UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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Date of Report (Date of earliest event reported) : June 11, 1999
SUPERIOR SERVICES, INC.
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(Exact name of registrant as specified in its charter)
Wisconsin 0-27508 39-1733405
(State or other jurisdiction (Commission (IRS employer
of incorporation) file number) identification No.)
South 84th Street, Suite 200,
Milwaukee, Wisconsin 53214
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(414) 479-7800
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Item 5. Other Events.
On June 11, 1999, Superior Services, Inc., a Wisconsin corporation
(the "Company"), entered into an Agreement and Plan of Merger (the "Merger
Agreement") with Vivendi, a societe anonyme ("Vivendi") organized under the laws
of France, providing for Vivendi's acquisition of all outstanding shares of
common stock of the Company (the "Common Stock"), including the associated
Common Stock Purchase Rights issued pursuant to the Rights Agreement, dated as
of February 21, 1997, as amended, between the Company and LaSalle National Bank,
as Rights Agent, at $27.00 per share in cash. The transaction is structured as a
cash tender offer for all outstanding shares to be followed by a merger.
In connection with the Merger Agreement, the Company granted Vivendi
an option to purchase newly issued shares of Common Stock from the Company in an
amount not to exceed 19.9% of the Company's then outstanding shares of Common
Stock at $23.75 per share. Vivendi may exercise the option (with respect to any
or all of the shares of Common Stock subject thereto) after the occurrence of
any event which entitles Vivendi to receive a termination fee under the Merger
Agreement. If Vivendi has accepted for payment shares of Common Stock pursuant
to the terms of the tender offer and owns at least 61% but less than 75% of the
then outstanding shares of Common Stock on a fully-diluted basis, then Vivendi
will exercise the option with respect to that number of shares of Common Stock
which, when added to the number of shares of Common Stock then owned by Vivendi,
would result in Vivendi owning such number of the then outstanding shares of
Common Stock that provides Vivendi with at least 50.1% of the vote represented
by outstanding shares on a fully-diluted basis.
In connection with the execution of the Merger Agreement, (i) the
Company's Chairman of the Board entered into a Shareholder Tender Agreement
pursuant to which he agreed to tender into the offer and not withdraw all shares
of Common Stock he beneficially owns, constituting approximately 8% of the
outstanding shares of Common Stock, in the tender offer and granted Vivendi an
option to purchase such shares, at the tender offer price, in certain
circumstances and (ii) the Company entered into new employment agreements with
certain key members of its senior management that will become effective once
Vivendi irrevocably accepts for payment the shares of Common Stock in the tender
offer.
The Merger Agreement, the Stock Option Agreement, the Shareholder
Tender Agreement, the employment agreements, the amendment to the Company's
Rights Agreement and the press release issued in connection with the
transactions contemplated thereby are filed as exhibits to this Form 8-K, are
incorporated by reference into the text of this Item and qualify the
descriptions of such agreements in this Item in their entirety.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on behalf by the
undersigned thereunto duly authorized.
SUPERIOR SERVICES, INC.
By: /s/ G. William Dietrich
G. William Dietrich
President and Chief Executive Officer
Date: June 14, 1999
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EXHIBIT INDEX
Exhibit
Number Description
(2.1) Agreement and Plan of Merger, dated as of June 11, 1999, by and
among Vivendi, Onyx Solid Waste Acquisition Corp. and Superior
Services, Inc.*
(2.2) Stock Option Agreement, dated as of June 11, 1999, by and between
Superior Services, Inc. and Vivendi.
(4) Amendment to Rights Agreement, dated as of June 11, 1999, by and
between Superior Services, Inc. and LaSalle National Bank.
(99.1) Shareholder Tender Agreement, dated as of June 11, 1999, by and
among Vivendi, Onyx Solid Waste Acquisition Corp. and Joseph P.
Tate.
(99.2) Employment Agreement dated as of June 11, 1999 by and between
Superior Services, Inc. and G. William Dietrich.
(99.3) Employment Agreement dated as of June 11, 1999 by and between
Superior Services, Inc. and George K. Farr.
(99.4) Employment Agreement dated as of June 11, 1999 by and between
Superior Services, Inc. and Peter J. Ruud.
(99.5) Joint Press Release dated June 14, 1999.
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* Certain exhibits and schedules to this document have been omitted in
accordance with Item 601(b) (2) of Regulation S-K. The Registrant agrees to
furnish supplementally a copy of any such omitted exhibit or schedule to the
Securities and Exchange Commission upon request.
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (hereinafter called this "Agreement"), dated
as of June 11, 1999, among SUPERIOR SERVICES, INC., a Wisconsin corporation (the
"Company"), VIVENDI, a societe anonyme organized under the laws of France
("Purchaser"), and ONYX SOLID WASTE ACQUISITION CORP., a Wisconsin corporation
and an indirect wholly-owned subsidiary of Purchaser ("Merger Sub"). The Company
and Merger Sub are sometimes hereinafter collectively referred to as the
"Constituent Corporations".
RECITALS
WHEREAS, the Boards of Directors of Purchaser and the Company each have
determined that it is in the best interests of their respective shareholders for
Purchaser to acquire the Company upon the terms and subject to the condi tions
set forth herein; and
WHEREAS, pursuant to this Agreement, Merger Sub has agreed to commence a
tender offer (as it may be amended as permitted under this Agreement, the
"Offer") to purchase all of the outstanding shares of the Company's common
stock, par value $.01 per share (the "Common Stock"), including the associated
common stock purchase rights (the "Rights") issued pursuant to the Rights
Agreement (including as amended pursuant to this Agreement) (the "Rights
Agreement"), dated as of February 21, 1997, between the Company and LaSalle
National Bank, as Rights Agent (the Common Stock, together with the Rights, are
hereinafter referred to as the "Shares"), at a price per Share of $27.00 in cash
net to the seller (such price, or any higher price per Share paid in the Offer,
the "Offer Price"); and
WHEREAS, the Board of Directors of the Company (the "Company Board") has
(i) approved the Offer and (ii) approved and adopted this Agreement and is
recommending that the Company's shareholders accept the Offer, tender their
Shares to Merger Sub and approve this Agreement; and
WHEREAS, each of the Board of Directors of Merger Sub and the Company
Board have approved and adopted the merger and the sole shareholder of Merger
Sub has approved the merger of Merger Sub with and into the Company, as set
forth below, in accordance with the Wisconsin Business Corporation Law (the
"WBCL") and upon the terms and subject to the conditions set forth in this
Agreement, whereby each
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issued and outstanding Share not owned directly or indirectly by Purchaser,
Merger Sub or the Company will be converted into the right to receive the Offer
Price in cash; and
WHEREAS, to induce Purchaser to enter into this Agreement, the Company
has entered into a Stock Option Agreement dated as of the date of this Agreement
with Purchaser (the "Stock Option Agreement"), pursuant to which the Company
will grant to Purchaser an option to purchase Shares pursuant to the terms and
conditions set forth in the Stock Option Agreement; and
WHEREAS, as a condition and inducement to Purchaser's and Merger Sub's
willingness to enter into this Agreement, the individuals set forth on Annex B
have agreed to enter into and deliver Employment Agreements in the form attached
as Annex B-1 hereto; and
WHEREAS, as a condition and inducement to Purchaser's and Merger Sub's
willingness to enter into this Agreement, Purchaser and one shareholder of the
Company are simultaneously entering into a Shareholder Tender Agreement; and
WHEREAS, the Company, Purchaser and Merger Sub desire to make certain
representations, warranties, cove nants and agreements in connection with this
Agreement.
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements contained herein and in
the Stock Option Agreement the parties hereto hereby agree as follows:
ARTICLE I
The Tender Offer
1.1. Tender Offer. (a) Provided that this Agree ment shall not have been
terminated in accordance with Article IX hereof, within five business days of
the date hereof, Purchaser shall cause Merger Sub to, and Merger Sub shall,
commence (within the meaning of Rule 14d-2(a) promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) the Offer (for all
outstanding Shares), subject only to the satisfaction or waiver of the
conditions set forth in Annex A hereto (the "Offer Conditions") and will file
with the SEC (as defined below) all necessary documents (including the Offer
Documents, as defined in Section 1.1(c)) in connection with the Offer.
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The initial expiration date of the Offer shall be the date twenty business days
from and including the date (the "Commencement Date") the Offer Documents are
first filed with the Securities and Exchange Commission (the "SEC"). Purchaser
and Merger Sub expressly reserve the right, in their sole discretion, to waive
any condition (other than the Minimum Condition, as defined in the Offer
Conditions (except that the Minimum Condition may be reduced as contemplated by
this Agreement)) and to set forth or change any other term and condition of the
Offer; provided, that, unless previously approved by the Company in writing
(which approval may be denied, withheld or conditioned in its discretion for any
reason), no provision may be set forth or changed which (i) decreases the Offer
Price; (ii) changes the form of consideration payable in the Offer (other than
by adding consideration); (iii) reduces the maximum number of Shares sought to
be purchased in the Offer; (iv) imposes conditions to the Offer in addition to
the Offer Conditions; or (v) amends or modifies any term or condition of the
Offer in a manner adverse to the holders of Shares. Merger Sub covenants and
agrees that, subject to the terms and conditions of the Offer, including but not
limited to the Offer Conditions, it will accept for payment and pay for Shares
as soon as practicable after the expiration date of the Offer. Notwithstanding
the foregoing, Purchaser shall cause Merger Sub to, and Merger Sub shall, extend
the Offer for at least an additional five business days if, on the initially
scheduled expiration date of the Offer, the Shares validly tendered and not
withdrawn pursuant to the Offer constitute at least 50%, but less than 61%, of
the then outstanding Shares (determined on a fully-diluted basis, but excluding
Shares subject to the option granted under the Stock Option Agreement) and all
other Offer Conditions are satisfied or waived. In addition, and without
limiting the foregoing, if, on the initially scheduled expiration date of the
Offer, the Shares validly tendered and not withdrawn pursuant to the Offer
constitute at least 61% of the then outstanding Shares (determined on a
fully-diluted basis, but excluding Shares subject to the option granted under
the Stock Option Agreement) but are not sufficient to satisfy the Minimum
Condition (the "Tendered Amount") and all other Offer Conditions are satisfied
or waived, Purchaser shall cause Merger Sub to, and Merger Sub shall, reduce the
Minimum Condition to the Tendered Amount, and shall extend the Offer for an
additional ten business days. In addition, and without limiting the foregoing,
Purchaser shall cause Merger Sub to, and Merger Sub shall, extend the Offer up
to twenty business days in the aggregate, in one or more periods of not more
than ten business days, if, at the initially scheduled expiration date of the
Offer, or any
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extension thereof, any one or more Offer Conditions set forth in paragraphs (a),
(c) or (d) of Annex A is not then satisfied or waived; provided, however, that
Merger Sub shall not be required to extend the Offer as provided in this
sentence unless, in Purchaser's reasonable and objective judgment, (i) each such
Offer Condition is reasonably capable of being satisfied and (ii) the Company is
in material compliance with all of its covenants under this Agreement. It is
agreed that the terms and conditions set forth in the Offer, including but not
limited to the Offer Conditions, are for the sole benefit of Purchaser and
Merger Sub and, subject to the terms of this Agreement, may be asserted by
Purchaser and Merger Sub regardless of the circumstances (including any action
or inaction by Purchaser or Merger Sub, provided neither Purchaser nor Merger
Sub is in violation of this Agreement) giving rise to any such condition. When
used in this Agreement, the term "business day" shall have the meaning ascribed
to such term in Rule 14d-1 under the Exchange Act.
(b) The Company hereby approves of and consents to the Offer and the
Merger (as defined in Section 2.1). The Company hereby represents, warrants and
agrees (as applicable) that: (i) the Company Board, at a meeting duly called and
held on June 11, 1999, has unanimously (A) determined that this Agreement and
the Stock Option Agreement and the transactions contemplated hereby and thereby,
including each of the Offer and the Merger, are in the best interests of the
holders of Shares, (B) approved and adopted this Agreement and approved the
Stock Option Agreement and the transactions contemplated hereby and thereby,
including each of the Offer and the Merger, and (C) resolved to recommend in a
Solicitation/Recommendation Statement on Schedule 14D-9 (together with any
amendments or supplements thereto, the "Schedule 14D-9") to be filed with the
SEC upon commencement of the Offer that the shareholders of the Company accept
the Offer, tender their Shares to Merger Sub thereunder and approve this
Agreement and the transactions contemplated hereby, including the Merger; (ii)
the Company Board has taken all action necessary to render Sections 180.1140 to
180.1144 of the WBCL, Article IV of the Restated Articles (as defined in Section
3.1) and the Rights Agreement inapplicable to the Offer and the Merger; (iii)
the Schedule 14D-9 will set forth the information contained in this Section
1.1(b)(i) and (ii); and (iv) Robert W. Baird & Co. Incorporated (the "Financial
Advisor") has delivered to the Company Board its written opinion that, as of the
date hereof, the $27.00 per Share in cash to be received by holders of Shares,
other than Purchaser and Merger Sub, pursuant to each of the Offer and the
Merger is fair to such
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holders from a financial point of view. The Company has been authorized by the
Financial Advisor to permit the inclusion of such fairness opinion (and a
reference thereto) in the Schedule 14D-9 and in the Proxy Statement referred to
in Section 7.3, subject to review and reasonable approval thereof by the
Financial Advisor. Subject to the terms and conditions of this Agreement, the
Company hereby consents to the inclusion in the Offer Documents of the
recommendations of the Company Board described herein.
(c) Purchaser shall disseminate to the holders of Shares the Offer
Documents to the extent required by law upon the commencement of the Offer.
Purchaser agrees, as to the Offer to Purchase and related Letter of Transmittal
(which together, including any amendments and supplements thereto, constitute
the "Offer Documents") and the Company agrees, as to the Schedule 14D-9, that
such documents shall, in all material respects, comply with the requirements of
the Exchange Act and the rules and regulations thereunder and other applicable
laws. The Company and its counsel, as to the Offer Documents, and Purchaser and
Merger Sub and its counsel, as to the Schedule 14D-9, shall be given an oppor
tunity to review such documents a reasonable time prior to their being filed
with the SEC. Each of the Company, on the one hand, and Purchaser and Merger
Sub, on the other hand, agree promptly to correct any information provided by
either of them for use in the Schedule 14D-9 if and to the extent that it shall
have become false or misleading, and the Company further agrees to take all
steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the
SEC and to be disseminated to the holders of Shares, in each case, as and to the
extent required by applicable federal securities laws. The Company will provide
Purchaser and Merger Sub, and their counsel, with a copy of any written comments
or telephonic notification of any oral comments the Company may receive from the
SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt
thereof, and will provide Purchaser and Merger Sub and their counsel with an
opportunity to review any written responses and telephonic notification of any
oral responses of the Company or its counsel.
(d) In connection with the Offer, the Company will cause its Transfer
Agent to furnish promptly to Merger Sub a list, as of a recent date, of the
record holders of Shares and their addresses, as well as mailing labels con
taining the names and addresses of all record holders of Shares and lists of
security positions of Shares held in stock depositories. In connection with the
Offer, the Company will furnish Merger Sub with such additional infor mation
(including, but not limited to, updated lists of
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holders of Shares and their addresses, mailing labels and lists of security
positions) and such other assistance as Purchaser or Merger Sub or their agents
may reasonably request in communicating the Offer and the Merger to the record
and beneficial holders of Shares. Subject to the requirements of applicable law,
and except for such actions as are necessary to disseminate the Offer Documents
and any other documents necessary to consummate the Offer or the Merger,
Purchaser, Merger Sub, and their affiliates, associates, agents and advisors
shall use the information contained in any such labels, listings and files only
in connection with the Offer and the Merger, and, if this Agreement shall be
terminated, will promptly thereafter deliver to the Company all copies of such
information then in their possession.
ARTICLE II
The Merger; Closing; Effective Time
2.1. The Merger. Subject to the terms and condi tions of this Agreement,
at the Effective Time (as defined in Section 2.3) Merger Sub shall be merged
with and into the Company and the separate corporate existence of Merger Sub
shall thereupon cease (the "Merger"). The Company shall be the surviving
corporation in the Merger (sometimes hereinafter referred to as the "Surviving
Corporation") and shall continue to be governed by the laws of the State of
Wisconsin, and the separate corporate existence of the Company with all its
rights, privileges, immunities, powers and franchises shall continue unaffected
by the Merger, except as set forth in Section 3.1. The Merger shall have the
effects specified in the WBCL.
2.2. Closing. The closing of the Merger (the "Closing") shall take place
(i) at the offices of Sullivan & Cromwell, 125 Broad Street, New York, New York
at 10:00 A.M. on the third business day after the date on which the last to be
fulfilled or waived of the conditions set forth in Article VIII hereof shall be
fulfilled or waived in accordance with this Agreement or (ii) at such other
place and time and/or on such other date as the Company and Purchaser may agree.
2.3. Effective Time. In connection with and as part of the Closing, the
Company and Purchaser will, in the manner required by the WBCL, cause Articles
of Merger (the "Articles of Merger") to be delivered to the Department of
Financial Institutions of the State of Wisconsin as provided in Section 180.1105
of the WBCL. The Merger shall become
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effective on the date on which the Articles of Merger, in the manner required by
the WBCL, have been duly filed with the Department of Financial Institutions of
the State of Wisconsin, and such time is hereinafter referred to as the
"Effective Time."
ARTICLE III
Restated Articles of Incorporation and By-Laws
of the Surviving Corporation
3.1. Restated Articles of Incorporation. The Restated Articles of
Incorporation of the Company (the "Restated Articles") in effect at the
Effective Time shall be the Restated Articles of Incorporation of the Surviving
Corporation, until duly amended in accordance with the terms thereof and the
WBCL, except that Article II of the Com pany's Restated Articles shall be
amended to read in its entirety as follows:
"The aggregate number of shares which the Corporation shall have
the authority to issue is 1,000 shares of Common Stock, par value $.01
per share."
3.2. The By-Laws. The By-Laws of Merger Sub in effect at the Effective
Time shall be the By-Laws of the Surviving Corporation, until duly amended in
accordance with the terms thereof and the WBCL.
ARTICLE IV
Officers and Directors
of the Surviving Corporation
4.1. Officers and Directors. The directors of Merger Sub and the officers
of the Company at the Effective Time shall, from and after the Effective Time,
be the directors and officers, respectively, of the Surviving Corporation until
their successors have been duly elected or appointed and qualified or until
their earlier death, resignation or removal in accordance with the Surviving
Corporation's Restated Articles of Incorporation and ByLaws.
4.2. Boards of Directors; Committees. If requested by Purchaser in
writing, the Company will, subject to compliance with applicable law and
promptly following the purchase by Merger Sub of Shares pursuant to the Offer,
take all actions necessary to cause Persons (as defined in
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Section 9.5(b)) designated by Purchaser to become directors of the Company so
that the total number of directors designated by Purchaser equals the number,
rounded up to the next whole number, which is the product of (i) the total
number of directors on the Company Board multiplied by (ii) a fraction, the
numerator of which is the aggregate number of Shares beneficially owned by
Merger Sub or any affiliate of Merger Sub and the denominator of which is the
total number of Shares then outstanding; provided, however, that prior to the
Effective Time, the Company Board shall always have at least two members who are
not officers, directors, shareholders or designees of Purchaser or any of
Purchaser's affiliates ("Purchaser Insiders"). If, prior to the Effective Time,
the number of directors who are not Purchaser Insiders is reduced below two for
any reasons, then the remaining director who is not a Purchaser Insider shall be
entitled to designate a Person (or Persons) who is not a Purchaser Insider or
any affiliate of such Purchaser Insider to fill such vacancy (or vacancies) and
such designee shall be deemed to not be a Purchaser Insider for all purposes of
this Agreement. In furtherance thereof, the Company will increase the size of
the Company Board, or use its reasonable best efforts to secure the resignation
of directors, or both, as is necessary to permit Purchaser's designees to be
elected or appointed to the Company Board. At such time, the Company, if
requested by the Purchaser in writing, will use its reasonable best efforts to
cause Persons designated by Purchaser to constitute the same proportionate
representation (as it exists on the Company Board after giving effect to the
foregoing) of each committee of the Company Board, each board of directors of
each subsidiary of the Company and each committee of each such board (in each
case to the extent of the Company's ability to elect such Persons); provided,
however, that prior to the Effective Time, each committee of the Company Board,
each board of directors of each subsidiary of the Company and each committee
thereof shall have at least one member who is not a Purchaser Insider. The
Company's obligations to appoint Purchaser's designees to the Company Board
shall be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated
thereunder. The Company shall promptly take all actions required pursuant to
such Section and Rule in order to fulfill its obligations under this Section 4.2
and shall include in the Schedule 14D-9, or in a separate Rule 14f-1 information
statement provided to shareholders, such information with respect to the Company
and its officers and directors as is required under Section 14(f) and Rule 14f-1
to fulfill its obligations under this Section 4.2. Purchaser shall provide the
Company in writing with true and correct information with respect to itself and
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its officers, directors and affiliates required by such Section and Rule.
4.3. Actions by Directors. From and after the election or appointment of
the Purchaser Insiders pursuant to Section 4.2 and prior to the Effective Time,
any amendment or termination of this Agreement by the Company, any extension by
the Company of the time for the performance of any of the obligations or other
acts of Purchaser or Merger Sub, or waiver of any of the Company's rights
hereunder will require the affirmative vote of at least a majority of the
directors of the Company then in office who are not Purchaser Insiders.
ARTICLE V
Conversion or Cancellation of Shares in the Merger
5.1. Conversion or Cancellation of Shares. The manner of converting or
canceling Shares and shares of Merger Sub in the Merger shall be as follows:
(a) At the Effective Time, each Share issued and outstanding immediately
prior to the Effective Time (other than Shares owned by Purchaser, Merger Sub,
any other subsidiary of Purchaser (collectively, the "Purchaser Companies") or
held in the treasury of the Company or owned by any wholly-owned subsidiary of
the Company) or Shares which are held by shareholders ("Dissenting
Shareholders") exercising appraisal rights pursuant to Sections 180.1301 to
180.1331 of the WBCL) shall, by virtue of the Merger and without any action on
the part of the holder thereof, be converted into the right to receive, without
interest, an amount in cash equal to $27.00 or such greater amount which may be
paid pursuant to the Offer (the "Merger Considera tion"). All such Shares, by
virtue of the Merger and without any action on the part of the holders thereof,
shall no longer be outstanding and shall be canceled and retired and shall cease
to exist, and each holder of a certificate representing any such Shares shall
thereafter cease to have any rights with respect to such Shares, except the
right to receive the Merger Consideration for such Shares upon the surrender of
such certificate in accordance with Section 5.2 or the right, if any, to receive
payment from the Surviving Corporation of the "fair value" of such Shares as
determined in accordance with Sections 180.1301 to 180.1331 of the WBCL.
(b) At the Effective Time, each Share issued and outstanding at the
Effective Time and owned by any of the
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Purchaser Companies (as defined in Section 5.1(a)), and each Share issued and
held in the treasury of the Company or owned by any wholly owned subsidiary of
the Company, shall, by virtue of the Merger and without any action on the part
of the holder thereof, cease to be outstanding, shall be canceled and retired
without payment of any consideration therefor and shall cease to exist.
(c) At the Effective Time, each share of common stock, par value $.01 per
share, of Merger Sub issued and outstanding immediately prior to the Effective
Time shall, by virtue of the Merger and without any action on the part of Merger
Sub or the holders of such shares, be converted into and become one validly
issued, fully paid and non-assessable (except as provided in Section
180.0622(2)(b) of the WBCL) share of common stock, par value $.01 per share, of
the Surviving Corporation.
5.2. Payment for Shares. At the Effective Time, Purchaser shall make
available or cause to be made available to the paying agent appointed by
Purchaser with the Company's prior approval, which shall not be unreasonably
withheld (the "Paying Agent"), amounts sufficient in the aggregate to provide
all funds necessary for the Paying Agent to make payments pursuant to Section
5.1(a) hereof to holders of all Shares issued and outstanding immediately prior
to the Effective Time (other than Shares owned by any of the Purchaser Companies
or any Shares issued and held in the treasury of the Company or owned by any
wholly-owned subsidiary of the Company). Such funds shall be invested by the
Paying Agent as directed by Purchaser in United States treasury securities and
shall not be used for any other purpose than paying for the Merger Consideration
(other than as provided below). Any net profit resulting from, or interest or
income produced by, such investments will be payable to the Surviving
Corporation or Purchaser, as Purchaser directs. Promptly (but not later than ten
business days) after the Effective Time, the Surviving Corporation shall cause
to be mailed to each Person who was, at the Effective Time, a holder of record
(other than any of the Purchaser Companies) of issued and outstanding Shares a
form (mutually agreed to by Purchaser and the Company) of letter of transmittal
and instructions for use in effecting the surrender of the certificates which,
immediately prior to the Effective Time, represented such Shares in exchange for
payment therefor. Upon surrender to the Paying Agent of such certificates,
together with such letter of transmittal, duly executed and completed in
accordance with the instructions thereto, the Surviving Corporation shall
promptly (but not later than five business days after receipt) cause to be paid
to the Persons entitled thereto a
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check in the amount to which such Persons are entitled, after giving effect to
any required tax withholdings. No interest will be paid or will accrue on the
amount payable upon the surrender of any such certificate. If payment is to be
made to a Person other than the registered holder of the certificate
surrendered, it shall be a condition of such payment that the certificate so
surrendered shall be properly endorsed or otherwise in proper form for transfer
and that the Person requesting such payment shall pay any transfer or other
taxes required by reason of the payment to a Person other than the registered
holder of the certificate surrendered or establish to the satisfaction of the
Surviving Corporation or the Paying Agent that such tax has been paid or is not
applicable. One hundred and eighty days following the Effective Time, the
Purchaser shall be entitled to cause the Paying Agent to deliver to it or to the
Surviving Corporation any funds (including any net profit, interest and income
produced with respect thereto) made available to the Paying Agent which have not
been disbursed to holders of certificates formerly representing Shares
outstanding on the Effective Time, and thereafter such holders shall be entitled
to look to the Surviving Corporation only as general creditors thereof with
respect to the cash payable upon due surrender of their certificates.
Notwithstanding the foregoing, neither the Paying Agent nor any party hereto
shall be liable to any holder of certificates formerly representing Shares for
any amount paid to a public official pursuant to any applicable abandoned
property, escheat or similar law. The Surviving Corporation shall pay all
charges and expenses, including those of the Paying Agent, in connection with
the exchange of cash for Shares and Purchaser shall reimburse the Surviving
Corporation for such charges and expenses.
5.3. Dissenters' Rights. If any Dissenting Shareholder shall be entitled
to be paid the "fair value" of his or her Shares, as provided in Sections
180.1301 to 180.1331 of the WBCL, the Company shall give Purchaser notice
thereof and Purchaser shall have the right to conduct all negotiations and
proceedings with respect to any such demands. Neither the Company nor the
Surviving Corporation shall, except with the prior written consent of Purchaser,
voluntarily make any payment with respect to, or negotiate, settle or offer to
settle, any such demand for payment. If any Dissenting Shareholder shall fail to
perfect or shall have effectively withdrawn or lost the right to dissent and
demand payment under the WBCL, the Shares held by such Dissenting Shareholder
shall thereupon be treated as though such Shares had been converted into the
Merger Consideration pursuant to Section 5.1.
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5.4. Transfer of Shares After the Effective Time. No transfers of Shares
shall be made on the stock transfer books of the Surviving Corporation at or
after the Effective Time.
ARTICLE VI
Representations and Warranties
6.1. Representations and Warranties of the Company. The Company hereby
represents and warrants to Purchaser and Merger Sub that:
(a) Corporate Organization and Qualification. Each of the Company and its
subsidiaries is a corporation duly organized, validly existing and in good
standing (to the extent such concept is recognized under applicable law) under
the laws of its respective jurisdiction of incorpora tion and is in good
standing as a foreign corporation in each jurisdiction where the properties
owned, leased or operated, or the business conducted, by it require such
qualification, except for such failure to so qualify or be in such good
standing, which, individually or in the aggregate with all other such failures,
is not reasonably likely to have a Material Adverse Effect (as defined below).
Each of the Company and its subsidiaries has the requisite corporate power and
authority to carry on its respective businesses as they are now being conducted.
The Company has made available to Purchaser a complete and correct copy of the
Company's Restated Articles and By-Laws, each as amended to date, and complete
and correct copies of the organizational documents of each of the Company's
subsidiaries. The Company's Restated Articles and By-Laws as made available are
in full force and effect. As used in this Agreement, the term "Material Adverse
Effect" shall mean with respect to either Purchaser or the Company, a material
adverse effect on the financial condition, properties, business or results of
operations of the Company or Purchaser, as applicable, and its respective
subsidiaries, taken as a whole.
(b) Authorized Capital. The authorized capital stock of the Company
consists of 100,000,000 Shares, of which 32,365,094 Shares were outstanding on
June 7, 1999, and 500,000 shares of Preferred Stock, par value $.01 per share
(the "Preferred Shares"), of which there were no shares outstanding on June 7,
1999. All of the outstanding Shares have been duly authorized and are validly
issued, fully paid and nonassessable (except as provided in Section
180.0622(2)(b) or the WBCL). Other than Shares reserved for
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issuance pursuant to the Stock Option Agreement, the Company has no Shares or
Preferred Shares reserved for issuance, except that, as of June 7, 1999, there
were 3,456,763 Shares reserved for issuance pursuant to outstanding options
granted (and 1,431,056 Shares reserved for future option grants) under the 1993
Incentive Stock Option Plan, the 1996 Equity Incentive Plan, the 1998
Broad-Based Stock Option Plan, certain individual nonqualified stock option and
employment agreements, the Geowaste 1992 Stock Option Plan and the Geowaste 1996
Stock Option Plan (collectively, the "Stock Plans"), 544,991 Shares reserved for
issuance pursuant to the terms of the acquisition agreements listed on Schedule
6.1(b) to this Agreement (the "Completed Acquisitions"), 1,296,297 Shares
reserved for issuance pursuant to the terms of pending acquisitions listed on
Schedule 6.1(b) and 39,094,201 Shares reserved for issuance pursuant to the
Rights Agreement. Schedule 6.1(b) sets forth all outstanding Options (as defined
in Section 7.8(a)) and the number, exercise prices and expiration dates of each
grant. Except as set forth in Schedule 6.1(b) and except for the Stock Option
Agreement, since December 31, 1998, the Company has not granted any Options or
issued any shares of capital stock except pursuant to the terms of any Stock
Plan or the exercise of Options outstanding as of such date. All Shares which
may be issued pursuant to (i) the exercise of outstanding Options and (ii) the
Completed Acquisitions, will be, when issued and paid for in accordance with the
respective terms thereof, duly authorized, validly issued, fully paid and
nonassessable (except as provided in Section 180.0622(2)(b) of the WBCL) and are
not subject to, nor were they issued in violation of, any preemptive rights.
