<PAGE>
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
SCHEDULE 14D-1
TENDER OFFER STATEMENT
PURSUANT TO SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
AND
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
------------------
SUPERIOR SERVICES, INC.
(NAME OF SUBJECT COMPANY)
ONYX SOLID WASTE ACQUISITION CORP.
an indirect wholly owned subsidiary of
VIVENDI
(BIDDERS)
COMMON STOCK, PAR VALUE $.01 PER SHARE
(INCLUDING THE ASSOCIATED RIGHTS TO PURCHASE COMMON STOCK)
(TITLE OF CLASS OF SECURITIES)
868316 10 0
(CUSIP NUMBER OF CLASS OF SECURITIES)
Henri Proglio
42, Avenue de Friedland
75380 Paris Cedex 08
France
(011) 33-171-71-1000
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSONS AUTHORIZED
TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDERS)
COPIES TO:
David M. Kies, Esq.
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
(212) 558-4000
CALCULATION OF FILING FEE:
<TABLE>
<CAPTION>
TRANSACTION VALUATION* AMOUNT OF FILING FEE**
<S> <C>
$967,190,139 $193,438
</TABLE>
* For purposes of calculating the amount of the filing fee only. Based on the
purchase of 35,821,857 shares of common stock, par value $.01 per share of
Superior Services, Inc. (the "Common Stock"), including the associated
rights to purchase common stock (the "Rights" and together with the Common
Stock, the "Shares"), at a price per Share of $27.00 in cash. Such number of
shares represents all Shares outstanding as of June 7, 1999, plus the number
of Shares issuable upon the exercise of outstanding options as of such date.
** The filing fee, calculated in accordance with Rule 0-11 of the Securities
Exchange Act of 1934, is 1/50(th) of one percent of the aggregate
Transaction Valuation.
/ / Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form
or Schedule and the date of its filing.
<TABLE>
<S> <C> <C> <C>
Amount Previously Paid: None Filing Party: N/A
Form of Registration No.: N/A Date Filed: N/A
</TABLE>
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- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 14D-1
<TABLE>
<C> <S>
CUSIP NO. 868316 10 0
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Onyx Solid Waste Acquisition Corp.
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
3. SEC USE ONLY
4. SOURCE OF FUNDS
AF
5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(E) OR 2(F) / /
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Wisconsin
7. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
2,539,931*
8. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES
CERTAIN SHARES / /
9. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
Approximately 7.8%
10. TYPE OF REPORTING PERSON
CO
</TABLE>
* On June 11, 1999, Vivendi ("Parent") and Onyx Solid Waste Acquisition Corp.,
an indirect wholly owned subsidiary of Parent (the "Purchaser"), entered
into a Shareholder Tender Agreement with a shareholder (the "Shareholder")
of Superior Services, Inc. (the "Company") who owns 2,539,931 shares of the
common stock, par value $.01 per share, of the Company, including the
associated rights to purchase common stock (the "Shares"), and who has
agreed to tender in the Offer and not withdraw all such Shares owned by
him. Pursuant to the Shareholder Tender Agreement, the Shareholder has
granted to the Purchaser an option to purchase such Shares. This option is
not currently exercisable, but will become exercisable upon the occurrence
of certain events specified in the Shareholder Tender Agreement. The
Shareholder Tender Agreement is described in Section 11 of the Offer to
Purchase. Parent and the Purchaser disclaim beneficial ownership of Shares
that are purchasable by the Purchaser upon exercise of the option granted
pursuant to the Shareholder Tender Agreement, because such option is
exercisable only upon the occurrence of certain contingent events, none of
which have occurred as of the date hereof. If the option granted pursuant
to the Shareholder Tender Agreement were exercised, the Purchaser would
have sole right to vote or dispose of the Shares issued or acquired as a
result of such exercise.
