Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SUPERIOR SERVICES, INC.
(Exact name of registrant as specified in its charter)
Wisconsin 39-1733405
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
10150 West National Avenue 53227
West Allis, Wisconsin (Zip Code)
(Address of Principal
Executive Offices)
Superior Services, Inc. 1996 Equity Incentive Plan
(Full Title of Plan)
Scott S. Cramer Copy to:
Vice President and General Counsel Steven R. Barth
Superior Services, Inc. Foley & Lardner
10150 West National venue 777 East Wisconsin Avenue
West, Allis, Wisconsin 53227 Milwaukee, WI 53202
(414) 328-2800 (414) 297-5662
(Name, address and telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed
Maximum Proposed
Title of Amount to Offering Maximum Amount of
Securities to be Price Aggregate Registration
be Registered Registered Per Share Offering Price Fee
-----------------------------------------------------------------------
Common Stock, 2,000,000
$.01 par value shares $30.38(1) $60,760,000(1) $17,924.20
-----------------------------------------------------------------------
Common Stock 2,000,000
Purchase Rights rights (2) (2) (2)
=======================================================================
(1) Estimated pursuant to Rule 457(c) under the Securities Act of 1933
solely for the purpose of calculating the registration fee based on
the average of the high and low prices for Superior Services, Inc.
Common Stock as reported on the Nasdaq National Market on May 19,
1998.
(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.
<PAGE>
Amendment of Superior Services, Inc.
1996 Equity Incentive Plan
Superior Services, Inc. (the "Company") currently has in effect the
Superior Services, Inc. 1996 Equity Incentive Plan (the "1996 Plan"). The
purpose of the 1996 Plan is to allow the Company to promote its best
interest and the best interests of its shareholders by providing key
employees of the Company and its subsidiaries, and directors of the
Company who are not otherwise employees, with an opportunity to acquire,
or increase, their proprietary interest in the Company. To allow for
additional stock option awards to be made by the Company, the Board of
Directors of the Company has approved and the Company's shareholders have
ratified an amendment to the 1996 Plan to increase the number of shares
reserved under the 1996 Plan from 1,200,000 to 3,200,000. This Form S-8
Registration Statement is being filed to register the shares of Company
Common Stock the subject of such amendment.
INCORPORATION BY REFERENCE
The contents of Form S-8 Registration Statement No. 333-12807 are
incorporated herein by reference.
EXHIBITS
The following exhibits have been filed as part of this Registration
Statement:
Exhibit No. Description
4.1 Superior Services, Inc. 1996 Equity Incentive Plan, as
amended
5 Legal opinion of Foley & Lardner
24.1 Consent of Ernst and Young LLP
24.2 Consent of Foley & Lardner (included in their opinion which
is Exhibit 5 hereto)
<PAGE>
SIGNATURES
Pursuant to the Securities Act of 1933, the Registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of West Allis, State of Wisconsin, on this 12th day of May, 1998.
SUPERIOR SERVICES, INC.
By: /s/ G. William Dietrich
G. William Dietrich
President and Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below as of May 12, 1998, 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
true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution for him and in his name, place and stead,
in any and all capacities, to sign any and all amendments (including post-
effective amendments) to the Registration Statement and to file the same,
with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorneys-
in-fact and agents, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his 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 Officer
and Director Executive Officer and (Principal Financial
Director (Principal and Accounting
Executive Officer) 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>
EXHIBIT INDEX
Exhibit No. Description
4.1 Superior Services, Inc. 1996 Equity Incentive Plan, as
amended
5 Legal opinion of Foley & Lardner
24.1 Consent of Ernst and Young LLP
24.2 Consent of Foley & Lardner (included in their opinion which
is Exhibit 5 hereto)
EXHIBIT 4.1
SUPERIOR SERVICES, INC.
1996 EQUITY INCENTIVE PLAN
Section 1. Purpose
The purpose of the Superior Services, Inc. 1996 Equity Incentive
Plan (the "Plan") is to promote the best interests of Superior Services,
Inc. (the "Company") and its shareholders by providing key employees of
the Company and its Affiliates (as defined below) and members of the
Company's Board of Directors who are not employees of the Company with an
opportunity to acquire a, or increase their, proprietary interest in the
Company. It is intended that the Plan will promote continuity of
management and increased incentive and personal interest in the welfare of
the Company by those key employees who are primarily responsible for
shaping and carrying out the long-range plans of the Company and securing
the Company's continued growth and financial success. Also, by
encouraging stock ownership by non-employee directors, the Company seeks
to attract and retain on its Board of Directors persons of exceptional
competence and to furnish an added incentive for them to continue their
association with the Company. It is intended that certain of the options
issued pursuant to the Plan will constitute incentive stock options within
the meaning of Section 422 of the Internal Revenue Code ("Incentive Stock
Options") and the remainder of the options issued under the Plan will
constitute non-qualified stock options.
Section 2. Definitions
As used in the Plan, the following terms shall have the
respective meanings set forth below:
(a) "Affiliate" shall mean any entity that, directly or through
one or more intermediaries, is controlled by, controls, or is under common
control with, the Company, including without limitation, all current or
future subsidiaries of the Company.
