Stock Market has been approved.
(v) To the best of the Company's knowledge, there are no
affiliations with the National Association of Securities
Dealers, Inc. among the Company's officers, directors or 5% or
greater security holders, except as set forth in the
Registration Statement or as otherwise disclosed in writing to
the Representatives.
(w) The conditions for the use of a registration statement
on Form S-3 set forth in the General Instructions on Form S-3
have been satisfied and the Company is entitled to use such form
for the transactions contemplated herein.
2. Purchase, Sale and Delivery of the Firm Shares. On the
basis of the representations, warranties and covenants herein contained,
and subject to the conditions herein set forth, the Company agrees to sell
to the Underwriters and each Underwriter agrees, severally and not
jointly, to purchase, at a price of $_____ per share, the number of Firm
Shares set forth opposite the name of each Underwriter in Schedule I
hereof, subject to adjustments in accordance with Section 9 hereof.
Payment for the Firm Shares to be sold hereunder is to be made
in immediately available funds by wire transfer to the order of the
Company against delivery of certificates therefor to the Representatives
for the several accounts of the Underwriters. Such payment and delivery
are to be made at the offices of _________________________,
_________________________, at 10:00 A.M., __________ time, on the third
business day after the date of this Agreement or at such other time and
date not later than three business days thereafter as you and the Company
shall agree upon, such time and date being herein referred to as the
"Closing Date." (As used herein, "business day" means a day on which the
New York Stock Exchange is open for trading and on which banks in New York
are open for business and are not permitted by law or executive order to
be closed.) The certificates for the Firm Shares will be delivered in
such denominations and in such registrations as the Representatives
request in writing not later than the second full business day prior to
the Closing Date, and will be made available for inspection by the
Representatives at least one business day prior to the Closing Date.
In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth,
the Company hereby grants an option to the several Underwriters to
purchase the Option Shares at the price per share as set forth in the
first paragraph of this Section 2. The option granted hereby may be
exercised in whole or in part but only once and at any time upon written
notice given within 30 days after the date of this Agreement, by you, to
the Company setting forth the number of Option Shares as to which the
several Underwriters are exercising the option, the names and
denominations in which the Option Shares are to be registered and the time
and date at which such certificates are to be delivered. The time and
date at which certificates for Option Shares are to be delivered shall be
determined by the Representatives but shall not be earlier than three nor
later than 10 full business days after the exercise of such option, nor in
any event prior to the Closing Date (such time and date being herein
referred to as the "Option Closing Date"). If the date of exercise of the
option is three or more days before the Closing Date, the notice of
exercise shall set the Closing Date as the Option Closing Date. The
number of Option Shares to be purchased by each Underwriter shall be in
the same proportion to the total number of Option Shares being purchased
as the number of Firm Shares being purchased by such Underwriter bears to
__________, adjusted by you in such manner as to avoid fractional shares.
The option with respect to the Option Shares granted hereunder may be
exercised only to cover over-allotments in the sale of the Firm Shares by
the Underwriters. You may cancel such option at any time prior to its
expiration by giving written notice of such cancellation to the Company.
To the extent, if any, that the option is exercised, payment for the
Option Shares shall be made on the Option Closing Date in immediately
available funds by wire transfer to the order of the Company against
delivery of certificates therefor at the offices of
_________________________, _________________________.
3. Offering by the Underwriters. It is understood that the
several Underwriters are to make a public offering of the Firm Shares as
soon as the Representatives deem it advisable to do so. The Firm Shares
are to be initially offered to the public at the initial public offering
price set forth in the Prospectus. The Representatives may from time to
time thereafter change the public offering price and other selling terms.
To the extent, if at all, that any Option Shares are purchased pursuant to
Section 2 hereof, the Underwriters will offer them to the public on the
foregoing terms.
4. Covenants of the Company. The Company covenants and agrees
with the several Underwriters that:
(a) The Company will (i) prepare and timely file with the
Commission under Rule 424(b) of the Rules and Regulations a
Prospectus containing information previously omitted at the time
of effectiveness of the Registration Statement in reliance on
Rule 430A of the Rules and Regulations, (ii) not file any
amendment to the Registration Statement or supplement to the
Prospectus or document incorporated by reference therein of
which the Representatives shall not previously have been advised
and furnished with a copy or to which the Representatives shall
have reasonably objected in writing or which is not in
compliance with the Rules and Regulations and (iii) file on a
timely basis all reports and any definitive proxy or information
statements required to be filed by the Company with the
Commission subsequent to the date of the Prospectus and prior to
the termination of the offering of the Shares by the
Underwriters.
(b) The Company will advise the Representatives promptly
of any request of the Commission for amendment of the
Registration Statement or for supplement to the Prospectus or
for any additional information, or of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the use of the Prospectus or of the
institution of any proceedings for that purpose, and the Company
will use its best efforts to prevent the issuance of any such
stop order preventing or suspending the use of the Prospectus
and to obtain as soon as possible the lifting thereof, if
issued.