Except as set forth in Schedule 6.1(b), each of the outstanding shares of
capital stock of each of the Company's subsidiaries is duly authorized, validly
issued, fully paid and nonassessable (except, in the case of subsidiaries
incorporated in the State of Wisconsin, as provided in Section 180.0622(2)(b) of
the WBCL) and owned, either directly or indirectly, by the Company, free and
clear of all liens, pledges, security interests, claims or other encumbrances.
Except as set forth above or on Schedule 6.1(b), there are no shares of capital
stock of the Company authorized, issued or outstanding and except as set forth
above and as provided in the Stock Option Agreement and in the Rights Agreement,
there are no preemptive rights nor any outstanding subscriptions, options,
warrants, rights, convertible securities or other agreements or commitments of
any character relating to the issued or unissued capital stock or other
securities of the Company or any of its subsidiaries. Except as set forth in
Schedule 6.1(b) or as contemplated by this Agreement, there are no outstanding
contractual obligations of the Company or any of its
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subsidiaries to repurchase, redeem or otherwise acquire any shares of the
capital stock of the Company or any of its subsidiaries. Immediately prior to
the consummation of the Offer, no Shares, Preferred Shares or any other
securities of the Company will be subject to issuance pursuant to the Rights
Agreement, no Distribution Date (as defined in the Rights Agreement) shall have
occurred and, at or after the Effective Time, the Surviving Corporation will
have no obligation to issue, transfer or sell any Shares or common stock
pursuant to any Benefit Plan (as defined in Section 7.1(d)).
(c) Corporate Authority. Subject only to approval of this Agreement by
the holders of a majority of the outstanding Shares, the Company has the
requisite corporate power and authority and has taken all corporate action
necessary in order to execute and deliver this Agreement and the Stock Option
Agreement and to consummate the transactions contemplated hereby and thereby.
This Agreement and the Stock Option Agreement is a valid and binding agreement
of the Company enforceable against the Company in accordance with its terms,
assuming the due authorization, execution and delivery hereof by Purchaser and
Merger Sub.
(d) Governmental Filings; No Violations. (i) Other than the filings
provided for in Section 2.3, as required under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 (the "HSR Act"), the Exchange Act and such material
filings, consents, registrations, approvals, permits or authorizations, if any,
as set forth on Schedule 6.1(d)(i) (the "Regulatory Approvals"), no notices,
reports or other filings are required to be made by the Company with, nor are
any consents, registrations, approvals, permits or authorizations required to be
obtained by the Company from, any governmental or regulatory authority, agency,
commission or other entity, domestic or foreign ("Governmental Entity"), in
connection with the execution and delivery of this Agreement by the Company and
the consummation by the Company of the transactions contemplated hereby, except
for such failure to make or obtain that, individually or in the aggregate, is
not reasonably likely to (x) have a Material Adverse Effect or (y) prevent,
materially delay or materially impair the ability of the Company to consummate
the transactions contemplated by this Agreement.
(ii) Except as to matters set forth in Schedule 6.1(d)(ii), the execution
and delivery of this Agreement by the Company do not, and the consummation by
the Company of the transactions contemplated by this Agreement will not,
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constitute or result in (A) a breach or violation of, or a default under, the
Restated Articles or By-Laws of the Company or the comparable organizational
documents of any of its subsidiaries, (B) except as disclosed in the Company
Reports (as defined in Section 6.1(e)) or as set forth in Schedule 6.1(b) or
Schedule 6.1(d)(i), a breach or violation of, a default under or the triggering
of any payment or other material obligations pursuant to, any of the Company's
existing Benefit Plans or any grant or award made under any of the foregoing,
(C) a breach or violation of, or a default under, the acceleration of or the
creation of a lien, pledge, security interest or other encumbrance on assets
(with or without the giving of notice or the lapse of time) pursuant to any
provision of any agreement, lease, contract (including, without limitation,
municipal waste collection franchise agreements ("Municipal Contracts")), note,
mortgage, indenture, arrangement or other obligation ("Contracts") of the
Company or any of its subsidiaries or any law, rule, ordinance or regulation or
judgment, decree, order, award or governmental or non-governmental permit or
license to which the Company or any of its subsidiaries is subject or (D) any
change in the rights or obligations of any party under any of the Contracts,
except, in the case of clause (C) or (D) above, for such breaches, violations,
defaults, accelerations or changes that, individually or in the aggregate, are
not reasonably likely to (x) have a Material Adverse Effect or (y) prevent,
materially delay or materially impair the ability of the Company to consummate
the transactions contemplated by this Agreement. Schedule 6.1(d)(ii) sets forth,
to the knowledge of the Company, a list of any consents required under any
Contracts to be obtained prior to consummation of the transactions contemplated
by this Agreement (whether or not subject to the exception set forth with
respect to clause (C) above). The Company will use its reasonable best efforts
to obtain the consents referred to in Schedule 6.1(d)(ii). The term "knowledge"
when used in this Agreement with respect to the Company shall mean the actual
present knowledge of Peter J. Ruud, George K. Farr and Scott S. Cramer, without
refreshment of their recollections and memory by way of any review or inquiry.
(e) Company Reports; Financial Statements. The Company has delivered to
Purchaser (x) each registration statement, schedule, report, proxy statement or
information statement prepared by it since December 31, 1998 ("Audit Date"),
including, without limitation, (i) the Company's Annual Report on Form 10-K for
the year ended December 31, 1998, (ii) the Company's Quarterly Report on Form
10-Q for the quarterly period ended March 31, 1999, and (iii) the Company's
proxy statement for the Annual Meeting of
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<PAGE>
Shareholders held on May 11, 1999, and (y) the Company's registration statement
on Form S-4 filed on May 30, 1997, and the Company's registration statement on
Form S-3, filed on August 7, 1997, each in the form (including exhibits and any
amendments thereto) filed with the SEC (collectively, the "Company Reports"). As
of their respective dates, the Company Reports complied in all material respects
with the applicable requirements under the Exchange Act and did not, and any
Company Reports filed with the SEC subsequent to the date hereof will not, as of
its date, contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements made therein, in light of the circum stances under which they were
made, not misleading. Each of the consolidated balance sheets included in or
incorporated by reference into the Company Reports (including the related notes
and schedules) presents fairly in all material res pects the consolidated
financial position of the Company and its subsidiaries as of its date and each
of the consolidated statements of income, shareholders' investment and cash flow
included in or incorporated by reference into the Company Reports (including any
related notes and schedules) presents fairly in all material respects the
results of operations, retained earnings and changes in financial position, as
the case may be, of the Company and its subsidiaries for the periods set forth
therein (subject, in the case of unaudited statements, to normal year-end audit
adjustments), in each case in accordance with generally accepted accounting
principles consistently applied during the periods involved, except as may be
noted therein.
(f) Absence of Certain Changes. Except as dis closed in the Company
Reports filed with the SEC prior to the date hereof or otherwise disclosed in
Schedule 6.1(f), since December 31, 1998, the Company and its subsidiaries have
conducted their respective businesses only in, and have not engaged in any
material transaction other than according to, the ordinary and usual course of
such businesses and there has not been (i) any event or occurrence that is
reasonably likely to have a Material Adverse Effect or any development or
combination of developments of which the Company has knowledge which is
reasonably likely to result in a Material Adverse Effect; (ii) any declaration,
setting aside or payment of any dividend or other distribution with respect to
the capital stock of the Company; (iii) any change by the Company in accounting
principles, practices or methods, except as provided for herein or as disclosed
in the Company Reports filed with the SEC prior to the date hereof; or (iv) any
increase in the compensation payable or which could become payable by the
Company and its subsidi aries to their officers or key employees, or any
adoption,
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amendment or termination of any Benefit Plans (other than (A) normal scheduled
increases in compensation and (B) entering into customary employment
arrangements in the ordinary and usual course of business with newly hired
employees).
(g) Litigation and Liabilities. Except as dis closed in the Company
Reports filed with the SEC prior to the date hereof, reserved against in the
consolidated balance sheets included in or incorporated by reference into the
Company Reports, or as set forth on Schedule 6.1(g), there are no (i) civil,
criminal or administrative actions, suits, claims, hearings, investigations or
proceedings pending or, to the knowledge of the Company, threatened in writing
against the Company or any of its subsidiaries or (ii) obligations or
liabilities (whether absolute, fixed, accrued, contingent or otherwise,
including, without limitation, those relating to matters involving any
Environmental Law (as defined in Section 6.1(l)), or any other facts or
circumstances of which the Company has knowledge that could result in any claims
against or obligations or liabilities of the Company or any of its subsidiaries,
that individually or in the aggregate, are reasonably likely to have a Material
Adverse Effect. Except as disclosed in the Company Reports filed with the SEC
prior to the date hereof or on Schedule 6.1(g), neither the Company nor any of
its subsidiaries is subject to any outstanding order, writ, injunction or decree
that, individually or in the aggregate, is reasonably likely to have a Material
Adverse Effect or could prevent, materially delay or materially impair the
ability of the Company to consummate the transactions contemplated by this
Agreement.
(h) Employee Benefits. (i) The Company Reports, together with Schedule
6.1(h), accurately describe all material bonus, deferred compensation, pension,
retirement, profit-sharing, thrift, savings, employee stock ownership, stock
bonus, stock purchase, restricted stock and stock option plans, all material
employment or severance contracts, other material employee benefit plans and any
applicable "change of control" or similar provisions in any plan, contract or
arrangement (regardless of whether they are funded or unfunded) which cover
current or former employees of the Company and its subsidiaries (the
"Employees"), including, but not limited to, "employee benefit plans" within the
meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA")(the "Compensation and Benefit Plans"). True and complete
copies of all Compensation and Benefit Plans, including any trust instruments
and/or insurance contracts, if any, forming a part of any such plans and
agreements, and
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all amendments thereto have been provided or made available to Purchaser.
(ii) All Compensation and Benefit Plans, other than "multiemployer plans"
within the meaning of Sections 3(37) or 4001(a)(3) of ERISA, covering Employees
and maintained in the United States (the "Plans"), to the extent subject to
ERISA, are in substantial compliance with ERISA. Each Plan which is an "employee
pension benefit plan" within the meaning of Section 3(2) of ERISA ("Pension
Plan") and which is intended to be qualified under Section 401(a) of the
Internal Revenue Code of 1986, as amended (the "Code"), has received a favorable
determination letter from the Internal Revenue Service, and the Company is not
aware of any circumstances likely to result in revocation of any such favorable
determination letter. There is no material pending, or to the Company's
knowledge threatened in writing, litigation relating to the Compensation and
Benefit Plans. Neither the Company nor any of its subsidiaries has engaged in a
transaction with respect to any Plan that, assuming the taxable period of such
transaction expired as of the date hereof, could subject the Company or any of
its subsidiaries to a tax or penalty imposed by either Section 4975 of the Code
or Section 502(i) of ERISA in an amount which would be material to the Company
and its subsidiaries taken as a whole.
(iii) Except as disclosed in Schedule 6.1(h)(iii), no liability under
Subtitle C or D of Title IV of ERISA has been or is expected to be incurred by
the Company or any of its subsidiaries with respect to any ongoing, frozen or
terminated "single-employer plan", within the meaning of Section 4001(a)(15) of
ERISA, currently or formerly maintained by any of them, or the single-employer
plan of any entity which is considered one employer with the Company under
Section 4001 of ERISA or Section 414 of the Code (an "ERISA Affiliate"), which
liability is reasonably likely to have a Material Adverse Effect. The Company
and its subsidiaries have not incurred and do not expect to incur any withdrawal
liability with respect to a multiemployer plan under Subtitle E of Title IV of
ERISA (regardless of whether based on contributions of an ERISA Affiliate),
which liability is reasonably likely to have a Material Adverse Effect. No
notice of a "reportable event", within the meaning of Section 4043 of ERISA for
which the 30-day reporting requirement has not been waived, has been required to
be filed for any Pension Plan or by any ERISA Affiliate within the 12-month
period ending on the date hereof.
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(iv) All material contributions required to be made under the terms of
any Plan and any contribution required to be made under the terms of any Plan
which is subject to the funding standards of Section 412 the Internal Revenue
Code, have been timely made or have been reflected in the financial statements
included in or incorporated by reference into the Company Reports. Neither any
Pension Plan nor any single-employer plan of an ERISA Affiliate has an
"accumulated funding deficiency" (whether or not waived) within the meaning of
Section 412 of the Code or Section 302 of ERISA. Neither the Company nor any of
its subsidiaries has provided, or is required to provide, security to any
Pension Plan or to any single-employer plan of an ERISA Affiliate pursuant to
Section 401(a)(29) of the Code.
(v) Under each Pension Plan which is a single- employer plan, as of the
last day of the most recent plan year ended prior to the date hereof, the
actuarially deter mined present value of all "benefit liabilities", within the
meaning of Section 4001(a)(16) of ERISA (as determined on the basis of the
actuarial assumptions contained in the Plan's most recent actuarial valuation),
did not exceed the then current value of the assets of such Plan by more than
$100,000, and there has been no material change in the financial condition of
such Plan since the last day of the most recent Plan Year.
(vi) Neither the Company nor any of its subsidiaries have any obligations
for retiree health and life benefits under any Plan, except as disclosed in the
Company Reports or as set forth on Schedule 6.1(h).
(vii) Except as set forth in the Company Reports or Schedule 6.1(b), the
consummation of the transactions contemplated by this Agreement will not (x)
entitle any employees of the Company or any of its subsidiaries to severance
pay, (y) accelerate the time of payment or vesting or trigger any payment or
funding (through a grantor trust or otherwise) of compensation or benefits
under, increase the amount payable or trigger any other material obligation
pursuant to, any of the Compensation and Benefit Plans or (z) result in payments
under any of the Benefit Plans which would not be deductible under Section
162(m) or Section 280G of the Internal Revenue Code of 1986, as amended (the
"Code").
(viii) All Compensation and Benefit Plans maintained outside of the
United States comply in all material respects with applicable local law. The
Company and its subsidiaries have no material unfunded liabilities with respect
to any such Compensation and Benefit Plan.
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(i) Brokers and Finders. Neither the Company nor any of its officers,
directors or employees has employed any broker or finder or incurred any
liability for any brokerage fees, commissions or finders fees in connection with
the transactions contemplated herein, except that the Company has employed each
of the Financial Advisor and BT Alex. Brown Incorporated as its financial
advisors, the arrangements with which have been disclosed in writing to
Purchaser prior to the date hereof.
(j) Rights Agreement. The Company has taken all necessary action,
including, without limitation, amending the Rights Agreement, with respect to
all of the outstanding Rights issued pursuant to the Rights Agreement, (A) to
render the Rights Agreement inapplicable to this Agreement, the Stock Option
Agreement, the Offer, the Merger and the other transactions contemplated hereby
and thereby, (B) to ensure that (1) Purchaser and Merger Sub, or either of them,
are not deemed to be an Acquiring Person (as defined in the Rights Agreement)
pursuant to the Rights Agreement and (2) neither a Distribution Date nor a
Shares Acquisition Date (as such terms are defined in the Rights Agreement)
occur by reason of the execution and delivery of this Agreement, the Stock
Option Agreement, or the consummation of the Offer or the Merger or the
consummation of the other transactions contemplated by this Agreement and the
Stock Option Agreement and (C) so that the Company will have no obligations
under the Rights or the Rights Agreement (in connection with the Offer and the
Merger) and the holders of Shares will have no rights under the Rights or the
Rights Agreement (in connection with the Offer and the Merger). The Rights
Agreement, as so amended, has not been further amended or modified. Copies of
all such amendments to the Rights Agreement have been previously provided to
Purchaser.
(k) Takeover Statutes. The Company Board has taken any and all necessary
and appropriate action to render inapplicable to the Offer, the Merger and the
other transactions contemplated by this Agreement and the Stock Option
Agreement, the provisions of Sections 180.1140 to 180.1144 of the WBCL and
Article IV of the Company's Restated Articles. Other than Section 180.1150 of
the WBCL and the potential application of Sections 180.1130 to 180.1134 of the
WBCL, no "fair price", "moratorium", "control share acquisition" or other
similar antitakeover statute or regulation (each a "Takeover Statute"), is
applicable to the Company, the Shares, the Offer, the Merger, the Stock Option
Agreement or the transactions contemplated hereby. The Company makes no
representation or warranty concerning the applicability of any Takeover Statute
other than those Takeover Statutes existing under
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the WBCL. The registration provisions of Wis. Stat. ss.552.05 are not applicable
to the Company, the Shares, the Offer, the Merger or the other transactions
contemplated hereby or by the Stock Option Agreement.
(l) Environmental Matters. Except as disclosed in the Company Reports
filed prior to the date hereof, Schedule 6.1(g) and except for those matters
that are not reasonably likely to have a Material Adverse Effect: (i) the
Company and its subsidiaries have complied at all times with all applicable
Environmental Laws; (ii) no property currently or formerly owned or operated by
the Company or any subsidiary (including soils, groundwater, surface water,
buildings or other structures) has been contaminated with any Hazardous
Substance that would reasonably be expected to require investigation or
remediation under any Environmental Law; (iii) neither the Company nor any
subsidiary is subject to any liability for any release of any Hazardous
Substance on any third party property; (iv) neither the Company nor any
subsidiary has received any notice, demand, letter, claim or request for
information indicating that it may be in violation of or subject to liability
under any Environmental Law; (v) neither the Company nor any subsidiary is
subject to any order, decree or injunction with any Governmental Entity or any
indemnity or other agreement with any third party relating to liability under
any Environmental Law; (vi) the Company and its subsidiaries have accrued
adequate reserves in accordance with generally accepted accounting principles
for all landfill closure and post closure requirements and have posted all bonds
and financial assurances required under any Environmental Laws; and (vii) the
Company has made available to Purchaser copies of all environmental reports,
studies, assessments, sampling data, closure estimates and other material
environmental information in its possession relating to Company or any
subsidiary or any of their current or former properties or operations.
As used herein, the term "Environmental Law" means any published federal,
state or local law, regulation, order, decree, permit, authorization, common law
or agency requirement relating to: (A) the protection, investigation or
restoration of the environment, health, safety, or natural resources, (B) the
handling, use, presence, disposal, release or threatened release of any solid
waste or Hazardous Substance or (C) noise, odor, landfill closure, employee
exposure, wetlands, pollution, contamination or any injury or threat of injury
to Persons or property relating to any Hazardous Substance.
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As used herein, the term "Hazardous Substance" means any substance that
is: (A) listed, classified or regulated pursuant to any Environmental Law; (B)
any petroleum product or by-product, asbestos-containing material,
lead-containing paint or plumbing, polychlorinated biphenyls, radioactive
materials or radon; or (C) any other substance which is the subject of published
regulatory action by any Governmental Authority in connection with any
Environmental Law.
(m) Tax Matters. The Company and each of its subsidiaries, and any
consolidated, combined, unitary or aggregate group for tax purposes of which the
Company or any of its subsidiaries is a member, have timely filed all material
Tax Returns (as hereinafter defined) required to be filed (taking into account
any extensions of time within which to file) by it in the manner provided by
law. All such Tax Returns are true, correct and complete in all material
respects. The Company and each of its subsidiaries have timely paid all Taxes
(including interest and penalties) due or required to be withheld from amounts
owing to any employee, creditor or third party (whether or not shown as being
due on any returns), except where the failure to pay, individually or in the
aggregate, is not reasonably likely to have a Material Adverse Effect, and have
provided adequate reserves in accordance with generally accepted accounting
principles in their financial statements for any Taxes not yet due and payable.
Except as has been disclosed to Purchaser in Schedule 6.1(m), and except for
those matters that, individually or in the aggregate, are not reasonably likely
to have a Material Adverse Effect: (i) no material claim for unpaid Taxes has
become a lien or encumbrance of any kind against the property of the Company or
any of its subsidiaries or is being asserted against the Company or any of its
subsidiaries (except for Taxes not yet due and payable); (ii) no audit,
examination, investigation or other proceeding in respect of Taxes is pending
or, to the knowledge of the Company, threatened in writing or being conducted by
a Tax authority; (iii) all deficiencies asserted or assessments made as a result
of any Tax examinations have been settled or paid in full (or are being
contested in good faith); (iv) no extension or waiver of the statute of
limitations on the assessment of any Taxes has been granted by the Company or
any of its subsidiaries and is currently in effect; (v) neither the Company nor
any of its subsidiaries is a party to, is bound by, or has any obligation under,
or potential liability with regards to, any Tax sharing agreement, Tax
indemnification agreement or similar contract or arrangement (except by and
among themselves); (vi) no power of attorney has been granted by or with respect
to the Company or any of its subsidiaries
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with respect to any matter relating to Taxes; (vii) neither the Company nor any
of its subsidiaries is a party to any agreement, plan, contract or arrangement
(whether oral or in writing) that, individually or in the aggregate, is
reasonably likely to result in the payment of any "excess parachute payments"
within the meaning of Section 280G of the Code; (viii) neither the Company nor
any of its subsidiaries has any deferred intercompany gain or loss arising as a
result of a deferred intercompany transaction within the meaning of Treasury
Regulation Section 1.1502-13 (or similar provision under state, local or foreign
law) or any excess loss accounts within the meaning of Treasury Regulation
Section 1.1502-19; (ix) the Company is not and has not been a United States real
property holding corporation (as defined in Section 897(c)(2) of the Code)
during the applicable period specified in Section 897(c)(1)(ii) of the Code; (x)
neither the Company nor any of its subsidiaries has been the subject of a Tax
ruling that has continuing effect; (xi) neither the Company nor any of its
subsidiaries has been the subject of a closing agreement with any Tax authority
that has continuing effect; (xii) neither the Company nor any of its
subsidiaries has agreed to include, or is required to include, in income any
adjustment under either Section 481(a) or 482 of the Code (or an analogous
provision of state, local or foreign law) by reason of a change in accounting
method or otherwise. As used herein, "Taxes" shall mean any taxes of any kind,
including but not limited to those on or measured by or referred to as income,
gross receipts, capital, sales, use, ad valorem, franchise, profits, license,
withholding, employment, payroll premium, value added, property or windfall
profits taxes, environmental, transfer, customs, duties or similar fees,
assessments or charges of any kind whatsoever, together with any interest and
any penalties, additions to tax or additional amounts imposed by any
Governmental Entity. For purposes of this Agreement, "Taxes" also includes any
obligations under any agreements or arrangements with any Person with respect to
the liability for, or sharing of, Taxes (including, without limitation, pursuant
to Treas. Reg. ss.1.1502-6 or comparable provisions of state, local or foreign
Tax law) and including, without limitation, any liability for Taxes as a
transferee or successor, by contract or otherwise. As used herein, "Tax Return"
shall mean any return, report or statement required to be filed with any
governmental authority with respect to Taxes.
(n) Intellectual Property. (i) Except as set forth in Schedule 6.1(n),
the Company and/or each of its subsidiaries owns, or is licensed or otherwise
possesses legally enforceable rights to use all patents, trademarks,
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trade names, service marks, copyrights (and applications therefor), technology,
know-how, computer software programs or applications, and tangible and
intangible proprietary information or materials that are used in the business of
the Company and its subsidiaries as currently conducted or proposed to be
conducted, except for any such failures to own, be licensed or possess that,
individually or in the aggregate, are not reasonably likely to have a Material
Adverse Effect, and all patents, trademarks, trade names, service marks and
copyrights held and used in the business currently conducted by the Company
and/or its subsidiaries are valid, enforceable and subsisting, other than those
which, if not valid, enforceable and subsisting, are not reasonably likely to
have a Material Adverse Effect.
(ii) Except as has not had or is not reasonably likely to have a Material
Adverse Effect:
(A) the Company is not, nor will it be as a result of the execution,
delivery or performance of this Agreement by it, in violation of any licenses,
sublicenses and other agreements as to which the Company is a party and pursuant
to which the Company is authorized to use any third-party patents, trademarks,
service marks or copyrights ("Third-Party Intellectual Property Rights");
(B) no claims with respect to (I) the patents, registered and material
unregistered trademarks and service marks, registered copyrights, computer
software programs, trade names, and any applications therefor owned by the
Company or any of its subsidiaries (the "Company Intellectual Property Rights");
(II) any trade secret material to the Company; or (III) Third-Party Intellectual
Property Rights are currently pending or, to the knowledge of the Company,
threatened by any Person;
(C) the Company does not know of any valid grounds for any bona fide
claims (I) to the effect that the making, use, sale or licensing of any product
as now made, used, sold or licensed or proposed for making, use, sale or license
by the Company or any of its subsidiaries, infringes on any copyright, patent,
trademark, service mark or trade secret; (II) against the use by the Company or
any of its subsidiaries, of any trademarks, trade names, trade secrets,
copyrights, patents, technology, know-how or computer software programs and
applications used in the business of the Company or any of its subsidiaries as
currently conducted or as proposed to be conducted; (III) challenging the
ownership, validity or effectiveness of any of the Company Intellectual Property
Rights or other trade secret material to the Company; or (IV) challenging the
license or
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legally enforceable right to use of the Third-Party Intellectual Rights by the
Company or any of its subsidiaries; and
(D) to the knowledge of the Company, there is no unauthorized use,
infringement or misappropriation of any of the Company Intellectual Property
Rights by any third party, including any employee or former employee of the
Company or any of its subsidiaries.
(o) Compliance with Applicable Laws. The Company and its subsidiaries
hold all permits, licenses, variances, exemptions, orders and approvals of all
Governmental Entities (the "Company Permits") required in order to own their
respective assets and to conduct their respective businesses as currently
conducted, except where the failure to hold such Company Permits, individually
or in the aggregate with all other such failures, is not reasonably likely to
have a Material Adverse Effect. The Company and its subsidiaries are in
compliance with the terms of the Company Permits and the operations of the
Company (including, without limitation, the obtaining of any Company Permits)
and its subsidiaries have been conducted in compliance with all applicable laws,
ordinances and regulations of any Governmental Entity, except where the failure
to comply or the violation, individually or in the aggregate with all other such
failures, is not reasonably likely to have a Material Adverse Effect.
(p) Opinion of Financial Advisor. The Company has received the written
opinion of the Financial Advisor that (subject to the terms and conditions of
such opinion) as of the date hereof, the Offer Price is fair to such
shareholders from a financial point of view. The Company has delivered to
Purchaser a copy of such opinion.
(q) Labor Relations. Except as set forth in Schedule 6.1(q), there is no
work stoppage involving the Company or any of its subsidiaries pending or
threatened in writing and neither the Company nor any of its subsidiaries is
involved in, threatened in writing with, or affected by any labor dispute,
arbitration, lawsuit or administrative proceeding that, individually or in the
aggregate, is reasonably likely to have a Material Adverse Effect. Except as
disclosed in the Company Reports or in Schedule 6.1(q), none of the employees of
the Company or of any of its subsidiaries is represented by any labor union or
any collective bargaining organization and, to the best knowledge of the
Company, no labor union is attempting to organize employees of the Company or
any of its
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subsidiaries. Except as set forth in Schedule 6.1(q), there is no pending charge
or complaint against the Company or any of its subsidiaries by the National
Labor Relations Board or any comparable state agency.
(r) Material Contracts. Except as identified in the Company Reports or as
set forth in Schedule 6.1(r), neither the Company nor any of its subsidiaries is
party to, nor is the Company or any of its subsidiaries (or their respective
assets) bound by, any Contract that, individually or in the aggregate, is
material to the Company and its subsidiaries taken as a whole. Except as
identified in the Company Reports or as set forth on Schedule 6.1(r), there are
no (i) Contracts between the Company or any subsidiary, on the one hand, and any
current or former director, officer, employee or 5% or greater shareholder of
the Company or any of their affiliates or family members, on the other hand, or
(ii) material non-competition agreements or any other agreements or obligations
which purports to limit in any respect the manner in which, or the localities in
which, the business of the Company and its subsidiaries, is or can be conducted.
All Contracts to which the Company or any of the subsidiaries is a party or by
which any of their respective assets is bound, and any Contract between third-
parties that has been assigned to the Company or any of its subsidiaries, have
been legally assigned, if applicable, and are valid and binding, in full force
and effect in accordance with its terms and enforceable against the parties (or,
if applicable, assignees) thereto in accordance with their respective terms,
except for such failures to be so assigned, valid and binding, in full force and
effect or enforceable that, individually or in the aggregate, are not reasonably
likely to have a Material Adverse Effect. There is not under any such Contract
any existing default, or event, which afer notice or lapse of time, or both,
would constitute a default, by the Company or any of its subsidiaries, or to the
Company's knowledge, any other party, except to the extent any such defaults or
events, individually or in the aggregate, is not reasonably likely to have a
Material Adverse Effect.
(s) Year 2000. Except to the extent described in any Company Report filed
prior to the date hereof, all computer systems and computer software used by the
Company or any of its subsidiaries (i) recognize or are being adapted so that,
prior to December 31, 1999, they shall recognize the advent of the year A.D.
2000 without any adverse change in operation associated with such recognition,
(ii) can correctly recognize or are being adapted so that they can correctly
recognize and manipulate date information relating to dates before, on or after
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January 1, 2000, including but not limited to, accepting date input, performing
calculations on dates or portion of dates and providing date output, and the
operation and functionality of such computer systems and such computer software
will not be adversely affected by the advent of the year A.D. 2000 or any
manipulation of data featuring information relating to dates before, on or after
January 1, 2000, and (iii) can suitably interact with other computer systems and
computer software in a way that does not compromise (y) its ability to correctly
recognize the advent of the year A.D. 2000 or (z) its ability to correctly
recognize and manipulate date information relating to dates before, on or after
January 1, 2000 (the operations of clauses (i), (ii) and (iii) together,
"Millennium Functionality"), except in each case for such computer systems and
computer software, the failure of which to achieve Millennium Functionality,
individually or in the aggregate, is not reasonably likely to have a Material
Adverse Effect. To the knowledge of the Company, as of the date hereof, the
costs of the adaptions necessary to achieve Millennium Functionality are not
reasonably likely to have a Material Adverse Effect.
6.2. Representations and Warranties of Purchaser and Merger Sub.
Purchaser and Merger Sub jointly and severally represent and warrant to the
Company that:
(a) Corporate Organization and Qualification. Purchaser is a Societe
Anonyme organized under the laws of France. Merger Sub is a corporation duly
organized, validly existing and in good standing (to the extent such concept is
recognized under applicable law) under the laws of Wisconsin. Each of Purchaser
and Merger Sub is in good standing as a foreign corporation in each jurisdiction
where the properties owned, leased or operated, or the business conducted, by it
require such qualification, except for such failure to so qualify or to be in
such good standing, which, individually or in the aggregate with all other such
failures, is not reasonably likely to have a material adverse effect on the
financial condition, prospects, properties, business or results of operations of
Purchaser and its subsidiaries, taken as a whole.