(b) "Award" shall mean any Option, Stock Appreciation Right,
Restricted Stock or Performance Share granted under the Plan.
(c) "Award Agreement" shall mean any written agreement,
contract or other instrument or document evidencing any Award granted
under the Plan.
(d) "Change in Control" will be deemed to have occurred if:
(i) any entity not affiliated with the Company is or becomes the
beneficial owner of securities of the Company representing at least 25% of
the combined voting power of the Company's then outstanding securities;
(ii) there is consummated any business combination of the Company in which
the Company is not the continuing or surviving corporation or pursuant to
which shares of the Company's capital stock would be converted into cash,
securities or other property, other than a merger of the Company in which
the holders of the Company's capital stock immediately prior to the merger
have the same proportionate ownership of capital stock of the surviving
corporation immediately after the merger, or any sale, lease, exchange or
other transfer (in one transaction or a series of related transactions) of
all, or substantially all, of the consolidated assets of the Company; or
(iii) the shareholders of the Company approve any plan for the liquidation
or dissolution of the Company.
(e) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
(f) "Commission" shall mean the Securities and Exchange
Commission.
(g) "Committee" shall mean the Compensation Committee of the
Board of Directors of the Company (or any other committee thereof
designated by such Board to administer the Plan); provided that the
Committee shall be composed of not less than two directors, each of whom
is a "disinterested person" within the meaning of Rule 16b-3.
(h) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended from time to time.
(i) "Fair Market Value" shall mean, with respect to any
property (including, without limitation, any Shares or other securities),
the fair market value of such property determined by such methods or
procedures as shall be established from time to time by the Committee.
(j) "IPO Effective Date" shall mean the date on which the
registration statement relating to the Company's initial public offering
of common stock under the Securities Act of 1933, as amended, is declared
effective by the Commission.
(k) "Incentive Stock Option" shall mean an option granted under
Section 5(b) of the Plan that is intended to meet the requirements of
Section 422 of the Code (or any successor provision thereto).
(l) "Independent Directors" shall mean then serving, elected or
appointed directors of the Company who are not employees of the Company.
(m) "Initial Director" shall mean the Independent Directors
serving immediately after the IPO Effective Date.
(n) "Key Employee" shall mean any officer or other key employee
of the Company or of any Affiliate who is responsible for or contributes
to the management, growth or profitability of the business of the Company
or any Affiliate as determined by the Committee in its discretion.
(o) "Non-Qualified Stock Option" shall mean an option granted
under Section 5(b) and Section 6(b) of the Plan that is not intended to be
an Incentive Stock Option.
(p) "Option" shall mean an Incentive Stock Option or a Non-
Qualified Stock Option.
(q) "Participating Key Employee" shall mean a Key Employee
designated to be granted an Award under the Plan.
(r) "Performance Period" shall mean, in relation to Performance
Shares, any period for which a performance goal or goals have been
established.
(s) "Performance Share" shall mean any right granted under
Section 5(e) of the Plan that will be paid out as a Share (which, in
specified circumstances, may be a Share of Restricted Stock).
(t) "Person" shall mean any individual, corporation,
partnership, association, joint-stock company, trust, unincorporated
organization or government or political subdivision thereof.
(u) "Released Securities" shall mean Shares of Restricted Stock
with respect to which all applicable restrictions have expired, lapsed or
been waived.
(v) "Restricted Securities" shall mean Awards of Restricted
Stock or other Awards under which issued and outstanding Shares are held
subject to certain restrictions.
(w) "Restricted Stock" shall mean any Share granted under
Section 5(d) of the Plan or, in specified circumstances, a Share paid in
connection with a Performance Share under Section 5(e) of the Plan.
(x) "Rule 16b-3" shall mean Rule 16b-3 as promulgated by the
Commission under the Exchange Act, or any successor rule or regulation
thereto.
(y) "Shares" shall mean shares of common stock of the Company,
$.01 par value, and such other securities or property as may become
subject to Awards pursuant to an adjustment made under Section 4(b) of the
Plan.
(z) "Stock Appreciation Right" shall mean any right granted
under Section 5(c) of the Plan.