(c) The Company will cooperate with the Representatives in
endeavoring to qualify the Shares for sale under the securities
laws of such jurisdictions as the Representatives may reasonably
have designated in writing and will make such applications, file
such documents, and furnish such information as may be
reasonably required for that purpose, provided the Company shall
not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction where
it is not now so qualified or required to file such a consent.
The Company will, from time to time, prepare and file such
statements, reports, and other documents, as are or may be
required to continue such qualifications in effect for so long a
period as the Representatives may reasonably request for
distribution of the Shares.
(d) The Company will deliver to, or upon the order of, the
Representatives, from time to time, as many copies of any
Preliminary Prospectus as the Representatives may reasonably
request. The Company will deliver to, or upon the order of, the
Representatives during the period when delivery of a Prospectus
is required under the Act, as many copies of the Prospectus in
final form, or as thereafter amended or supplemented, as the
Representatives may reasonably request. The Company will
deliver to the Representatives at or before the Closing Date,
four signed copies of the Registration Statement and all
amendments thereto including all exhibits filed therewith, and
will deliver to the Representatives such number of copies of the
Registration Statement, including documents incorporated by
reference therein, but without exhibits, and of all amendments
thereto, as the Representatives may reasonably request.
(e) If during the period in which a prospectus is required
by law to be delivered by an Underwriter or dealer any event
shall occur as a result of which, in the judgment of the Company
or in the opinion of counsel for the Underwriters, it becomes
necessary to amend or supplement the Prospectus in order to make
the statements therein, in the light of the circumstances
existing at the time the Prospectus is delivered to a purchaser,
not misleading, or, if it is necessary at any time to amend or
supplement the Prospectus to comply with any law, the Company
promptly will either (i) prepare and file with the Commission an
appropriate amendment to the Registration Statement or
supplement to the Prospectus or (ii) prepare and file with the
Commission an appropriate filing under the Exchange Act which
shall be incorporated by reference in the Prospectus so that the
Prospectus as so amended or supplemented will not, in the light
of the circumstances when it is so delivered, be misleading, or
so that the Prospectus will comply with law.
(f) The Company will make generally available to its
security holders, as soon as it is practicable to do so, but in
any event not later than 15 months after the effective date of
the Registration Statement (as defined in Rule 158(c)), an
earning statement (which need not be audited) in reasonable
detail, covering a period of at least 12 consecutive months
beginning after the effective date of the Registration
Statement, which earning statement shall satisfy the
requirements of Section 11(a) of the Act and Rule 158 of the
Rules and Regulations and will advise you in writing when such
statement has been so made available.
(g) The Company will, for a period of five years from the
Closing Date, deliver to the Representatives copies of annual
reports and copies of all other documents, reports and
information furnished by the Company to its stockholders or
filed with any securities exchange pursuant to the requirements
of such exchange or with the Commission pursuant to the Act or
the Exchange Act. The Company will deliver to the
Representatives similar reports with respect to significant
subsidiaries, as that term is defined in the Rules and
Regulations, which are not consolidated in the Company's
financial statements.
(h) No offering, sale or other disposition of any Common
Stock or Preferred Stock of the Company will be made for a
period of _____ days after the date of this Agreement, directly
or indirectly, by the Company otherwise than hereunder or with
the prior written consent of the Representatives except that the
Company may, without such consent, issue shares upon the
exercise of options outstanding on the date of this Agreement
issue shares pursuant to the Company's incentive stock option
plan, issued as consideration for future acquisitions or issue
shares pursuant to the Company's dividend reinvestment and stock
purchase plan.
5. Costs and Expenses. The Company will pay all costs,
expenses and fees incident to the performance of the obligations of the
Company under this Agreement, including, without limiting the generality
of the foregoing, the following: accounting fees of the Company; the fees
and disbursements of counsel for the Company; the cost of printing and
delivering to, or as requested by, the Underwriters copies of the
Registration Statement, Preliminary Prospectuses, the Prospectus, the
Invitation Letter and any supplements or amendments thereto; the filing
fees of the Commission; the filing fees and expenses incident to securing
any required review by the National Association of Securities Dealers,
Inc. (the "NASD") of the terms of the sale of the Shares; and the fees and
expenses incurred with respect to the listing of the Shares on the Nasdaq
Stock Market. The Company shall not, however, be required to pay for any
of the Underwriters' expenses except that, if this Agreement shall not be
consummated because the conditions in Section 7 hereof are not satisfied,
or because this Agreement is terminated by the Representatives pursuant to
Section 6 hereof, or by reason of any failure, refusal or inability on the
part of the Company to perform any undertaking or satisfy any condition of
this Agreement or to comply with any of the terms hereof on its part to be
performed, unless such failure to satisfy said condition or to comply with
said terms be due to the default or omission of any Underwriter, then the
Company shall reimburse the several Underwriters for reasonable out-of-
pocket expenses, including fees and disbursements of counsel, reasonably
incurred in connection with investigating, marketing and proposing to
market the Shares or in contemplation of performing their obligations
hereunder; but the Company shall not in any event be liable to any of the
several Underwriters for damages on account of loss of anticipated profits
from the sale by them of the Shares.