(b) Corporate Authority. Purchaser and Merger Sub each has the requisite
corporate power and authority and has taken all corporate action necessary in
order to execute and deliver this Agreement and, in the case of Purchaser, the
Agreement and to consummate the transac tions contemplated hereby.
This Agreement is a valid and binding agreement of Purchaser and Merger Sub
enforceable against each of Purchaser and Merger Sub in accordance with
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its terms, assuming the due authorization, execution and delivery hereof by the
Company. The Stock Option Agreement is a valid and binding agreement of
Purchaser enforceable against Purchaser in accordance with its terms, assuming
the due authorization, execution and delivery thereof by the Company.
(c) Governmental Filings; No Violations. (i) Other than the filings
provided for in Section 2.3, as required under the HSR Act and the Exchange Act,
no notices, reports or other filings are required to be made by Purchaser and
Merger Sub with, nor are any consents, regi strations, approvals, permits or
authorizations required to be obtained by Purchaser and Merger Sub from, any
Govern mental Entity in connection with the execution and delivery of this
Agreement by Purchaser and Merger Sub and the consummation of the transactions
contemplated hereby by Purchaser and Merger Sub, except for such failure to make
or obtain that, individually or in the aggregate, is not reasonably likely to
prevent, materially delay or materially burden the transactions contemplated by
this Agreement.
(ii) The execution and delivery of this Agreement by Purchaser and Merger
Sub do not, and the consummation of the transactions contemplated hereby by
Purchaser and Merger Sub will not, constitute or result in (i) a breach or viola
tion of, or a default under, the organizational documents of Purchaser or the
Articles of Incorporation or By-Laws of Merger Sub or (ii) a breach or violation
of, a default under, the acceleration of or the creation of a lien, pledge,
security interest or other encumbrance on assets (with or without the giving of
notice or the lapse of time) pursuant to any provision of any Contract of
Purchaser or Merger Sub or any law, ordinance, rule or regulation or judgment,
decree, order, award or governmental or non-governmental permit or license to
which Purchaser or Merger Sub is subject, except, in the case of clause (ii)
above, for such breaches, violations, defaults or accelerations that,
individually or in the aggregate, would not prevent or materially delay the
transactions contemplated by this Agreement.
(d) Funds. Purchaser has or will have at the expiration of the Offer and
the Effective Time (and will make available to Merger Sub at the expiration of
the Offer and the Effective Time) the funds necessary to consummate the Offer
and the Merger, respectively.
(e) Merger Sub's Activities. Merger Sub was formed solely for the purpose
of engaging in the transactions contemplated by this Agreement and has not
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engaged in any business activities or conducted any operations other than in
connection with such transactions.
(f) Stock Ownership. As of the date hereof, none of Purchaser or any of
its "affiliates" or "associates" (as those terms are defined in Rule 12b-2 under
the Exchange Act) beneficially own any Shares.
ARTICLE VII
Covenants
7.1. Interim Operations of the Company. The Company covenants and agrees,
as to itself and its subsidiaries, that, prior to the Effective Time (unless
Purchaser shall otherwise agree in writing and except as otherwise contemplated
by this Agreement):
(a) the business of the Company and its subsidi aries shall be conducted
only in the ordinary and usual course and, to the extent consistent therewith,
each of the Company and its subsidiaries shall use its reasonable best efforts
to preserve its business organization intact and maintain its existing relations
with customers, suppliers, employees and business associates;
(b) the Company shall not(i) amend its Restated Articles or By-Laws or
amend, modify or terminate the Rights Agreement; (ii) split, combine or
reclassify the outstanding Shares or Preferred Shares; or (iii) declare, set
aside or pay any dividend payable in cash, stock or property with respect to the
capital stock of the Company;
(c) neither the Company nor any of its subsidi aries shall (i) issue,
sell, pledge, dispose of, agree to sell or pledge or encumber any additional
shares, or securities convertible or exchangeable for, or options, warrants,
calls, commitments or rights of any kind to acquire, any shares of capital stock
of any class of the Company or its subsidiaries or any other property or assets
other than, in the case of the Company, Shares issuable pursuant to Options
outstanding on the date hereof under the Stock Plans, or pursuant to the terms
of the Completed Acquisitions, pending acquisitions set forth on Schedule 6.1(b)
or pursuant to the Stock Option Agreement; (ii) transfer, lease, license,
guarantee, sell, mortgage, pledge, dispose of or encumber any assets or incur
any other liability other than in the ordinary and usual course of business;
(iii) acquire directly or indirectly by redemption or otherwise any shares of
the capital stock of the Company
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other than pursuant to the terms of existing acquisition agreements or escrow
agreements or (iv) authorize capital expenditures in excess of $15 million in
the aggregate, or make any acquisition of, or investment in, assets or stock of
any other Person or entity with estimated annualized revenues in excess of $50
million. Notwithstanding any limitations in this Section 7.1(c), the Company may
enter into or consummate an acquisition proposed by it (a "Proposed
Acquisition"), if such acquisition has been approved in writing by Purchaser,
which approval may be denied, withheld or conditioned in its sole and absolute
discretion. Purchaser agrees to advise the Company in writing whether it has
approved the Proposed Acquisition within five business days after receipt of
information regarding the Proposed Acquisition that is the same in all material
respects as the information that was provided (whether orally, in writing or
otherwise) to the executive officers of the Company or the Company Board in
connection with its approval of the Proposed Acquisition, including, without
limitation, all material economic and other terms (the "Proposed Terms"). If
Purchaser approves the Proposed Acquisition, the Company may consummate the
Proposed Acquisition on the Proposed Terms and other customary terms.
(d) neither the Company nor any of its subsidi aries shall grant any
severance or termination pay to, or enter into any employment or severance
agreement with any director, officer or other employee of the Company or such
subsidiaries (other than (A) normal scheduled increases in compensation and (B)
entering into customary employment arrangements in the ordinary and usual course
of business with newly hired employees); and neither the Company nor any of its
subsidiaries shall establish, adopt, terminate, enter into, make any new grants
or awards under or amend, any Compensation and Benefit Plans (other than (i)
pursuant to Section 7.8(c) and (ii) normal scheduled increases in compensation).
(e) neither the Company nor any of its subsidi aries shall settle,
negotiate to settle or compromise any material claims or litigation except for
such settlements or negotiations that are not reasonably likely to have a
Material Adverse Effect;
(f) neither the Company nor any of its subsidi aries shall make any tax
election or permit any insurance policy naming it as a beneficiary or a loss
payable payee to be canceled or terminated without notice to Purchaser, except
in the ordinary and usual course of business; and
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(g) (i) neither the Company nor any of its subsidiaries shall incur,
assume or prepay any long-term debt or incur or assume any short-term debt,
except that the Company and its subsidiaries may incur or prepay debt in the
ordinary and usual course of business in amounts and for purposes consistent
with past practice under existing lines of credit, and may incur debt in
connection with the Completed Acquisitions but in any event such incurrences,
assumptions or prepayments not to exceed $75 million in the aggregate, (ii)
assume, guarantee, endorse or otherwise become liable or responsible (whether
directly, contingently or otherwise) for the obligations of any third-party
except in the ordinary and usual course of business, (iii) accelerate or delay
collection of notes or accounts receivable in advance of or beyond their regular
due dates or the dates consistent with past practice, or (iv) change any
accounting principle, practice or method in a manner that is inconsistent with
past practice, except to the extent required by generally accepted accounting
principles as advised by the Company's regular independent accountants;
(h) neither the Company nor any of its subsidi aries shall, other than in
the ordinary and usual course of business or except as is not reasonably likely
to have a Material Adverse Effect, (i) modify, amend or terminate any contract,
(ii) waive, release, relinquish or assign any contract (or any of the rights of
the Company or any of its subsidiaries thereunder), right or claim, or (iii)
cancel or forgive any indebtedness owed to the Company or any of its
subsidiaries; provided, however, that neither the Company nor any of its
subsidiaries may under any circumstance waive or release any of its rights under
any confidentiality agreement to which it is a party;
(i) neither the Company nor any of its subsidi aries shall enter into any
material contract or agreement other than in the ordinary and usual course of
business;
(j) neither the Company nor any of its subsidi aries shall, except as
specifically permitted in Section 7.2, take or fail to take any action that is
reasonably likely to result in any failure of the Offer Conditions or any of the
conditions to the Merger set forth in Article VIII not being satisfied, or is
reasonably likely to make any representation or warranty of the Company
contained herein inaccurate in any material respect at, or as of any time prior
to, the Effective Time, or that is reasonably likely to have a Material Adverse
Effect;
(k) neither the Company nor any of its subsidiaries shall adopt a plan of
complete or partial
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liquidation, dissolution, merger, consolidation, restructuring, recapitalization
or other reorganization; and
(l) neither the Company nor any of its subsidiar ies will authorize or
enter into an agreement to do any of the foregoing.
7.2. Acquisition Proposals. The Company agrees that neither the Company
nor any of its subsidiaries shall, and the Company shall direct and use its
reasonable best efforts to cause its and its subsidiaries' officers, directors,
employees, agents and representatives (including, without limitation, any
investment banker, attorney or accountant retained by the Company or any of its
subsidi aries ("Representatives")) not to knowingly (i) initiate, solicit or
encourage, directly or indirectly, any inquiries or the making of any proposal
or offer (including, without limitation, any proposal or offer to shareholders
of the Company) from any Person with respect to a merger, consolidation or
similar transaction involving, or any purchase of all or any significant portion
of the assets or any equity securities of, the Company or any of its
subsidiaries (any such proposal or offer being hereinafter referred to as an
"Acquisition Proposal") or (ii) engage in any negotiations concerning, or
provide any confidential information or data to, or have any discussions with,
any Person relating to an Acquisition Proposal, or otherwise facilitate any
effort or attempt to make or implement an Acquisition Proposal; provided,
however, that nothing shall prevent the Company or the Company Board from
complying with Rules 14d-9 and 14e-2 under the Exchange Act, and that prior to
the purchase of Shares pursuant to the Offer, the Company and its
Representatives may engage in the actions set forth in clause (ii) above if (A)
any Person delivers a bona fide written Acquisition Proposal for which all
necessary financing is then in the judgment of the Company Board readily
obtainable, (B) the Company enters into a customary confidentiality agreement
with such Person that is no more favorable to such Person than the
Confidentiality Agreement, dated as of March 3, 1999, as amended as of June 11,
1999, between Purchaser and the Company (the "Confidentiality Agreement") (as
determined by the Company after consultation with its outside counsel), (C) the
Company Board determines in good faith by a vote of a majority of the members of
the full Company Board after receipt of advice from outside legal counsel that
such action is necessary in order for its directors to comply with their
respective fiduciary duties under applicable law and (D) the Company Board
determines in good faith (after consultation with its financial advisor) that
such Acquisition Proposal, if accepted, is reasonably likely to be consummated
(taking into account all legal,
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financial and regulatory aspects of the proposal, the Person making the proposal
and all other relevant factors) and would, if consummated, result in a
transaction more favorable to the Company's shareholders from a financial point
of view than the transaction contemplated by this Agreement (any such more
favorable Acquisition Proposal being referred to in this Agreement as a
"Superior Proposal"). The Company will immediately cease and cause to be
terminated any existing activities, discussions or negotiations with any Person
conducted heretofore with respect to any Acquisition Proposal. The Company will
take the necessary steps to inform the Persons referred to in the first sentence
hereof of the obligations undertaken in this Section 7.2. The Company will
notify Purchaser promptly if any such Acquisition Proposal is received by, any
such information is requested from, or any such negotiations or discussions are
sought to be initiated or continued with the Company. The Company will further
identify the offeror and furnish to Purchaser a copy of any such inquiry or
proposal, if it is in writing, or shall inform Purchaser of the details of any
such inquiry or proposal, if it is oral, and shall promptly advise Purchaser of
any material development relating to such inquiry or proposal. The Company also
will promptly request each Person that has heretofore executed a confidentiality
agreement in connection with its consideration of acquiring the Company to
return all confidential information heretofore furnished to such Person by or on
behalf of the Company.
7.3. Meeting of the Company's Shareholders. If required following
termination of the Offer, the Company will take, consistent with applicable law
and its Restated Articles and By-Laws, all action necessary to convene a meeting
of holders of Shares as promptly as practicable to consider and vote upon the
approval of this Agreement and the Merger. Subject to fiduciary requirements of
applicable law, the Company Board shall recommend such approval and the Company
shall take all lawful action to solicit such approval. At any such meeting of
the Company, all of the Shares then owned by the Purchaser Companies will be
voted in favor of this Agreement. The Company's proxy or information statement
with respect to such meeting of share holders (the "Proxy Statement"), at the
date thereof and at the date of such meeting, will comply in all material
respects with the applicable requirements under the Exchange Act and will not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the foregoing shall not apply to the extent
that any such untrue statement
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of a material fact or omission to state a material fact was made by the Company
in reliance upon and in conformity with written information concerning the
Purchaser Companies furnished to the Company by Purchaser specifically for use
in the Proxy Statement. The Proxy Statement shall not be filed, and no amendment
or supplement to the Proxy Statement will be made by the Company, without
consultation with Purchaser and its counsel.
7.4. Efforts; Filings and Other Actions. (a) Subject to the terms and
conditions herein provided, each of Purchaser, Merger Sub and the Company shall,
and the Company shall cause each of its subsidiaries to, and Purchaser shall
cause Merger Sub to, cooperate and use their respective reasonable best efforts
to take or cause to be made, all filings necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement, including but not limited to,
cooperation in the preparation and filing of the Offer Documents, the Schedule
14D-9, the Proxy Statement, any required filings or requests for additional
information under the HSR Act, and any amendments to any thereof.
(b) Subject to the terms and conditions herein provided, the Company and
Purchaser shall, and Purchaser shall cause Merger Sub to, use all reasonable
best efforts to promptly take, or cause to be taken, all other action and do, or
cause to be done, all other things necessary, proper or appropriate under
applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement as soon as practicable.
(c) The Company and Purchaser each shall keep the other appraised of the
status of matters relating to completion of the transactions contemplated
hereby, including promptly furnishing the other with copies of notices or other
communications received by Purchaser or the Company, as the case may be, or any
of their subsidiaries, from the SEC or any Governmental Entity with respect to
the Offer Documents, the Schedule 14D-9, the Offer or the Merger or any of the
other transactions contemplated by this Agreement.
7.5. Access. Upon reasonable notice, the Company shall (and shall cause
each of its subsidiaries to) afford Purchaser's officers, employees, counsel,
accountants and other authorized representatives access, during normal business
hours throughout the period prior to the Effective Time, to its properties,
books, Contracts and records and, during such period, the Company shall (and
shall cause each
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of its subsidiaries to) furnish promptly to Purchaser all information concerning
its business, properties and personnel as Purchaser or its Representatives may
reasonably request; provided that no investigation pursuant to this Section 7.5
shall affect or be deemed to modify any representation or warranty made by the
Company; provided, further, that the foregoing shall not require the Company to
permit any inspection, or to disclose any information, which in the reasonable
judgment of the Company would result in the disclosure of any trade secrets of
third parties or violate any obligation of the Company with respect to
confidentiality if the Company shall have used reasonable best efforts to obtain
the consent of such third party to such inspection or disclosure or which would
violate applicable law. Purchaser agrees that it will not, and will use its
reasonable best efforts to cause its representatives and affiliates not to, use
any of the information obtained hereunder for any purpose unrelated to the
consummation of the Offer and the Merger and, until the consummation of the
Offer, the terms of the Confidentiality Agreement shall apply to such
information which otherwise meets the definition of "Confidential Information"
under the Confidentiality Agreement. All requests for information made pursuant
to this Section shall be directed to an executive officer of the Company or such
Person as may be designated by any such officer. The Company shall furnish
promptly to Purchaser and Merger Sub a copy of each report, schedule,
registration statement and other document filed by it or its subsidiaries during
such period pursuant to the requirements of federal or state securities laws.
The Company shall cause its independent auditors to allow the review of the work
papers of such auditors relating to the Company and its subsidiaries. Upon any
termination of this Agreement, Purchaser will collect and deliver to the Company
all documents obtained by it or any of its representatives then in their
possession and any copies thereof.
7.6. Notification of Certain Matters. The Com pany shall give prompt
notice to Purchaser of, and, with respect to clause (c) below only, Purchaser
and Merger Sub shall give prompt notice to the Company of: (a) any material
notice of, or other material communication relating to, any environmental
matter, a cancellation or termination, a default or event that, with notice or
lapse of time or both, would become a default, received by the Company or any of
its subsidiaries subsequent to the date of this Agreement and prior to the
Effective Time, under (i) any Contract material to the financial condition,
properties, businesses or results of operations of the Company and its
subsidiaries taken as a whole to which the Company or any of its subsidiaries is
a party or is subject or (ii) any Municipal
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Contract, which, in any such case is reasonably likely to have a Material
Adverse Effect; (b) any material adverse change in the financial condition,
properties, business or results of operations of the Company and its
subsidiaries taken as a whole or the occurrence of any event (other than general
economic conditions or general conditions in the United States securities
markets) which, so far as rea sonably can be foreseen at the time of its
occurrence, individually or in the aggregate, is reasonably likely to have a
Material Adverse Effect; and (c)(i) the occurrence or non-occurrence of any fact
or event which is reasonably likely (A) to cause any representation or warranty
contained in this Agreement to be untrue or inaccurate in any material respect
at any time from the date hereof to the Effective Time or (B) to cause any
covenant, condition or agreement under this Agreement not to be complied with or
satisfied in any material respect and (ii) any failure to comply with or to
satisfy any covenant, condition or agreement to be complied with or satisfied by
it hereunder in any material respect; provided, however, that no such
notification shall modify the representations or warranties of any party or the
conditions to the obligations of any party hereunder. Each of the Company and
Purchaser shall give prompt notice to the other party of any notice or other
communication from any third party alleging that the consent of such third party
is or may be required in connection with the transactions con templated by this
Agreement, if the failure to obtain such consent, individually or in the
aggregate with all other such failures, is reasonably likely to (x) have a
Material Adverse Effect or (y) prevent, materially delay or materially impair
the ability of the Company to consummate the transactions contemplated by this
Agreement. The Company agrees to provide Purchaser with copies of any
information that was provided to the Company Board in connection with its
approval of any acquisition permitted under Section 7.1(c)(iv) of this
Agreement.
7.7. Publicity. The initial press release concerning this Agreement and
the transactions contemplated hereby shall be a joint press release and
thereafter the Company and Purchaser shall consult with each other prior to
issuing any press releases or otherwise making public statements with respect to
the transactions contemplated hereby and prior to making any filings with any
Governmental Entity or with any national securities exchange with respect
thereto.
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7.8. Options and Benefits. (a) Stock Options. At the Effective Time, each
stock option outstanding pursuant to the Stock Plans (the "Options"), whether or
not then exercisable, shall be canceled and only entitle the holder thereof to
receive from the Surviving Corporation a single lump sum amount in cash equal to
the result of multiplying (i) the excess of the Merger Consideration over the
exercise price per Share of such Option by (ii) the number of Shares previously
subject to such Option. The Company shall, prior to the Effective Time, take all
appropriate action to accomplish the foregoing. Notwithstanding the foregoing,
on the date the Merger Sub irrevocably accepts for payment Shares tendered
pursuant to the Offer, Options held by the employees designated on Schedule 7.8
hereto (the "Covered Employees"), whether or not then exercisable, shall be
cancelled and the Covered Employees shall be entitled to receive in lieu thereof
a lump sum payment in cash equal to the number obtained by multiplying (i) the
excess of the Offer Price over the exercise price per Share of such Option by
(ii) the number of Shares subject to Options, which sum shall be payable as
promptly as practicable.
(b) Employee Benefits. Purchaser agrees that, during the period
commencing at the Effective Time and end ing on the first anniversary thereof,
the employees of the Company and its subsidiaries will continue to be provided
with benefits under employee benefit plans (other than plans involving the
issuance of securities of the Company) which in the aggregate are substantially
comparable to those currently provided by the Company and its subsidiaries to
such employees; provided, however, that employees covered by collective
bargaining agreements need not be provided such benefits. Purchaser will cause
each employee benefit plan of Purchaser in which employees of the Company and
its subsidiaries are eligible to participate to take into account for purposes
of eligibility and vesting thereunder the service of such employees with the
Company and its subsidiaries as if such service were with Purchaser. Such
employees shall also be given credit for any deductible or co-payment amounts
paid in respect of the plan year in which the Effective Time occurs, to the
extent that, in the plan year following the Effective Time, they participate in
any medical, health or dental plan of Purchaser for which deductibles or
co-payments are required. Purchaser shall also cause each medical, health or
dental plan of Purchaser, in which such employees are eligible to participate
after the Effective Time, to waive (i) any pre-existing condition restriction,
eligibility waiting period and evidence of insurability requirements which was
waived under the terms of any analogous employees benefit plan of the Company
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immediately prior to the Effective Time or (ii) waiting period limitation which
would otherwise be applicable to an employee on or after the Effective Time to
the extent such employee had satisfied any similar waiting period limitation
under an analogous employee benefit plan of the Company prior to the Effective
Time. Purchaser will, and will cause the Surviving Corporation to, timely and
fully honor (without modification) all employee benefit obligations to current
and former employees of the Company and its subsidiaries accrued as of the
Effective Time and, to the extent set forth in the Company Reports and Schedule
6.1(b), all employee severance plans (or policies), employment agreements and
severance agreements in existence on the date hereof.
(c) 1999 Management Incentive Plan. It is understood and agreed that the
Company shall amend its 1999 Management Incentive Plan (the "MIP") to provide
that all eligible participants in such plan who remain employed by the Company
(or a subsidiary of the Company) as of December 31, 1999 ("Eligible
Participants"), will receive a bonus amount (as determined and adjusted as set
forth in the next succeeding sentence) in cash equal to (i) the amount of cash
and (ii) the fair market value of stock options (which shall be calculated in
the manner set forth below), in each case, which such persons otherwise would
have been entitled to receive under the MIP for the year ending December 31,
1999 (the "First Bonus Amount"). The First Bonus Amount shall be (a) calculated
based on the financial results of the Company and its subsidiaries for the
six-month period ending June 30, 1999, as compared to the financial results of
the Company and its subsidiaries for the six-month period ended June 30, 1998
(and assuming a satisfactory rating on personal and departmental goals and
objectives at the Company's headquarters for such six-month period in 1999), (b)
divided by 2, and (c) paid no later than February 14, 2000. It is also
understood and agreed that the Company shall further amend the MIP to provide
that all Eligible Participants will receive a bonus amount (as determined and
adjusted as set forth in the next succeeding sentence) in cash equal to (i) the
amount of cash and (ii) the fair market value of stock options (which shall be
calculated in the manner set forth below), in each case, which such persons
otherwise would have been entitled to receive under the MIP for the year ending
December 31, 1999 (the "Second Bonus Amount"). The Second Bonus Amount shall be
(a) calculated based on the percentage increase in the "pre-tax earnings" (as
defined in the Company's Long Term Perforance Award Plan) of the Company and its
subsidiaries for the six-month period ending December 31, 1999, as compared to
the pre-tax earnings of the Company and its subsidiaries for the
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six-month period ended December, 1998 (and assuming a satisfactory rating on
personal and departmental goals and objectives at the Company's headquarters for
such six-month period in 1999), (b) divided by 2, and (c) paid no later than
February 14, 2000. The fair market value of stock options referred to in this
section shall be deemed to be one-half of the excess of (x) the Merger
Consideration over (y) the closing sale price for the Shares on the last
business day preceding the date of this Agreement as reported by the Nasdaq
National Market.
7.9. Indemnification; Directors' and Officers' Insurance. (a) From and
after the Effective Time, Purchaser agrees that it will cause the Surviving
Corporation and its subsidiaries (as appropriate) to indemnify and hold harmless
each present and former director and officer of the Company and its
subsidiaries, determined as of the Effective Time (the "Indemnified Parties"),
against any costs or expenses (including reasonable attorneys' fees and
disbursements), judgments, fines, losses, claims, damages or liabilities
(collectively, "Costs") incurred in connection with any claim, action, suit,
proceeding or investigation, whether civil, criminal, administrative or
investigative, arising out of matters existing or occurring at or prior to the
Effective Time, whether asserted or claimed prior to, at or after the Effective
Time, to the fullest extent that the Company would have been permitted or
required under the WBCL and its Restated Articles or By-Laws in effect on the
date hereof to indemnify such Person (and Purchaser shall also advance expenses
as incurred to the fullest extent permitted or required under the WBCL, provided
the Person to whom expenses are advanced provides an undertaking to repay such
advances if it is ultimately determined that such Person is not entitled to
indemnification under the WBCL, the Company's Restated Articles or By-Laws in
effect on the date hereof); provided that any determination required to be made
with respect to whether an officer's or director's conduct complies with the
standards set forth under the WBCL and the Restated Articles and By-Laws as in
effect on the date hereof shall be made by independent counsel mutually selected
by the Surviving Corporation and the Person seeking indemnification and
otherwise in accordance with the provisions and procedures currently set forth
in the Company's By-Laws in effect as of the date hereof.
(b) Any Indemnified Party wishing to claim indemnification under
paragraph (a) of Section 7.9, upon learning of any such claim, action, suit,
proceeding or investigation, shall promptly notify Purchaser or the Surviving
Corporation thereof, but the failure to so notify
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shall not relieve Purchaser or the Surviving Corporation of any liability it may
have to such Indemnified Party if such failure does not materially prejudice the
indemnifying party and then only to the extent so materially prejudiced. In the
event of any such claim, action, suit, proceeding or investigation (whether
arising before or after the Effective Time), (i) Purchaser or the Surviving
Corporation shall have the right to assume and control the defense thereof
(provided, that if either does so, then the standards of conduct set forth under
the WBCL shall be irrevocably deemed to be satisfied by the Indemnified Parties)
and Purchaser shall not be liable to such Indemnified Parties for any legal
expenses of other counsel or any other expenses subsequently incurred by such
Indemnified Parties in connection with the defense thereof, except that if Pur
chaser or the Surviving Corporation elects not to assume such defense or counsel
for the Indemnified Parties advises that, in such counsel's reasonable judgment,
there are material issues that constitute conflicts of interest between
Purchaser or the Surviving Corporation and the Indemnified Parties, the
Indemnified Parties may retain counsel satisfactory to them, and Purchaser or
the Surviving Corporation shall pay all reasonable fees and expenses of such
counsel for the Indemnified Parties promptly as state ments therefor are
received; provided, however, that Purchaser shall be obligated pursuant to this
paragraph (b) to pay for only one firm of counsel (licensed in such
jurisdiction) chosen by them for all Indemnified Parties in any jurisdiction
unless the use of one such counsel for such Indemnified Parties would present
such counsel with a conflict of interest, (ii) the Indemnified Parties will
cooperate in the defense of any such matter and (iii) Pur chaser shall not be
liable for any settlement effected without its prior written consent; and
provided further that, in the event Purchaser or the Surviving Corporation shall
not have assumed such defense, Purchaser shall not have any obligation hereunder
to any Indemnified Party when and if a court of competent jurisdiction shall
ultimately determine, and such determination shall have become final, that the
indemnification of such Indemnified Party in the manner contemplated hereby is
prohibited by applicable law.
(c) The Purchaser and the Surviving Corporation shall maintain in full
effect, without lapse or modification, the Company's existing officers' and
directors' liability insurance ("D&O Insurance") for a period of six years after
the Effective Time, so long as the annual premium therefor is not in excess of
200% of the last annual premium paid by the Company prior to the date hereof
(the "Current Premium"); provided, however, if the existing D&O Insurance
expires, is terminated or canceled during such
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six-year period, the Purchaser and the Surviving Corporation will use its
reasonable best efforts to obtain as much D&O Insurance as can be obtained for
the remainder of such period for a premium not in excess (on an annualized
basis) of 200% of the Current Premium.
(d) The rights under this Section 7.9 are not exclusive of any other
rights an Indemnified Party may have under applicable law.
7.10. Other Actions by the Company.
(a) Rights Agreement. The Company covenants and agrees that it will not
(i) redeem the Rights, (ii) amend the Rights Agreement or (iii) take any action
that would allow any Person (as defined in the Rights Agreement) other than
Purchaser or Merger Sub to acquire beneficial ownership of 15% or more of the
Shares without causing a Distribution Date or a Shares Acquisition Date.
(b) State Takeover Laws. If any Takeover Statute shall become applicable
to the transactions contemplated hereby, the Company and the members of the
Company Board shall grant such approvals and take such actions as are necessary
so that the transactions contemplated hereby and the Stock Option Agreement may
be consummated as promptly as practicable on the terms contemplated hereby and
otherwise act to eliminate or minimize the effects of such statute or regulation
on the transactions contemplated hereby. The Company shall, upon the request of
the Purchaser, take all reasonable steps to assist in any challenge by the
Purchaser to the validity or applicability to the transactions contemplated by
this Agreement and the Stock Option Agreement, including the Offer and the
Merger, of any Takeover Statute.
ARTICLE VIII
Conditions
8.1. Conditions to Obligations of Purchaser and Merger Sub. The
respective obligations of Purchaser and Merger Sub to consummate the Merger are
subject to the ful fillment of each of the following conditions, any or all of
which may be waived in whole or in part by Purchaser or Merger Sub, as the case
may be, to the extent permitted by applicable law:
(a) Shareholder Approval. This Agreement shall have been duly approved by
the requisite affirmative vote of
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holders of Shares, in accordance with applicable law and the Restated Articles
and By-Laws of the Company (provided that Purchaser and Merger Sub shall have
voted their Shares (and shall have been represented for quorum purposes) at such
meeting in accordance with Section 7.3;
(b) Purchase of Shares. Merger Sub shall have purchased Shares pursuant
to the Offer;
(c) Governmental and Regulatory Consents. The waiting period applicable
to the consummation of the Merger under the HSR Act shall have expired or been
terminated and, other than the filings provided for in Section 2.3, all filings
required to be made prior to the Effective Time by the Company with, and all
consents, approvals and authoriza tions required to be obtained prior to the
Effective Time by the Company from, any Governmental Entity in connection with
the execution and delivery of this Agreement by the Company and the consummation
of the transactions contemplated hereby by the Company, Purchaser and Merger Sub
shall have been made or obtained (as the case may be), except where the failure
to so make or obtain is not reasonably likely to have a Material Adverse Effect
on the Company;
(d) Injunction. No United States or state court or other Governmental
Entity of competent jurisdiction shall have enacted, issued, promulgated,
enforced or entered any statute, rule, regulation, judgment, decree, injunction
or other order (whether temporary, preliminary or permanent) which is in effect
and prohibits consummation of the transactions contemplated by this Agreement or
imposes material restrictions on Purchaser or the Company in connection with
consummation of the Merger or with respect to their business operations, either
prior to or subsequent to the Merger (collectively, an "Order") which is
reasonably likely to have a Material Adverse Effect (provided, however, that
before invoking this condition, Purchaser and Merger Sub shall use its
reasonable best efforts to prevent, vacate, overturn, repeal or limit any such
Order so that it is not reasonably likely to have a Material Adverse Effect);
(e) Other Obligations. The Company shall have fulfilled its obligations
under Section 7.8(a) and the representations and warranties contained in
Sections 6.1(j) and 6.1(k) shall be true and correct as of the Effective Time as
if made on such date.