Section 3. Administration
The Plan shall be administered by the Committee; provided,
however, that if at any time the Committee shall not be in existence, the
functions of the Committee as specified in the Plan shall be exercised by
those members of the Board of Directors of the Company who qualify as
"disinterested persons" under Rule 16b-3. Subject to the terms of the
Plan and applicable laws and without limitation by reason of enumeration,
the Committee shall have full discretionary power and authority to: (i)
designate Participating Key Employees; (ii) determine the type or types of
Awards to be granted to each Participating Key Employee under the Plan;
(iii) determine the number of Shares to be covered by (or with respect to
which payments, rights or other matters are to be calculated in connection
with) Awards granted to Participating Key Employees; (iv) determine the
terms and conditions of any Award granted to a Participating Key Employee;
(v) determine whether, to what extent and under what circumstances Awards
granted to Participating Key Employees may be settled or exercised in
cash, Shares, other securities, other Awards or other property, and the
method or methods by which Awards may be settled, exercised, canceled,
forfeited or suspended; (vi) determine whether, to what extent and under
what circumstances cash, Shares, other Awards and other amounts payable
with respect to an Award granted to Participating Key Employees under the
Plan shall be deferred either automatically or at the election of the
holder thereof or of the Committee; (vii) interpret and administer the
Plan and any instrument or agreement relating to, or Award made under, the
Plan (including, without limitation, any Award Agreement); (viii)
establish, amend, suspend or waive such rules and regulations and appoint
such agents as it shall deem appropriate for the proper administration of
the Plan; and (ix) make any other determination and take any other action
that the Committee deems necessary or desirable for the administration of
the Plan. Grants of options to Independent Directors under the Plan shall
be automatic and the amount and the terms of such awards shall be
determined in accordance with Section 6 hereof. Unless otherwise
expressly provided in the Plan, all designations, determinations,
interpretations and other decisions under or with respect to the Plan or
any Award shall be within the sole discretion of the Committee, may be
made at any time or from time to time, and shall be final, conclusive and
binding upon all Persons, including the Company, any Affiliate, any
Participating Key Employee, any Independent Director, any holder or
beneficiary of any Award, any shareholder and any employee of the Company
or of any Affiliate.
Section 4. Shares Available for Award
(a) Shares Available. Subject to adjustment as provided in
Section 4(b):
(i) Number of Shares Available. The number of Shares with
respect to which Awards may be granted under the Plan shall be
1,200,000, after giving effect to the proposed one-for-two reverse
stock split to be submitted to the Company's shareholders at the
Company's 1996 annual meeting as part of the proposal to amend and
restate the Company's Articles of Incorporation ("Reverse Stock
Split"), subject to the limitations set forth in Section 5(d)(i).
(ii) Accounting for Awards. The number of Shares covered
by an Award under the Plan, or to which such Award relates, shall be
counted on the date of grant of such Award against the number of
Shares available for granting Awards under the Plan.
(iii) Sources of Shares Deliverable Under Awards. Any
Shares delivered pursuant to an Award may consist, in whole or in
part, of authorized and unissued Shares or of treasury Shares.
(b) Adjustments. In the event that the Committee shall
determine that any dividend or other distribution (whether in the form of
cash, Shares, other securities or other property), recapitalization, stock
split, reverse stock split, reorganization, merger, consolidation, split-
up, spin-off, combination, repurchase or exchange of Shares or other
securities of the Company, issuance of warrants or other rights to
purchase Shares or other securities of the Company, or other similar
corporate transaction or event affects the Shares such that an adjustment
is determined by the Committee to be appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits intended to
be made available under the Plan, then the Committee may, in such manner
as it may deem equitable, adjust any or all of (i) the number and type of
Shares subject to the Plan and which thereafter may be made the subject of
Awards under the Plan; (ii) the number and type of Shares subject to
outstanding Awards; and (iii) the grant, purchase or exercise price with
respect to any Award, or, if deemed appropriate, make provision for a cash
payment to the holder of an outstanding Award; provided, however, in each
case, that with respect to Awards of Incentive Stock Options no such
adjustment shall be authorized to the extent that such authority would
cause the Plan to violate Section 422(b) of the Code (or any successor
provision thereto); and provided further that the number of Shares subject
to any Award payable or denominated in Shares shall always be a whole
number.
Section 5. Awards to Key Employees
(a) Eligibility. Any Key Employee, including any executive
officer or employee-director of the Company or of any Affiliate, who is
not a member of the Committee shall be eligible to be designated a
Participating Key Employee.
(b) Option Awards to Key Employees. The Committee is hereby
authorized to grant Options to Key Employees with the terms and conditions
as set forth below and with such additional terms and conditions, in
either case not inconsistent with the provisions of the Plan, as the
Committee shall determine in its discretion.
(i) Exercise Price. The exercise price per Share of an
Option granted pursuant to this Section 5 shall be determined by the
Committee; provided, however, that such exercise price shall not be
less than 100% of the Fair Market Value of a Share on the date of
grant of such Option.
(ii) Option Term. The term of each Option shall be fixed
by the Committee; provided, however, that in no event shall the term
of any Option exceed a period of ten years from the date of its
grant.
(iii) Exercisability and Method of Exercise. An Option
shall become exercisable in such manner and within such period or
periods and in such installments or otherwise as shall be determined
by the Committee. The Committee also shall determine the method or
methods by which, and the form or forms, including, without
limitation, cash, Shares, other securities, other Awards, other
property or any combination thereof, having a Fair Market Value on
the exercise date equal to the relevant exercise price, in which
payment of the exercise price with respect to any Option may be made
or deemed to have been made.
(iv) Incentive Stock Options. The terms of any Incentive
Stock Option granted under the Plan shall comply in all respects with
the provisions of Section 422 of the Code (or any successor provision
thereto) and any regulations promulgated thereunder. Notwithstanding
any provision in the Plan to the contrary, no Incentive Stock Option
may be granted hereunder after the tenth anniversary of the adoption
of the Plan by the Board of Directors of the Company.