6. Conditions of Obligations of the Underwriters. The several
obligations of the Underwriters to purchase the Firm Shares on the Closing
Date and the Option Shares, if any, on the Option Closing Date are subject
to the accuracy, as of the Closing Date or the Option Closing Date, as the
case may be, of the representations and warranties of the Company
contained herein, and to the performance by the Company of its covenants
and obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have
been issued and no proceedings for that purpose shall have been
taken or, to the knowledge of the Company, shall be contemplated
by the Commission.
(b) The Representatives shall have received on the Closing
Date or the Option Closing Date, as the case may be, the opinion
of Foley & Lardner, counsel for the Company, dated the Closing
Date or the Option Closing Date, as the case may be, addressed
to the Underwriters (and stating that it may be relied upon by
counsel to the Underwriters, but no others) to the effect that:
(i) The Company has authorized capital stock as
set forth under the caption "Capitalization" in the
Prospectus; all of the Shares conform in all material
respects to the legal description thereof contained in
the Prospectus; the certificates for the Shares,
assuming they are in the form filed with the
Commission, are in due and proper form under the laws
of the State of Wisconsin; the shares of Common Stock,
including the Option Shares, if any, to be sold by the
Company pursuant to this Agreement have been duly
authorized and will be validly issued, fully paid and
non-assessable (except as provided in Wisconsin
statutes Section 180.0622(2)(b)) when issued and paid
for as contemplated by this Agreement; and no
preemptive rights of stockholders exist under the
Company's Articles of Incorporation or otherwise to
the knowledge of such counsel with respect to any of
the Shares or the issue or sale thereof.
(ii) Except as described in or contemplated by
the Prospectus, to the knowledge of such counsel,
there are no outstanding securities of the Company
convertible or exchangeable into or evidencing the
right to purchase or subscribe for any shares of
capital stock of the Company and there are no
outstanding or authorized options, warrants or rights
of any character obligating the Company to issue any
shares of its capital stock or any securities
convertible or exchangeable into or evidencing the
right to purchase or subscribe for any shares of such
stock; and except as described in the Prospectus, to
the knowledge of such counsel, no holder of any
securities of the Company or any other person has the
right, contractual or otherwise, which has not been
satisfied or effectively waived, to cause the Company
to sell or otherwise issue to them, or to permit them
to underwrite the sale of, any of the Shares or the
right to have any Common Shares or other securities of
the Company included in the Registration Statement or
the right, as a result of the filing of the
Registration Statement, to require registration under
the Act of any shares of Common Stock or other
securities of the Company.
(iii) The Registration Statement has become
effective under the Act and, to the knowledge of such
counsel, no stop order proceedings with respect
thereto have been instituted or are pending or
threatened under the Act.
(iv) The Registration Statement, the Prospectus
and each amendment or supplement thereto comply as to
form in all material respects with the requirements of
the Act and the applicable rules and regulations
thereunder (except that such counsel need express no
opinion as to the financial statements, statistical
data and related schedules therein).
(v) To the knowledge of such counsel based
solely upon its inquiry of the Company, the statements
under the captions "__________," "Description of
Capital Stock" and "Shares Eligible for Future Sale"
in the Prospectus, insofar as such statements
constitute a summary of documents referred to therein
or matters of law, fairly summarize in all material
respects the information called for with respect to
such documents and matters.
(vi) To the knowledge of such counsel based
solely on its inquiry of the Company, the statements
under the captions "Risk Factors-Government
Regulation," "--Potential Environmental Liability,"
and "Business-Regulation," in the Prospectus, insofar
as such statements constitute a summary of documents
referred to therein or matters of law, fairly
summarize in all material respects the information
called for with respect to such documents and matters.
(vii) Such counsel does not know of any
contracts or documents required to be filed as
exhibits to in the Registration Statement or described
in the Registration Statement or the Prospectus which
are not so filed or described as required, and such
contracts and documents as are summarized in the
Registration Statement or the Prospectus are fairly
summarized in all material respects.
(viii) This Agreement has been duly
authorized, executed and delivered by the Company.
(ix) No approval, consent, order, authorization,
designation, declaration or filing by or with any
regulatory, administrative or other governmental body
is necessary in connection with the execution and
delivery of this Agreement and the consummation of the
transactions herein contemplated (other than as may be
required by the NASD, The Nasdaq Stock Market or as
required by State securities and Blue Sky laws as to
which such counsel need express no opinion) except
such as have been obtained or made, specifying the
same.
(x) The Company is not, and will not become, as
a result of the consummation of the transactions
contemplated by this Agreement, and application of the
net proceeds therefrom as described in the Prospectus,
required to register as an investment company under
the 1940 Act.
(xi) To such counsel's knowledge, this Agreement
has been duly authorized, executed and delivered on
behalf of the Selling Shareholders.