8.2. Conditions to Obligations of the Company. The obligations of the
Company to consummate the Merger are subject to the fulfillment of each of the
following conditions, any or all of which may be waived in whole or in
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part by the Company to the extent permitted by applicable law:
(a) Shareholder Approval. This Agreement shall have been duly approved by
the requisite affirmative vote of holders of Shares, in accordance with
applicable law and the Restated Articles and By-Laws of the Company (provided
that the Purchaser and Merger Sub shall have voted their Shares (and shall have
been represented for quorum purposes) at such meeting in accordance with Section
7.3;
(b) Purchase of Shares. Merger Sub shall have purchased Shares pursuant
to the Offer;
(c) Governmental and Regulatory Consents. The waiting period applicable
to the consummation of the Merger under the HSR Act shall have expired or been
terminated and, other than the filings provided for in Section 2.3, all filing
required to be made prior to the Effective Time by Purchaser and Merger Sub
with, and all consents, approvals, permits and authorizations required to be
obtained prior to the Effective Time by Purchaser and Merger Sub from, any
Governmental Entity in connection with the execution and delivery of this
Agreement by Purchaser and Merger Sub and the consummation of the transactions
contemplated hereby by Purchaser, Merger Sub and the Company shall have been
made or obtained (as the case may be), except where the failure to so make or
obtain is not reasonably likely to have a Material Adverse Effect on the
Company; and
(d) Order. No Order shall be in effect which is reasonably likely to have
a Material Adverse Effect (provided, however, that before invoking this
condition, the Company shall use its reasonable best efforts to prevent, vacate,
overturn, repeal or limit any such Order so that it is not reasonably likely to
have a Material Adverse Effect).
ARTICLE IX
Termination
9.1. Termination by Mutual Consent. This Agree ment may be terminated and
the Merger may be abandoned at any time prior to the Effective Time, before or
after the approval by holders of Shares, by the mutual consent of Purchaser and
the Company, by action of their respective Boards of Directors.
9.2. Termination by Either Purchaser or the Company. This Agreement may
be terminated and the Merger may be abandoned at any time prior to the Effective
Time,
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before or after the approval by holders of Shares, by action of the Board of
Directors of either Purchaser or the Company (in accordance with Section 4.3) if
(i) Merger Sub shall have terminated the Offer without purchasing any Shares
pursuant thereto in accordance with this Agreement; (ii) the approval of
shareholders required by Section 8.1(a) shall not have been obtained at a
meeting duly convened therefor (provided Merger Sub complies with Section 7.3);
or (iii) any court of competent jurisdiction or other Governmental Entity
located or having jurisdiction within the United States or the Republic of
France, shall have issued a final order, decree or ruling or taken any other
final action restraining, enjoining or otherwise prohibiting the Offer or the
Merger and such order, decree, ruling or other action is or shall have become
final and nonappealable and which is reasonably likely to have a Material
Adverse Effect (provided, however, that before invoking this Section 9.2(iii),
the party invoking this Section shall use its reasonable best efforts to
prevent, vacate, overturn, repeal or limit any such order, decree, ruling or
other action so that it is not reasonably likely to have a Material Adverse
Effect).
9.3. Termination by Purchaser. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time, before or after
the ap proval by holders of Shares, by action of the Board of Directors of
Purchaser, if (x) prior to the purchase of Shares pursuant to the Offer in
accordance with this Agreement, the Company shall have failed to perform in any
respect any of the covenants or agreements contained in this Agreement to be
complied with or performed by the Company at or prior to such date of
termination, which failure is reasonably likely to have a Material Adverse
Effect on the Company and which failure shall not have been reasonably cured
prior to the later of (A) ten business days following the giving of written
notice to the Company of such failure (provided that Purchaser and Merger Sub
shall be required to extend only the initially scheduled expiration date of the
Offer pursuant to this clause) and (B) two business days prior to the date on
which the Offer is then scheduled to expire, (y) the Company Board (or a special
committee thereof) shall have amended, withdrawn or modified in a manner adverse
to Purchaser or Merger Sub its approval or recommendation of the Offer, this
Agreement or the Merger or the Company Board shall have failed to reaffirm such
approval or recommendation within two business days of the written request by
Purchaser or Merger Sub to do so, shall have publicly endorsed, approved or
recommended any other Acquisition Proposal or shall have publicly announced it
has resolved to do any of the foregoing, or (z) if the Company
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or any of the other Persons or entities described in Section 7.2 shall take any
actions that would be proscribed by Section 7.2 but for the exception therein
allowing cer tain actions to be taken if required by fiduciary obliga tions
under applicable law as advised by outside counsel.
9.4. Termination by the Company. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time, before or after
the approval by holders of Shares by action of the Company Board, (i) if
Purchaser or Merger Sub (or another Purchaser Company) (x) shall have failed to
perform in any respect any of the covenants or agreements contained in this
Agreement to be complied with or performed by Purchaser or Merger Sub at or
prior to such date of termination, and which failure shall not have been
reasonably cured prior to the later of (A) five business days following the
giving of written notice to Purchaser of such failure and (B) two business days
prior to the date on which the Offer is then scheduled to expire, or (y) shall
have failed to commence the Offer within the time required in Section 1.1 or
(ii) if (w) the Company is not in material breach of any of the terms of this
Agreement, (x) the Company Board authorizes the Company, subject to complying
with the terms of this Agreement, to enter into a binding written agreement
concerning a transaction that constitutes a Superior Proposal and the Company
notifies Purchaser in writing that it intends to enter into such an agreement,
attaching the most current version of such agreement (which shall include all of
the material terms, including the price proposed to be paid for Shares pursuant
thereto) to such notice, (y) Purchaser does not make, within three business days
of receipt of the Company's written notification of its intention to enter into
a binding agreement for a Superior Proposal, an offer that the Company Board
determines, in good faith after consultation with its financial advisors, is at
least as favorable, from a financial point of view, to the stockholders of the
Company as the Superior Proposal and (z) the Company, prior to such termination,
pays to Purchaser in immediately available funds the fees required to be paid
pursuant to Section 9.5(b).
9.5. Effect of Termination and Abandonment. (a) In the event of
termination of this Agreement and abandonment of the Merger pursuant to this
Article IX, no party hereto (or any of its directors or officers) shall have any
liability or further obligation to any other party to this Agreement, except as
provided in Section 9.5(b) below and Section 10.2 and except that nothing herein
will relieve any party from liability for any willful breach of this Agreement,
provided, however, that if this Agreement is
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terminated by Purchaser pursuant to Section 9.3(x) or the Company pursuant to
Section 9.4(i)(x), the terminating party's right to pursue all legal remedies
will survive such termination unimpaired.
(b) If (x)(i) the Offer shall have remained open for a minimum of at
least 20 business days, (ii) after the date hereof any corporation, partnership,
person, other entity or group (as defined in Section 13(d)(3) of the Exchange
Act and the rules promulgated thereunder) other than Purchaser or Merger Sub or
any of their respective subsidiaries or affiliates (collectively, a "Person")
shall have become the beneficial owner (as defined in Section 13(d) of the
Exchange Act and the rules promulgated thereunder) of 15% or more of the
outstanding Shares (other than for bona fide arbitrage purposes), shall have
publicly announced an Acquisition Proposal or any Person shall have commenced,
or shall have publicly announced an intention to commence, a tender offer or
exchange offer for 15% or more of the outstanding Shares, and (iii) the Minimum
Condition shall not have been satisfied as of the expiration date of the Offer
and the Offer is terminated without the purchase of any Shares thereunder, (y)
Purchaser shall have terminated this Agreement pursuant to Section 9.3(y) or (z)
hereof, or (z) the Company shall have terminated this Agreement pursuant to
Section 9.4(ii) hereof, then the Company shall promptly, but in no event later
than two business days after the date of such termination, pay Purchaser a fee
of $26 million (the "Termination Fee"), and shall reimburse Purchaser and Merger
Sub (not later than two business days after written request by Purchaser or
Merger Sub to do so) for all of the out-of-pocket charges and expenses,
including financing fees (which out-of-pocket charges and expenses shall be set
forth with reasonable specificity in written documentation provided to the
Company), actually incurred by Purchaser or Merger Sub through the date of
termination in connection with this Agreement and the transactions contemplated
by this Agreement, up to a maximum amount of $4 million (the "Reimbursement
Fee"), in each case payable by wire transfer in same day funds; provided, that,
in the event the Company shall have terminated this Agreement pursuant to
Section 9.4(ii) hereof, the Company shall pay the amount due pursuant to this
Section 9.5(b) prior to any such termination. The Company acknowledges that the
agreements contained in this Section 9.5(b) are an integral part of the
transactions contemplated in this Agreement, and that, with out these
agreements, Purchaser and Merger Sub would not enter into this Agreement;
accordingly, if the Company fails to promptly pay the amount due pursuant to
this Section 9.5(b), and, in order to obtain such payment, Purchaser or
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Merger Sub commences a suit which results in a judgment against the Company for
the fees set forth in this paragraph (b), the Company shall pay to Purchaser or
Merger Sub its costs and expenses (including attorneys' fees) in connection with
such suit, together with interest on the amount of the fees at the prime rate of
Citibank, N.A. on the date such payment was required to be made. If Purchaser or
Merger Sub, or the Company, as the case may be, commences a suit against any
other party hereto which suit does not result in a judgment against the other
party, the party commencing such suit shall pay to the other the other party's
costs and expenses (including attorneys' fees) incurred in connection with such
suit.
ARTICLE X
Miscellaneous and General
10.1. Payment of Expenses. Whether or not the Merger shall be
consummated, each party hereto shall, subject to Section 9.5(b), pay its own
expenses incident to preparing for, entering into and carrying out this
Agreement and the consummation of the Merger.
10.2. Survival. The agreements of the Company, Purchaser and Merger Sub
contained in Sections 5.2 (Payment for Shares) (but only to the extent that such
Section expressly relates to actions to be taken after the Effective Time), 5.3
(Dissenters' Rights), 5.4 (Transfer of Shares After the Effective Time), 7.8
(Options and Benefits), 7.9 (Indemnification; Directors' and Officers'
Insurance), and 10.1 (Payment of Expenses) shall survive the consummation of the
Merger. The agreements of the Company, Purchaser and Merger Sub contained in the
Confidentiality Agreement, 6.1(c) (Corporate Authority), 6.2(b) (Corporate
Authority), Section 9.5 (Effect of Termination and Abandonment) and Sections
10.1 (Payment of Expenses), 10.6 (Governing Law), 10.7 (Notices), 10.9 (Entire
Agreement), 10.10 (Definition of "Subsidiary"), 10.11 (Obligations of Purchaser)
and 10.12 (Captions) shall survive the termination of this Agreement. All other
representations, warranties, agreements and covenants in this Agreement shall
not survive the consum mation of the Merger or the termination of this
Agreement.
10.3. Modification or Amendment. Subject to the applicable provisions of
the WBCL, at any time prior to the Effective Time, the parties hereto may modify
or amend this Agreement, by written agreement executed and delivered by duly
authorized officers of the respective parties.
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10.4. Waiver of Conditions. The conditions to each of the parties'
obligations to consummate the Merger are for the sole benefit of such party and
may be waived by such party in whole or in part to the extent permitted by
applicable law.
10.5. Counterparts. For the convenience of the parties hereto, this
Agreement may be executed in any number of counterparts, each such counterpart
being deemed to be an original instrument, and all such counterparts shall
together constitute the same agreement.
10.6. Governing Law.
(a) GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL
BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND
GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE APPLICABLE
TO CONTRACTS TO BE PERFORMED WHOLLY IN SUCH STATE. The parties hereby
irrevocably submit to the jurisdiction of the courts of the State of Delaware
and the Federal courts of the United States of America located in the State of
Delaware solely in respect of the interpreta tion and enforcement of the
provisions of this Agreement and the Stock Option Agreement and of the documents
referred to in this Agreement and the Stock Option Agreement, and in respect of
the transactions contemplated hereby and thereby, and hereby waive, and agree
not to assert, as a defense in any action, suit or proceeding for the
interpretation or enforcement hereof or of any such document, that it is not
subject thereto or that such action, suit or proceeding may not be brought or is
not maintainable in said courts or that the venue thereof may not be appropriate
or that this Agreement and the Stock Option Agreement or any such document may
not be enforced in or by such courts, and the parties hereto irrevocably agree
that all claims with respect to such action or proceeding shall be heard and
determined in such a Delaware State or Federal court. The parties hereby consent
to and grant any such court jurisdiction over the person of such parties and
over the subject matter of such dispute and agree that mailing of process or
other papers in connection with any such action or proceeding in the manner
provided in Section 10.7 or in such other manner as may be permitted by law
shall be valid and sufficient service thereof.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT OR THE STOCK OPTION AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND
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DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE STOCK OPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT OR THE STOCK OPTION AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY
MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE STOCK OPTION AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.6.
10.7. Notices. Any notice, request, instruction or other document to be
given hereunder by any party to the others shall be in writing and delivered
personally or sent by registered or certified mail, postage prepaid, or by
facsimile:
if to Purchaser or Merger Sub
Vivendi
42, Avenue de Friedland
75380 Paris Cedex 08
France
Attention: Henri Proglio
fax: (011) 33-171-71-1179
with a copy to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: David M. Kies, Esq. and
Keith A. Pagnani, Esq.
fax: (212) 558-3588
if to the Company
Superior Services, Inc.,
125 South 84th Street, Suite 200
Milwalkee, Wisconsin 53214
Attention: Peter J. Ruud and
Scott S. Cramer
fax: (414) 479-7400
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with a copy to:
Foley & Lardner
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attention: Steven R. Barth, Esq.
fax: (414) 297-4900
or to such other Persons or addresses as may be designated in writing by the
party to receive such notice as provided above.
10.8. Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that the transactions contemplated hereby are fulfilled to the fullest
extent possible.
10.9. Entire Agreement, etc. (a) This Agreement (including any exhibits,
Schedules or Annexes hereto) and the Confidentiality Agreement (i) constitutes
the entire agreement, and supersedes all other prior agreements, understandings,
representations and warranties both written and oral, among the parties, with
respect to the subject matter hereof, and (ii) shall not be assignable by
operation of law or otherwise and, subject to Section 10.9(b), is not intended
to create any obligations to, or rights in respect of, any Persons other than
the parties hereto; provided, however, that Purchaser may designate, by written
notice to the Company, another wholly-owned direct or indirect subsidiary to be
a Constituent Corporation in lieu of Merger Sub, in the event of which, all
references herein to Merger Sub shall be deemed references to such other
subsidiary, except that all representations and warranties made herein with
respect to Merger Sub as of the date of this Agreement shall be deemed
representations and warranties made with respect to such other subsidiary as of
the date of such designation.
(b) It is expressly agreed that all of the Persons (and their successors
and assigns) who are benefici aries of Section 7.9 (whether as individuals or
members of a class or group) shall be entitled to enforce such Sections against
Purchaser or the Surviving Corporation and such
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<PAGE>
Sections shall be binding on all successors and assigns of the Surviving
Corporation or of Purchaser.
10.10. Definition of "Subsidiary". When a refer ence is made in this
Agreement to a subsidiary of a party, the word "subsidiary" means any
corporation or other organ ization whether incorporated or unincorporated of
which at least a majority of the securities or interests having by the terms
thereof ordinary voting power to elect at least a majority of the board of
directors or other Persons performing similar functions with respect to such
corporation or other organization is directly or indirectly owned or controlled
by such party or by any one or more of its subsidiaries, or by such party and
one or more of its subsidiaries.
10.11. Obligation of Purchaser. Whenever this Agreement requires Merger
Sub to take any action, such re quirement shall be deemed to include an
undertaking on the part of Purchaser to cause Merger Sub to take such action.
10.12. Captions. The Article, Section and para graph captions herein are
for convenience of reference only, do not constitute part of this Agreement and
shall not be deemed to limit or otherwise affect any of the provisions hereof.
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<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the duly authorized officers of the parties hereto on the date first
hereinabove written.
SUPERIOR SERVICES, INC.
By:
Name:
Title:
VIVENDI
By:
Name:
Title:
ONYX SOLID WASTE ACQUISITION CORP.
By:
Name:
Title:
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Annex A
Certain Conditions of the Offer. The capitalized terms used in this Annex
A have the respective meanings ascribed to such terms in the annexed Agreement.
Notwith standing any other provision of the Offer, but subject to its
obligations under Section 1.1(a) of the annexed Agreement, Merger Sub shall not
be obligated to accept for payment or, subject to any applicable rules and
regulations of the SEC, including Rule 14e-1(c) under the Exchange Act (relating
to Merger Sub's obligation to pay for or return tendered Shares promptly after
termination or withdrawal of the Offer), pay for, or may delay the acceptance
for payment of or payment for, any tendered Shares, or may, in its sole
discretion, terminate or amend the Offer as to any Shares not then paid for if,
(i) prior to the expiration of the Offer, (x) a number of Shares which, together
with any Shares owned by Purchaser or Merger Sub, constitutes 75% or more of the
Shares then outstanding as of the expiration date of the Offer (determined on a
fully-diluted basis, but excluding Shares subject to the option granted under
the Stock Option Agreement) shall not have been validly tendered and not
withdrawn (the "Minimum Condition") or (y) any waiting periods under the HSR Act
applicable to the purchase of Shares pursuant to the Offer or the Merger shall
not have expired or been terminated, or any Regulatory Approvals (other than
Regulatory Approvals set forth on Schedule A hereto) applicable to the Offer and
the Merger shall not have been obtained on terms satisfactory to Purchaser in
its sole judgment or (ii) on or after the date of the Agreement, and at or
before the time of payment for any of such Shares (whether or not any Shares
have theretofore been accepted for payment), any of the following events shall
occur:
(a) there shall have occurred and be continuing as of the
scheduled expiration date of the Offer (i) any general suspension of, or
limitation on prices for, trading in securities on the New York Stock
Exchange, Inc. or the NASDAQ National Market (excluding any coordinated
trading halt triggered as a result of any decrease in any market indices
and any general suspension or limitation caused by physical damage,
computer or system malfunction, in each case not related to market
conditions), (ii) a declaration of a banking moratorium or any suspension
of payments in respect of banks in the United States,(iii) any material
limitation (whether or not mandatory) by any Governmental Entity,
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<PAGE>
on the extension of credit by banks or other lending institutions in the
United States, (iv) in the case of any of the foregoing existing at the
time of the commencement of the Offer, a material acceleration or
worsening thereof that is continuing as of the scheduled termination date
of the Offer, or (v) any material adverse change in the business or
regulatory environment specific to the solid waste industry in the United
States;
(b) the Company shall have breached or failed to perform in any
respect any of its obligations, covenants or agreements under the
Agreement or the Stock Option Agreement and which breach or failure to
perform, individually or in the aggregate with all other breaches, is
reasonably likely to have a Material Adverse Effect on the Company or any
representation or warranty of the Company set forth in the Agreement or
the Stock Option Agreement shall have been inaccurate or incomplete in
any respect when made or thereafter shall become inaccurate or incomplete
in any respect, if such inaccuracy or incompleteness, individually or in
the aggregate, is reasonably likely to have a Material Adverse Effect
(excluding for purposes of this paragraph (b) only, any Material Adverse
Effect qualifier contained in any such representation or warranty);
provided, however, that any breach or failure that is capable of being
cured without a Material Adverse Effect, shall not be deemed a breach or
failure if, such breach or failure is reasonably cured by the Company
within the later of (A) ten business days after written notice thereof by
Purchaser is provided (provided that Purchaser and Merger Sub shall be
required to extend only the initially scheduled expiration date of the
Offer pursuant to this clause) and (B) two business days prior to the
date on which the Offer is then scheduled to expire;
(c) there shall be instituted, pending and continuing as of the
scheduled expiration date of the Offer, any action, litigation,
proceeding, investigation or other application (hereinafter, an "Action")
before any United States court or other Governmental Entity by
A-2
<PAGE>
any Governmental Entity or by any other Person, domestic or foreign
(other than an Action brought by a shareholder of the Company): (i)
challenging the acquisition by Purchaser or Merger Sub of Shares pursuant
to the Offer, seeking to restrain or prohibit the consummation of the
transactions contemplated by the Offer, the Merger or the Stock Option
Agreement or seeking to obtain, from the Company, Purchaser, or Merger
Sub, any damages that are reasonably likely to have a Material Adverse
Effect on the Company or Purchaser or to prevent, materially delay or
materially impair the ability of the Company to consummate the
transactions contemplated by the Agreement or the Stock Option Agreement;
(ii) seeking to prohibit, or impose any material limitations on,
Purchaser's or Merger Sub's ownership or operation of all or any material
portion of Purchaser's or the Company's business or assets (including the
business or assets of their respective affiliates and subsidiaries taken
as a whole), or to compel Purchaser or Merger Sub to dispose of or hold
separate all or any material portion of Purchaser's or the Company's
business or assets (including the business or assets of their respective
affiliates and subsidiaries taken as a whole) as a result of the
transactions contemplated by the Offer, the Merger or the Stock Option
Agreement; (iii) seeking to make the accep tance for payment, purchase
of, or payment for, some or all of the Shares illegal or render Merger
Sub unable to, or result in a delay of more than 10 business days in, or
materially restrict, the ability of Merger Sub to accept for payment,
purchase or pay for some or all of the Shares pursuant to the Offer or
the Merger (exclusive of actions under Sections 180.1301 to 180.1331 of
the WBCL); or (iv) seeking to impose material limitations on the ability
of Purchaser or Merger Sub effectively to acquire, hold or exercise full
rights of ownership of the Shares (to the extent allowed under Section
180.1150 of the WBCL) including, without limitation, the right to vote
the Shares pur chased by them on an equal basis with all other Shares on
all matters properly presented to the Company's shareholders;
A-3
<PAGE>
(d) any statute, rule, regulation, order or injunction shall be
enacted, promulgated, entered, enforced or deemed or become ap plicable
to the Offer or the Merger, or any other action shall have been taken,
and in each case be in existence as of the scheduled expiration date of
the Offer, by any court or other Governmental Entity (other than the
application to the Offer or the Merger of waiting periods under the HSR
Act), that is reasonably likely to result in any of the effects of, or
have any of the consequences sought to be obtained or achieved in, any
Action referred to in clauses (i) through (iv) of paragraph (c) above;
(e) a tender or exchange offer for at least fifteen percent of the
Shares shall have been commenced or publicly proposed to be made by
another Person (including the Company or its subsidiaries), or it shall
have been publicly disclosed that (i) any Person (including the Company
or its subsidiaries) shall have become the beneficial owner (as defined
in Section 13(d) of the Exchange Act and the rules promulgated
thereunder) of fifteen percent or more of any class or series of capital
stock of the Company (including the Shares) (other than for bona fide
arbitrage purposes); or (ii) any Person, entity or group shall have
entered into (with the Company or any agent or Representative of the
Company) a definitive agreement or a written agreement in principle with
respect to an Acquisition Proposal (excluding a confidentiality agreement
allowed under Section 7.2);
(f) any change shall have occurred or be threatened and be
continuing as of the scheduled expiration date of the Offer, in the
financial condition, properties, businesses or results of operations of
the Company or any of its subsidiaries that is or is reasonably likely to
have a Material Adverse Effect on the Company;
(g) the Company Board (or a special committee thereof) shall have
amended, withdrawn or modified, in a manner adverse to Purchaser or
Merger Sub, its approval or recommendation of the Offer, the Agreement or
A-4
<PAGE>
the Merger, or shall fail to reaffirm such approval or recommendation
within two business days of the written request by Purchaser or Merger
Sub to do so, or shall have endorsed, approved or recommended any other
Acquisition Proposal, or shall have publicly announced it has resolved to
do any of the foregoing; or
(h) the Agreement shall have been terminated by the Company or
Purchaser or Merger Sub in accordance with its terms or Purchaser or
Merger Sub shall have reached an agreement or understanding in writing
with the Company providing for termination or amendment of the Offer or
delay in payment for the Shares;
which, in the reasonable judgment of Purchaser and Merger Sub, in any such case,
and regardless of the circumstances (including any action or inaction by
Purchaser or Merger Sub, provided Purchaser and Merger Sub are not in violation
of the Agreement) giving rise to any such condition, makes it inadvisable to
proceed with the Offer and/or with such acceptance for payment of or payment for
Shares.
The foregoing conditions are for the sole benefit of Purchaser and Merger
Sub and, subject to the terms of the Agreement, may be asserted by Purchaser or
Merger Sub regardless of the circumstances (including any action or inaction by
Purchaser or Merger Sub, provided Purchaser and Merger Sub are not in violation
of the Agreement) giving rise to any such condition or may be waived by
Purchaser or Merger Sub, by express and specific action to that effect, in whole
or in part at any time and from time to time in its sole discretion in
compliance with the Agreement. The failure of Merger Sub at any time to exercise
any of the foregoing rights shall not be deemed a waiver of any such right, the
waiver of any such right with respect to parti cular facts and other
circumstances shall not be deemed a waiver with respect to any other facts and
circumstances, and each such right shall be deemed an ongoing right that may be
asserted at any time and from time to time.
A-5
STOCK OPTION AGREEMENT, dated as of June 11, 1999 (the "Agreement"), by
and between SUPERIOR SERVICES, INC., a Wisconsin corporation ("Issuer") and
VIVENDI, a societe anonyme organized under the laws of France ("Grantee").
RECITALS
A. Issuer, Grantee and Onyx Solid Waste Acquisition Corp., a Wisconsin
corporation and an indirect wholly-owned subsidiary of Grantee ("Merger Sub"),
have entered into an Agreement and Plan of Merger, dated as of the date hereof
(the "Merger Agreement"; defined terms used but not defined herein have the
meanings set forth in the Merger Agreement), providing for, among other things,
an Offer by Merger Sub for all the outstanding Shares of Issuer and, subsequent
thereto, assuming the Offer is consummated on the terms set forth in the Offer
Documents and all the other conditions to the Merger are satisfied or waived,
the Merger of Merger Sub with and into Issuer with Issuer as the surviving
corporation in the Merger, pursuant to which Issuer will become a wholly-owned
subsidiary of Grantee; and
B. As a condition and inducement to each of Grantee's and Merger Sub's
willingness to enter into the Merger Agreement, Grantee has requested that
Issuer agree, and Issuer has agreed, to grant Grantee the Option (as defined
below).
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, Issuer
and Grantee agree as follows:
1. Grant of Option. Subject to the terms and conditions set forth herein,
Issuer hereby grants to Grantee an irrevocable option (the "Option") to purchase
up to 6,440,653 (as adjusted as set forth herein) shares (the "Option Shares"),
of Common Stock, par value $0.01 per share ("Issuer Common Stock"), of Issuer at
a purchase price of $* (as adjusted as set forth herein) per Option Share (the
"Purchase Price"); provided, however, that in no event shall the number of
Option Shares exceed 19.9% of the capital stock entitled to vote generally for
the election of directors of Issuer that is issued and outstanding at the time
of exercise (without giving effect to the Option Shares issued or issuable under
the Option) (the "Maximum Applicable Percentage"). The number of Option Shares
<PAGE>
purchasable upon exercise of the Option and the Option Price are subject to
adjustment as set forth herein and subject to Section 9(b).
2. Exercise of Option. (a) Grantee may exercise the Option, with respect
to any or all of the Option Shares at any time, subject to the provisions of
Section 2(d), after the occurrence of any event as a result of which the Grantee
is entitled to receive a termination fee pursuant to Section 9.05(b) of the
Merger Agreement (a "Purchase Event"); provided, however, that (i) except as
provided in the last sentence of this Section 2(a), the Option will terminate
and be of no further force and effect upon the earliest to occur of (A) the
Effective Time, (B) 12 months after the first occurrence of a Purchase Event,
and (C) termination of the Merger Agreement in accordance with its terms prior
to the occurrence of a Purchase Event, and (ii) any purchase of Option Shares
upon exercise of the Option will be subject to compliance with the HSR Act and
the obtaining or making of any consents, approvals, orders, notifications,
filings, expiration of applicable waiting periods or authorizations, the failure
of which to have obtained or made would have the effect of making the purchase
of Option Shares by Grantee illegal (the "Regulatory Approvals").
Notwithstanding the termination of the Option, Grantee will be entitled to
purchase the Option Shares if it has exercised the Option in accordance with the
terms hereof prior to the termination of the Option and the termination of the
Option will not affect any rights hereunder which by their terms do not
terminate or expire prior to or as of such termination.
(b) Grantee shall exercise the Option, with respect to that number of
Option Shares equal to the Applicable Amount (as defined below), subject to the
provisions of Section 2(d) and to clause (ii) of the proviso of Section 2(a), if
(a) Merger Sub shall have accepted Shares for payment pursuant to the terms of
the Offer and (b) Grantee and Merger Sub shall own at least 61 percent of the
then outstanding Shares (determined on a fully-diluted basis, but excluding
Shares subject to the Option granted hereunder); provided that Grantee shall not
be required to exercise the Option pursuant to this Section 2(b) if Grantee and
Merger Sub shall own at least 75 percent of the then outstanding Shares
(determined on a fully-diluted basis, but excluding Shares subject to the Option
granted hereunder)); and provided, further, that in
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<PAGE>
no event shall Grantee be required to exercise the Option prior to Merger Sub's
acceptance of Shares for payment pursuant to the terms of the Offer. The
"Applicable Amount" shall be that number of Shares which, when added to the
number of Shares owned by Grantee and Merger Sub immediately prior to its
exercise of the Option, would result in Purchaser Merger Sub owning immediately
after its exercise of the Option that number of Shares that provides Grantee
Merger Sub with at least 50.1% of the votes represented by outstanding Shares
(determined on a fully diluted basis).
(c) In the event that Grantee is required to, or is entitled to and
wishes to exercise the Option, it will send to Issuer a written notice (an
"Exercise Notice"; the date of which being herein referred to as the "Notice
Date") to that effect which Exercise Notice also specifies the number of Option
Shares, if any, Grantee wishes to purchase pursuant to this Section 2(c), the
number of Option Shares, if any, with respect to which Grantee wishes to
exercise its Cash-Out Right (as defined herein) pursuant to Section 7(c), the
denominations of the certificate or certificates evidencing the Option Shares
which Grantee wishes to purchase pursuant to this Section 2(c) and a date (an
"Option Closing Date"), subject to the following sentence, not later than (i) 20
business days, in the event of an exercise of the Option pursuant to Section
2(a) and (ii) 3 business days in the event of an exercise of the Option pursuant
to Section 2(b), from the Notice Date for the closing of such purchase (an
"Option Closing"). Any Option Closing will be at an agreed location and time in
New York, New York on the applicable Option Closing Date or at such later date
as may be necessary so as to comply with the provisions of Section 2(d).