(c) Stock Appreciation Right Awards. The Committee is hereby
authorized to grant Stock Appreciation Rights to Key Employees. Subject
to the terms of the Plan and any applicable Award Agreement, a Stock
Appreciation Right granted under the Plan shall confer on the holder
thereof a right to receive, upon exercise thereof, the excess of (i) the
Fair Market Value of one Share on the date of exercise over (ii) the grant
price of the Stock Appreciation Right as specified by the Committee, which
shall not be less than 100% of the Fair Market Value of one Share on the
date of grant of the Stock Appreciation Right. Subject to the terms of
the Plan, the grant price, term, methods of exercise, methods of
settlement (including whether the Participating Key Employee will be paid
in cash, Shares, other securities, other Awards, or other property or any
combination thereof), and any other terms and conditions of any Stock
Appreciation Right shall be as determined by the Committee in its
discretion. The Committee may impose such conditions or restrictions on
the exercise of any Stock Appreciation Right as it may deem appropriate,
including, without limitation, restricting the time of exercise of the
Stock Appreciation Right to specified periods as may be necessary to
satisfy the requirements of Rule 16b-3.
(d) Restricted Stock Awards.
(i) Issuance. The Committee is hereby authorized to grant
Awards of Restricted Stock to Key Employees; provided, however, that
the aggregate number of Shares of Restricted Stock granted under the
Plan to all Participating Key Employees as a group shall not exceed
120,000 Shares (on a post Reverse Stock Split basis and provided that
such number of Shares subject to adjustment in accordance with the
terms of Section 4(b) hereof) of the total number of Shares available
for Awards under Section 4(a)(i).
(ii) Restrictions. Shares of Restricted Stock granted to
Participating Key Employees shall be subject to such restrictions as
the Committee may impose in its discretion (including, without
limitation, any limitation on the right to vote a Share of Restricted
Stock or the right to receive any dividend or other right or
property), which restrictions may lapse separately or in combination
at such time or times, in such installments or otherwise, as the
Committee may deem appropriate in its discretion.
(iii) Registration. Any Restricted Stock granted under
the Plan to a Participating Key Employee may be evidenced in such
manner as the Committee may deem appropriate in its discretion,
including, without limitation, book-entry registration or issuance of
a stock certificate or certificates. In the event any stock
certificate is issued in respect of Shares of Restricted Stock
granted under the Plan to a Participating Key Employee, such
certificate shall be registered in the name of the Participating Key
Employee and shall bear an appropriate legend (as determined by the
Committee) referring to the terms, conditions and restrictions
applicable to such Restricted Stock.
(iv) Payment of Restricted Stock. At the end of the
applicable restriction period relating to Restricted Stock granted to
a Participating Key Employee, one or more stock certificates for the
appropriate number of Shares, free of restrictions imposed under the
Plan, shall be delivered to the Participating Key Employee or, if the
Participating Key Employee received stock certificates representing
the Restricted Stock at the time of grant, the legends placed on such
certificates shall be removed.
(v) Forfeiture. Except as otherwise determined by the
Committee in its discretion, upon termination of employment of a
Participating Key Employee (as determined under criteria established
by the Committee in its discretion) for any reason during the
applicable restriction period, all Shares of Restricted Stock still
subject to restriction shall be forfeited by the Participating Key
Employee; provided, however, that the Committee may, when it finds
that a waiver would be in the best interests of the Company, waive in
whole or in part any or all remaining restrictions with respect to
Shares of Restricted Stock held by a Participating Key Employee.
(e) Performance Share Awards.
(i) Issuance. The Committee is hereby authorized to grant
Awards of Performance Shares to Key Employees.
(ii) Performance Goals and Other Terms. The Committee
shall determine in its discretion the Performance Period, the
performance goal or goals to be achieved during any Performance
Period, the proportion of payments, if any, to be made for
performance between the minimum and full performance levels, the
restrictions applicable to Shares of Restricted Stock received upon
payment of Performance Shares if Performance Shares are paid in such
manner, and any other terms, conditions and rights relating to a
grant of Performance Shares. Performance goals established by the
Committee may be based on one or more measures such as return on
shareholders' equity, earnings or any other standard or standards
deemed relevant by the Committee, measured internally or relative to
other organizations and before or after extraordinary items.
(iii) Rights and Benefits During the Performance
Period. The Committee may provide that, during a Performance Period,
a Participating Key Employee shall be paid cash amounts, with respect
to each Performance Share held by such Participating Key Employee, in
the same manner, at the same time, and in the same amount paid, as a
cash dividend on a Share. Participating Key Employees shall have no
voting rights with respect to Performance Shares held by them.
(iv) Adjustments with Respect to Performance Shares. Any
other provision of the Plan to the contrary notwithstanding, the
Committee may in its discretion at any time or from time to time
adjust performance goals (up or down) and minimum or full performance
levels (and any intermediate levels and proportion of payments
related thereto), adjust the manner in which performance goals are
measured, or shorten any Performance Period or waive in whole or in
part any or all remaining restrictions with respect to Shares of
Restricted Stock issued in payment of Performance Shares, if the
Committee determines that conditions, including but not limited to,
changes in the economy, changes in competitive conditions, changes in
laws or governmental regulations, changes in generally accepted
accounting principles, changes in the Company's accounting policies,
acquisitions or dispositions by the Company or its Affiliates, or the
occurrence of other unusual, unforeseen or extraordinary events, so
warrant.