<PAGE>
SCHEDULE 14D-1
<TABLE>
<C> <S>
CUSIP NO. 868316 10 0
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Vivendi
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
3. SEC USE ONLY
4. SOURCE OF FUNDS
WC
5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(E) OR 2(F) / /
6. CITIZENSHIP OR PLACE OF ORGANIZATION
France
7. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
8,980,584*
8. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES
CERTAIN SHARES / /
9. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
Approximately 27.7%
10. TYPE OF REPORTING PERSON
CO
</TABLE>
* On June 11, 1999, Parent entered into a Stock Option Agreement with the
Company, pursuant to which the Company granted to Parent an option (the
"Option") to purchase 6,440,653 Shares, at an exercise price of $23.75 per
share. The Option is not currently exercisable but would become exercisable
upon the occurrence of certain events set forth in the Stock Option
Agreement. On June 11, 1999, Parent and the Purchaser also entered into a
Shareholder Tender Agreement with a shareholder (the "Shareholder") of the
Company who owns 2,539,931 Shares and who has agreed to tender in the Offer
and not withdraw all Shares owned by him. In addition, pursuant to the
Shareholder Tender Agreement, the Shareholder has granted to the Purchaser
an option to purchase such Shares. This option is not currently
exercisable, but will become exercisable upon the occurrence of certain
events specified in the Shareholder Tender Agreement. The Stock Option
Agreement and the Shareholder Tender Agreement are described in Section 11
of the Offer to Purchase. Parent and the Purchaser disclaim any beneficial
ownership of Shares that are purchasable by Parent or the Purchaser upon
exercise of the Option, because the Option is exercisable only upon the
occurrence of certain contingent events, none of which have occurred as of
this date. Parent and the Purchaser also disclaim beneficial ownership of
Shares that are purchasable by the Purchaser upon exercise of the option
granted pursuant to the Shareholder Tender Agreement, because such option
is exercisable only upon the occurrence of certain contingent events, none
of which have occurred as of this date. If either the Option or the option
granted pursuant to the Shareholder Tender Agreement were exercised, Parent
or the Purchaser, respectively, would have sole right to vote or dispose of
the Shares issued or acquired as a result of such exercise.
<PAGE>
ITEM 1. SECURITY AND SUBJECT COMPANY.
<TABLE>
<S> <C>
(a) The name of the subject company is Superior Services, Inc., a Wisconsin
corporation (the "Company"), whose principal executive offices are located
at 125 South 84th Street, Suite 200, Milwaukee, Wisconsin 53214.
(b) The class of securities to which this statement relates is the common stock,
par value $.01 per share (the "Common Stock"), of the Company, including the
associated rights to purchase common stock (the "Rights" and together with
the Common Stock, the "Shares"). Reference is made to the information set
forth in the Introduction, Section 1 ("Terms of the Offer") and Section 11
("Purpose of the Offer; Plans for the Company; the Merger; the Merger
Agreement; the Stock Option Agreement; the Shareholder Tender Agreement;
Employment Agreements") of the Offer to Purchase annexed hereto as Exhibit
(a)(1) (the "Offer to Purchase), which is incorporated herein by reference.
(c) Reference is made to the information set forth in Section 6 ("Price Range of
Shares; Dividends") of the Offer to Purchase, which is incorporated herein
by reference.
</TABLE>
ITEM 2. IDENTITY AND BACKGROUND.
<TABLE>
<S> <C>
(a)-(d);
(g) Reference is made to the information set forth in the Introduction, Section
9 ("Certain Information Concerning the Purchaser and Parent") and Schedule A
of the Offer to Purchase, which is incorporated herein by reference.
(e)-(f) During the last five years, neither the Purchaser nor Parent, nor, to the
best of their knowledge, any of the directors or executive officers listed
in Schedule A of the Offer to Purchase has been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction as
a result of which any such person was or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting activities
subject to, federal or state securities laws or finding any violation of
such law.
</TABLE>
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY.
<TABLE>
<S> <C>
(a)-(b) Reference is made to the information set forth in the Introduction, Section
9 ("Certain Information Concerning the Purchaser and Parent"), Section 10
("Background of the Offer; Contacts with the Company"), Section 11 ("Purpose
of the Offer; Plans for the Company; the Merger; the Merger Agreement; the
Stock Option Agreement; the Shareholder Tender Agreement; Employment
Agreements") and Section 12 ("Rights Agreement") of the Offer to Purchase,
which is incorporated herein by reference.