(d) Notwithstanding anything to the contrary contained herein, any
exercise of the Option and purchase of Option Shares shall be subject to
compliance with applicable laws and regulations, which may prohibit the purchase
of any or all of the Option Shares specified in the Exercise Notice without
first obtaining or making certain Regulatory Approvals. In such event, if the
Option is otherwise exercisable and Grantee wishes or is required to exercise
the Option, the Option may be exercised in accordance with Section 2(c) and
Grantee shall acquire the maximum number of Option Shares specified in the
Exercise Notice that Grantee is then permitted to acquire under the applicable
laws and regulations, and if Grantee thereafter obtains the
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<PAGE>
Regulatory Approvals to acquire the remaining balance of the Option Shares
specified in the Exercise Notice, then Grantee shall be entitled to or shall to
the extent required acquire such remaining balance. Issuer agrees to use its
reasonable best efforts to assist Grantee in seeking the Regulatory Approvals
and Grantee agrees to use its reasonable best efforts to obtain such Regulatory
Approvals as promptly as practicable.
In the event (i) Grantee exercised the Option pursuant to Section 2(a),
(ii) Grantee receives official notice that a Regulatory Approval required for
the purchase of any Option Shares will not be issued or granted or (iii) such
Regulatory Approval has not been issued or granted within six months of the date
of the Exercise Notice, Grantee shall have the right to exercise its Cash- Out
Right pursuant to Section 7(c) with respect to the Option Shares for which such
Regulatory Approval will not be issued or granted or has not been issued or
granted.
3. Payment and Delivery of Certificates. (a) At any Option Closing,
Grantee will pay to Issuer in immediately available funds by wire transfer to a
bank account designated in writing by Issuer an amount equal to the Purchase
Price multiplied by the number of Option Shares to be purchased at such Option
Closing.
(b) At any Option Closing, simultaneously with the delivery of
immediately available funds as provided in Section 3(a), Issuer will deliver to
Grantee a certificate or certificates representing the Option Shares to be
purchased at such Option Closing, which Option Shares will be free and clear of
all liens, claims, charges and encumbrances of any kind whatsoever. If at the
time of issuance of the Option Shares hereunder, the Issuer shall have issued
any rights or other securities which are attached to or otherwise associated
with the Issuer Common Stock, then each Option Share shall also represent such
rights or other securities with terms substantially the same as, and at least as
favorable to the Grantee as are provided under any shareholder rights agreement
or similar agreement of the Issuer then in effect.
(c) Certificates for the Option Shares delivered at an Option Closing
will have typed or printed thereon a restrictive legend which will read
substantially as follows:
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"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
BE REOFFERED OR SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM
SUCH REGISTRATION IS AVAILABLE. SUCH SECURITIES ARE ALSO SUBJECT
TO ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE STOCK
OPTION AGREEMENT, DATED AS OF JUNE 11, 1999, A COPY OF WHICH MAY
BE OBTAINED FROM THE SECRETARY OF SUPERIOR SERVICES, INC. AT ITS
PRINCIPAL EXECUTIVE OFFICES."
It is understood and agreed that (i) the reference to restrictions arising under
the Securities Act in the above legend will be removed by delivery of substitute
certificate(s) without such reference if such Option Shares have been registered
pursuant to the Securities Act, such Option Shares have been sold in reliance on
and in accordance with Rule 144 under the Securities Act or Grantee has
delivered to Issuer a copy of a letter from the staff of the SEC, or an opinion
of counsel in form and substance reasonably satisfactory to Issuer and its
counsel, to the effect that such legend is not required for purposes of the
Securities Act and (ii) the reference to restrictions pursuant to this Agreement
in the above legend will be removed by delivery of substitute certificate(s)
without such reference if the Option Shares evidenced by certificate(s)
containing such reference have been sold or transferred in compliance with the
provisions of this Agreement under circumstances that do not require the
retention of such reference.
4. Covenants of Issuer. In addition to its other agreements and covenants
herein, Issuer agrees:
(a) Shares Reserved for Issuance. To maintain, free from
preemptive rights, sufficient authorized but unissued or treasury shares
of Issuer Common Stock so that the Option may be fully exercised without
additional authorization of Issuer Common Stock after giving effect to
all other options, warrants, convertible securities and other rights of
third parties to purchase shares of Issuer Common Stock from Issuer, and
to issue the appropriate number of shares of Issuer Common Stock pursuant
to the terms of this Agreement.
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(b) No Avoidance. Not to avoid or seek to avoid (whether by
charter amendment or through reorganiza tion, consolidation, merger,
issuance of rights, dissolution or sale of assets, or by any other volun
tary act) the observance or performance of any of the covenants,
agreements or conditions to be observed or performed hereunder by Issuer.
5. Representations and Warranties of Issuer. Issuer hereby represents and
warrants to Grantee as follows:
(a) Merger Agreement. Issuer hereby makes each of the
representations and warranties contained in Sections 6.1(b), 6.1(d) and
6.1(j) of the Merger Agreement as they relate to Issuer and this
Agreement, as if such representations and warranties were set forth
herein.
(b) Corporate Authority. Issuer hereby represents and warrants to
Grantee that Issuer has all requisite corporate power and authority and
has taken all corporate action necessary in order to execute, deliver and
perform its obligations under this Agreement and to consummate the
transactions contemplated hereby; the execution and delivery of this
Agreement have been duly authorized by all necessary corporate action on
the part of Issuer, and constitutes a valid and binding agreement of
Issuer enforceable against Issuer in accordance with its terms.
(c) Authorized Stock. Issuer has taken all necessary corporate and
other action to authorize and reserve and, subject to the expiration or
termination of any required waiting period under the HSR Act, to permit
it to issue, and, at all times from the date hereof until the obligation
to deliver Option Shares upon the exercise of the Option terminates,
shall have reserved for issuance, upon exercise of the Option, shares of
Issuer Common Stock necessary for Grantee to exercise the Option, and
Issuer will take all necessary corporate action to authorize and reserve
for issuance all additional shares of Issuer Common Stock or other
securities which may be issued pursuant to Section 7 upon exercise of the
Option. The shares of Issuer Common Stock to be issued upon due exercise
of the Option, including all additional shares of Issuer Common Stock or
other securities which may be issuable
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<PAGE>
upon exercise of the Option or any other securities which may be issued
pursuant to Section 7, upon issuance pursuant hereto, will be duly and
validly issued, fully paid and nonassessable (except as provided in
Section 180.0622(2)(b) of the Wisconsin Business Corporation Law), and
will be delivered free and clear of all liens, claims, charges and
encumbrances of any kind or nature whatsoever, including without
limitation any preemptive rights of any shareholder of Issuer.
(d) Takeover Statutes. Issuer's board of directors has taken all
appropriate and necessary actions such that Sections 180.1140 to 180.1144
of the WBCL and Article IV of the Company's Restated Articles are
inapplicable to the execution and delivery of this Agreement and to the
consummation of the transactions contemplated hereby. No other Takeover
Statute as in effect on the date hereof is applicable to the execution
and delivery of this Agreement, the Issuer Common Stock issuable
hereunder or to the other transactions contemplated by this Agreement. No
anti-takeover provision contained in Issuer's Restated Articles or
by-laws is applicable to the execution and delivery of this Agreement,
the Issuer Common Stock issuable hereunder or to the other transactions
contemplated by this Agreement.
6. Representations and Warranties of Grantee. Grantee hereby represents
and warrants to Issuer that:
Purchase Not for Distribution. Any Option Shares or other
securities acquired by Grantee upon exercise of the Option will not be
transferred or otherwise disposed of except in a transaction registered,
or exempt from registration, under the Securities Act.
7. Adjustment upon Changes in Capitalization, Etc. (a) In the event of
any change in the Issuer Common Stock by reason of a stock dividend, split-up,
reverse stock split, merger, recapitalization, combination, exchange of shares,
or similar transaction, the type and number of shares or securities subject to
the Option, and the Purchase Price thereof, will be adjusted appropriately, and
proper provision will be made in the agreements governing such transaction, so
that Grantee will receive upon exercise of the Option the number and class of
shares or other
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<PAGE>
securities or property that Grantee would have received in respect of Issuer
Common Stock if the Option had been exercised immediately prior to such event or
the record date therefor, as applicable. Subject to Section 1, and without
limiting the parties' relative rights and obligations under the Merger
Agreement, if any additional shares of Issuer Common Stock are issued after the
date of this Agreement (other than pursuant to an event described in the first
sentence of this Section 7(a)), the number of shares of Issuer Common Stock
subject to the Option will be adjusted so that, after such issuance, it equates
the Maximum Applicable Percentage.
(b) Without limiting the parties' relative rights and obligations under
the Merger Agreement, in the event that Issuer enters into an agreement (i) to
consolidate with or merge into any person, other than Grantee or one of its
subsidiaries, and Issuer will not be the continuing or surviving corporation in
such consolidation or merger, (ii) to permit any person, other than Grantee or
one of its subsidiaries, to merge into Issuer and Issuer will be the continuing
or surviving corporation, but in connection with such merger, the shares of
Issuer Common Stock outstanding immediately prior to the consummation of such
merger will be changed into or exchanged for stock or other securities of Issuer
or any other person or cash or any other property, or the shares of Issuer
Common Stock outstanding immediately prior to the consummation of such merger
will, after such merger, represent less than 50% of the outstanding voting
securities of the merged company, or (iii) to sell or otherwise transfer all or
substantially all of its assets to any person, other than Grantee or one of its
subsidiaries, then, and in each such case, the agreement governing such
transaction will make proper provision so that the Option will, upon the
consummation of any such transaction and upon the terms and conditions set forth
herein, be converted into, or exchanged for, an option with identical terms
appropriately adjusted to acquire the number and class of shares or other
securities or property that Grantee would have received in respect of Issuer
Common Stock if the Option had been exercised immediately prior to such
consolidation, merger, sale, or transfer, or the record date therefor, as
applicable, and make any other necessary adjustments.
(c) If, at any time during the period commencing on a Purchase Event and
ending on the termination of the
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Option in accordance with Section 2, Grantee sends to Issuer an Exercise Notice
indicating Grantee's election to exercise its right (the "Cash-Out Right")
pursuant to this Section 7(c), then Issuer shall pay to Grantee, on the Option
Closing Date, in exchange for the cancellation of the Option with respect to
such number of Option Shares as Grantee specifies in the Exercise Notice, an
amount in cash equal to such number of Option Shares multiplied by the
difference between (i) the average closing price, for the 10 NASDAQ/National
Market System ("NASDAQ/NMS") trading days commencing on the 12th NASDAQ/NMS
trading day immediately preceding the Notice Date, per share of Issuer Common
Stock as reported on the NASDAQ/NMS (or, if not listed on the NASDAQ/NMS, as
reported on any other national securities exchange or national securities
quotation system on which the Issuer Common Stock is listed or quoted, as
reported in The Wall Street Journal (Northeast edition), or, if not reported
therein, any other authoritative source) (the "Closing Price") and (ii) the
Purchase Price. Notwithstanding the termination of the Option, Grantee will be
entitled to exercise its rights under this Section 7(c) if it has exercised such
rights in accordance with the terms hereof prior to the termination of the
Option.
8. Registration Rights. Issuer will, if requested by Grantee at any time
and from time to time within two years of the exercise of the Option, as
expeditiously as possible prepare and file up to two registration statements
under the Securities Act if such registration is necessary in order to permit
the sale or other disposition of any or all Option Shares or securities that
have been acquired by or are issuable to Grantee upon exercise of the Option in
accordance with the intended method of sale or other disposition stated by
Grantee, including a "shelf" registration statement under Rule 415 under the
Securities Act or any successor provision, and Issuer will use its reasonable
best efforts to qualify such Option Shares or other securities under any
applicable state securities laws. Grantee agrees to use reasonable best efforts
to cause, and to cause any underwriters of any sale or other disposition to
cause, any sale or other disposition pursuant to such registration statement to
be effected on a widely distributed basis so that upon consummation thereof no
purchaser or transferee will own beneficially more than 4.9% of the
then-outstanding voting power of Issuer. Issuer will use reasonable best efforts
to cause each such registration statement to become effective, to obtain all
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<PAGE>
consents or waivers of other parties which are required therefor, and to keep
such registration statement effective for such period not in excess of 90
calendar days from the day such registration statement first becomes effective
as may be reasonably necessary to effect such sale or other disposition. The
obligations of Issuer hereunder to file a registration statement and to maintain
its effectiveness may be suspended for up to 60 calendar days in the aggregate
if the Board of Directors of Issuer shall have determined in good faith that the
filing of such registration statement or the maintenance of its effectiveness
would require premature disclosure of material nonpublic information that would
materially and adversely affect Issuer or otherwise interfere with or adversely
affect any pending or proposed offering of securities of Issuer or any other
material transaction involving Issuer. Any registration statement prepared and
filed under this Section 8, and any sale covered thereby, will be at Issuer's
expense, except for underwriting discounts or commissions, brokers' fees and the
fees and disbursements of Grantee's counsel related thereto. Grantee will
provide all information reasonably requested by Issuer for inclusion in any
registration statement to be filed hereunder. If, during the time periods
referred to in the first sentence of this Section 8, Issuer effects a
registration under the Securities Act of Issuer Common Stock for its own account
or for any other shareholders of Issuer (other than on Form S-4 or Form S-8, or
any successor form), it will allow Grantee the right to participate in such
registration, and such participation will not affect the obligation of Issuer to
effect demand registration statements for Grantee under this Section 8;
provided, that, if the managing underwriters of such offering advise Issuer in
writing that in their opinion the number of shares of Issuer Common Stock
requested to be included in such registration exceeds the number which can be
sold in such offering or could materially impact the marketing or prices of such
offering, Issuer will include the shares requested to be included therein by
Grantee pro rata with the shares intended to be included therein by Issuer. In
connection with any registration pursuant to this Section 8, Issuer and Grantee
will provide each other and any underwriter of the offering with customary
representations, warranties, covenants, indemnification, and contribution in
connection with such registration.
9. Limitation on Profit. (a) Notwithstanding any other provision of this
Agreement, in no event shall
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Grantee's Total Profit (as defined below) plus any Termination Fee and
Reimbursement Fee paid to Grantee pursuant to Section 9.05(b) of the Merger
Agreement exceed in the aggregate $31.5 million and, if the total amount that
otherwise would be received by Grantee would exceed such amount, Grantee, at its
sole election, shall either (i) reduce the number of shares of Issuer Common
Stock subject to the Option, (ii) deliver to the Issuer for cancellation Option
Shares previously purchased by Grantee against the refund of the purchase price
therefore, (iii) pay cash to the Issuer or (iv) any combination thereof, so that
Grantee's actually realized Total Profit, when aggregated with such Termination
Fee and Reimbursement Fee so paid to Grantee, shall not exceed $31.5 million
after taking into account the foregoing actions.
(b) Notwithstanding any other provision of this Agreement, the Option may
not be exercised for a number of Option Shares as would, as of the date of
exercise, result in a Notional Total Profit (as defined below) which, together
with any Termination Fee and Reimbursement Fee theretofore paid to Grantee, and
after giving effect to any election made by Grantee under Section 9(a), would
exceed $31.5 million; provided, that nothing in this sentence shall restrict any
exercise of the Option permitted hereby on any subsequent date.
(c) As used herein, the term "Total Profit" shall mean the aggregate
amount (before taxes) of the following: (i) the amount received by Grantee
pursuant to Issuer's repurchase of the Option (or any portion thereof) pursuant
to Section 7(c), (ii)(x) the net cash amounts or the fair market value of any
property received by Grantee pursuant to the sale of Option Shares (or (A) any
other securities into which such Option Shares are converted or exchanged or (B)
any property, cash or other securities received pursuant to adjustments under
Section 7 or delivered pursuant to Section 3(b) ("Additional Property") to any
unaffiliated party, but in no case less than the fair market value of such
Option Shares, less (y) the Grantee's purchase price of such Option Shares, and
(iii) the net cash amounts received by Grantee on the transfer (in accordance
with Section 13(g) hereof) of the Option (or any portion thereof) to any
unaffiliated party.
(d) As used herein, the term "Notional Total Profit" with respect to any
number of Option Shares as to
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which Grantee may propose to exercise the Option shall be the Total Profit
determined as of the date of such proposal assuming for such purpose that the
Option were exercised on such date for such number of Option Shares and assuming
that (i) such Option Shares (or any other securities into which such Option
Shares are converted or exchanged), together with all other Option Shares held
by Grantee and its affiliates as of such date, were sold for cash at the closing
market price on the NASDAQ/NMS for the Issuer Common Stock as of the close of
business on the preceding trading day (less customary brokerage commissions) and
(ii) the Additional Property is disposed of for fair market value.
10. Transfers. The Option Shares may not be sold, assigned, transferred,
or otherwise disposed of except (i) in an underwritten public offering as
provided in Section 8 or (ii) to any purchaser or transferee who would not, to
the knowledge of the Grantee after reasonable inquiry, immediately following
such sale, assignment, transfer or disposal beneficially own more than 4.9% of
the then-outstanding voting power of the Issuer; provided, however, that Grantee
shall be permitted to sell any Option Shares if such sale is made pursuant to a
tender or exchange offer that has been approved or recommended by a majority of
the members of the Board of Directors of Issuer.
11. Listing. If Issuer Common Stock or any other securities to be
acquired upon exercise of the Option are then listed on the NASDAQ/NMS (or any
other national securities exchange or national securities quotation system),
Issuer, upon the request of Grantee, will promptly file an application to list
the shares of Issuer Common Stock or other securities to be acquired upon
exercise of the Option on the NASDAQ/NMS (and any other such national securities
exchange or national securities quotation system) and will use reasonable best
efforts to obtain approval of such listing as promptly as practicable.
12. Loss or Mutilation. Upon receipt by Issuer of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this
Agreement, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Agreement, if mutilated, Issuer will execute and deliver a new Agreement of like
tenor and date. Any such new agreement executed and delivered will constitute an
additional contractual obligation on the part
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<PAGE>
of Issuer, whether or not the Agreement so lost, stolen, destroyed, or mutilated
shall at any time be enforceable by anyone.
13. Miscellaneous.
(a) Expenses. Except as otherwise provided in the Merger Agreement, each
of the parties hereto will bear and pay all costs and expenses incurred by it or
on its behalf in connection with the transactions contemplated hereunder,
including fees and expenses of its own financial consultants, investment
bankers, accountants, and counsel.
(b) Amendment. This Agreement may not be amended, except by an instrument
in writing signed on behalf of each of the parties.
(c) Extension; Waiver. Any agreement on the part of a party to waive any
provision of this Agreement, or to extend the time for performance, will be
valid only if set forth in an instrument in writing signed on behalf of such
party. The failure of any party to this Agreement to assert any of its rights
under this Agreement or otherwise will not constitute a waiver of such rights.
(d) Entire Agreement; No Third-Party Beneficiaries. This Agreement, the
Merger Agreement (including the documents and instruments attached thereto as
exhibits or schedules or delivered in connection therewith), the Shareholder
Tender Agreement and the Confidentiality Agreement (as amended) (i) constitute
the entire agreement, and supersede all prior agreements and understandings,
both written and oral, between the parties with respect to the subject matter of
this Agreement, and (ii) except as provided in Section 10.9(b) of the Merger
Agreement, are not intended to confer upon any person other than the parties any
rights or remedies.
(e) Governing Law. This Agreement shall be deemed to be made in and in
all respects shall be interpreted, construed and governed by and in accordance
with the law of the State of Delaware applicable to contracts to be performed
wholly in such state.
(f) Notices. All notices, requests, claims, demands, and other
communications under this Agreement must be in writing and will be deemed given
if delivered
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personally, telecopied (which is confirmed), or sent by overnight courier
(providing proof of delivery) to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
if to Grantee:
Vivendi
42, Avenue de Friedland
75380 Paris Cedex 08
France
Attention: Henri Proglio
fax: (011) 33-171-71-1179
with a copy to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: David M. Kies, Esq. and
Keith A. Pagnani, Esq.
fax: (212) 558-3588
(212) 558-3588)
if to the Issuer:
Superior Services, Inc.,
125 South 84th Street, Suite 200
Milwaukee, Wisconsin 53214
Attention: Peter J. Ruud and
Scott S. Cramer
fax: (414) 479-7400
with a copy to:
Foley & Lardner
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attention: Steven R. Barth, Esq.
fax: (414) 297-4900
(g) Assignment. Neither this Agreement, the Option nor any of the rights,
interests, or obligations under this Agreement may be assigned or delegated, in
whole or in part, by operation of law or otherwise, by Issuer or Grantee without
the prior written consent of the other. Any assignment or delegation in
violation of the preceding sentence will be void. Subject to the first and
second
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<PAGE>
sentences of this Section 13(g), this Agreement will be binding upon, inure to
the benefit of, and be enforceable by, the parties and their respective
successors and assigns.
(h) Further Assurances. In the event of any exercise of the Option by
Grantee, Issuer and Grantee will execute and deliver all other documents and
instruments and take all other actions that may be reasonably necessary in order
to consummate the transactions provided for by such exercise.
(i) Enforcement; Venue; Waiver of Jury Trial. (a) The parties agree that
irreparable damage would occur and that the parties would not have any adequate
remedy at law in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties will be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any Federal court located in the
State of Delaware or in Delaware state court, the foregoing being in addition to
any other remedy to which they are entitled at law or in equity. The parties
hereby irrevocably submit to the jurisdiction of the courts of the State of
Delaware and the Federal courts of the United States of America located in the
State of Delaware solely in respect of the interpretation and enforcement of the
provisions of this Agreement and of the documents referred to in this Agreement
and in respect of the transactions contemplated hereby, and hereby waive, and
agree not to assert, as a defense in any action, suit or proceeding for the
interpretation or enforcement hereof or of any such document, that it is not
subject thereto or that such action, suit or proceeding may not be brought or is
not maintainable in said courts or that the venue thereof may not be appropriate
or that this Agreement or any such document may not be enforced in or by such
courts, and the parties hereto irrevocably agree that all claims with respect to
such action or proceeding shall be heard and determined in such a Delaware State
or Federal court. The parties hereby consent to and grant any such court
jurisdiction over the person of such parties and over the subject matter of such
dispute and agree that mailing of process or other papers in connection with any
such action or proceeding in the manner provided in Section 13(f) or in such
other manner as may be permitted by law shall be valid and sufficient service
thereof.
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<PAGE>
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY
MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 13(i)(b).
14. Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that the transactions contemplated hereby are fulfilled to the fullest
extent possible.
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<PAGE>
IN WITNESS WHEREOF, Issuer and Grantee have caused this Agreement to be
signed by their respective officers thereunto duly authorized as of the day and
year first written above.
VIVENDI
By: _________________________
Name:
Title:
SUPERIOR SERVICES, INC.
By: _________________________
Name:
Title:
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Exhibit 4
AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT TO RIGHTS AGREEMENT ("Amendment"), dated as of June 11, 1999,
between SUPERIOR SERVICES, INC., a Wisconsin corporation (the "Company"), and
LaSALLE NATIONAL BANK ASSOCIATION, f/k/a LaSALLE NATIONAL BANK, as rights agent
(the "Rights Agent"), to the Rights Agreement, dated as of February 21, 1997,
between the Company and the Rights Agent (the "Rights Agreement").
WHEREAS, the Board of Directors of the Company believes it to be in the
best interest of the Company and its shareholders to enter into an Agreement and
Plan of Merger (the "Merger Agreement"), dated as of the date hereof, by and
among the Company, Vivendi a Societe Anonyme organized under the laws of France
(the "Purchaser"), and Onyx Solid Waste Acquisition Corp., an indirect
wholly-owned subsidiary of Purchaser ("Merger Sub"), which Merger Agreement
provides for, among other things, a tender offer (the "Offer") by Merger Sub,
for all of the issued and outstanding shares of the Company's common stock, $.01
par value per share ("Common Stock") (including the associated Common Stock
purchase rights (the "Rights") to purchase shares of Common Stock pursuant to
the terms of the Rights Agreement) and a Stock Option Agreement, dated the date
hereof, between the Company and Purchaser (the "Stock Option Agreement") which
provides for the grant to Purchaser of an option to Purchase up to 19.9% of the
Company's then outstanding Common Stock under certain conditions.
WHEREAS, as a result of the foregoing, the Board of Directors of the
Company desires that the transactions contemplated by the Merger Agreement and
the Stock Option Agreement, as well as Purchaser, Merger Sub and any affiliates
thereof be exempt from the provisions of the Rights Agreement;
WHEREAS, the Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement;
WHEREAS, pursuant to Section 29 of the Rights Agreement, the Company
may supplement or amend any provision of the Rights Agreement in accordance with
the provisions of Section 29 thereof; and
WHEREAS, all acts and things necessary to make this Amendment a valid
agreement, enforceable according to its terms, have been done and performed, and
the execution and delivery of this Amendment by the Company and the Rights Agent
have been in all respects duly authorized by the Company and the Rights Agent.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the parties hereby agree as follows:
1. Capitalized terms used herein and not otherwise defined are used as
defined in the Rights Agreement.
<PAGE>
2. The Agreement is hereby amended to add a new Section 34 to the
Agreement which shall read in its entirety as follows:
Section 34. Excluded Transactions. Notwithstanding anything in this
Agreement to the contrary, (a) neither Vivendi a Societe Anonyme
organized under the laws of France (the "Purchaser"), Onyx Solid Waste
Acquisition Corp., an indirect wholly-owned subsidiary of Purchaser
("Merger Sub") or any of their respective Affiliates or Associates
shall become an Acquiring Person, either individually or collectively,
(b) no Distribution Date or Shares Acquisition Date shall occur, (c) no
Rights shall separate from the shares of Common Shares or otherwise
become exercisable, (d) no holder of Rights or any other Person shall
have any legal or equitable rights, remedy or claim under the Agreement
and (e) no event described in any of clause (a), (b) or (c) of Section
14 shall be deemed to have occurred, in each case solely by virtue of
(i) the announcement of the Offer (as defined in the Merger Agreement
(as defined below)), (ii) the acquisition of Common Shares of the
Company pursuant to the Offer, the Merger (as defined in the Merger
Agreement), the Agreement and Plan of Merger, dated as of June 11,
1999, among Purchaser, the Company and Merger Sub (the "Merger
Agreement"), the Stock Option Agreement, dated as of June 11, 1999, by
and between Purchaser and the Company (the "Stock Option Agreement") or
the Shareholder Tender Agreement, dated as of June 11 1999, among
Purchaser, Merger Sub and Joseph P. Tate (the "Shareholder Tender
Agreement") (y) the execution and delivery of any of the Merger
Agreement, the Stock Option Agreement or the Shareholder Tender
Agreement or (z) the consummation of the Offer, the Merger or any of
the other transactions contemplated by the Merger Agreement, the Stock
Option Agreement or the Shareholder Tender Agreement
3. The term "Agreement," as used in the Rights Agreement, shall be
deemed to refer to the Rights Agreement as amended hereby.
4. This Amendment shall be deemed to be a contract made under the laws
of the State of Wisconsin and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to contracts to
be made and performed entirely within such State.
5. This Amendment may be executed in any number of counterparts and
each of such counterparts shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute but one and the same
instrument.
2
<PAGE>
6. In all respects not inconsistent with the terms and provisions of
this Amendment, the Rights Agreement is hereby ratified, adopted, approved and
confirmed. In executing and delivering this Amendment, the Rights Agent shall be
entitled to all the privileges and amenities afforded to the Rights Agent under
the terms and conditions of the Rights Agreement.
7. If any term, provision, covenant or restriction of this Amendment is
held by a court of competent jurisdiction or other authority to be invalid,
illegal, or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Amendment, and of the Rights Agreement, shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
SUPERIOR SERVICES, INC.
By:
Peter J. Ruud
Senior Vice President - Administration
LaSALLE BANK NATIONAL ASSOCIATION (f/k/a LaSALLE
NATIONAL BANK)
By:
Name:
Title:
3
SHAREHOLDER TENDER AGREEMENT
AGREEMENT, dated as of June 11, 1999, among VIVENDI, a societe anonyme
organized under the laws of France ("Purchaser"), ONYX SOLID WASTE ACQUISITION
CORP., a Wisconsin corporation and an indirect wholly-owned subsidiary of
Purchaser ("Merger Sub")and Joseph P. Tate, the beneficial owner ("Shareholder")
of Shares of SUPERIOR SERVICES, INC., a Wisconsin corporation (the "Company").
WHEREAS, in order to induce Purchaser and Merger Sub to enter into the
Agreement and Plan of Merger, dated as of the date hereof, with the Company (the
"Merger Agreement"), Merger Sub has requested Shareholder, and Shareholder has
agreed, to enter into this Agreement; and
WHEREAS, Shareholder, Purchaser and Merger Sub desire to make certain
representations, warranties, covenants and agreements in connection with this
Agreement; and
WHEREAS, capitalized terms used herein but not defined herein shall have
the respective meanings ascribed to such terms in the Merger Agreement;
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements contained herein the
parties hereto hereby agree as follows:
ARTICLE I
TENDER OF SHARES; OPTION; EXPIRATION
SECTION 1.1 Tender of Shares. (a) Shareholder hereby agrees, pursuant to
the terms and subject to the conditions set forth herein, to validly tender (or
to cause the record holder(s) of Shareholder's Shares (as defined below) to
tender) in the Offer and not withdraw all Shares currently beneficially owned by
Shareholder as set forth on the signature page hereto and any additional Shares
with respect to which Shareholder becomes the beneficial owner (whether by
purchase, including, without limitation, by the exercise of options, or
otherwise) after the date of this Agreement (collectively, the "Shareholder's
Shares").
<PAGE>
(b) Within five business days of the commencement of the Offer and within
one business day of any acquisition by Shareholder of any additional Shares,
Shareholder shall deliver (or cause the record holder(s) of Shareholder's Shares
to deliver) to the depositary (the "Depositary") designated in the Offer (i) a
letter of transmittal with respect to Shareholder's Shares complying with the
terms of the Offer together with instructions directing the Depositary to make
payment for such Shares directly to Shareholder or to accounts designated by
Shareholder, (ii) a certificate or certificates representing Shareholder's
Shares and (iii) all other documents or instruments required to be delivered
pursuant to the terms of the Offer.