(v) Payment of Performance Shares. As soon as is
reasonably practicable following the end of the applicable
Performance Period, one or more certificates representing the number
of Shares equal to the number of Performance Shares payable shall be
registered in the name of and delivered to the Participating Key
Employee; provided, however, that any Shares of Restricted Stock
payable in connection with Performance Shares shall, pending the
expiration, lapse, or waiver of the applicable restrictions, be
evidenced in the manner as set forth in Section 5(d)(iii) hereof.
(f) General.
(i) No Consideration for Awards. Awards shall be granted
to Participating Key Employees for no cash consideration unless
otherwise determined by the Committee.
(ii) Award Agreements. Each Award granted under the Plan
shall be evidenced by an Award Agreement in such form (consistent
with the terms of the Plan) as shall have been approved by the
Committee.
(iii) Awards May Be Granted Separately or Together.
Awards to Participating Key Employees under the Plan may be granted
either alone or in addition to, in tandem with, or in substitution
for, any other Award or any award granted under any other plan of the
Company or any Affiliate. Awards granted in addition to, or in
tandem with, other Awards, or in addition to, or in tandem with,
awards granted under any other plan of the Company or any Affiliate,
may be granted either at the same time as or at a different time from
the grant of such other Awards or awards.
(iv) Forms of Payment Under Awards. Subject to the terms
of the Plan and of any applicable Award Agreement, payments or
transfers to be made by the Company or an Affiliate upon the grant,
exercise or payment of an Award to a Participating Key Employee may
be made in such form or forms as the Committee shall determine, and
may be made in a single payment or transfer, in installments, or on a
deferred basis, in each case in accordance with rules and procedures
established by the Committee in its discretion. Such rules and
procedures may include, without limitation, provisions for the
payment or crediting of interest on installment or deferred payments.
(v) Limits on Transfer of Awards. No Award (other than
Released Securities), and no right under any such Award, shall be
assignable, alienable, saleable or transferable by a Participating
Key Employee otherwise than by will or by the laws of descent and
distribution (or, in the case of an Award of Restricted Securities,
to the Company); provided, however, that a Participating Key Employee
at the discretion of the Committee may be entitled, in the manner
established by the Committee, to designate a beneficiary or
beneficiaries to exercise his or her rights, and to receive any
property distributable, with respect to any Award upon the death of
the Participating Key Employee. Each Award, and each right under any
Award, shall be exercisable, during the lifetime of the Participating
Key Employee, only by such individual or, if permissible under
applicable law, by such individual's guardian or legal
representative. No Award (other than Released Securities), and no
right under any such Award, may be pledged, alienated, attached or
otherwise encumbered, and any purported pledge, alienation,
attachment or encumbrance thereof shall be void and unenforceable
against the Company or any Affiliate.
(vi) Term of Awards. Except as otherwise provided in the
Plan, the term of each Award shall be for such period as may be
determined by the Committee.
(vii) Rule 16b-3 Six-Month Limitations. To the extent
required in order to comply with Rule 16b-3 only, any equity security
offered pursuant to the Plan may not be sold for at least six months
after acquisition, except in the case of death or disability, and any
derivative security issued pursuant to the Plan shall not be
exercisable for at least six months, except in case of death or
disability of the holder thereof. Terms used in the preceding
sentence shall, for the purposes of such sentence only, have the
meanings, if any, assigned or attributed to them under Rule 16b-3.
(viii) Share Certificates; Representation. In addition
to the restrictions imposed pursuant to Section 5(c) and Section 5(d)
hereof, all certificates for Shares delivered under the Plan pursuant
to any Award or the exercise thereof shall be subject to such stop
transfer orders and other restrictions as the Committee may deem
advisable under the Plan or the rules, regulations and other
requirements of the Commission, the Nasdaq National Market or any
other stock exchange or other market upon which such Shares are then
listed or traded, and any applicable federal or state securities
laws, and the Committee may cause a legend or legends to be put on
any such certificates to make appropriate reference to such
restrictions. The Committee may require each Participating Key
Employee or other Person who acquires Shares under the Plan by means
of an Award originally made to a Participating Key Employee to
represent to the Company in writing that such Participating Key
Employee or other Person is acquiring the Shares without a view to
the distribution thereof.
Section 6. Automatic Option Grants to Independent Directors
(a) Options to Independent Directors. The Company shall grant
automatically Non-Qualified Stock Options to Independent Directors on the
terms and conditions as set forth below:
(i) Grant of Options. On the IPO Effective Date, each
Initial Director shall be granted automatically Non-Qualified Stock
Options to purchase 10,000 Shares (on a post-Reverse Stock Split
basis). Each Independent Director newly elected or appointed to the
Board of Directors after the IPO Effective Date and during the term
of the Plan shall be granted automatically, on the date of such
election or appointment, Non-Qualified Stock Options to purchase
10,000 Shares (on a post-Reverse Stock Split basis). In addition to
the foregoing, on the date of each annual meeting of shareholders of
the Company, beginning with the Company's 1997 annual meeting of
shareholders, each then serving and continuing Independent Director
shall be granted automatically Non-Qualified Stock Options to
purchase 2,500 Shares (on a post-Reverse Stock Split basis).