In rendering such opinion Foley & Lardner may rely (x) upon the
opinion of Scott S. Cramer referred to in Paragraph (c) of this
Section 6 in connection with the delivery of the opinions
referenced in subparagraphs (i), (ii), and (vi) of paragraph (b)
of this Section 6 and (y), as to matters governed by the laws of
states other than Wisconsin or Federal laws, on local counsel in
such jurisdictions, provided that in each case Foley & Lardner
shall state that they believe that they and the Underwriters are
justified in relying on Scott S. Cramer and such other counsel
provided that such justification is based on the reputation,
knowledge and background of such other counsel without further
inquiry or investigation. In addition to the matters set forth
above, such opinion shall also include a statement to the effect
that nothing has come to the attention of such counsel which
leads them to believe that (i) the Registration Statement, at
the time it became effective under the Act (but after giving
effect to any modifications incorporated therein pursuant to
Rule 430A under the Act) and as of the Closing Date or the
Option Closing Date, as the case may be, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, and (ii) the Prospectus, or
any supplement thereto, on the date it was filed pursuant to the
Rules and Regulations and as of the Closing Date or the Option
Closing Date, as the case may be, contained an untrue statement
of a material fact or omitted to state a material fact necessary
in order to make the statements, in the light of the
circumstances under which they are made, not misleading (except
that such counsel need express no view as to financial
statements, schedules and statistical information therein).
With respect to such statement, Foley & Lardner may state that
their belief is based upon the procedures set forth therein, but
is without independent check and verification.
(c) The Representatives shall have received on the Closing
Date or the Option Closing Date, as the case may be, the opinion
of Scott S. Cramer, Vice President and General Counsel of the
Company, dated the Closing Date or the Option Closing Date, as
the case may be, addressed to the Underwriters (and stating that
it may be relied upon by counsel to the Underwriters) to the
effect that:
(i) The Company has been duly organized and is
validly existing as a corporation in current status
under the laws of the State of Wisconsin, with
corporate power and authority to own or lease its
properties and conduct its business as described in
the Registration Statement; the Subsidiaries have been
duly organized and are validly existing as
corporations in good standing under the laws of the
jurisdiction of their incorporation, with corporate
power and authority to own or lease their properties
and conduct their business as described in the
Registration Statement; the Company and the
Subsidiaries are duly qualified to transact business
in all jurisdictions in which the conduct of their
business requires such qualification, or in which the
failure to qualify would have a materially adverse
effect upon the business of the Company and the
Subsidiaries taken as a whole; and the outstanding
shares of capital stock of the Subsidiaries have been
duly authorized and validly issued and are fully paid
and non-assessable (except as provided under Wisconsin
statutes Section 180.0622(2)(b)) and are owned by the
Company or the Subsidiaries; and, to the best of such
counsel's knowledge, the outstanding shares of capital
stock of the Subsidiaries are owned free and clear of
all liens, encumbrances and equities and claims (other
than liens and encumbrances under the Company's bank
revolving credit agreement referred to in the
Registration Statement and the right of first refusal
with respect to the outstanding capital stock of
Superior Lamp Recycling, Inc.), and no options,
warrants or other rights to purchase, agreements or
other obligations to issue or other rights to convert
any obligations into any shares of capital stock or of
ownership interests in the Subsidiaries are
outstanding.
(ii) The Company has authorized and, to his
knowledge, outstanding capital stock as set forth
under the caption "Capitalization" in the Prospectus;
the authorized shares of the Company's Common Stock
have been duly authorized; the outstanding shares of
the Company's Common Stock, including the Shares to be
sold by the Selling Shareholders have been duly
authorized and validly issued and are fully paid and
non-assessable (except as provided under Wisconsin
statutes Section 180.0622(2)(b)); all of the Shares
conform in all material respects to the legal
description thereof contained in the Prospectus; the
certificates for the Shares, assuming they are in the
form filed with the Commission, are in due and proper
form under Wisconsin law; the shares of Common Stock,
including the Option Shares, if any, to be sold by the
Company pursuant to this Agreement have been duly
authorized and will be validly issued, fully paid and
non-assessable (except as provided under Wisconsin
statutes Section 180.0622(2)(b)) when issued and paid
for as contemplated by this Agreement; and no
preemptive rights of stockholders exist with respect
to any of the Shares or the issue or sale thereof.
(iii) Except as described in or contemplated
by the Prospectus, to the knowledge of such counsel,
there are no outstanding securities of the Company
convertible or exchangeable into or evidencing the
right to purchase or subscribe for any shares of
capital stock of the Company and there are no
outstanding or authorized options, warrants or rights
of any character obligating the Company to issue any
shares of its capital stock or any securities
convertible or exchangeable into or evidencing the
right to purchase or subscribe for any shares of such
stock; and except as described in the Prospectus, to
the knowledge of such counsel, no holder of any
securities of the Company or any other person has the
right, contractual or otherwise, which has not been
satisfied or effectively waived, to cause the Company
to sell or otherwise issue to them, or to permit them
to underwrite the sale of, any of the Shares or the
right to have any Common Shares or other securities of
the Company included in the Registration Statement or
the right, as a result of the filing of the
Registration Statement, to require registration under
the Act of any shares of Common Stock or other
securities of the Company.
(iv) Such counsel knows of no legal or
governmental proceedings pending or threatened against
the Company or any of the Subsidiaries which, if
determined adversely to the Company or a Subsidiary,
would have a material adverse effect on the Company
and its subsidiaries taken as a whole, except as set
forth in the Prospectus.