SECTION 1.2 Voting. Shareholder hereby agrees that, during the time this
Agreement is in effect, at any meeting of the shareholders of the Company,
however called, or in any written consent in lieu thereof, Shareholder shall, or
shall cause the record holder(s) of Shareholder's Shares to (if Shareholder's
Shares have not theretofore been accepted for payment and paid for by Merger Sub
pursuant to the Offer) (i) vote Shareholder's Shares in favor of the Merger;
(ii) vote Shareholder's Shares against any action or agreement that would result
in a breach in any material respect of any covenant, representation or warranty
or any other obligation or agreement of the Company under the Merger Agreement;
and (iii) vote Shareholder's Shares against any action or agreement that would
impede, interfere with, delay, postpone or attempt to discourage the Merger or
the Offer, including, but not limited to: (A) any acquisition agreement or other
similar agreement related to an Acquisition Proposal, (B) any change in the
Company's management or the Company Board, except as provided in Article IV of
the Merger Agreement or as otherwise agreed to in writing by Purchaser or (C)
any other material change in the Company's corporate structure or business.
SECTION 1.3 Proxy. Shareholder hereby grants to the Purchaser, and to
each officer of the Purchaser, a proxy to vote Shareholder's Shares as indicated
in Section 1.2. Shareholder intends this proxy to be irrevocable and coupled
with an interest and each will take such further action or execute such other
instruments as may be necessary to effectuate the intent of this proxy and
hereby revokes any proxy previously granted by Shareholder with respect to
Shareholder's Shares.
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<PAGE>
SECTION 1.4 Option for Shareholder's Shares.
(a) Shareholder hereby grants to Merger Sub an unconditional, irrevocable
option (the "Option") to purchase, subject to the terms hereof, Shareholder's
Shares, at a price per share in cash equal to the Offer Price (as it may be
adjusted pursuant to the terms of the Offer).
(b) Merger Sub may exercise the Option, in whole but not in part, by
giving a written notice thereof as provided in subsection (d) within five
business days following the occurrence of a Triggering Event (as hereinafter
defined). A "Triggering Event" shall occur if (i) notwithstanding Shareholder's
obligations under Section 1.1, Shareholder withdraws Shareholder's Shares from
the Offer or (ii) (x) a tender or exchange offer for at least fifteen percent of
the Shares shall have been commenced or publicly proposed to be made by another
Person (including the Company or its subsidiaries), or it shall have been
publicly disclosed that (I) any Person (including the Company or its
subsidiaries) shall have become the beneficial owner (as defined in Section
13(d) of the Exchange Act and the rules promulgated thereunder) of fifteen
percent or more of any class or series of capital stock of the Company
(including the Shares) (other than for bona fide arbitrage purposes) or (II) any
Person, entity or group shall have entered into (with the Company or any agent
or Representative of the Company) a definitive agreement or a written agreement
in principle with respect to an Acquisition Proposal (excluding a
confidentiality agreement allowed under Section 7.2 of the Merger Agreement) and
(y) Purchaser and Merger Sub terminate the Offer.
(c) Shareholder shall notify Merger Sub promptly in writing of the
occurrence of any Triggering Event and the number of Shares beneficially owned
or held by Shareholder on such date, it being understood that the giving of such
notice by Shareholder shall not be a condition to the right of Merger Sub to
exercise the Option.
(d) If Merger Sub shall be entitled to and wishes to exercise the Option,
it shall send to Shareholder a written notice (an "Exercise Notice" and the date
of which is referred to herein as the "Notice Date") specifying (i) the total
amount payable to Shareholder on the exercise of the Option in respect of
Shareholder's Shares and (ii) a place and date (the "Closing Date") not earlier
than two business days nor later than five business days from the Notice Date
for the closing of such purchase (the "Closing"); provided, that if a filing is
required under the HSR Act, or prior notification to or
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<PAGE>
approval of any other Governmental Entity is required in connection with such
purchase, Merger Sub and Shareholder, as required, promptly after the giving of
the Exercise Notice shall file any and all required notices, applications or
other documents necessary for approval and shall expeditiously process the same
and in such event the period of time referred to in clause (ii) shall commence
on the date on which Merger Sub furnishes to Shareholder a supplemental written
notice setting forth the Closing Date, which notice shall be furnished as
promptly as practicable after all required notification periods shall have
expired or been terminated and all required approvals shall have been obtained
and all requisite waiting periods shall have passed. Each of Merger Sub and
Shareholder agrees to use all reasonable best efforts to cooperate with and
provide information to the other parties with respect to any required notice or
application for approval to such regulatory authority.
(e) At the Closing, Merger Sub shall, subject to Shareholder's delivery
of a certificate or certificates representing the number of Shareholder's Shares
purchased by Merger Sub, pay to Shareholder in immediately available funds by
wire transfer to a bank account designated by Shareholder an amount equal to the
product of (x) the number of Shareholder's Shares delivered at the Closing and
(y) the Offer Price (as it may be adjusted pursuant to the terms of the Offer);
provided, that failure or refusal of Shareholder to designate such a bank
account shall not preclude Merger Sub from exercising the Option.
(f) At the Closing, simultaneously with the payment of the purchase price
by Merger Sub, Shareholder shall deliver to Merger Sub or such other person as
Merger Sub may nominate in writing, a certificate or certificates representing
the number of Shareholder's Shares purchased by Merger Sub.
SECTION 1.5 Payment to Shareholder. If Merger Sub (a) purchases
Shareholder's Shares pursuant to the Option and (b) tenders, exchanges or
otherwise converts such Shareholder's Shares pursuant to the terms of an
Acquisition Proposal or otherwise sells, transfers or exchanges Shareholder's
Shares to or with a third party in connection with a tender offer, exchange
offer, merger, consolidation or other business combination involving the Company
or the Shares (any such transaction, an "Acquisition Transaction"), then,
promptly after Purchaser's or Merger Sub's receipt of the full amount of the
consideration payable in exchange for such
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Stockholder's Shares pursuant to the Acquisition Transaction, Purchaser or
Merger Sub shall pay to Shareholder consideration equal in value to one-half of
the difference between (i) the aggregate value of the consideration received by
Purchaser or Merger Sub in exchange for such Stockholder's Shares pursuant to
the Acquisition Transaction and (ii) the aggregate amount paid to Shareholder
upon the purchase of Shareholder's Shares pursuant to the exercise of the
Option, which consideration shall be paid (x) in cash, in the event that the
consideration received in such Acquisition Transaction is cash or (y) in such
other consideration as is received by Purchaser or Merger Sub pursuant to the
terms of the Acquisition Transaction. In the event Merger Sub transfers or
disposes of Shareholder's Shares pursuant to the terms of an Acquisition
Transaction, such transfer or disposal shall be deemed for tax purposes only to
have been made by a partnership in which each of Merger Sub and Shareholder own
a 50% interest.
SECTION 1.6 Expiration. This Agreement, Share holder's obligation to
tender (or cause the record holder(s) of Shareholder's Shares to tender)
Shareholder's Shares in the Offer, Purchaser's right to vote Shareholder's
Shares and the Option shall terminate on the earliest to occur of (a) the
Effective Time, (b) the termination of this Agreement by written notice by the
Purchaser to the Shareholder, (c) the termination of the Merger Agreement in
accordance with its terms (other than a termination pursuant to (i) Section
9.4(ii) of the Merger Agreement or (ii) Section 9.2(i), if Merger Sub shall have
not purchased Shares pursuant to the Offer due to the occurrence of the events
described in clause (e) of Annex A to the Merger Agreement) and (d) 12 months
following the occurrence of a Triggering Event.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER
SECTION 2.1 Valid Title. Shareholder is the sole, true, lawful and
beneficial owner of Shareholder's Shares with no restrictions on Shareholder's
rights of disposition pertaining thereto.
SECTION 2.2 Authority; Noncontravention. Share holder has the requisite
power and authority to enter into this Agreement and to consummate the
transactions contemplated by this Agreement. The execution and delivery of this
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Agreement by Shareholder and the consummation by Shareholder of the transactions
contemplated by this Agreement have been duly authorized by all necessary action
(including any consultation, approval or other action by or with any other
person). This Agreement has been duly executed and delivered by Shareholder and
constitutes a valid and binding obligation of Shareholder, enforceable against
Shareholder in accordance with its terms. The execution and delivery of this
Agreement does not, and the consummation of the transactions contemplated by
this Agreement and compliance with the provisions of this Agreement will not,
conflict with or result in any violation of, or default (with or without notice
or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to a loss of a material
benefit under, or result in the creation of any lien upon any of the properties
or assets of Shareholder under, any provision of applicable law or regula tion
or of any agreement, judgment, injunction, order, decree, or other instrument
binding on Shareholder. No consent, approval, order or authorization of, or
registration, declara tion or filing with or exemption by any Federal, state or
local government or any court, administrative or regulatory agency or commission
or other governmental authority or agency, domestic or foreign, is required by
or with respect to Shareholder in connection with the execution and delivery of
this Agreement by Shareholder or the consummation by Share holder of the
transactions contemplated by this Agreement, except for applicable requirements,
if any, of (a) Sections 13 and 16 of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder or (b) the HSR Act.
SECTION 2.3 Total Shares. The number of Shares set forth on the signature
page hereto are the only Shares beneficially owned by Shareholder. Schedule 2.3
contains a true and complete list of all options held by Shareholder and the
number, exercise price, vesting date and expiration date of each option. Other
than as set forth on the signature page and on Schedule 2.3, shareholder does
not own any Shares or options to purchase or rights to subscribe for or
otherwise acquire any securities of the Company and has no other interest in or
voting rights with respect to any securities of the Company.
SECTION 2.4 Finder's Fees. No investment banker, broker or finder is
entitled to a commission or fee from Purchaser, Merger Sub, the Company or any
of their respective
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affiliates in respect of this Agreement based upon any arrangement or agreement
made by or on behalf of Shareholder.
SECTION 2.5 Proxy. Shareholder represents that any proxy heretofore given
with respect to Shareholder's Shares is not irrevocable.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
PURCHASER AND MERGER SUB
Purchaser and Merger Sub represent and warrant to Shareholder that:
SECTION 3.1 Corporate Power and Authority. Purchaser and Merger Sub each
have all requisite corporate power and authority to enter into this Agreement
and to consummate the transactions contemplated by this Agreement. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated by this Agreement have been duly authorized by all necessary
corporate action on the part of each of Purchaser and Merger Sub. This Agreement
has been duly executed and delivered by each of Purchaser and Merger Sub and
constitutes a valid and binding obligation of each of Purchaser and Merger Sub,
respectively, enforceable against each of them in accordance with its terms.
ARTICLE IV
COVENANTS OF SHAREHOLDER
SECTION 4.1 Covenants of Shareholder. Shareholder agrees as follows:
(a) Shareholder shall not, except as contemplated by the terms of this
Agreement, (i) sell, transfer, pledge, assign or otherwise dispose of, or enter
into any contract, option or other arrangement or understanding with respect to
the sale, transfer, pledge, assignment or other disposition of, Shareholder's
Shares to any person other than Merger Sub or Merger Sub's designee, (ii) enter
into, or otherwise subject Shareholder's Shares to, any voting arrangement,
whether by proxy, voting agreement, voting trust, power-of- attorney or
otherwise, with respect to Shareholder's Shares or
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(iii) take any other action that would in any way restrict, limit or interfere
with the performance of its obligations hereunder or the transactions
contemplated hereby.
(b) Subject to Section 5.11 hereof, until the Effective Time or the
Merger Agreement is terminated, Shareholder shall not, nor shall Shareholder
permit any investment banker, financial adviser, attorney, accountant or other
representative or agent of Shareholder to, directly or indirectly (i) initiate,
solicit or encourage, directly or indirectly, any inquiries or the making of any
Acquisition Proposal or (ii) engage in any negotiations concerning, or provide
any confidential information or data to, or have any discussions with, any
person relating to, an Acquisition Proposal, or otherwise facilitate any effort
or attempt to make or implement an Acquisition Proposal. Without limiting the
foregoing, it is understood that any violation of the restrictions set forth in
the preceding sentence by an investment banker, financial advisor, attorney,
accountant or other representative or agent of Shareholder shall be deemed to be
a violation of this Section 4.1(b) by Shareholder.
(c) Shareholder will not (a) take, agree or commit to take any action
that would make any representation and warranty of Shareholder, as applicable,
hereunder inaccurate in any respect as of any time prior to the termination of
this Agreement or (b) omit, or agree or commit to omit, to take any action
necessary to prevent any such representation or warranty from being inaccurate
in any respect at any such time.
SECTION 4.2 Further Assurances. Shareholder will, from time to time,
execute and deliver, or cause to be executed and delivered, such additional or
further transfers, assignments, endorsements, consents and other instruments as
Purchaser or Merger Sub may reasonably request for the purpose of effectively
carrying out the transactions contemplated by this Agreement and to vest the
power to vote Shareholder's Shares as contemplated by Section 1.3. Purchaser and
Merger Sub jointly and severally agree to use reasonable best efforts to take,
or cause to be taken, all actions necessary to comply promptly with all legal
requirements that may be imposed with respect to the transactions contemplated
by this Agreement (including any applicable legal requirements of the HSR Act).
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ARTICLE V
MISCELLANEOUS
SECTION 5.1 Expenses. All costs and expenses incurred by any party in
connection with this Agreement shall be paid by the party incurring such cost or
expense.
SECTION 5.2 Specific Performance. The parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in the courts of the
State of Delaware and the federal courts of the United States of America located
in the State of Delaware, this being in addition to any other remedy to which
they are entitled at law or in equity.
SECTION 5.3 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed given if
delivered personally or sent by overnight courier (providing proof of delivery)
or by telecopy (with copies by overnight courier) to such party at its address
set forth on the signature page hereto or to such other address as such party
may have furnished to the other parties in writing in accordance herewith.
SECTION 5.4 Amendments. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a written
agreement executed by the parties hereto.
SECTION 5.5 Successors and Assigns. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties without the prior written consent of the other parties, except that
Merger Sub may assign, in its sole discretion, any or all of its rights,
interests and obligations hereunder to Purchaser or to any direct or indirect
wholly-owned subsidiary of Purchaser. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be enforceable by,
the parties and their respective successors and assigns. Shareholder agrees that
this Agreement and the obligations of Shareholder hereunder shall attach to
Shareholder's Shares and
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shall be binding upon any person or entity to which legal or beneficial
ownership of such Shares shall pass, whether by operation of law or otherwise,
including Shareholder's heirs, guardians, administrators or successors.
SECTION 5.6 (a) Governing Law and Venue; Waiver of Jury Trial. This
Agreement shall be deemed to be made in and in all respects shall be
interpreted, construed and governed by and in accordance with the law of the
State of Delaware applicable to contracts to be performed wholly in such state.
The parties hereby irrevocably submit to the jurisdiction of the courts of the
State of Delaware and the Federal courts of the United States of America located
in the State of Delaware solely in respect of the interpretation and enforcement
of the provisions of this Agreement and of the documents referred to in this
Agreement and in respect of the transactions contemplated hereby, and hereby
waive, and agree not to assert, as a defense in any action, suit or proceeding
for the interpretation or enforcement hereof or of any such document, that it is
not subject thereto or that such action, suit or proceeding may not be brought
or is not maintainable in said courts or that the venue thereof may not be
appropriate or that this Agreement or any such document may not be enforced in
or by such courts, and the parties hereto irrevocably agree that all claims with
respect to such action or proceeding shall be heard and determined in such a
Delaware State or Federal court. The parties hereby consent to and grant any
such court jurisdiction over the person of such parties and over the subject
matter of such dispute and agree that mailing of process or other papers in
connection with any such action or proceeding in the manner provided in Section
5.3 or in such other manner as may be permitted by law shall be valid and
sufficient service thereof.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY
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MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 5.6.
SECTION 5.7 Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
SECTION 5.8 Stop Transfer Restriction. In furtherance of this Agreement,
Shareholder shall and hereby does authorize Merger Sub's counsel to notify the
Company's transfer agent that there is a stop transfer restriction with respect
to all of Shareholder's Shares (and that this Agreement places limits on the
voting and transfer of such shares).
SECTION 5.9 Entire Agreement; No Third-Party Beneficiaries. This
Agreement (i) constitutes the entire agreement and supersedes all prior
agreements and under standings, both written and oral, among the parties with
respect to the subject matter hereof and (ii) is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
SECTION 5.10 Shareholder Capacity. By executing and delivering this
Agreement, Shareholder makes no agreement or understanding herein as to his
capacity as a director or officer of the Company or any subsidiary of the
Company. Shareholder signs solely in his capacity as the beneficial owner of
Shareholder's Shares and nothing herein shall limit or affect any actions taken
by Shareholder in his capacity as an officer or director of the Company or any
subsidiary of the Company to the extent specifically permitted by the Merger
Agreement.
SECTION 5.11 Performance by Purchaser. Purchaser covenants and agrees for
the benefit of Shareholder that it shall cause Merger Sub to perform in full
each obligation of Merger Sub set forth in this Agreement.
SECTION 5.12 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all
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other conditions and provisions of this Agreement shall nevertheless remain in
full force and effect. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the fullest extent
possible.
SECTION 5.13 Survival. Sections 1.6 (Expiration), 5.1 (Expenses), 5.2
(Specific Performance), 5.3 (Notices), 5.5 (Successors and Assigns), 5.6
(Governing Law), 5.9 (Entire Agreement; No Third-Party Beneficiaries), 5.12
(Severability) and this Section 5.13 shall survive termination of this
Agreement. All other representations, warranties, agreement and covenants in
this Agreement shall not survive the termination of this Agreement.
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The parties hereto have caused this Agreement to be duly executed as of
the day and year first above written.
ONYX SOLID WASTE ACQUISITION CORP.
By:______________________
Name:
Title:
VIVENDI
By:_______________________
Name:
Title:
Vivendi
42, Avenue de Friedland
75380 Paris Cedex 08
France
Attention: Henri Proglio
fax: (011) 33-171-71-1179
with a copy to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: David M. Kies, Esq.
Keith A. Pagnani, Esq.
Fax: (212) 558-3588
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Class of Shares
Stock Owned Joseph P. Tate
----- -----
Common 2,311,231
--------------------------
1115 North Edison Street
Milwaukee, Wisconsin 53202
with a copy to:
Foley & Lardner
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attention: Steven R. Barth, Esq.
fax: (414) 297-4900
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EMPLOYMENT AGREEMENT
AGREEMENT, dated as of June 11, 1999, by and among Superior Services,
Inc. (the "Company"), Vivendi (the "Parent") and G. William Dietrich (the
"Employee").
WHEREAS, the Company has entered into an Agreement and Plan of Merger
(the "Merger Agreement"), dated as of June 11, 1999, with Parent and Onyx
Acquisition Corp., a wholly-owned subsidiary of Parent ("Merger Sub"), pursuant
to which Merger Sub (i) a cash tender offer to purchase all of the common stock
of the Company and (ii) following the successful completion of the tender offer,
will merge with and into the Company, with the Company being the surviving
corporation in the merger (collectively, the "Acquisition"); and
WHEREAS, the Employee was employed by the Company prior to the execution
of the Merger Agreement and the Parent desires to secure the Employee's
continued employment with the Company following the date on which the Merger Sub
is irrevocably committed to purchase the tendered shares under Section 1.1(a) of
the Merger Agreement (the "Effective Date").
1. Effective Date; Prior Agreements. On the Effective Date, all
obligations of the Company (including, without limitation, the lump sum cash
payment in immediately available funds of the Termination Payment, the Executive
Awards (including the cashing-out of Employee's stock options), the Accrued
Benefits and any Gross Up Payment) under the Employee's Key Executive Employment
and Severance Agreement dated August 15, 1995, as amended ("KEESA"), and under
the Employee's Employment Agreement ("Prior Employment Agreement") dated January
1, 1996, as amended (together each, a "Prior Agreement") resulting from the
"Change in Control of the Company" (as defined under the Prior Agreements)
caused by the Effective Date, will be satisfied as if a "Discretionary
Termination" had been effected under the Prior
<PAGE>
Agreements by Employee. Except as provided below, on the Effective Date and
after satisfaction of the above obligations, each Prior Agreement shall become
null and void and this Agreement shall govern the employment relationship
between the Employee and the Company; provided, however, that (regardless of the
termination of the Prior Agreements as of the Effective Date and any subsequent
termination or expiration of this Agreement for any reason) the Company shall
(a) on the Effective Date, pay Employee a cash lump sum payment in immediately
available funds equal to the face value of all consulting payments which
Employee would have otherwise received under the first paragraph of Section
4(c)(ii) of the Prior Employment Agreement and (b) continue to be obligated to
timely and fully provide to Employee (i) all of the benefits under Section 5(c)
of the KEESA and (ii) all of the benefits under the second paragraph of Section
4(c)(ii) of the Prior Employment Agreement, giving effect under each such
provision to the "Change in Control of the Company" effected on and by the
Effective Date and without requiring any further Change in Control of the
Company or any termination of Employee's employment.
2. Employment.
The Company hereby employs the Employee, and the Employee agrees to serve
as an employee of the Company, during the Period of Employment, as defined in
Section 3 in the Employee's same position and role, with the same duties and
responsibilities, all as in effect immediately prior to the Effective Date.
3. Period of Employment.
The "Period of Employment" shall be the period commencing on the
Effective Date and ending on December 31, 2003 provided, however, that
commencing on December 31, 2002 and each December 31st thereafter, the term of
the Agreement shall be extended for one additional year if at least 30 days
prior to any such date, the Company and the Employee mutually agree to so extend
this Agreement.
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4. Duties During the Period of Employment.
The Employee shall devote the Employee's full business time,
attention and efforts to the affairs of the Company during the Period of
Employment consistent with Employee's past practice prior to the Effective Date,
provided, however, that the Employee may engage in other activities, such as
activities involving professional, charitable, educational, religious and
similar types of organizations, speaking engagements, membership on the board of
directors of such other commercial organizations as the Company may from time to
time agree to (which agreement will not be unreasonably denied, withheld or
delayed if such activities are consistent with Employee's past practice prior to
the Effective Date), and similar type activities to the extent that such other
activities do not materially inhibit or prohibit the performance of the
Employee's duties under this Agreement, or conflict in any material way with the
business of the Company and its affiliates.
5. Current Cash Compensation.
(a) Base Salary.
As compensation for the Employee's services hereunder, the Company will
pay to the Employee during the Period of Employment a base salary at the annual
rate of salary payable by the Company which is in effect immediately prior to
the Effective Date payable in accordance with the Company's payroll practices
for senior executives. The Company shall review the base salary at least
annually and in light of such review may, in the discretion of the Board of
Directors of the Company (but shall not be obligated to), increase such base
salary (but may not decrease such salary) taking into account any change in the
Employee's then responsibilities, increases in the cost of living, performance
by the Employee, and other pertinent factors.
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(b) Annual Bonus.
In addition to the base salary referred to in paragraph (a) of this
Section, during the Period of Employment the Employee will participate in an
annual bonus plan no less favorable to Employee than his participation in the
Company's historic Management Incentive Plan, but substituting pre-tax earnings
in the formula for earnings per share and increasing the amount of cash bonus
payable to take into account that stock options would not be stated thereunder.
[For this purpose "pre-tax earnings" will be calculated in the same manner as
under the Long Term Performance Award Plan. It is understood and agreed that the
Company shall amend its 1999 Management Incentive Plan (the "MIP") to provide
that all eligible participants in such plan who remain employed by the Company
(or a subsidiary of the Company) as of December 31, 1999 ("Eligible
Participants"), will receive a bonus amount (as determined and adjusted as set
forth in the next succeeding sentence) in cash equal to (i) the amount of cash
and (ii) the fair market value of stock options (which shall be calculated in
the manner set forth below), in each case, which such persons otherwise would
have been entitled to receive under the MIP for the year ending December 31,
1999 (the "First Bonus Amount"). The First Bonus Amount shall be (a) calculated
based on the financial results of the Company and its subsidiaries for the
six-month period ending June 30, 1999, as compared to the financial results of
the Company and its subsidiaries for the six-month period ended June 30, 1998
(and assuming a satisfactory rating on personal and departmental goals and
objectives at the Company's headquarters for such six-month period in 1999), (b)
divided by 2, and (c) paid no later than February 14, 2000. It is also
understood and agreed that the Company shall further amend the MIP to provide
that all Eligible Participants will receive a bonus amount (as determined and
adjusted as set forth in the next succeeding sentence) in cash equal to (i) the
amount of cash and (ii) the fair market value of stock options (which shall be
calculated in the manner set forth below), in each case, which such persons
otherwise would have been entitled to receive under the MIP for the year ending
December 31, 1999 (the "Second Bonus Amount"). The Second Bonus Amount
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shall be (a) calculated based on the percentage increase in the "pre-tax
earnings" (as defined in the Company's Long Term Performance Award Plan) of the
Company and its subsidiaries for the six-month period ending December 31, 1999,
as compared to the pre-tax earnings of the Company and its subsidiaries for the
six-month period ended December, 1998 (and assuming a satisfactory rating on
personal and departmental goals and objectives at the Company's headquarters for
such six-month period in 1999), (b) divided by 2, and (c) paid no later than
February 14, 2000. The fair market value of stock options referred to in this
section shall be deemed to be one-half of the excess of (x) the Merger
Consideration over (y) the closing sale price for the Shares on the last
business day preceding the date of this Agreement as reported by the Nasdaq
National Market.]
6. Other Employee Benefits.
(a) Long Term Performance Award Plan.
The Employee shall be designated as a Participant in the Company's Long
Term Performance Award Plan with a Pool Percentage as set forth therein.
(b) Vacation and Sick Leave.
The Employee shall be entitled to reasonable paid annual vacation
periods, personal days and to reasonable sick leave consistent with the
practices of the Company prior to the Effective Date.
(c) Regular Reimbursed Business Expenses. The Company shall reimburse the
Employee for all expenses and disbursements reasonably incurred by the Employee
in the performance of the Employee's duties during the Period of Employment, and
provide such other facilities, support staff, travel accommodation,
transportation, recreational and entertainment opportunities and services as the
Company and the Employee may, from time to time, agree are appropriate, all in
accordance with the Company's established policies, but in no event less
favorable than those provided to Employee prior to the Effective Date.
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(d) Employee Benefit Plans.
In addition to the cash compensation provided for in Section 5 hereof and
the benefits to be provided under the Prior Agreements as set forth in Section 1
hereof, the Employee, subject to meeting eligibility provisions and to the
provisions of this Agreement, shall be entitled to participate in the Company's
employee benefit plans, as presently in effect or as they may be modified or
added to by the Company from time to time, including, without limitation, plans
providing retirement benefits, group-term life insurance, medical and
hospitalization insurance, disability insurance, accidental death or
dismemberment insurance, automobile allowances, fringe benefits and relocation
benefits, provided that such benefits shall be no less favorable than those
provided to Employee prior to the Effective Date.
(e) Parent Plans.
To the extent practicable, Parent will endeavor to include Employee in
Parent's equity-based compensation plans to the extent comparable participation
is available to other similarly situated employees of Parent's non-French
subsidiaries.
7. Termination.
(a) Termination Without Cause; Termination for Good Reason.
If the Company should terminate the Period of Employment without Cause as
defined below, or if the Employee should terminate the Period of Employment for
Good Reason (as defined below), in addition to all other compensation and
benefits, if any, payable as provided for hereunder, the Company shall pay to
the Employee an amount equal to
(i) (A) any unpaid Base Salary through the date of Termination
plus (B) an amount designed to approximate the annual bonus under Section
5(b) accrued to the date of Termination, which shall be deemed to be the
prior year's annual bonus multiplied by a fraction, the numerator of
which is the number of days from the beginning of such fiscal year
through such Date of Termination and
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the denominator of which is 365, plus (C) any previously vested benefits,
such as previously vested retirement benefits, plus (D) any deferred
compensation (including, without limitation, interest or other credits on
such deferred amounts), any accrued vacation pay and any reimbursement
for expenses incurred but not yet paid prior to such Date of Termination
(collectively, the "Accrued Obligations");
(ii) a lump sum in cash paid within five (5) business days
following the Date of Termination, equal to the number of years
(including fractions thereof) remaining in the Period of Employment
(without taking into account such early termination thereof) multiplied
by the sum of (x) his then current base salary plus (y) his annual bonus
received for the year prior to which such Date of Termination occurs
(determined without regard to any performance goals); and
(iii) a payment under the Long Term Performance Award Plan equal
to the amount Employee would have received as if his Retirement Date were
the date of his Termination of Employment.
"Cause" shall mean the Employee's conviction of, or a plea of guilty to,
a felony involving moral turpitude or willful violation of Section 8 or the
Employee's willful gross negligence, material misconduct (including
noncompliance with the Vivendi Code of Ethics) or material breach of this
Agreement, resulting in material injury to the Company. For purposes of this
definition, no act, or failure to act on the Executive's part shall be deemed
"willful" unless done, or omitted to be done, by the Executive not in good faith
and without reasonable belief that the Executive's act, or failure to act, was
in the best interest, or not opposed to the best interests, of the Company. No
termination for Cause shall be effective without (A) a resolution adopted by a
majority of the Parent Executive Committee which sets forth the act (or failure
to act) constituting Cause for termination, (B) if such act or failure to act is
susceptible to cure, a reasonable period to
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effect such cure to the reasonable satisfaction of the Parent Executive
Committee, and (C) opportunity for the Employee, together with the Employee's
counsel, to be heard before the Parent Executive Committee.
"Good Reason" shall mean: without the Employee's prior written consent
(which may be denied, withheld, delayed or conditional for any reason in his
discretion), (A) the relocation of the Company's principal offices more than 25
miles from its location immediately prior to the Effective Date or the Company
requiring the Employee to be based at any location other than such principal
offices, (B) a breach by the Company of any material provision of this Agreement
which is not cured within five (5) business days following written notification
of such breach, or (C) a Change in Control or sale of Company or Parent.
(b) Termination without Good Reason; Termination for Cause;
Termination Due to Death or Disability.
The Employee shall have the right, upon 30 days' prior written notice
given to the Company, to terminate the Period of Employment without Good Reason.
If the Employee should terminate the Period of Employment without Good Reason,
the Company should terminate the Period of Employment for Cause, or the Period
of Employment should be terminated due to the Employee's death or Disability,
the Employee will be entitled to be paid (i) the base annual salary otherwise
payable to Employee under paragraph (a) of Section 5 plus accrued annual bonus
under Section 5(b) through the end of the month in which the Period of
Employment is terminated and, if Employment is due to death or Disability, (ii)
an immediate lump sum cash payment amount equal to the sum of (A) 150% times the
annual bonus received by him for the year prior to which the Date of Termination
occurs plus (B) 150% times his base salary at the rate in effect on the Date of
Termination. For purposes of this Agreement, "Disability" means the Employee's
inability to render, for a period of six (6) consecutive months, services
hereunder by reason of permanent disability, as determined by the
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written medical opinion of an independent medical physician mutually acceptable
to the Employee and the Company. If the Employee and the Company cannot agree as
to such an independent medical physician each shall appoint one medical
physician and those two physicians shall appoint a third physician who shall
make such determination.