(ii) Exercise Price. The exercise price per Share of an
Option granted pursuant to this Section 6(b) shall be equal to (i) in
the case of grants to Initial Directors, the initial public offering
price per Share (without deduction for underwriting discounts or
commissions) and (ii) in all other cases, the closing sale price per
Share of the Shares on the Nasdaq National Market (or such other
exchange or system on which the Shares are then trading) of the
Common Stock on the date of grant.
(iii) Option Term. The term of each Option shall end
on the sooner to occur of five years from the date of its grant or
one year from the date the Independent Director ceases to be an
Independent Director for any reason.
(iv) Vesting. Each initial grant of Non-Qualified Stock
Options to Independent Directors hereunder (whether upon the IPO
Effective Date or thereafter upon an Independent Director's initial
election or appointment to the Board) will vest ratably over an
approximate three-year period (i.e., one-third on the Company's first
annual shareholders meeting date occurring at least 12 months after
the initial grant, another one-third on the next succeeding annual
shareholders meeting and the final one-third on the next succeeding
annual shareholders meeting); provided that, the Independent Director
continues to serve as a member of the Board of Directors at the end
of each vesting period with respect to the increment then vesting.
The annual grants of Non-Qualified Stock Options to Independent
Directors on the date of each annual meeting of Company shareholders
(beginning with the Company's 1997 annual meeting) will vest in full
on the six month anniversary of the annual meeting on which such Non-
Qualified Stock Options were granted, provided, that the Independent
Director remains a member of the Board of Directors on such six month
anniversary date. Notwithstanding the aforementioned vesting
provisions, all outstanding Non-Qualified Stock Options granted to an
Independent Director under the Plan will vest immediately and in full
upon a Change in Control, the death or disability of such Independent
Director, provided, that the Independent Director continues to serve
as a member of the Board of Directors on the date of such occurrence.
(v) Exercisability and Method of Exercise. Non-Qualified
Stock Options granted to Independent Directors shall be exercisable
during their term subject only to the vesting provisions above and
the termination provisions below. The Committee may determine the
method or methods by which, and the form or forms, including, without
limitation, cash, Shares, other securities, other property or any
combination thereof, having a Fair Market Value on the exercise date
equal to the relevant exercise price, in which payment of the
exercise price with respect to any Non-Qualified Stock Option granted
to an Independent Director may be made or deemed to have been made.
(vi) Termination of Options. Unexercised Non-Qualified
Stock Options granted to Independent Directors shall terminate on the
earlier of: (i) five years after the date of grant or (ii) one year
after the Independent Director ceases to be an Independent Director
for any reason.
(b) General.
(i) No Consideration for Granting Options. Non-Qualified
Stock Options shall be granted to Independent Directors for no cash
consideration unless otherwise determined by the Committee.
(ii) Option Agreements. Options granted under Section 6(a)
of the Plan shall be evidenced by an Option Agreement in such form
(consistent with the terms of the Plan) as shall have been approved
by the Committee.
(iii) Limits on Transfer of Options. No Non-Qualified
Stock Options granted under Section 6(a) and no right under any such
Option shall be assignable, alienable, saleable or transferable by an
Independent Director otherwise than by will or by the laws of descent
and distribution; provided, however, that an Independent Director at
the discretion of the Committee may be entitled, in the manner
established by the Committee, to designate a beneficiary or
beneficiaries to exercise his or her rights, and to receive any
property distributable, with respect to any Option upon the death of
the Independent Director. Failing any designation, the Independent
Director's personal representative may exercise such rights and
receive such property. Each Non-Qualified Stock Option granted under
Section 6(a) hereof, and each right under any such Option, shall be
exercisable, during the lifetime of the Independent Director, only by
such individual or, if permissible under applicable law, by such
individual's guardian or legal representative. No Non-Qualified
Stock Option granted under Section 6(a) hereof, and no right under
any such Option, may be pledged, alienated, attached or otherwise
encumbered, and any purported pledge, alienation, attachment or
encumbrance thereof shall be void and unenforceable against the
Company or any Affiliate.
(iv) Rule 16b-3 Six-Month Limitations. To the extent
required in order to comply with Rule 16b-3 only, any Shares issued
to an Independent Director pursuant to the Plan may not be sold for
at least six months after acquisition, except in the case of death or
disability, and any Option issued to an Independent Director pursuant
to the Plan shall not be exercisable for at least six months, except
in case of death or disability of the holder thereof. Terms used in
the preceding sentence shall, for the purposes of such sentence only,
have the meanings, if any, assigned or attributed to them under Rule
16b-3.