</TABLE>
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
<TABLE>
<S> <C>
(a)-(b) Reference is made to the information set forth in Section 13 ("Source and
Amount of Funds") of the Offer to Purchase, which is incorporated herein by
reference.
(c) Not applicable.
</TABLE>
2
<PAGE>
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER.
<TABLE>
<S> <C>
(a)-(g) Reference is made to the information set forth in the Introduction, Section
7 ("Effect of the Offer on Market for the Shares, Stock Exchange Listing,
and Exchange Act Registration"), Section 10 ("Background of the Offer;
Contacts with the Company"), Section 11 ("Purpose of the Offer; Plans for
the Company; the Merger; the Merger Agreement; the Stock Option Agreement;
the Shareholder Tender Agreement; Employment Agreements") and Section 12
("Rights Agreement") of the Offer to Purchase, which is incorporated herein
by reference.
</TABLE>
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
<TABLE>
<S> <C>
(a)-(b) Reference is made to the information set forth in Section 9 ("Certain
Information Concerning the Purchaser and Parent") of the Offer to Purchase,
which is incorporated herein by reference.
</TABLE>
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO THE SUBJECT COMPANY'S SECURITIES.
<TABLE>
<S> <C>
Reference is made to the information set forth in the Introduction, Section
9 ("Certain Information Concerning the Purchaser and Parent"), Section 10
("Background of the Offer; Contacts with the Company"), Section 11 ("Purpose
of the Offer; Plans for the Company; the Merger; the Merger Agreement; the
Stock Option Agreement; the Shareholder Tender Agreement; Employment
Agreements"), Section 12 ("Rights Agreement") and Section 15 ("Certain Legal
Matters") of the Offer to Purchase, which is incorporated herein by
reference.
</TABLE>
ITEM 8. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
<TABLE>
<S> <C>
Reference is made to the information set forth in Section 16 ("Fees and
Expenses") of the Offer to Purchase, which is incorporated herein by
reference.
</TABLE>
ITEM 9. FINANCIAL STATEMENTS OF CERTAIN BIDDERS.
<TABLE>
<S> <C>
Reference is made to the information set forth in Section 9 ("Certain
Information Concerning the Purchaser and Parent") of the Offer to Purchase,
which is incorporated herein by reference.
</TABLE>
3
<PAGE>
ITEM 10. ADDITIONAL INFORMATION.
<TABLE>
<S> <C>
(a) Reference is made to the information set forth in the Introduction, Section
10 ("Background of the Offer; Contacts with the Company"), Section 11
("Purpose of the Offer; Plans for the Company; the Merger; the Merger
Agreement; the Stock Option Agreement; the Shareholder Tender Agreement;
Employment Agreements") and Section 12 ("Rights Agreement") of the Offer to
Purchase, which is incorporated herein by reference.
(b)-(c) Reference is made to the information set forth in Section 11 ("Purpose of
the Offer; Plans for the Company; the Merger; the Merger Agreement; the
Stock Option Agreement; the Shareholder Tender Agreement; Employment
Agreements") and Section 15 ("Certain Legal Matters") of the Offer to
Purchase, which is incorporated herein by reference.
(d) Reference is made to the information set forth in Section 7 ("Effect of the
Offer on Market for the Shares, Stock Exchange Listing, and Exchange Act
Registration") of the Offer to Purchase, which is incorporated herein by
reference.
(e) Not applicable.
(f) Not applicable.
</TABLE>
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
<TABLE>
<S> <C>
(a)(1) Offer to Purchase, dated June 18, 1999.
(a)(2) Letter of Transmittal.
(a)(3) Form of letter, dated June 18, 1999, to brokers, dealers, commercial banks,
trust companies and nominees.
(a)(4) Form of letter to clients to be used by brokers, dealers, commercial banks,
trust companies and nominees.
(a)(5) Notice of Guaranteed Delivery.
(a)(6) IRS Guidelines to Substitute Form W-9.
(a)(7) Text of press release, dated June 14, 1999, announcing tender offer.
(a)(8) Form of newspaper advertisement, dated June 18, 1999, published in THE WALL
STREET JOURNAL.
(b) None.
(c)(1) Agreement and Plan of Merger, dated as of June 11, 1999, among Parent, the
Company, and the Purchaser.