8. Noncompetition and Nonsolicitation.
(a) The Employee hereby covenants and agrees that at no time during the
Period of Employment nor for a period of two years following the termination
thereof for any reason will he, without the prior written consent of the Board
of Directors of the Company, for himself or on behalf of any other person,
partnership, company or corporation, directly or indirectly, acquire any
financial or beneficial interest in (except as provided in the next sentence),
provide consulting services to, be employed by, or own, manage, operate or
control any business which is in competition with a business engaged in the
solid waste industry in any state of the United States in which the Company or
any subsidiary thereof are engaged in business at the time of such termination
of employment. Notwithstanding the preceding sentence, the Employee shall not be
prohibited from owning less than 1% of any publicly traded corporation, whether
or not such corporation is in competition with the Company.
(b) The Employee hereby covenants and agrees that, at all times during
the Period of Employment and for a period of two years immediately following
termination for any reason, the Employee shall not, without the prior written
consent of the Board of Directors of the Company, solicit or take any action to
cause the solicitation of any person who as of that date was a client, customer,
vendor, consultant or agent of the Company to discontinue business, in whole or
in part with the Company.
(c) The Employee hereby covenants and agrees that, at all times during
the Period of Employment and for a period of one year immediately following the
termination thereof for any reason, the Employee shall not, without the prior
written consent of the Board of Directors of the Company, employ or seek to
employ any person
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employed at that time by the Company or any of its subsidiaries, or otherwise
encourage or entice such person or entity to leave such employment, other than
any relative of the Employee.
(d) It is the intention of the parties hereto that the restrictions
contained in this Section be enforceable to the fullest extent permitted by
applicable law. Therefore, to the extent any court of competent jurisdiction
shall determine that any portion of the foregoing restrictions is excessive,
such provision shall not be entirely void, but rather shall be limited or
revised only to the extent necessary to make it enforceable. Specifically, if
any court of competent jurisdiction should hold that any portion of the
foregoing description is overly broad as to one or more states of the United
States, then that state or states shall be eliminated from the territory to
which the restrictions of paragraph (a) of this Section applies and the
restrictions shall remain applicable in all other states of the United States.
9. Confidential Information.
The Employee agrees to keep secret and retain in the strictest confidence
all confidential matters which relate to the Company, its subsidiaries and
affiliates, including, without limitation, customer lists, client lists, trade
secrets, pricing policies and other business affairs of the Company, its
subsidiaries and affiliates learned by him from the Company or any such
subsidiary or affiliate or otherwise before or after the date of this Agreement,
and not to disclose any such confidential matter to anyone outside the Company
or any of its subsidiaries or affiliates, whether during or after his period of
service with the Company, except (i) as such disclosure may be required or
appropriate in connection with his work as an employee of the Company or (ii)
when required to do so by a court of law, by any governmental agency having
supervisory authority over the business of the Company or by any administrative
or legislative body (including a committee thereof) with apparent jurisdiction
to order him to divulge, disclose or make accessible such information. The
Employee agrees to give the Company advance written notice of any disclosure
pursuant to clause (ii) of the preceding sentence and to cooperate
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with any efforts by the Company to limit the extent of such disclosure. Upon
request by the Company, the Employee agrees to deliver promptly to the Company
or destroy upon termination of his services for the Company, or at any time
thereafter as the Company may request, all Company, subsidiary or affiliate
memoranda, notes, records, reports, manuals, drawings, designs, computer files
in any media and other documents (and all copies thereof) relating to the
Company's or any subsidiary's or affiliate's business and all property of the
Company or any subsidiary or affiliate associated therewith, which he may then
possess or have under his direct control, other than personal notes, diaries,
rolodexes and correspondence.
10. Governing Law.
This Agreement is governed by and is to be construed and enforced in
accordance with the laws of the State of Wisconsin, without reference to rules
relating to conflicts of law. If under such law, any portion of this Agreement
is at any time deemed to be in conflict with any applicable statute, rule,
regulation or ordinance, such portion shall be deemed to be modified or altered
to conform thereto or, if that is not possible, to be omitted from this
Agreement; the invalidity of any such portion shall not affect the force, effect
and validity of the remaining portion hereof.
11. Notices.
All notices under this Agreement shall be in writing and shall be deemed
effective when delivered in person, or five (5) days after deposit thereof in
the U.S. mails, postage prepaid, for delivery as registered or certified mail,
addressed to the respective party at the address set forth below or to such
other address as may hereafter be designated by like notice. Unless otherwise
notified as set forth above, notice shall be sent to each party as follows:
(a) Employee, to:
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(b) Company, to:
Superior Services, Inc.
125 South 84th Street
Suite 200
Milwaukee, WI 53214
(414) 479-7400 (facsimile)
Attention: General Counsel
Copy: Steven Barth
Foley & Lardner
Firstar Center
777 East Wisconsin Avenue
Milwaukee, WI 53202-5367
(414) 297-4900 (facsimile)
(c) Parent to:.
Vivendi
42, Avenue De Frieland
75380 Paris CEDEX 08
FRANCE
011 331 7171 1179 (facsimile)
In lieu of personal notice or notice by deposit in the U.S. mail, a party
may give notice by confirmed telegram, telex or fax, which shall be effective
upon receipt.
12. Miscellaneous.
(a) Entire Agreement.
This Agreement constitutes the entire understanding among the Company,
the Parent and the Employee relating to employment of the Employee by the
Company and, except as provided in Section 1 hereof, with respect to Company's
ongoing obligations under Section 5(c) of the KEESA and the second paragraph of
Section 4(c)(ii) of the Employment Agreement, supersedes and cancels all prior
written and oral agreements and understandings with respect to the subject
matter of this Agreement. This Agreement may be amended but only by a subsequent
written agreement of the parties. This Agreement shall be binding upon and shall
inure to the benefit of the Employee, the
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<PAGE>
Employee's heirs, executors, administrators and beneficiaries, and the Company
and its successors.
(b) Withholding Taxes.
All amounts payable to the Employee under this Agreement shall be subject
to applicable withholding of income, wage and other taxes.
(c) Mutual Consent to Legal Representation of Employee.
Each of Parent, the Company and the Employee understand, consent and
agree that, despite Foley & Lardner's role as principal outside counsel to the
Company, because of the circumstances arising out of Parent's acquisition of the
Company pursuant to the Merger Agreement, Foley & Lardner has negotiated this
Agreement on behalf of Employee with counsel to Parent. Without limiting or
affecting the extent of each party's consent evidenced above, each of Parent,
the Company and the Employee agree that Foley & Lardner's role in connection
herewith shall not in any way prevent, adversely affect or limit Foley &
Lardner's past, current or future representation of the Employee, the Company or
Parent on matters unrelated to this Agreement (including, with respect to the
Company and the Employee, in connection with the Acquisition and the events,
agreements and transactions contemplated by the Merger Agreement); provided,
however, that if any dispute or disagreement between the Employee, on the one
hand, and the Company or Parent, on the other hand, may hereafter arise under
this Agreement or otherwise, then Foley & Lardner will not represent either
party in connection with such dispute.
(d) No Mitigation or Offset.
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<PAGE>
The Company and Parent agree that, if the Employee's employment with the
Company terminates for any reason, the Employee is not required to seek any
other employment or to attempt in any way to reduce any amounts payable to or in
respect of the Employee by the Company or Parent pursuant to this Agreement or
the ongoing obligations of the Company under the Prior Agreements. Further, the
amount of any payment or benefit provided for in this Agreement or under the
Prior Agreements shall not be reduced by any compensation earned by the
Employee, as the result of the Prior Agreements, employment by another employer,
by retirement benefits, by offset against any amount claimed to be owed by the
Employee to the Company or Parent or otherwise.
(e) Legal Fees.
The Company shall pay to the Employee or his counsel all legal fees and
expenses reasonably incurred by the Employee in disputing in good faith any
issue hereunder relating to the termination of the Employee's employment, in
seeking in good faith to obtain or enforce any benefit or right provided by this
Agreement or the Prior Agreements or in connection with any tax audit or
proceeding to the extent attributable to the application of Section 4999 of the
Internal Revenue Code to any payment or benefit provided hereunder or under the
Prior Agreements.
(f) Arbitration.
(i) Any dispute, controversy or claim arising out of or relating to this
Agreement or the Prior Agreements, a breach thereof or the coverage or
enforceability of this Section 10(f) shall be settled by arbitration in
Milwaukee, Wisconsin (or such other
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<PAGE>
location as the Company and the Employee may mutually agree), conducted in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association, as such rules are in effect in Milwaukee, Wisconsin on the date of
delivery of demand for arbitration. The arbitration of any such issue, including
the determination of the amount of damages, shall be to the exclusion of any
court of law.
(ii) There shall be three arbitrators, one to be chosen by each party at
will within ten (10) days from the date of delivery of demand for arbitration
and the third arbitrator to be selected by the two arbitrators so chosen. If the
two arbitrators are unable to select a third arbitrator within ten (10) days
after the last of the two arbitrators is chosen by the parties, the third
arbitrator will be designated, on application by either party, by the American
Arbitration Association. The decision of a majority of the arbitrators shall be
final and binding on both parties and their respective heirs, executors,
administrators, personal representatives, successors and assigns. Judgment upon
any award of the arbitrators may be entered in any court having jurisdiction, or
application may be made to any such court for the judicial acceptance of the
award and for an order of enforcement.
(iii) The Company shall pay both its and Employee's fees and expenses
incurred in connection with any arbitration arising out of this Agreement,
unless a majority of the arbitrators concludes that such arbitration procedure
was not instituted in good faith by the Employee.
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<PAGE>
(g) Parent Guarantee.
Parent hereby unconditionally guarantees and agrees to be jointly and
severally responsible with the Company for full and timely payment and
performance of the Company's obligations hereunder.
(h) Indemnification.
The Company shall maintain its existing directors and officers liability
insurance in commercially reasonable amounts (as reasonably determined by the
Board of Directors of the Company) to the extent provided for as of the date of
this Agreement, and the Employee shall be covered under such insurance for
actions (or inactions) taken during the Period of Employment to the same extent
as other senior executives of the Company. The Employee shall be eligible for
indemnification by the Company under the Company by-laws as currently in effect
and under Wisconsin law for actions (or inactions) taken during the Period of
Employment, and the Company agrees that it shall not take any action except as
permitted by law that would impair the Employee's rights to indemnification
under the Company by-laws, as currently in effect or under Wisconsin law.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the year and day first above written.
VIVENDI
By: __________________________
SUPERIOR SERVICES SERVICES, INC.
By: __________________________
______________________________
G. William Dietrich
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EMPLOYMENT AGREEMENT
AGREEMENT, dated as of June 11, 1999, by and among Superior Services,
Inc. (the "Company"), Vivendi (the "Parent") and George K. Farr (the
"Employee").
WHEREAS, the Company has entered into an Agreement and Plan of Merger
(the "Merger Agreement"), dated as of June 11, 1999, with Parent and Onyx
Acquisition Corp., a wholly-owned subsidiary of Parent ("Merger Sub"), pursuant
to which Merger Sub (i) a cash tender offer to purchase all of the common stock
of the Company and (ii) following the successful completion of the tender offer,
will merge with and into the Company, with the Company being the surviving
corporation in the merger (collectively, the "Acquisition"); and
WHEREAS, the Employee was employed by the Company prior to the execution
of the Merger Agreement and the Parent desires to secure the Employee's
continued employment with the Company following the date on which the Merger Sub
is irrevocably committed to purchase the tendered shares under Section 1.1(a) of
the Merger Agreement (the "Effective Date").
1. Effective Date; Prior Agreements. On the Effective Date, all
obligations of the Company (including, without limitation, the lump sum cash
payment in immediately available funds of the Termination Payment, the Executive
Awards (including the cashing-out of Employee's stock options), the Accrued
Benefits and any Gross Up Payment) under the Employee's Key Executive Employment
and Severance Agreement dated August 15, 1995, as amended ("KEESA"), and under
the Employee's Employment Agreement ("Prior Employment Agreement") dated January
1, 1996, as amended (together each, a "Prior Agreement") resulting from the
"Change in Control of the Company" (as defined under the Prior Agreements)
caused by the Effective Date, will be satisfied as if a "Discretionary
Termination" had been effected under the Prior
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<PAGE>
Agreements by Employee. Except as provided below, on the Effective Date and
after satisfaction of the above obligations, each Prior Agreement shall become
null and void and this Agreement shall govern the employment relationship
between the Employee and the Company; provided, however, that (regardless of the
termination of the Prior Agreements as of the Effective Date and any subsequent
termination or expiration of this Agreement for any reason) the Company shall
(a) on the Effective Date, pay Employee a cash lump sum payment in immediately
available funds equal to the face value of all consulting payments which
Employee would have otherwise received under the first paragraph of Section
4(c)(ii) of the Prior Employment Agreement and (b) continue to be obligated to
timely and fully provide to Employee (i) all of the benefits under Section 5(c)
of the KEESA and (ii) all of the benefits under the second paragraph of Section
4(c)(ii) of the Prior Employment Agreement, giving effect under each such
provision to the "Change in Control of the Company" effected on and by the
Effective Date and without requiring any further Change in Control of the
Company or any termination of Employee's employment.
2. Employment.
The Company hereby employs the Employee, and the Employee agrees to serve
as an employee of the Company, during the Period of Employment, as defined in
Section 3 in the Employee's same position and role, with the same duties and
responsibilities, all as in effect immediately prior to the Effective Date.
3. Period of Employment.
The "Period of Employment" shall be the period commencing on the
Effective Date and ending on December 31, 2003 provided, however, that
commencing on December 31, 2002 and each December 31st thereafter, the term of
the Agreement shall be extended for one additional year if at least 30 days
prior to any such date, the Company and the Employee mutually agree to so extend
this Agreement.
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<PAGE>
4. Duties During the Period of Employment.
The Employee shall devote the Employee's full business time, attention
and efforts to the affairs of the Company during the Period of Employment
consistent with Employee's past practice prior to the Effective Date, provided,
however, that the Employee may engage in other activities, such as activities
involving professional, charitable, educational, religious and similar types of
organizations, speaking engagements, membership on the board of directors of
such other commercial organizations as the Company may from time to time agree
to (which agreement will not be unreasonably denied, withheld or delayed if such
activities are consistent with Employee's past practice prior to the Effective
Date), and similar type activities to the extent that such other activities do
not materially inhibit or prohibit the performance of the Employee's duties
under this Agreement, or conflict in any material way with the business of the
Company and its affiliates.
5. Current Cash Compensation.
(a) Base Salary.
As compensation for the Employee's services hereunder, the Company will
pay to the Employee during the Period of Employment a base salary at the annual
rate of salary payable by the Company which is in effect immediately prior to
the Effective Date payable in accordance with the Company's payroll practices
for senior executives. The Company shall review the base salary at least
annually and in light of such review may, in the discretion of the Board of
Directors of the Company (but shall not be obligated to), increase such base
salary (but may not decrease such salary) taking into account any change in the
Employee's then responsibilities, increases in the cost of living, performance
by the Employee, and other pertinent factors.
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<PAGE>
(b) Annual Bonus.
In addition to the base salary referred to in paragraph (a) of this
Section, during the Period of Employment the Employee will participate in an
annual bonus plan no less favorable to Employee than his participation in the
Company's historic Management Incentive Plan, but substituting pre-tax earnings
in the formula for earnings per share and increasing the amount of cash bonus
payable to take into account that stock options would not be stated thereunder.
[For this purpose "pre-tax earnings" will be calculated in the same manner as
under the Long Term Performance Award Plan. It is understood and agreed that the
Company shall amend its 1999 Management Incentive Plan (the "MIP") to provide
that all eligible participants in such plan who remain employed by the Company
(or a subsidiary of the Company) as of December 31, 1999 ("Eligible
Participants"), will receive a bonus amount (as determined and adjusted as set
forth in the next succeeding sentence) in cash equal to (i) the amount of cash
and (ii) the fair market value of stock options (which shall be calculated in
the manner set forth below), in each case, which such persons otherwise would
have been entitled to receive under the MIP for the year ending December 31,
1999 (the "First Bonus Amount"). The First Bonus Amount shall be (a) calculated
based on the financial results of the Company and its subsidiaries for the
six-month period ending June 30, 1999, as compared to the financial results of
the Company and its subsidiaries for the six-month period ended June 30, 1998
(and assuming a satisfactory rating on personal and departmental goals and
objectives at the Company's headquarters for such six-month period in 1999), (b)
divided by 2, and (c) paid no later than February 14, 2000. It is also
understood and agreed that the Company shall further amend the MIP to provide
that all Eligible Participants will receive a bonus amount (as determined and
adjusted as set forth in the next succeeding sentence) in cash equal to (i) the
amount of cash and (ii) the fair market value of stock options (which shall be
calculated in the manner set forth below), in each case, which such persons
otherwise would have been entitled to receive under the MIP for the year ending
December 31, 1999 (the "Second Bonus Amount"). The Second Bonus Amount
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shall be (a) calculated based on the percentage increase in the "pre-tax
earnings" (as defined in the Company's Long Term Performance Award Plan) of the
Company and its subsidiaries for the six-month period ending December 31, 1999,
as compared to the pre-tax earnings of the Company and its subsidiaries for the
six-month period ended December, 1998 (and assuming a satisfactory rating on
personal and departmental goals and objectives at the Company's headquarters for
such six-month period in 1999), (b) divided by 2, and (c) paid no later than
February 14, 2000. The fair market value of stock options referred to in this
section shall be deemed to be one-half of the excess of (x) the Merger
Consideration over (y) the closing sale price for the Shares on the last
business day preceding the date of this Agreement as reported by the Nasdaq
National Market.]
6. Other Employee Benefits.
(a) Long Term Performance Award Plan.
The Employee shall be designated as a Participant in the Company's Long
Term Performance Award Plan with a Pool Percentage as set forth therein.
(b) Vacation and Sick Leave.
The Employee shall be entitled to reasonable paid annual vacation
periods, personal days and to reasonable sick leave consistent with the
practices of the Company prior to the Effective Date.
(c) Regular Reimbursed Business Expenses.
The Company shall reimburse the Employee for all expenses and
disbursements reasonably incurred by the Employee in the performance of the
Employee's duties during the Period of Employment, and provide such other
facilities, support staff, travel accommodation, transportation, recreational
and entertainment opportunities and services as the Company and the Employee
may, from time to time, agree are appropriate, all in accordance with the
Company's established policies, but in no event less favorable than those
provided to Employee prior to the Effective Date.
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<PAGE>
(d) Employee Benefit Plans.
In addition to the cash compensation provided for in Section 5 hereof and
the benefits to be provided under the Prior Agreements as set forth in Section 1
hereof, the Employee, subject to meeting eligibility provisions and to the
provisions of this Agreement, shall be entitled to participate in the Company's
employee benefit plans, as presently in effect or as they may be modified or
added to by the Company from time to time, including, without limitation, plans
providing retirement benefits, group-term life insurance, medical and
hospitalization insurance, disability insurance, accidental death or
dismemberment insurance, automobile allowances, fringe benefits and relocation
benefits, provided that such benefits shall be no less favorable than those
provided to Employee prior to the Effective Date.
(e) Parent Plans.
To the extent practicable, Parent will endeavor to include Employee in
Parent's equity-based compensation plans to the extent comparable participation
is available to other similarly situated employees of Parent's non-French
subsidiaries.
7. Termination.
(a) Termination Without Cause; Termination for Good Reason.
If the Company should terminate the Period of Employment without Cause as
defined below, or if the Employee should terminate the Period of Employment for
Good Reason (as defined below), in addition to all other compensation and
benefits, if any, payable as provided for hereunder, the Company shall pay to
the Employee an amount equal to
(i) (A) any unpaid Base Salary through the date of Termination
plus (B) an amount designed to approximate the annual bonus under Section
5(b) accrued to the date of Termination, which shall be deemed to be the
prior year's annual bonus multiplied by a fraction, the numerator of
which is the number of days from the beginning of such fiscal year
through such Date of Termination and
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the denominator of which is 365, plus (C) any previously vested benefits,
such as previously vested retirement benefits, plus (D) any deferred
compensation (including, without limitation, interest or other credits on
such deferred amounts), any accrued vacation pay and any reimbursement
for expenses incurred but not yet paid prior to such Date of Termination
(collectively, the "Accrued Obligations");
(ii) a lump sum in cash paid within five (5) business days
following the Date of Termination, equal to the number of years
(including fractions thereof) remaining in the Period of Employment
(without taking into account such early termination thereof) multiplied
by the sum of (x) his then current base salary plus (y) his annual bonus
received for the year prior to which such Date of Termination occurs
(determined without regard to any performance goals); and
(iii) a payment under the Long Term Performance Award Plan equal
to the amount Employee would have received as if his Retirement Date were
the date of his Termination of Employment.
"Cause" shall mean the Employee's conviction of, or a plea of guilty to,
a felony involving moral turpitude or willful violation of Section 8 or the
Employee's willful gross negligence, material misconduct (including
noncompliance with the Vivendi Code of Ethics) or material breach of this
Agreement, resulting in material injury to the Company. For purposes of this
definition, no act, or failure to act on the Executive's part shall be deemed
"willful" unless done, or omitted to be done, by the Executive not in good faith
and without reasonable belief that the Executive's act, or failure to act, was
in the best interest, or not opposed to the best interests, of the Company. No
termination for Cause shall be effective without (A) a resolution adopted by a
majority of the Parent Executive Committee which sets forth the act (or failure
to act) constituting Cause for termination, (B) if such act or failure to act is
susceptible to cure, a reasonable period to
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effect such cure to the reasonable satisfaction of the Parent Executive
Committee, and (C) opportunity for the Employee, together with the Employee's
counsel, to be heard before the Parent Executive Committee.
"Good Reason" shall mean: without the Employee's prior written consent
(which may be denied, withheld, delayed or conditional for any reason in his
discretion), (A) the relocation of the Company's principal offices more than 25
miles from its location immediately prior to the Effective Date or the Company
requiring the Employee to be based at any location other than such principal
offices, (B) a breach by the Company of any material provision of this Agreement
which is not cured within five (5) business days following written notification
of such breach, or (C) a Change in Control or sale of Company or Parent.
(b) Termination without Good Reason; Termination for Cause;
Termination Due to Death or Disability.
The Employee shall have the right, upon 30 days' prior written notice
given to the Company, to terminate the Period of Employment without Good Reason.
If the Employee should terminate the Period of Employment without Good Reason,
the Company should terminate the Period of Employment for Cause, or the Period
of Employment should be terminated due to the Employee's death or Disability,
the Employee will be entitled to be paid (i) the base annual salary otherwise
payable to Employee under paragraph (a) of Section 5 plus accrued annual bonus
under Section 5(b) through the end of the month in which the Period of
Employment is terminated and, if Employment is due to death or Disability, (ii)
an immediate lump sum cash payment amount equal to the sum of (A) 150% times the
annual bonus received by him for the year prior to which the Date of Termination
occurs plus (B) 150% times his base salary at the rate in effect on the Date of
Termination. For purposes of this Agreement, "Disability" means the Employee's
inability to render, for a period of six (6) consecutive months, services
hereunder by reason of permanent disability, as determined by the
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written medical opinion of an independent medical physician mutually acceptable
to the Employee and the Company. If the Employee and the Company cannot agree as
to such an independent medical physician each shall appoint one medical
physician and those two physicians shall appoint a third physician who shall
make such determination.
8. Noncompetition and Nonsolicitation.
(a) The Employee hereby covenants and agrees that at no time during the
Period of Employment nor for a period of two years following the termination
thereof for any reason will he, without the prior written consent of the Board
of Directors of the Company, for himself or on behalf of any other person,
partnership, company or corporation, directly or indirectly, acquire any
financial or beneficial interest in (except as provided in the next sentence),
provide consulting services to, be employed by, or own, manage, operate or
control any business which is in competition with a business engaged in the
solid waste industry in any state of the United States in which the Company or
any subsidiary thereof are engaged in business at the time of such termination
of employment. Notwithstanding the preceding sentence, the Employee shall not be
prohibited from owning less than 1% of any publicly traded corporation, whether
or not such corporation is in competition with the Company.
(b) The Employee hereby covenants and agrees that, at all times during
the Period of Employment and for a period of two years immediately following
termination for any reason, the Employee shall not, without the prior written
consent of the Board of Directors of the Company, solicit or take any action to
cause the solicitation of any person who as of that date was a client, customer,
vendor, consultant or agent of the Company to discontinue business, in whole or
in part with the Company.
(c) The Employee hereby covenants and agrees that, at all times during
the Period of Employment and for a period of one year immediately following the
termination thereof for any reason, the Employee shall not, without the prior
written consent of the Board of Directors of the Company, employ or seek to
employ any person
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employed at that time by the Company or any of its subsidiaries, or otherwise
encourage or entice such person or entity to leave such employment, other than
any relative of the Employee.
(d) It is the intention of the parties hereto that the restrictions
contained in this Section be enforceable to the fullest extent permitted by
applicable law. Therefore, to the extent any court of competent jurisdiction
shall determine that any portion of the foregoing restrictions is excessive,
such provision shall not be entirely void, but rather shall be limited or
revised only to the extent necessary to make it enforceable. Specifically, if
any court of competent jurisdiction should hold that any portion of the
foregoing description is overly broad as to one or more states of the United
States, then that state or states shall be eliminated from the territory to
which the restrictions of paragraph (a) of this Section applies and the
restrictions shall remain applicable in all other states of the United States.
9. Confidential Information.
The Employee agrees to keep secret and retain in the strictest confidence
all confidential matters which relate to the Company, its subsidiaries and
affiliates, including, without limitation, customer lists, client lists, trade
secrets, pricing policies and other business affairs of the Company, its
subsidiaries and affiliates learned by him from the Company or any such
subsidiary or affiliate or otherwise before or after the date of this Agreement,
and not to disclose any such confidential matter to anyone outside the Company
or any of its subsidiaries or affiliates, whether during or after his period of
service with the Company, except (i) as such disclosure may be required or
appropriate in connection with his work as an employee of the Company or (ii)
when required to do so by a court of law, by any governmental agency having
supervisory authority over the business of the Company or by any administrative
or legislative body (including a committee thereof) with apparent jurisdiction
to order him to divulge, disclose or make accessible such information. The
Employee agrees to give the Company advance written notice of any disclosure
pursuant to clause (ii) of the preceding sentence and to cooperate
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with any efforts by the Company to limit the extent of such disclosure. Upon
request by the Company, the Employee agrees to deliver promptly to the Company
or destroy upon termination of his services for the Company, or at any time
thereafter as the Company may request, all Company, subsidiary or affiliate
memoranda, notes, records, reports, manuals, drawings, designs, computer files
in any media and other documents (and all copies thereof) relating to the
Company's or any subsidiary's or affiliate's business and all property of the
Company or any subsidiary or affiliate associated therewith, which he may then
possess or have under his direct control, other than personal notes, diaries,
rolodexes and correspondence.
10. Governing Law.
This Agreement is governed by and is to be construed and enforced in
accordance with the laws of the State of Wisconsin, without reference to rules
relating to conflicts of law. If under such law, any portion of this Agreement
is at any time deemed to be in conflict with any applicable statute, rule,
regulation or ordinance, such portion shall be deemed to be modified or altered
to conform thereto or, if that is not possible, to be omitted from this
Agreement; the invalidity of any such portion shall not affect the force, effect
and validity of the remaining portion hereof.
11. Notices.
All notices under this Agreement shall be in writing and shall be deemed
effective when delivered in person, or five (5) days after deposit thereof in
the U.S. mails, postage prepaid, for delivery as registered or certified mail,
addressed to the respective party at the address set forth below or to such
other address as may hereafter be designated by like notice. Unless otherwise
notified as set forth above, notice shall be sent to each party as follows:
(a) Employee, to:
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(b) Company, to:
Superior Services, Inc.
125 South 84th Street
Suite 200
Milwaukee, WI 53214
(414) 479-7400 (facsimile)
Attention: General Counsel
Copy: Steven Barth
Foley & Lardner
Firstar Center
777 East Wisconsin Avenue
Milwaukee, WI 53202-5367
(414) 297-4900 (facsimile)
(c) Parent to:.
Vivendi
42, Avenue De Frieland
75380 Paris CEDEX 08
FRANCE
011 331 7171 1179 (facsimile)
In lieu of personal notice or notice by deposit in the U.S. mail, a party
may give notice by confirmed telegram, telex or fax, which shall be effective
upon receipt.
12. Miscellaneous.
(a) Entire Agreement.
This Agreement constitutes the entire understanding among the Company,
the Parent and the Employee relating to employment of the Employee by the
Company and, except as provided in Section 1 hereof, with respect to Company's
ongoing obligations under Section 5(c) of the KEESA and the second paragraph of
Section 4(c)(ii) of the Employment Agreement, supersedes and cancels all prior
written and oral agreements and understandings with respect to the subject
matter of this Agreement. This Agreement may be amended but only by a subsequent
written agreement of the parties. This Agreement shall be binding upon and shall
inure to the benefit of the Employee, the
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<PAGE>
Employee's heirs, executors, administrators and beneficiaries, and the Company
and its successors.
(b) Withholding Taxes.
All amounts payable to the Employee under this Agreement shall be subject
to applicable withholding of income, wage and other taxes.
(c) Mutual Consent to Legal Representation of Employee.
Each of Parent, the Company and the Employee understand, consent and
agree that, despite Foley & Lardner's role as principal outside counsel to the
Company, because of the circumstances arising out of Parent's acquisition of the
Company pursuant to the Merger Agreement, Foley & Lardner has negotiated this
Agreement on behalf of Employee with counsel to Parent. Without limiting or
affecting the extent of each party's consent evidenced above, each of Parent,
the Company and the Employee agree that Foley & Lardner's role in connection
herewith shall not in any way prevent, adversely affect or limit Foley &
Lardner's past, current or future representation of the Employee, the Company or
Parent on matters unrelated to this Agreement (including, with respect to the
Company and the Employee, in connection with the Acquisition and the events,
agreements and transactions contemplated by the Merger Agreement); provided,
however, that if any dispute or disagreement between the Employee, on the one
hand, and the Company or Parent, on the other hand, may hereafter arise under
this Agreement or otherwise, then Foley & Lardner will not represent either
party in connection with such dispute.
(d) No Mitigation or Offset.
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<PAGE>
The Company and Parent agree that, if the Employee's employment with the
Company terminates for any reason, the Employee is not required to seek any
other employment or to attempt in any way to reduce any amounts payable to or in
respect of the Employee by the Company or Parent pursuant to this Agreement or
the ongoing obligations of the Company under the Prior Agreements. Further, the
amount of any payment or benefit provided for in this Agreement or under the
Prior Agreements shall not be reduced by any compensation earned by the
Employee, as the result of the Prior Agreements, employment by another employer,
by retirement benefits, by offset against any amount claimed to be owed by the
Employee to the Company or Parent or otherwise.
(e) Legal Fees.