(v) Share Certificates; Representation. All certificates
for Shares delivered to an Independent Director under the Plan
pursuant to the exercise of an Option granted thereto shall be
subject to such stop transfer orders and other restrictions as the
Committee may deem advisable under the Plan or the rules, regulations
and other requirements of the Commission, the Nasdaq National Market
or any other stock exchange or other market upon which such Shares
are then listed or traded, and any applicable federal or state
securities laws, and the Committee may cause a legend or legends to
be put on any such certificates to make appropriate reference to such
restrictions. The Committee may require any Independent Director who
acquires Shares by exercising an Option granted under the Plan to
represent to the Company in writing that such Independent Director is
acquiring the Shares without a view to the distribution thereof.
Section 7. Amendment and Termination of the Plan; Correction of
Defects and Omissions
(a) Amendments to and Termination of the Plan. The Board of
Directors of the Company may at any time amend, alter, suspend,
discontinue or terminate the Plan; provided, however, that shareholder
approval of any amendment of the Plan shall also be obtained if otherwise
required by: (i) the rules and/or regulations promulgated under Section 16
of the Exchange Act (in order for the Plan to remain qualified under Rule
16b-3); (ii) the Code or any rules promulgated thereunder (in order to
allow for Incentive Stock Options to be granted under the Plan); or (iii)
the listing requirements of the Nasdaq National Market or any other
principal securities exchange or market on which the Shares are then
traded (in order to maintain the listing of the Shares thereon).
Termination of the Plan shall not affect the rights of Participating Key
Employees or Independent Directors with respect to Awards previously
granted to them, and all unexpired Awards shall continue in force and
effect after termination of the Plan except as they may lapse or be
terminated by their own terms and conditions.
(b) Correction of Defects, Omissions and Inconsistencies. The
Committee may in its discretion correct any defect, supply any omission or
reconcile any inconsistency in any Award or Award Agreement in the manner
and to the extent it shall deem desirable to carry the Plan into effect.
Section 8. General Provisions
(a) No Rights to Awards. No Key Employee, Participating Key
Employee, Independent Director or other Person shall have any claim to be
granted any Award under the Plan, and there is no obligation for
uniformity of treatment of Key Employees, Participating Key Employees or
holders or beneficiaries of Awards under the Plan. The terms and
conditions of Awards need not be the same with respect to each
Participating Key Employee.
(b) Withholding. No later than the date as of which an amount
first becomes includable in the gross income of a Participating Key
Employee for federal income tax purposes with respect to any Award under
the Plan, the Participating Key Employee shall pay to the Company, or make
arrangements satisfactory to the Company regarding the payment of, any
federal, state, local or foreign taxes of any kind required by law to be
withheld with respect to such amount. Unless otherwise determined by the
Committee, withholding obligations arising with respect to Awards to
Participating Key Employees under the Plan may be settled with Shares
previously owned by the Participating Key Employee; provided, however,
that the Participating Key Employee may not settle such obligations with
Shares that are part of, or are received upon exercise of, the Award that
gives rise to the withholding requirement. The obligations of the Company
under the Plan shall be conditional on such payment or arrangements, and
the Company and any Affiliate shall, to the extent permitted by law, have
the right to deduct any such taxes from any payment otherwise due to the
Participating Key Employee. The Committee may establish such procedures
as it deems appropriate for the settling of withholding obligations with
Shares, including, without limitation, the establishment of such
procedures as may be necessary to satisfy the requirements of Rule 16b-3.
(c) No Limit on Other Compensation Arrangements. Nothing
contained in the Plan shall prevent the Company or any Affiliate from
adopting or continuing in effect other or additional compensation
arrangements, and such arrangements may be either generally applicable or
applicable only in specific cases.
(d) Rights and Status of Recipients of Awards. The grant of an
Award shall not be construed as giving a Participating Key Employee the
right to be retained in the employ of the Company or any Affiliate.
Further, the Company or any Affiliate may at any time dismiss a
Participating Key Employee from employment, free from any liability, or
any claim under the Plan, unless otherwise expressly provided in the Plan
or in any Award Agreement. Except for rights accorded under the Plan and
under any applicable Award Agreement, Participating Key Employees shall
have no rights as holders of Shares as a result of the granting of Awards
hereunder.
(e) Unfunded Status of the Plan. Unless otherwise determined
by the Committee, the Plan shall be unfunded and shall not create (or be
construed to create) a trust or a separate fund or funds. The Plan shall
not establish any fiduciary relationship between the Company or the
Committee and any Participating Key Employee, Independent Director or
other Person. To the extent any Person holds any right by virtue of a
grant under the Plan, such right (unless otherwise determined by the
Committee) shall be no greater than the right of an unsecured general
creditor of the Company.
(f) Governing Law. The validity, construction and effect of
the Plan and any rules and regulations relating to the Plan shall be
determined in accordance with the internal laws of the State of Wisconsin
and applicable federal law.
(g) Severability. If any provision of the Plan or any Award
Agreement or any Award is or becomes or is deemed to be invalid, illegal
or unenforceable in any jurisdiction, or as to any Person or Award, or
would disqualify the Plan, any Award Agreement or any Award under any law
deemed applicable by the Committee, such provision shall be construed or
deemed amended to conform to applicable laws, or if it cannot be so
construed or deemed amended without, in the determination of the
Committee, materially altering the intent of the Plan, any Award Agreement
or the Award, such provision shall be stricken as to such jurisdiction,
Person or Award, and the remainder of the Plan, any such Award Agreement
and any such Award shall remain in full force and effect.