(c)(2) Shareholder Tender Agreement, dated as of June 11, 1999, among Parent, the
Purchaser and Mr. Joseph P. Tate.
(c)(3) Stock Option Agreement, dated as of June 11, 1999, between Parent and the
Company.
(c)(4) Employment Agreement among Parent, the Company and G. William Dietrich.
(c)(5) Employment Agreement among Parent, the Company and George K. Farr.
(c)(6) Employment Agreement among Parent, the Company and Peter J. Ruud.
(d) None.
(e) None.
(f) None.
</TABLE>
4
<PAGE>
SIGNATURES
After due inquiry and to the best of my knowledge and belief, I certify that
the information set forth in this statement is true, complete and correct.
Dated: June 18, 1999
<TABLE>
<S> <C> <C>
VIVENDI
By: /s/ HENRI PROGLIO
-----------------------------------------
Name: Henri Proglio
Title: Senior Executive Vice President
ONYX SOLID WASTE ACQUISITION CORP.
By: /s/ DENIS GASQUET
-----------------------------------------
Name: Denis Gasquet
Title: Chief Executive Officer
</TABLE>
5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NUMBER EXHIBIT NAME NUMBER
- --------- --------------------------------------------------------------------------------------------- -----------------
<S> <C> <C>
(a)(1) Offer to Purchase, dated June 18, 1999.
(a)(2) Letter of Transmittal.
(a)(3) Form of letter, dated June 18, 1999, to brokers, dealers, commercial banks, trust companies
and nominees.
(a)(4) Form of letter to clients to be used by brokers, dealers, commercial banks, trust companies
and nominees.
(a)(5) Notice of Guaranteed Delivery.
(a)(6) IRS Guidelines to Substitute Form W-9.
(a)(7) Text of press release, dated June 14, 1999, announcing tender offer.
(a)(8) Form of newspaper advertisement, dated June 18, 1999, published in THE WALL STREET JOURNAL.
(b) None.
(c)(1) Agreement and Plan of Merger, dated as of June 11, 1999, among Parent, the Company, and the
Purchaser.
(c)(2) Shareholder Tender Agreement, dated as of June 11, 1999, among Parent, the Purchaser and Mr.
Joseph P. Tate.
(c)(3) Stock Option Agreement, dated as of June 11, 1999, between Parent and the Company.
(c)(4) Employment Agreement among Parent, the Company and G. William Dietrich.
(c)(5) Employment Agreement among Parent, the Company and George K. Farr.
(c)(6) Employment Agreement among Parent, the Company and Peter J. Ruud.
(d) None.
(e) None.
(f) None.
</TABLE>
<PAGE>
OFFER TO PURCHASE FOR CASH
ALL OF THE OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS TO PURCHASE COMMON STOCK)
OF
SUPERIOR SERVICES, INC.
AT
$27.00 NET PER SHARE
BY
ONYX SOLID WASTE ACQUISITION CORP.
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
VIVENDI
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON FRIDAY, JULY 16, 1999, UNLESS THE OFFER IS EXTENDED.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, A MINIMUM OF 75 PERCENT
OR MORE OF THE ISSUED AND OUTSTANDING SHARES ON A FULLY DILUTED BASIS, BUT
EXCLUDING THE SHARES SUBJECT TO THE OPTION GRANTED UNDER THE STOCK OPTION
AGREEMENT (AS DEFINED HEREIN), BEING VALIDLY TENDERED PRIOR TO THE EXPIRATION OF
THE OFFER AND NOT WITHDRAWN.
------------------------
THE BOARD OF DIRECTORS OF SUPERIOR SERVICES, INC. HAS UNANIMOUSLY APPROVED
THE MERGER AGREEMENT (AS DEFINED HEREIN), APPROVED THE OFFER AND THE MERGER,
DETERMINED THAT THE OFFER AND THE MERGER ARE IN THE BEST INTERESTS OF THE
HOLDERS OF SHARES AND UNANIMOUSLY RECOMMENDS THAT SHAREHOLDERS ACCEPT THE OFFER
AND TENDER THEIR SHARES PURSUANT TO THE OFFER.