(v) The execution and delivery of this Agreement
and the consummation of the transactions herein
contemplated do not and will not conflict with or
result in a breach of any of the terms or provisions
of, or constitute a default under, the Charter or By-
Laws of the Company, or any agreement or instrument
known to such counsel to which the Company or any of
the Subsidiaries is a party or by which the Company or
any of the Subsidiaries may be bound.
(vi) The statements under the captions "Risk
Factors-Restrictions on Landfill Expansion," "--
Government Regulation," "--Potential Environmental
Liability," "--Insurance and Performance Bonds,"
"Business-Regulation" "_______________," "Description
of Capital Stock" and "Shares Eligible for Future
Sale" in the Prospectus, insofar as such statements
constitute a summary of documents referred to therein
or matters of law, fairly summarize in all material
respects the information called for with respect to
such documents and matters.
(d) The Representatives shall have received from
_______________, counsel for the Underwriters, an opinion dated
the Closing Date or the Option Closing Date, as the case may be,
substantially to the effect specified in subparagraphs (____),
(____), (____) and (____) of Paragraph (b) of this Section 6,
and that the Company is a validly organized and existing
corporation under the laws of the State of ___________. In
rendering such opinion _______________ may rely as to all
matters governed other than by the laws of the State of
_______________ or Federal laws on the opinion of counsel
referred to in paragraph (b) of this Section 6. In addition to
the matters set forth above, such opinion shall also include a
statement to the effect that nothing has come to the attention
of such counsel which leads them to believe that the
Registration Statement, as of the time it became effective under
the Act, and the Prospectus or any amendment or supplement
thereto, on the date it was filed pursuant to Rule 424(b) or any
of the documents incorporated by reference therein, as of the
date of effectiveness of the Registration Statement or, in the
case of documents incorporated by reference in the Prospectus
after the date of effectiveness of the Registration Statement,
as of the respective dates when such documents were filed with
the Commission and the Registration Statement and the
Prospectus, or any amendment or supplement thereto, as of the
Closing Date or the Option Closing Date, as the case may be,
contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to
make the statements therein not misleading (except that such
counsel need express no view as to financial statements,
schedules and other financial information included or
incorporated by reference therein). With respect to such
statement, _______________ may state that their belief is based
upon the procedures set forth therein, but is without
independent check and verification.
(e) The Representatives shall have received at or prior to
the Closing Date from Foley & Lardner a memorandum or summary,
in form and substance satisfactory to the Representatives, with
respect to the qualification for offering and sale by the
Underwriters of the Shares under the State securities or Blue
Sky laws of such jurisdictions as the Representatives may
reasonably have designated to the Company.
(f) The Representatives shall have received on the Closing
Date or the Option Closing Date, as the case may be, a signed
letter from _______________, dated the Closing Date or the
Option Closing Date, as the case may be, which shall confirm, on
the basis of a review in accordance with the procedures set
forth in the letter signed by such firm and dated and delivered
to the Representatives on the date hereof that nothing has come
to their attention during the period from the date three days
prior to the date hereof, to a date not more than three days
prior to the Closing Date or the Option Closing Date, as the
case may be, which would require any change in their letter
dated the date hereof if it were required to be dated and
delivered on the Closing Date or the Option Closing Date, as the
case may be. All such letters shall be in form and substance
satisfactory to the Representatives.
(g) The Representatives shall have received on the Closing
Date or the Option Closing Date, as the case may be, a signed
opinion letter from _______________, confirming the matters set
forth in clauses (i), (ii) and (iii) of subparagraph (c) of this
Section 6.
(h) The Representatives shall have received on the Closing
Date or the Option Closing Date, as the case may be, a
certificate or certificates of the Chief Executive Officer and
the Chief Financial Officer of the Company to the effect that,
as of the Closing Date or the Option Closing Date, as the case
may be, each of them severally represents as follows:
(i) The Registration Statement has become
effective under the Act and no stop order suspending
the effectiveness of the Registration Statement has
been issued, and no proceedings for such purpose have
been taken or are, to his knowledge, contemplated by
the Commission.
(ii) He does not know of any litigation
instituted or threatened against the Company of a
character required to be disclosed in the Registration
Statement which is not so disclosed; he does not know
of any material contract required to be filed as an
exhibit to the Registration Statement which is not so
filed; and the representations and warranties of the
Company contained in Section 1 hereof are true and
correct as of the Closing Date or the Option Closing
Date, as the case may be.
(iii) He has carefully examined the
Registration Statement and the Prospectus and, in his
opinion, as of the effective date of the Registration
Statement, the statements contained in the
Registration Statement, including any document
incorporated by reference therein, were true and
correct, and such Registration Statement and
Prospectus or any document incorporated by reference
therein did not omit to state a material fact required
to be stated therein or necessary in order to make the
statements therein not misleading and, in his opinion,
since the effective date of the Registration
Statement, no event has occurred which should have
been set forth in a supplement to or an amendment of
the Prospectus which has not been so set forth in such
supplement or amendment.
(i) The Company shall have furnished to the
Representatives such further certificates and documents
confirming the representations and warranties contained herein
and related matters as the Representatives may reasonably have
requested, including appropriate letters or agreements
confirming the lock-up arrangements described in the Prospectus
Supplement.