(h) No Fractional Shares. No fractional Shares or other
securities shall be issued or delivered pursuant to the Plan, any Award
Agreement or any Award, and the Committee shall determine (except as
otherwise provided in the Plan) whether cash, other securities or other
property shall be paid or transferred in lieu of any fractional Shares or
other securities, or whether such fractional Shares or other securities or
any rights thereto shall be canceled, terminated or otherwise eliminated.
(i) Headings. Headings are given to the Sections and
subsections of the Plan solely as a convenience to facilitate reference.
Such headings shall not be deemed in any way material or relevant to the
construction or interpretation of the Plan or any provision thereof.
Section 9. Effective Date of the Plan
The Plan shall be effective on the IPO Effective Date, provided
that, the Plan is adopted by the shareholders prior thereto but less than
12 months following the date of adoption of the Plan by the Board of
Directors, and all Awards granted under the Plan prior to the date of
effectiveness shall be subject to such effectiveness and the effective
date of such Award grants shall be deemed to be the date of such
effectiveness of the Plan.
Section 10. Term of the Plan
No Award shall be granted under the Plan following the tenth
anniversary of its effective date. However, unless otherwise expressly
provided in the Plan or in an applicable Award Agreement, any Award
theretofore granted may extend beyond such date and, to the extent set
forth in the Plan, the authority of the Committee to amend, alter, adjust,
suspend, discontinue or terminate any such Award, or to waive any
conditions or restrictions with respect to any such Award, and the
authority of the Board of Directors of the Company to amend the Plan,
shall extend beyond such date.
<PAGE>
AMENDMENT TO 1996 EQUITY INCENTIVE PLAN
THIS AMENDMENT dated as of this 12th day of May, 1998 ("Amendment")
amends the Superior Services, Inc. 1996 Equity Incentive Plan (the "Plan")
dated as of December 20, 1995 to the extent set forth herein. Defined
terms used in this Amendment and not otherwise defined shall have the
meaning ascribed thereto in the Plan.
WITNESSETH:
WHEREAS, on November 25, 1997, the Board of Directors approved
resolutions to amend the Plan as specified herein.
WHEREAS, the shareholders ("Shareholders") of Superior Services, Inc.
Common Stock $.01 par value, desire to amend the Plan as specified herein.
WHEREAS, on May 12, 1998, the Shareholders approved the amendment to
the Plan as specified herein.
NOW, THEREFORE, BE IT RESOLVED that Section 4(a)(i) of the Plan shall
be deleted in its entirety and the following shall be substituted
therefor:
"The number of Shares with respect to which Awards may be granted
under the Plan shall be 3,200,000."
IN WITNESS WHEREOF, Superior Services, Inc. has caused this Amendment
to be duly executed, all as of date and year first above written.
SUPERIOR SERVICES, INC.
By: /s/ Peter J. Ruud
Peter J. Ruud
Secretary
EXHIBIT 5
May 27, 1998
Superior Services, Inc.
10150 West National Avenue
Suite 350
West Allis, WI 53227
Gentlemen:
We have acted as counsel for Superior Services, Inc., a Wisconsin
corporation (the "Company"), in conjunction with the preparation of a Form
S-8 Registration Statement (the "Registration Statement") to be filed by
the Company with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"), relating to
2,000,000 additional shares of the Company's common stock, $0.01 par
value, including an attached common stock purchase right which trades with
each such share of Common Stock (the "Common Stock"), which may be issued
pursuant to the Superior Services, Inc. 1996 Equity Incentive Plan (the
"Plan").
We have examined: (i) the Amended Plan; (ii) the Registration
Statement; (iii) the Company's Restated Articles of Incorporation and
Bylaws, as amended to date; (iv) resolutions of the Company's Board of
Directors relating to the Amended Plan; and (v) such other documents and
records as we have deemed necessary to enable us to render this opinion.
Based on the foregoing, we are of the opinion that:
1. The Company is a corporation validly existing under the laws of
the State of Wisconsin.
2. The Common Stock, when issued and paid for in the manner set
forth in the Plan, will be validly issued, fully paid and nonassessable
and no personal liability will attach to the ownership thereof, except
with respect to wage claims of employees of the Company for services
performed not to exceed six months service in any one case, as provided in
Section 180.0622(2)(b) of the Wisconsin Business Corporation Law.
We consent to the use of this opinion as an Exhibit to the
Registration Statement. In giving our consent, we do not admit that we
are "experts" within the meaning of Section 11 of the Securities Act or
within the category of persons whose consent is required by Section 7 of
said Act.
Very truly yours,
/s/ FOLEY & LARDNER
FOLEY & LARDNER
EXHIBIT 24.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
on Form S-8 pertaining to the Superior Services, Inc. 1996 Equity
Incentive Plan of our report dated February 5, 1998, 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,
1997, filed with the Securities and Exchange Commission.
Milwaukee, Wisconsin Ernst & Young, LLP
May 26, 1998