------------------------
IMPORTANT
Any shareholder desiring to tender all or any portion of his shares of
common stock, par value $.01 per share (the "Common Stock"), of Superior
Services, Inc. (the "Company") including the associated rights to purchase
common stock (the "Rights" and together with the Common Stock, the "Shares")
should either (1) complete and sign the Letter of Transmittal or a facsimile
thereof in accordance with the instructions in the Letter of Transmittal,
including any required signature guarantees, and mail or deliver the Letter of
Transmittal or such facsimile with his certificate(s) for the tendered Common
Stock and, if separate Rights certificates have been issued by the Company,
Rights and any other required documents to the Depositary, (2) follow the
procedure for book-entry tender of shares of Common Stock and Rights set forth
in Section 3, or (3) request his broker, dealer, commercial bank, trust company
or other nominee to effect the transaction for him. Shareholders having Shares
registered in the name of a broker, dealer, commercial bank, trust company or
other nominee are urged to contact such broker, dealer, commercial bank, trust
company or other nominee if they desire to tender Shares so registered.
The Rights are presently evidenced by the certificates for the Common Stock
and a tender by a shareholder of his shares of Common Stock will also constitute
a tender of the associated Rights. A shareholder who desires to tender Shares
and whose certificates for such Shares are not immediately available, or who
cannot comply with the procedure for book-entry transfer on a timely basis, may
tender such Shares by following the procedures for guaranteed delivery set forth
in Section 3.
Questions and requests for assistance may be directed to the Information
Agent or to the Dealer Manager at their respective addresses and telephone
numbers set forth on the back cover of this Offer to Purchase. Requests for
additional copies of this Offer to Purchase and the Letter of Transmittal may be
directed to the Information Agent or to brokers, dealers, commercial banks or
trust companies.
THE DEALER MANAGER FOR THE OFFER IS:
LAZARD FRERES & CO. LLC
30 Rockefeller Plaza
New York, NY 10020
(212) 632-6717
June 18, 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION PAGE
- ----------- -----
<C> <S> <C>
INTRODUCTION................................................................................................. 1
THE TENDER OFFER............................................................................................. 2
1. Terms of the Offer................................................................................ 2
2. Acceptance for Payment and Payment for Shares..................................................... 3
3. Procedure for Tendering Shares.................................................................... 4
4. Rights of Withdrawal.............................................................................. 8
5. Certain Federal Income Tax Consequences of the Offer.............................................. 9
6. Price Range of Shares; Dividends.................................................................. 9
7. Effect of the Offer on Market for the Shares, Stock Exchange Listing, and Exchange Act
Registration...................................................................................... 10
8. Certain Information Concerning the Company........................................................ 11
9. Certain Information Concerning the Purchaser and Parent........................................... 14
10. Background of the Offer; Contacts with the Company................................................ 15
11. Purpose of the Offer; Plans for the Company; the Merger; the Merger Agreement;
the Stock Option Agreement; the Shareholder Tender Agreement;
Employment Agreements............................................................................. 16
12. Rights Agreement.................................................................................. 23
13. Source and Amount of Funds........................................................................ 25
14. Certain Conditions of the Offer................................................................... 25
15. Certain Legal Matters............................................................................. 28
16. Fees and Expenses................................................................................. 32
17. Miscellaneous..................................................................................... 32
Schedule A................................................................................................... 33
</TABLE>
i
<PAGE>
TO THE HOLDERS OF SHARES
OF SUPERIOR SERVICES, INC.:
INTRODUCTION
ONYX SOLID WASTE ACQUISITION CORP., a Wisconsin corporation (the
"Purchaser") and an indirect wholly owned subsidiary of VIVENDI, a SOCIETE
ANONYME organized under the laws of France ("Parent"), hereby offers to purchase
all of the outstanding shares of common stock, par value $.01 per share (the
"Common Stock"), of SUPERIOR SERVICES, INC., a Wisconsin corporation (the
"Company"), including the associated common stock purchase rights issued
pursuant to the Rights Agreement (the "Rights"), dated as of February 21, 1997,
as amended as of June 11, 1999 (the "Rights Agreement"), between the Company and
LaSalle Bank National Association (f/k/a LaSalle National Bank), as Rights Agent
(the Common Stock and the Rights together are referred to herein as the
"Shares") at $27.00 per Share, net to the seller in cash, upon the terms and
subject to the conditions set forth in this Offer to Purchase and in the related
Letter of Transmittal (which together constitute the "Offer"). Tendering
shareholders will not be obligated to pay brokerage fees or commissions or,
subject to Instruction 6 of the Letter of Transmittal, transfer taxes on the
purchase of Shares by the Purchaser. The Purchaser will pay all charges and
expenses of ChaseMellon Shareholder Services, L.L.C. (the "Depositary") and
Innisfree M&A Incorporated (the "Information Agent").