(j) The Firm Shares and Option Shares, if any, shall have
been approved for listing upon official notice of issuance on
the Nasdaq Stock Market.
The opinions and certificates mentioned in this Agreement shall
be deemed to be in compliance with the provisions hereof only if they are
in all material respects satisfactory to the Representatives and to
_______________, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this
Section 6 shall not have been fulfilled when and as required by this
Agreement to be fulfilled, the obligations of the Underwriters hereunder
may be terminated by the Representatives by notifying the Company of such
termination in writing or by telegram at or prior to the Closing Date or
the Option Closing Date, as the case may be.
In such event, the Company and the Underwriters shall not be
under any obligation to each other (except to the extent provided in
Sections 5 and 8 hereof).
7. Conditions of the Obligations of the Company. The
obligations of the Company to sell and deliver the portion of the Shares
required to be delivered as and when specified in this Agreement are
subject to the conditions that at the Closing Date or the Option Closing
Date, as the case may be, no stop order suspending the effectiveness of
the Registration Statement shall have been issued and in effect or
proceedings therefor initiated or threatened.
8. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of the Act against any losses, claims, damages or liabilities
to which such Underwriter or such controlling person may become subject
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or
are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained or incorporated by reference in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, or (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Underwriter
and each such controlling person for any legal or other expenses
reasonably incurred by such Underwriter or such controlling person in
connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement, or omission or alleged omission made or
incorporated by reference in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or such amendment or supplement, in reliance
upon and in conformity with written information furnished to the Company
by or through the Representatives specifically for use in the preparation
thereof. This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Each Underwriter will indemnify and hold harmless the
Company, each of its directors, each of its officers who have signed the
Registration Statement and each person, if any, who controls the Company
within the meaning of the Act, against any losses, claims, damages or
liabilities to which the Company or any such director, officer, or
controlling person may become subject under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained or incorporated by
reference in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto, or arise out of or are
based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under
which they were made, and will reimburse any legal or other expenses
reasonably incurred by the Company or any such director, officer, or
controlling person in connection with investigating or defending any such
loss, claim, damage, liability, action or proceeding; provided, however,
that each Underwriter will be liable in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission has been made in the Registration Statement,
any Preliminary Prospectus, the Prospectus or such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by or through the Representatives specifically
for use in the preparation thereof. This indemnity agreement will be in
addition to any liability which such Underwriter may otherwise have.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to this Section 8, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Section 8(a) or (b) shall be available to
any party who shall fail to give notice as provided in this Section 8(c)
if the party to whom notice was not given was unaware of the proceeding to
which such notice would have related and was prejudiced by the failure to
give such notice, but the failure to give such notice shall not relieve
the indemnifying party or parties from any liability which it or they may
have to the indemnified party for contribution or otherwise than on
account of the provisions of Section 8(a) or (b). In case any such
proceeding shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party and shall pay as incurred the fees
and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel at its own expense. Notwithstanding the foregoing, the
indemnifying party shall pay as incurred the fees and expenses of the
counsel retained by the indemnified party in the event (i) the
indemnifying party and the indemnified party shall have mutually agreed to
the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for the reasonable fees and expenses of more
than one separate firm for all such indemnified parties. Such firm shall
be designated in writing by you in the case of parties indemnified
pursuant to Section 8(a) and by the Company in the case of parties
indemnified pursuant to Section 8(b). The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent but if settled with such consent or if there be a final judgment
for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) in
such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other
from the offering of the Shares. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law or
if the indemnified party failed to give the notice required under
Section 8(c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof), as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this Section 8(d) were
determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above in
this Section 8(d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to above in this Section 8(d)
shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
subsection (d), (i) no Underwriter shall be required to contribute any
amount in excess of the underwriting discounts and commissions applicable
to the Shares purchased by such Underwriter and (ii) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters' obligations in
this Section 8(d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(e) In any proceeding relating to the Registration Statement,
any Preliminary Prospectus, the Prospectus or any supplement or amendment
thereto, each party against whom contribution may be sought under this
Section 8 hereby consents to the jurisdiction of any court having
jurisdiction over any other contributing party, agrees that process
issuing from such court may be served upon him or it by any other
contributing party and consents to the service of such process and agrees
that any other contributing party may join him or it as an additional
defendant in any such proceeding in which such other contributing party is
a party.