The Company shall pay to the Employee or his counsel all legal fees and
expenses reasonably incurred by the Employee in disputing in good faith any
issue hereunder relating to the termination of the Employee's employment, in
seeking in good faith to obtain or enforce any benefit or right provided by this
Agreement or the Prior Agreements or in connection with any tax audit or
proceeding to the extent attributable to the application of Section 4999 of the
Internal Revenue Code to any payment or benefit provided hereunder or under the
Prior Agreements.
(f) Arbitration.
(i) Any dispute, controversy or claim arising out of or relating to this
Agreement or the Prior Agreements, a breach thereof or the coverage or
enforceability of this Section 10(f) shall be settled by arbitration in
Milwaukee, Wisconsin (or such other
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<PAGE>
location as the Company and the Employee may mutually agree), conducted in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association, as such rules are in effect in Milwaukee, Wisconsin on the date of
delivery of demand for arbitration. The arbitration of any such issue, including
the determination of the amount of damages, shall be to the exclusion of any
court of law.
(ii) There shall be three arbitrators, one to be chosen by each party at
will within ten (10) days from the date of delivery of demand for arbitration
and the third arbitrator to be selected by the two arbitrators so chosen. If the
two arbitrators are unable to select a third arbitrator within ten (10) days
after the last of the two arbitrators is chosen by the parties, the third
arbitrator will be designated, on application by either party, by the American
Arbitration Association. The decision of a majority of the arbitrators shall be
final and binding on both parties and their respective heirs, executors,
administrators, personal representatives, successors and assigns. Judgment upon
any award of the arbitrators may be entered in any court having jurisdiction, or
application may be made to any such court for the judicial acceptance of the
award and for an order of enforcement.
(iii) The Company shall pay both its and Employee's fees and expenses
incurred in connection with any arbitration arising out of this Agreement,
unless a majority of the arbitrators concludes that such arbitration procedure
was not instituted in good faith by the Employee.
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<PAGE>
(g) Parent Guarantee.
Parent hereby unconditionally guarantees and agrees to be jointly and
severally responsible with the Company for full and timely payment and
performance of the Company's obligations hereunder.
(h) Indemnification.
The Company shall maintain its existing directors and officers liability
insurance in commercially reasonable amounts (as reasonably determined by the
Board of Directors of the Company) to the extent provided for as of the date of
this Agreement, and the Employee shall be covered under such insurance for
actions (or inactions) taken during the Period of Employment to the same extent
as other senior executives of the Company. The Employee shall be eligible for
indemnification by the Company under the Company by-laws as currently in effect
and under Wisconsin law for actions (or inactions) taken during the Period of
Employment, and the Company agrees that it shall not take any action except as
permitted by law that would impair the Employee's rights to indemnification
under the Company by-laws, as currently in effect or under Wisconsin law.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the year and day first above written.
VIVENDI
By: __________________________
SUPERIOR SERVICES SERVICES, INC.
By: __________________________
______________________________
George K. Farr
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EMPLOYMENT AGREEMENT
AGREEMENT, dated as of June 11, 1999, by and among Superior Services,
Inc. (the "Company"), Vivendi (the "Parent") and Peter J. Ruud (the "Employee").
WHEREAS, the Company has entered into an Agreement and Plan of Merger
(the "Merger Agreement"), dated as of June 11, 1999, with Parent and Onyx
Acquisition Corp., a wholly-owned subsidiary of Parent ("Merger Sub"), pursuant
to which Merger Sub (i) a cash tender offer to purchase all of the common stock
of the Company and (ii) following the successful completion of the tender offer,
will merge with and into the Company, with the Company being the surviving
corporation in the merger (collectively, the "Acquisition"); and
WHEREAS, the Employee was employed by the Company prior to the execution
of the Merger Agreement and the Parent desires to secure the Employee's
continued employment with the Company following the date on which the Merger Sub
is irrevocably committed to purchase the tendered shares under Section 1.1(a) of
the Merger Agreement (the "Effective Date").
1. Effective Date; Prior Agreements. On the Effective Date, all
obligations of the Company (including, without limitation, the lump sum cash
payment in immediately available funds of the Termination Payment, the Executive
Awards (including the cashing-out of Employee's stock options), the Accrued
Benefits and any Gross Up Payment) under the Employee's Key Executive Employment
and Severance Agreement dated August 15, 1995, as amended ("KEESA"), and under
the Employee's Employment Agreement ("Prior Employment Agreement") dated January
1, 1996, as amended (together each, a "Prior Agreement") resulting from the
"Change in Control of the Company" (as defined under the Prior Agreements)
caused by the Effective Date, will be satisfied as if a "Discretionary
Termination" had been effected under the Prior
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<PAGE>
Agreements by Employee. Except as provided below, on the Effective Date and
after satisfaction of the above obligations, each Prior Agreement shall become
null and void and this Agreement shall govern the employment relationship
between the Employee and the Company; provided, however, that (regardless of the
termination of the Prior Agreements as of the Effective Date and any subsequent
termination or expiration of this Agreement for any reason) the Company shall
(a) on the Effective Date, pay Employee a cash lump sum payment in immediately
available funds equal to the face value of all consulting payments which
Employee would have otherwise received under the first paragraph of Section
4(c)(ii) of the Prior Employment Agreement and (b) continue to be obligated to
timely and fully provide to Employee (i) all of the benefits under Section 5(c)
of the KEESA and (ii) all of the benefits under the second paragraph of Section
4(c)(ii) of the Prior Employment Agreement, giving effect under each such
provision to the "Change in Control of the Company" effected on and by the
Effective Date and without requiring any further Change in Control of the
Company or any termination of Employee's employment.
2. Employment.
The Company hereby employs the Employee, and the Employee agrees to serve
as an employee of the Company, during the Period of Employment, as defined in
Section 3 in the Employee's same position and role, with the same duties and
responsibilities, all as in effect immediately prior to the Effective Date.
3. Period of Employment.
The "Period of Employment" shall be the period commencing on the
Effective Date and ending on December 31, 2003 provided, however, that
commencing on December 31, 2002 and each December 31st thereafter, the term of
the Agreement shall be extended for one additional year if at least 30 days
prior to any such date, the Company and the Employee mutually agree to so extend
this Agreement.
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<PAGE>
4. Duties During the Period of Employment.
The Employee shall devote the Employee's full business time, attention
and efforts to the affairs of the Company during the Period of Employment
consistent with Employee's past practice prior to the Effective Date, provided,
however, that the Employee may engage in other activities, such as activities
involving professional, charitable, educational, religious and similar types of
organizations, speaking engagements, membership on the board of directors of
such other commercial organizations as the Company may from time to time agree
to (which agreement will not be unreasonably denied, withheld or delayed if such
activities are consistent with Employee's past practice prior to the Effective
Date), and similar type activities to the extent that such other activities do
not materially inhibit or prohibit the performance of the Employee's duties
under this Agreement, or conflict in any material way with the business of the
Company and its affiliates.
5. Current Cash Compensation.
(a) Base Salary.
As compensation for the Employee's services hereunder, the Company will
pay to the Employee during the Period of Employment a base salary at the annual
rate of salary payable by the Company which is in effect immediately prior to
the Effective Date payable in accordance with the Company's payroll practices
for senior executives. The Company shall review the base salary at least
annually and in light of such review may, in the discretion of the Board of
Directors of the Company (but shall not be obligated to), increase such base
salary (but may not decrease such salary) taking into account any change in the
Employee's then responsibilities, increases in the cost of living, performance
by the Employee, and other pertinent factors.
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<PAGE>
(b) Annual Bonus.
In addition to the base salary referred to in paragraph (a) of this
Section, during the Period of Employment the Employee will participate in an
annual bonus plan no less favorable to Employee than his participation in the
Company's historic Management Incentive Plan, but substituting pre-tax earnings
in the formula for earnings per share and increasing the amount of cash bonus
payable to take into account that stock options would not be stated thereunder.
[For this purpose "pre-tax earnings" will be calculated in the same manner as
under the Long Term Performance Award Plan. It is understood and agreed that the
Company shall amend its 1999 Management Incentive Plan (the "MIP") to provide
that all eligible participants in such plan who remain employed by the Company
(or a subsidiary of the Company) as of December 31, 1999 ("Eligible
Participants"), will receive a bonus amount (as determined and adjusted as set
forth in the next succeeding sentence) in cash equal to (i) the amount of cash
and (ii) the fair market value of stock options (which shall be calculated in
the manner set forth below), in each case, which such persons otherwise would
have been entitled to receive under the MIP for the year ending December 31,
1999 (the "First Bonus Amount"). The First Bonus Amount shall be (a) calculated
based on the financial results of the Company and its subsidiaries for the
six-month period ending June 30, 1999, as compared to the financial results of
the Company and its subsidiaries for the six-month period ended June 30, 1998
(and assuming a satisfactory rating on personal and departmental goals and
objectives at the Company's headquarters for such six-month period in 1999), (b)
divided by 2, and (c) paid no later than February 14, 2000. It is also
understood and agreed that the Company shall further amend the MIP to provide
that all Eligible Participants will receive a bonus amount (as determined and
adjusted as set forth in the next succeeding sentence) in cash equal to (i) the
amount of cash and (ii) the fair market value of stock options (which shall be
calculated in the manner set forth below), in each case, which such persons
otherwise would have been entitled to receive under the MIP for the year ending
December 31, 1999 (the "Second Bonus Amount"). The Second Bonus Amount
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<PAGE>
shall be (a) calculated based on the percentage increase in the "pre-tax
earnings" (as defined in the Company's Long Term Performance Award Plan) of the
Company and its subsidiaries for the six-month period ending December 31, 1999,
as compared to the pre-tax earnings of the Company and its subsidiaries for the
six-month period ended December, 1998 (and assuming a satisfactory rating on
personal and departmental goals and objectives at the Company's headquarters for
such six-month period in 1999), (b) divided by 2, and (c) paid no later than
February 14, 2000. The fair market value of stock options referred to in this
section shall be deemed to be one-half of the excess of (x) the Merger
Consideration over (y) the closing sale price for the Shares on the last
business day preceding the date of this Agreement as reported by the Nasdaq
National Market.]
6. Other Employee Benefits.
(a) Long Term Performance Award Plan.
The Employee shall be designated as a Participant in the Company's Long
Term Performance Award Plan with a Pool Percentage as set forth therein.
(b) Vacation and Sick Leave.
The Employee shall be entitled to reasonable paid annual vacation
periods, personal days and to reasonable sick leave consistent with the
practices of the Company prior to the Effective Date.
(c) Regular Reimbursed Business Expenses.
The Company shall reimburse the Employee for all expenses and
disbursements reasonably incurred by the Employee in the performance of the
Employee's duties during the Period of Employment, and provide such other
facilities, support staff, travel accommodation, transportation, recreational
and entertainment opportunities and services as the Company and the Employee
may, from time to time, agree are appropriate, all in accordance with the
Company's established policies, but in no event less favorable than those
provided to Employee prior to the Effective Date.
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<PAGE>
(d) Employee Benefit Plans.
In addition to the cash compensation provided for in Section 5 hereof and
the benefits to be provided under the Prior Agreements as set forth in Section 1
hereof, the Employee, subject to meeting eligibility provisions and to the
provisions of this Agreement, shall be entitled to participate in the Company's
employee benefit plans, as presently in effect or as they may be modified or
added to by the Company from time to time, including, without limitation, plans
providing retirement benefits, group-term life insurance, medical and
hospitalization insurance, disability insurance, accidental death or
dismemberment insurance, automobile allowances, fringe benefits and relocation
benefits, provided that such benefits shall be no less favorable than those
provided to Employee prior to the Effective Date.
(e) Parent Plans.
To the extent practicable, Parent will endeavor to include Employee in
Parent's equity-based compensation plans to the extent comparable participation
is available to other similarly situated employees of Parent's non-French
subsidiaries.
7. Termination.
(a) Termination Without Cause; Termination for Good Reason.
If the Company should terminate the Period of Employment without Cause as
defined below, or if the Employee should terminate the Period of Employment for
Good Reason (as defined below), in addition to all other compensation and
benefits, if any, payable as provided for hereunder, the Company shall pay to
the Employee an amount equal to
(i) (A) any unpaid Base Salary through the date of Termination
plus (B) an amount designed to approximate the annual bonus under Section
5(b) accrued to the date of Termination, which shall be deemed to be the
prior year's annual bonus multiplied by a fraction, the numerator of
which is the number of days from the beginning of such fiscal year
through such Date of Termination and
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<PAGE>
the denominator of which is 365, plus (C) any previously vested benefits,
such as previously vested retirement benefits, plus (D) any deferred
compensation (including, without limitation, interest or other credits on
such deferred amounts), any accrued vacation pay and any reimbursement
for expenses incurred but not yet paid prior to such Date of Termination
(collectively, the "Accrued Obligations");
(ii) a lump sum in cash paid within five (5) business days
following the Date of Termination, equal to the number of years
(including fractions thereof) remaining in the Period of Employment
(without taking into account such early termination thereof) multiplied
by the sum of (x) his then current base salary plus (y) his annual bonus
received for the year prior to which such Date of Termination occurs
(determined without regard to any performance goals); and
(iii) a payment under the Long Term Performance Award Plan equal
to the amount Employee would have received as if his Retirement Date were
the date of his Termination of Employment.
"Cause" shall mean the Employee's conviction of, or a plea of guilty to,
a felony involving moral turpitude or willful violation of Section 8 or the
Employee's willful gross negligence, material misconduct (including
noncompliance with the Vivendi Code of Ethics) or material breach of this
Agreement, resulting in material injury to the Company. For purposes of this
definition, no act, or failure to act on the Executive's part shall be deemed
"willful" unless done, or omitted to be done, by the Executive not in good faith
and without reasonable belief that the Executive's act, or failure to act, was
in the best interest, or not opposed to the best interests, of the Company. No
termination for Cause shall be effective without (A) a resolution adopted by a
majority of the Parent Executive Committee which sets forth the act (or failure
to act) constituting Cause for termination, (B) if such act or failure to act is
susceptible to cure, a reasonable period to
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<PAGE>
effect such cure to the reasonable satisfaction of the Parent Executive
Committee, and (C) opportunity for the Employee, together with the Employee's
counsel, to be heard before the Parent Executive Committee.
"Good Reason" shall mean: without the Employee's prior written consent
(which may be denied, withheld, delayed or conditional for any reason in his
discretion), (A) the relocation of the Company's principal offices more than 25
miles from its location immediately prior to the Effective Date or the Company
requiring the Employee to be based at any location other than such principal
offices, (B) a breach by the Company of any material provision of this Agreement
which is not cured within five (5) business days following written notification
of such breach, or (C) a Change in Control or sale of Company or Parent.
(b) Termination without Good Reason; Termination for Cause;
Termination Due to Death or Disability.
The Employee shall have the right, upon 30 days' prior written notice
given to the Company, to terminate the Period of Employment without Good Reason.
If the Employee should terminate the Period of Employment without Good Reason,
the Company should terminate the Period of Employment for Cause, or the Period
of Employment should be terminated due to the Employee's death or Disability,
the Employee will be entitled to be paid (i) the base annual salary otherwise
payable to Employee under paragraph (a) of Section 5 plus accrued annual bonus
under Section 5(b) through the end of the month in which the Period of
Employment is terminated and, if Employment is due to death or Disability, (ii)
an immediate lump sum cash payment amount equal to the sum of (A) 150% times the
annual bonus received by him for the year prior to which the Date of Termination
occurs plus (B) 150% times his base salary at the rate in effect on the Date of
Termination. For purposes of this Agreement, "Disability" means the Employee's
inability to render, for a period of six (6) consecutive months, services
hereunder by reason of permanent disability, as determined by the
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<PAGE>
written medical opinion of an independent medical physician mutually acceptable
to the Employee and the Company. If the Employee and the Company cannot agree as
to such an independent medical physician each shall appoint one medical
physician and those two physicians shall appoint a third physician who shall
make such determination.
8. Noncompetition and Nonsolicitation.
(a) The Employee hereby covenants and agrees that at no time during the
Period of Employment nor for a period of two years following the termination
thereof for any reason will he, without the prior written consent of the Board
of Directors of the Company, for himself or on behalf of any other person,
partnership, company or corporation, directly or indirectly, acquire any
financial or beneficial interest in (except as provided in the next sentence),
provide consulting services to, be employed by, or own, manage, operate or
control any business which is in competition with a business engaged in the
solid waste industry in any state of the United States in which the Company or
any subsidiary thereof are engaged in business at the time of such termination
of employment. Notwithstanding the preceding sentence, the Employee shall not be
prohibited from owning less than 1% of any publicly traded corporation, whether
or not such corporation is in competition with the Company.
(b) The Employee hereby covenants and agrees that, at all times during
the Period of Employment and for a period of two years immediately following
termination for any reason, the Employee shall not, without the prior written
consent of the Board of Directors of the Company, solicit or take any action to
cause the solicitation of any person who as of that date was a client, customer,
vendor, consultant or agent of the Company to discontinue business, in whole or
in part with the Company.
(c) The Employee hereby covenants and agrees that, at all times during
the Period of Employment and for a period of one year immediately following the
termination thereof for any reason, the Employee shall not, without the prior
written consent of the Board of Directors of the Company, employ or seek to
employ any person
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<PAGE>
employed at that time by the Company or any of its subsidiaries, or otherwise
encourage or entice such person or entity to leave such employment, other than
any relative of the Employee.
(d) It is the intention of the parties hereto that the restrictions
contained in this Section be enforceable to the fullest extent permitted by
applicable law. Therefore, to the extent any court of competent jurisdiction
shall determine that any portion of the foregoing restrictions is excessive,
such provision shall not be entirely void, but rather shall be limited or
revised only to the extent necessary to make it enforceable. Specifically, if
any court of competent jurisdiction should hold that any portion of the
foregoing description is overly broad as to one or more states of the United
States, then that state or states shall be eliminated from the territory to
which the restrictions of paragraph (a) of this Section applies and the
restrictions shall remain applicable in all other states of the United States.
9. Confidential Information.
The Employee agrees to keep secret and retain in the strictest confidence
all confidential matters which relate to the Company, its subsidiaries and
affiliates, including, without limitation, customer lists, client lists, trade
secrets, pricing policies and other business affairs of the Company, its
subsidiaries and affiliates learned by him from the Company or any such
subsidiary or affiliate or otherwise before or after the date of this Agreement,
and not to disclose any such confidential matter to anyone outside the Company
or any of its subsidiaries or affiliates, whether during or after his period of
service with the Company, except (i) as such disclosure may be required or
appropriate in connection with his work as an employee of the Company or (ii)
when required to do so by a court of law, by any governmental agency having
supervisory authority over the business of the Company or by any administrative
or legislative body (including a committee thereof) with apparent jurisdiction
to order him to divulge, disclose or make accessible such information. The
Employee agrees to give the Company advance written notice of any disclosure
pursuant to clause (ii) of the preceding sentence and to cooperate
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with any efforts by the Company to limit the extent of such disclosure. Upon
request by the Company, the Employee agrees to deliver promptly to the Company
or destroy upon termination of his services for the Company, or at any time
thereafter as the Company may request, all Company, subsidiary or affiliate
memoranda, notes, records, reports, manuals, drawings, designs, computer files
in any media and other documents (and all copies thereof) relating to the
Company's or any subsidiary's or affiliate's business and all property of the
Company or any subsidiary or affiliate associated therewith, which he may then
possess or have under his direct control, other than personal notes, diaries,
rolodexes and correspondence.
10. Governing Law.
This Agreement is governed by and is to be construed and enforced in
accordance with the laws of the State of Wisconsin, without reference to rules
relating to conflicts of law. If under such law, any portion of this Agreement
is at any time deemed to be in conflict with any applicable statute, rule,
regulation or ordinance, such portion shall be deemed to be modified or altered
to conform thereto or, if that is not possible, to be omitted from this
Agreement; the invalidity of any such portion shall not affect the force, effect
and validity of the remaining portion hereof.
11. Notices.
All notices under this Agreement shall be in writing and shall be deemed
effective when delivered in person, or five (5) days after deposit thereof in
the U.S. mails, postage prepaid, for delivery as registered or certified mail,
addressed to the respective party at the address set forth below or to such
other address as may hereafter be designated by like notice. Unless otherwise
notified as set forth above, notice shall be sent to each party as follows:
(a) Employee, to:
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<PAGE>
(b) Company, to:
Superior Services, Inc.
125 South 84th Street
Suite 200
Milwaukee, WI 53214
(414) 479-7400 (facsimile)
Attention: General Counsel
Copy: Steven Barth
Foley & Lardner
Firstar Center
777 East Wisconsin Avenue
Milwaukee, WI 53202-5367
(414) 297-4900 (facsimile)
(c) Parent to:.
Vivendi
42, Avenue De Frieland
75380 Paris CEDEX 08
FRANCE
011 331 7171 1179 (facsimile)
In lieu of personal notice or notice by deposit in the U.S. mail, a party
may give notice by confirmed telegram, telex or fax, which shall be effective
upon receipt.
12. Miscellaneous.
(a) Entire Agreement.
This Agreement constitutes the entire understanding among the Company,
the Parent and the Employee relating to employment of the Employee by the
Company and, except as provided in Section 1 hereof, with respect to Company's
ongoing obligations under Section 5(c) of the KEESA and the second paragraph of
Section 4(c)(ii) of the Employment Agreement, supersedes and cancels all prior
written and oral agreements and understandings with respect to the subject
matter of this Agreement. This Agreement may be amended but only by a subsequent
written agreement of the parties. This Agreement shall be binding upon and shall
inure to the benefit of the Employee, the
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Employee's heirs, executors, administrators and beneficiaries, and the Company
and its successors.
(b) Withholding Taxes.
All amounts payable to the Employee under this Agreement shall be subject
to applicable withholding of income, wage and other taxes.
(c) Mutual Consent to Legal Representation of Employee.
Each of Parent, the Company and the Employee understand, consent and
agree that, despite Foley & Lardner's role as principal outside counsel to the
Company, because of the circumstances arising out of Parent's acquisition of the
Company pursuant to the Merger Agreement, Foley & Lardner has negotiated this
Agreement on behalf of Employee with counsel to Parent. Without limiting or
affecting the extent of each party's consent evidenced above, each of Parent,
the Company and the Employee agree that Foley & Lardner's role in connection
herewith shall not in any way prevent, adversely affect or limit Foley &
Lardner's past, current or future representation of the Employee, the Company or
Parent on matters unrelated to this Agreement (including, with respect to the
Company and the Employee, in connection with the Acquisition and the events,
agreements and transactions contemplated by the Merger Agreement); provided,
however, that if any dispute or disagreement between the Employee, on the one
hand, and the Company or Parent, on the other hand, may hereafter arise under
this Agreement or otherwise, then Foley & Lardner will not represent either
party in connection with such dispute.
(d) No Mitigation or Offset.
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<PAGE>
The Company and Parent agree that, if the Employee's employment with the
Company terminates for any reason, the Employee is not required to seek any
other employment or to attempt in any way to reduce any amounts payable to or in
respect of the Employee by the Company or Parent pursuant to this Agreement or
the ongoing obligations of the Company under the Prior Agreements. Further, the
amount of any payment or benefit provided for in this Agreement or under the
Prior Agreements shall not be reduced by any compensation earned by the
Employee, as the result of the Prior Agreements, employment by another employer,
by retirement benefits, by offset against any amount claimed to be owed by the
Employee to the Company or Parent or otherwise.
(e) Legal Fees.
The Company shall pay to the Employee or his counsel all legal fees and
expenses reasonably incurred by the Employee in disputing in good faith any
issue hereunder relating to the termination of the Employee's employment, in
seeking in good faith to obtain or enforce any benefit or right provided by this
Agreement or the Prior Agreements or in connection with any tax audit or
proceeding to the extent attributable to the application of Section 4999 of the
Internal Revenue Code to any payment or benefit provided hereunder or under the
Prior Agreements.
(f) Arbitration.
(i) Any dispute, controversy or claim arising out of or relating to this
Agreement or the Prior Agreements, a breach thereof or the coverage or
enforceability of this Section 10(f) shall be settled by arbitration in
Milwaukee, Wisconsin (or such other
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<PAGE>
location as the Company and the Employee may mutually agree), conducted in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association, as such rules are in effect in Milwaukee, Wisconsin on the date of
delivery of demand for arbitration. The arbitration of any such issue, including
the determination of the amount of damages, shall be to the exclusion of any
court of law.
(ii) There shall be three arbitrators, one to be chosen by each party at
will within ten (10) days from the date of delivery of demand for arbitration
and the third arbitrator to be selected by the two arbitrators so chosen. If the
two arbitrators are unable to select a third arbitrator within ten (10) days
after the last of the two arbitrators is chosen by the parties, the third
arbitrator will be designated, on application by either party, by the American
Arbitration Association. The decision of a majority of the arbitrators shall be
final and binding on both parties and their respective heirs, executors,
administrators, personal representatives, successors and assigns. Judgment upon
any award of the arbitrators may be entered in any court having jurisdiction, or
application may be made to any such court for the judicial acceptance of the
award and for an order of enforcement.
(iii) The Company shall pay both its and Employee's fees and expenses
incurred in connection with any arbitration arising out of this Agreement,
unless a majority of the arbitrators concludes that such arbitration procedure
was not instituted in good faith by the Employee.
-15-
<PAGE>
(g) Parent Guarantee.
Parent hereby unconditionally guarantees and agrees to be jointly and
severally responsible with the Company for full and timely payment and
performance of the Company's obligations hereunder.
(h) Indemnification.
The Company shall maintain its existing directors and officers liability
insurance in commercially reasonable amounts (as reasonably determined by the
Board of Directors of the Company) to the extent provided for as of the date of
this Agreement, and the Employee shall be covered under such insurance for
actions (or inactions) taken during the Period of Employment to the same extent
as other senior executives of the Company. The Employee shall be eligible for
indemnification by the Company under the Company by-laws as currently in effect
and under Wisconsin law for actions (or inactions) taken during the Period of
Employment, and the Company agrees that it shall not take any action except as
permitted by law that would impair the Employee's rights to indemnification
under the Company by-laws, as currently in effect or under Wisconsin law.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the year and day first above written.
VIVENDI
By: __________________________
SUPERIOR SERVICES SERVICES, INC.
By: __________________________
______________________________
Peter J. Ruud
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NEWS RELEASE
FOR IMMEDIATE RELEASE
Vivendi Superior Services, Inc.
Contact: Alain Delrieu Contact: George K. Farr
Telephone: 011-331-171711711 Chief Financial Officer
Fax: 011-331-171713711 Telephone: (414) 479-7834
or
Sandra Sokoloff
Telephone: (212) 367-6892
VIVENDI TO ACQUIRE SUPERIOR SERVICES, INC. FOR $27.00 PER SHARE
PARIS, FRANCE and MILWAUKEE, WIS. -- June 14, 1999 -- Vivendi, the
world's largest environmental services provider and one of Europe's
fastest-growing companies, today announced that it has entered into an agreement
to acquire Superior Services, Inc. (NASDAQ:SUPR), headquartered in Milwaukee,
Wisconsin, for US $27.00 per share in cash in a two-step tender offer/merger
transaction worth approximately US $1 billion.
As a subsidiary of Vivendi, Superior will continue to be led by its
current senior management team, including G. William Dietrich as Chief Executive
Officer, George K. Farr as Chief Financial Officer and Peter J. Ruud as Senior
Vice President, each of whom have executed employment agreements in connection
with the acquisition. Superior will remain headquartered in Milwaukee and the
acquisition is not expected to result in any reduction of Superior's employees
or closing of any of its facilities.
According to Bill Dietrich, Chief Executive Officer of Superior, "The
combination with Vivendi will provide Superior and its employees the opportunity
to accelerate our acquisition program and continue to build a strong, integrated
solid waste company with the added support of Vivendi's access to the
international capital markets."
On Friday, June 18, 1999, Vivendi will commence a cash tender offer for
all of Superior's outstanding shares for US $27.00 per share. Upon successful
completion of the tender offer and after receipt of all necessary state solid
waste permit approvals, a Vivendi subsidiary will merge into Superior, and
Superior will become a subsidiary of Vivendi. In the merger, Superior
shareholders who do not tender their shares into the tender offer will receive
US $27.00 per share in cash.
Superior has also granted Vivendi an option to purchase newly issued
Superior shares in an amount not to exceed 19.9% of its then outstanding common
stock. Vivendi may exercise the option, with respect to any or all of the shares
subject thereto, upon the occurrence of any event that would entitle Vivendi to
receive a termination fee under the terms of the merger agreement. In addition,
under certain circumstances, Vivendi is required to exercise the option upon
<PAGE>
conclusion of the tender offer for that number of shares that would give Vivendi
control of at least 50.1% of the shareholder votes needed to approve the second
step merger.
Superior's chairman of the board, founder and largest shareholder, owning
approximately 8% of Superior's shares, has entered into a shareholder tender
agreement with Vivendi. Pursuant to the tender agreement, he has agreed to
tender into the offer and not withdraw his shares of common stock.
Lazard Freres & Co. LLC and Lazard Freres et Cie. served as financial
advisers to Vivendi. Deutsche Banc Alex. Brown and Robert W. Baird & Co.
Incorporated served as financial advisors to Superior.
Vivendi is a leading participant in Europe's communications and utilities
industries. Vivendi has 235,000 employees, annual sales of about $35 billion and
a market capitalization of over $41 billion.
Superior Services, Inc. is an acquisition-oriented, fully-integrated
solid waste services company providing solid waste collection, transfer,
recycling and disposal services to more than 750,000 residential, commercial and
industrial customers in 12 states. Since its original consolidation of 22
businesses in 1993, Superior has acquired more than 100 businesses to build its
network of 23 company-owned or operated solid waste landfills, 49 solid waste
collection operations, 20 transfer stations and 15 recycling facilities.
Certain matters in this press release are "forward-looking statements"
intended to qualify for the safe harbors from liability established by the
Private Securities Litigation Reform Act of 1995. These forward-looking
statements can generally be identified as such because the context of the
statement will include words such as the company "believes," "anticipates,"
"expects," "intends," or words of similar import. Similarly, statements that
describe the future plans, objectives or goals are also forward-looking
statements. Such forward-looking statements, to the extent they relate to
Superior, are subject to certain risks and uncertainties set forth under the
caption "Risk Factors" in Superior's Form S-4 Registration Statement filed with
the Securities and Exchange Commission, which could cause actual results to
differ materially from those currently anticipated. The forward-looking
statements made herein are only made as of the date of the press release and the
companies undertake no obligation to publicly update such forward-looking
statements to reflect subsequent events or circumstances.
CONTACT: Alain Delrieu, 011-331-171711711, Fax: 011-331-171713711, or
Sandra Sokoloff, (212) 367-6892, both of Vivendi or George K. Farr, (414)
479-7834, Chief Financial Officer for Superior.
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