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, A MINIMUM OF 75 PERCENT
OF THE ISSUED AND OUTSTANDING SHARES ON A FULLY DILUTED BASIS, BUT EXCLUDING THE
SHARES SUBJECT TO THE OPTION GRANTED UNDER THE STOCK OPTION AGREEMENT, BEING
VALIDLY TENDERED PRIOR TO THE EXPIRATION OF THE OFFER AND NOT WITHDRAWN.
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED THE MERGER
AGREEMENT, APPROVED THE OFFER AND THE MERGER, DETERMINED THAT THE OFFER AND THE
MERGER ARE IN THE BEST INTERESTS OF THE HOLDERS OF SHARES AND UNANIMOUSLY
RECOMMENDS THAT SHAREHOLDERS ACCEPT THE OFFER AND TENDER THEIR SHARES PURSUANT
TO THE OFFER.
The Offer is being made pursuant to an Agreement and Plan of Merger (the
"Merger Agreement"), dated as of June 11, 1999, among the Company, Parent and
the Purchaser, pursuant to which, after the completion of the Offer, the
Purchaser will be merged with and into the Company and each outstanding Share
(other than Shares owned by Parent or its direct or indirect subsidiaries, held
in the treasury of the Company, owned by any wholly-owned subsidiary of the
Company or held by shareholders who properly exercise dissenters' rights, if
any) will be canceled and converted into the right to receive $27.00 in cash
(the "Merger").
PURPOSE OF THE OFFER; THE MERGER
The purpose of the Offer is to acquire for cash as many outstanding Shares
as possible as a first step in acquiring the entire equity interest in the
Company. The Purchaser currently intends, as soon as practicable upon
consummation of the Offer, to propose and seek to have the Company effect the
Merger pursuant to which then outstanding Shares (other than Shares owned by
Parent or its direct or indirect subsidiaries, held in the treasury of the
Company, owned by any wholly-owned subsidiary of the Company or held by
shareholders who properly exercise dissenters' rights, if any), would be
canceled and converted pursuant to the terms of the Merger into the right to
receive an amount in cash equal to the per Share price paid pursuant to the
Offer. See Section 11.
MINIMUM TENDER CONDITION
THE OFFER IS CONDITIONED ON, AMONG OTHER THINGS, THE MINIMUM TENDER
CONDITION BEING SATISFIED. See Section 14. According to the Company, as of June
7, 1999, there were 32,365,094 Shares issued and outstanding and there were
3,456,763 Shares subject to issuance pursuant to the Company's stock option and
incentive plans.
Based on the foregoing, as of June 7, 1999 the Purchaser believes there are
approximately 35,821,857 Shares outstanding on a fully diluted basis, but
excluding the Shares subject to the option granted under the Stock Option
Agreement (as defined herein). Accordingly, the Purchaser believes that the
Minimum Tender Condition would be satisfied if at least approximately 26,866,318
Shares are validly tendered prior to the Expiration Date and not withdrawn.
<PAGE>
THE TENDER OFFER
1. TERMS OF THE OFFER.
Upon the terms and subject to the conditions set forth in the Offer
(including, if the Offer is extended or amended, the terms and conditions of
such extension or amendment), the Purchaser will accept for payment, and pay
for, all Shares validly tendered on or prior to the Expiration Date (as herein
defined) and not withdrawn as permitted by Section 4. The term "Expiration Date"
means 12:00 Midnight, New York City time, on Friday, July 16, 1999, unless and
until the Purchaser shall have extended the period for which the Offer is open,
in which event the term "Expiration Date" shall mean the latest time and date on
which the Offer, as so extended by the Purchaser, shall expire.