9. Default by Underwriters. If on the Closing Date or the
Option Closing Date, as the case may be, any Underwriter shall fail to
purchase and pay for the portion of the Shares which such Underwriter has
agreed to purchase and pay for on such date (otherwise than by reason of
any default on the part of the Company, you shall use your best efforts to
procure within 24 hours thereafter one or more of the other Underwriters,
or any others, to purchase from the Company such amounts as may be agreed
upon and upon the terms set forth herein, the Firm Shares or Option
Shares, as the case may be, which the defaulting Underwriter or
Underwriters failed to purchase. If during such 24 hours you shall not
have procured such other Underwriters, or any others, to purchase the Firm
Shares or Option Shares, as the case may be, agreed to be purchased by the
defaulting Underwriter or Underwriters, then (a) if the aggregate number
of shares with respect to which such default shall occur does not exceed
10% of the Firm Shares or Option Shares, as the case may be, covered
hereby, the other Underwriters shall be obligated, severally, in
proportion to the respective numbers of Firm Shares or Option Shares, as
the case may be, which they are obligated to purchase hereunder, to
purchase the Firm Shares or Option Shares, as the case may be, which such
defaulting Underwriter or Underwriters failed to purchase, or (b) if the
aggregate number of shares of Firm Shares or Option Shares, as the case
may be, with respect to which such default shall occur exceeds 10% of the
Firm Shares or Option Shares, as the case may be, covered hereby, the
Company or any of the Representatives will have the right, by written
notice given within the next 24-hour period to the parties to this
Agreement, to terminate this Agreement without liability on the part of
the non-defaulting Underwriters or of the Company except to the extent
provided in Section 8 hereof. In the event of a default by any
Underwriter or Underwriters, as set forth in this Section 9, the Closing
Date or Option Closing Date, as the case may be, may be postponed for such
period, not exceeding seven days, as you may determine in order that the
required changes in the Registration Statement or in the Prospectus or in
any other documents or arrangements may be effected. The term
"Underwriter" includes any person substituted for a defaulting
Underwriter. Any action taken under this Section 9 shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
10. Notices. All communications hereunder shall be in writing
and, except as otherwise provided herein, will be mailed, delivered or
telegraphed and confirmed as follows: if to the Underwriters, to
_________________________, _________________________, Attention:
_________________________, Managing Director; if to the Company, to
Superior Services, Inc., 10150 West National Avenue, Suite 350, West
Allis, Wisconsin 53227, Attention: Peter J. Ruud, General Counsel (with a
copy to Foley & Lardner, 777 East Wisconsin Avenue, Milwaukee, Wisconsin
53702 Attention: Steven R. Barth).
11. Termination. This Agreement may be terminated by you by
notice to the Company as follows:
(a) at any time prior to the earlier of (i) the time the
Shares are released by you for sale by notice to the
Underwriters, or (ii) 11:30 A.M. on the first business day after
the date of this Agreement;
(b) at any time prior to the Closing Date if any of the
following has occurred: (i) since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, any material adverse change or any development
involving a prospective material adverse change in or affecting
the condition, financial or otherwise, of the Company and its
Subsidiaries taken as a whole or the earnings, business,
management, properties, assets, rights, operations, condition
(financial or otherwise) or prospects of the Company and its
Subsidiaries taken as a whole, whether or not arising in the
ordinary course of business, (ii) any outbreak or escalation of
hostilities or declaration of war or national emergency or other
national or international calamity or crisis or change in
economic or political conditions if the effect of such outbreak,
escalation, declaration, emergency, calamity, crisis or change
on the financial markets of the United States would, in your
reasonable judgment, make it impracticable to market the Shares
or to enforce contracts for the sale of the Shares, or (iii)
suspension of trading in securities generally on the New York
Stock Exchange or the American Stock Exchange or limitation on
prices (other than limitations on hours or numbers of days of
trading) for securities on either such Exchange, (iv) the
enactment, publication, decree or other promulgation of any
statute, regulation, rule or order of any court or other
governmental authority which in your opinion materially and
adversely affects or may materially and adversely affect the
business or operations of the Company, (v) declaration of a
banking moratorium by United States or New York State
authorities, (vi) any downgrading in the rating of the Company's
debt securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the
Exchange Act); (vii) the suspension of trading of the Company's
common stock by the Commission on the Nasdaq Stock Market or
(viii) the taking of any action by any governmental body or
agency in respect of its monetary or fiscal affairs which in
your reasonable opinion has a material adverse effect on the
securities markets in the United States; or
(c) as provided in Sections 6 and 9 of this Agreement.
This Agreement also may be terminated by you, by notice to the
Company, as to any obligation of the Underwriters to purchase the Option
Shares, upon the occurrence at any time prior to the Option Closing Date
of any of the events described in subparagraph (b) above or as provided in
Sections 6 and 9 of this Agreement.
12. Successors. This Agreement has been and is made solely for
the benefit of the Underwriters and the Company and their respective
successors, executors, administrators, heirs and assigns, and the
officers, directors and controlling persons referred to herein, and no
other person will have any right or obligation hereunder. The term
"successors" shall not include any purchaser of the Shares merely because
of such purchase.
13. Miscellaneous. The reimbursement, indemnification and
contribution agreements contained in this Agreement and the
representations, warranties and covenants in this Agreement shall remain
in full force and effect regardless of (a) any termination of this
Agreement, (b) any investigation made by or on behalf of any Underwriter
or controlling person thereof, or by or on behalf of the Company or its
directors or officers and (c) delivery of and payment for the Shares under
this Agreement.
This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
This Agreement shall be governed by, and construed in accordance
with, the laws of the State of _______________.
If the foregoing letter is in accordance with your understanding
of our agreement, please sign and return to us the enclosed duplicates
hereof, whereupon it will become a binding agreement among the Company and
the several Underwriters in accordance with its terms.