Rights are presently evidenced by the certificates for the Common Stock and
the tender by a shareholder of his shares of Common Stock will also constitute a
tender of the associated Rights. No separate payment will be made by the
Purchaser for the Rights pursuant to the Offer. Pursuant to the terms of the
Rights Agreement, as soon as practicable after a Distribution Date (as defined
in the Rights Agreement) occurs, each record holder of Common Stock will be sent
a Rights certificate, evidencing one Right for each share of Common Stock. From
and after the Distribution Date, the Rights will be evidenced solely by such
Rights certificates. See Section 12. If separate Rights certificates have been
distributed to shareholders prior to the date of their tender pursuant to the
Offer, Rights certificates representing a number of Rights equal to the number
of shares of Common Stock being tendered must be delivered to the Depositary in
order for Shares to be validly tendered. If shareholders are entitled to receive
Rights certificates but Rights certificates have not been distributed prior to
the time shares of Common Stock are tendered pursuant to the Offer, a tender of
shares of Common Stock constitutes an agreement by the tendering shareholder to
deliver to the Depositary, within five days of the date Rights certificates are
distributed, all Rights certificates associated with the Common Stock tendered
pursuant to the Offer. The Purchaser reserves the right to require that the
Depositary receive such Rights certificates, if any have been issued, prior to
accepting Shares for payment. In all cases, payment for Shares tendered and
purchased pursuant to the Offer will be made only after timely receipt by the
Depositary of, among other things, Rights certificates, if such certificates
have been distributed to shareholders.
Pursuant to the terms of the Merger Agreement, Purchaser has agreed to
extend the period of time for which the Offer is open for at least an additional
five business days if, on Friday, July 16, 1999, the Shares validly tendered and
not withdrawn pursuant to the Offer constitute at least 50%, but less than 61%,
of the then outstanding Shares on a fully diluted basis, but excluding Shares
subject to the option granted under the Stock Option Agreement, and all other
conditions to the Offer are satisfied or waived. In addition, if, on Friday,
July 16, 1999, 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 Tender
Condition (the "Tendered Amount") and all other Offer Conditions are satisfied
or waived, Purchaser will reduce the Minimum Tender Condition to the Tendered
Amount, and will extend the Offer for an additional ten business days. Purchaser
will further extend the Offer up to twenty business days in the aggregate, in
one or more periods of not more than ten business days, if, on Friday, July 16,
1999, or any extension thereof, any one or more conditions set forth in
paragraphs (a), (c) or (d) of Section 14 hereof is not then satisfied or waived;
PROVIDED, HOWEVER, that Purchaser will not so extend the Offer unless, in
Purchaser's reasonable and objective judgment, (i) each such condition is
reasonably capable of being satisfied and (ii) the Company is in material
compliance with all of its covenants under the Merger Agreement. In the event of
an extension in any such case, Purchaser will give oral or written notice of
such extension to the Depositary. Any such extension will also be publicly
announced by press release issued no later than 9:00 a.m., New York City time,
on the next business day after the previously scheduled Expiration Date. During
any such extension, all Shares previously tendered and not withdrawn will remain
subject
2
<PAGE>
to the Offer, subject to the right of a tendering shareholder to withdraw his
Shares. See Section 4. Subject to the applicable regulations of the Securities
and Exchange Commission (the "Commission"), the Purchaser also expressly
reserves the right, in its sole discretion, at any time or from time to time,
(i) to delay acceptance for payment of or, regardless of whether such Shares
were theretofore accepted for payment, payment for any Shares or to terminate
the Offer and not accept for payment or pay for any Shares not theretofore
accepted for payment, or paid for, upon the occurrence of any of the conditions
specified in Section 14 hereof and (ii) to waive any condition or amend the
Offer in any respect not prohibited by the Merger Agreement, by giving oral or
written notice of such delay, termination or amendment to the Depositary and by
making a public announcement thereof. If the Purchaser accepts any Shares for
payment pursuant to the terms of the Offer, it will accept for payment all
Shares validly tendered prior to the Expiration Date and not withdrawn, and,
subject to (i) above, will promptly pay for all Shares so accepted for payment.