Very truly yours,
SUPERIOR SERVICES, INC.
By _________________________________
G. William Dietrich
President and Chief Executive
Officer
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
____________________________________
____________________________________
____________________________________
____________________________________
By ______________________________
By ______________________________
Authorized Officer
<PAGE>
SCHEDULE I
Schedule of Underwriters
Number of Firm
Underwriter Shares to be Purchased
____________________________________
____________________________________
____________________________________
____________________________________
Total _______________
<PAGE>
EXHIBIT A
Subsidiaries
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
August 7, 1997
Superior Services, Inc.
10150 West National Avenue, Suite 350
Milwaukee, Wisconsin 53227
Ladies and Gentlemen:
We have acted as counsel for Superior Services, Inc., a
Wisconsin corporation (the "Company"), in connection with the preparation
of a Registration Statement on Form S-3 (the "Registration Statement"),
including the prospectus constituting a part thereof (the "Prospectus"),
to be filed by the Company with the Securities and Exchange Commission
under the Securities Act of 1933, as amended (the "Act"), relating to the
proposed issuance from time to time by the Company of up to 5,000,000
shares ("Shares") of the Company's Common Stock, $.01 par value (the
"Common Stock"), and the associated rights to purchase shares of Common
Stock accompanying each share of Common Stock (the "Rights") under Rule
415 of the Act. The terms of the Rights are as set forth in that certain
Rights Agreement, dated February 21, 1997, by and between the Company and
LaSalle National Bank (the "Rights Agreement"). In connection with our
representation, we have examined: (a) the Registration Statement,
including the Prospectus; (b) the Rights Agreement; (c) the Company's
Articles of Incorporation and By-laws, as amended to date; (d) proceedings
of the Board of Directors of the Company relating to the authorization for
registration of the Shares; and (e) such other proceedings, 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
Wisconsin Business Corporation Law ("WBCL").
2. The Shares when issued as described in the Registration
Statement and Prospectus and pursuant to any prospectus supplement
applicable to such issuance, will be legally issued, fully paid and
nonassessable and no personal liability will attach to the ownership
thereof, except for debts owing to employees of the Company for services
performed, but not exceeding six months' service in any one case, as
provided in Section 180.0622(2)(b) of the WBCL. (See Local 257 of Hotel
and Restaurant Employees and Bartenders International Union v. Wilson
Street East Dinner Playhouse, Inc., Case No. 82-CV-0023, Cir. Ct. Branch
1, Dane County, Wisconsin); provided that prior to issuance of the Shares
there shall be taken various actions or proceedings in the manner
contemplated by us as counsel, which shall include the following:
(a) the completion of the requisite procedures under the
applicable provisions of the Act and applicable state
securities laws and regulations (including, but not
limited to, the filing of a prospectus supplement
relating to the issuance); and
(b) to the extent we determine necessary under applicable
law, any applicable agreements and/or the Company's
governing documents, the adoption of resolutions by
the Board of Directors of the Company authorizing the
issuance of any such Shares.
3. The Rights when issued pursuant to the terms of the Rights
Agreement will be validly issued.
We consent to the use of this opinion as an exhibit to the
Registration Statement and to the reference of this firm therein. 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 the Securities Act.
Very truly yours,
FOLEY & LARDNER
Exhibit 21
SUPERIOR SERVICES, INC.
SUBSIDIARIES
Superior FCR Landfill, Inc.
Superior Cranberry Creek Landfill, Inc.
Valley Sanitation Co., Inc.
Land & Gas Reclamation, Inc.
Superior Glacier Ridge, Inc.
Superior Emerald Park Landfill, Inc.
Superior Construction Services, Inc.
Hardrock, Inc.
Summit, Inc.
Superior of Wisconsin, Inc.
Superior Services of Elgin, Inc.
Sharps Incinerator of Fort, Inc.
Superior Special Services, Inc.
Superior Oak Ridge Landfill, Inc.
Superior Seven Mile Creek Landfill, Inc.
Superior of Missouri, Inc.
Superior of Ohio, Inc.
Superior Services of Michigan, Inc.
Superior Waste Services of Pennsylvania, Inc.
Homestand Land Corp.
Superior Hickory Meadows Landfill, Inc.
Resource Recovery Transfer and Transportation, Inc.
Holt Landfill Co., Inc.
Speedway Sanitation, Inc.
Sanitation Enterprises, Inc.
Urban Sanitation Corporation
Exhibit 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) of Superior Services, Inc. for the
registration of 5,000,000 shares of its common stock and to the
incorporation by reference therein of our report dated January 31, 1997,
with respect to the consolidated financial statements and schedule of
Superior Services, Inc. included in its Annual Report (Form 10-K) for the
year ended December 31, 1996, filed with the Securities and Exchange
Commission.
Milwaukee, Wisconsin
August 7, 1997
Exhibit 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Form S-3 to be filed on or about August 7, 1997 of
our report dated June 19, 1997 on the financial statements of the Acquired
Operations for year ended September 30, 1996, and to all references to our
Firm included in this Registration Statement.
ARTHUR ANDERSEN LLP
Houston, Texas
August 7, 1997