The Purchaser confirms that its reservation of the right to delay payment for
Shares which it has accepted for payment is limited by Rule 14e-1(c) under the
Exchange Act, which requires that a tender offeror pay the consideration offered
or return the tendered securities promptly after the termination or withdrawal
of a tender offer.
Any extension, delay, termination or amendment of the Offer will be followed
as promptly as practicable by public announcement thereof, such announcement in
the case of an extension to be issued no later than 9:00 a.m., New York City
time, on the next business day after the previously scheduled Expiration Date.
Subject to applicable law (including Rules 14d-4(c) and 14d-6(d) under the
Exchange Act, which require that any material change in the information
published, sent or given to shareholders in connection with the Offer be
promptly disseminated to shareholders in a manner reasonably designed to inform
shareholders of such change) and without limiting the manner in which the
Purchaser may choose to make any public announcement, the Purchaser shall have
no obligation to publish, advertise or otherwise communicate any such public
announcement other than by making a release to the Dow Jones News Service.
The Purchaser confirms that if it makes a material change in the terms of
the Offer or the information concerning the Offer, or if it waives a material
condition of the Offer, the Purchaser will extend the Offer to the extent
required by Rules 14d-4(c) and 14d-6(d) under the Exchange Act.
If, prior to the Expiration Date, the Purchaser shall decrease the
percentage of Shares being sought or the consideration offered to holders of
Shares, such decrease shall be applicable to all holders whose Shares are
accepted for payment pursuant to the Offer and, if at the time notice of any
decrease is first published, sent or given to holders of Shares, the Offer is
scheduled to expire at any time earlier than the tenth business day from and
including the date that such notice is first so published, sent or given, the
Offer will be extended until the expiration of such ten business-day period. For
purposes of the Offer, a "business day" means any day other than a Saturday,
Sunday or federal holiday and consists of the time period from 12:01 a.m.
through 12:00 Midnight, New York City time.
The Offer is being mailed to holders of Shares from a list provided to the
Purchaser by the Company.
2. ACCEPTANCE FOR PAYMENT AND PAYMENT FOR SHARES.
Upon the terms and subject to the conditions of the Offer, (including, if
the Offer is extended or amended, the terms and conditions of any such extension
or amendment), the Purchaser will accept for payment, and will pay for, Shares
validly tendered and not withdrawn as promptly as practicable after the later of
(i) the expiration or termination of the waiting period applicable to the
acquisition of Shares pursuant to the Offer under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976 (the "HSR Act") and (ii) the Expiration Date.
Parent expects to file a Notification and Report Form under the HSR Act on June
22, 1999, and, accordingly, unless earlier terminated or extended by a request
for additional information, if filed on such date, the waiting period under the
HSR Act is scheduled to
3
<PAGE>
expire at 11:59 p.m., New York City time, on July 7, 1999. See Section 15. In
addition, subject to applicable rules of the Commission, the Purchaser expressly
reserves the right to delay acceptance for payment of or payment for Shares in
order to comply, in whole or in part, with any applicable law. See Section 14.
In all cases, payment for Shares tendered and accepted for payment pursuant to
the Offer will be made only after timely receipt by the Depositary of
certificates for such Shares (or a confirmation of a book-entry transfer of such
Shares into the Depositary's account at The Depository Trust Company (the
"Depository Institution")), a properly completed and duly executed Letter of
Transmittal (or facsimile thereof) and any other required documents.
For purposes of the Offer, the Purchaser will be deemed to have accepted for
payment Shares validly tendered and not withdrawn as, if and when the Purchaser
gives oral or written notice to the Depositary of its acceptance for payment of
such Shares pursuant to the Offer. Payment for Shares accepted for payment
pursuant to the Offer will be made by deposit of the purchase price therefor
with the Depositary, which will act as agent for the tendering shareholders for
purpose of receiving payments from the Purchaser and transmitting such payments
to the tendering shareholders. Under no circumstances will interest on the
purchase price for Shares be paid, regardless of any delay in making such
payment.
If any tendered Shares are not accepted for payment pursuant to the terms
and conditions of the Offer for any reason, or if certificates are submitted for
more Shares than are tendered, certificates for such unpurchased Shares will be
returned, without expense to the tendering shareholder (or, in the case of
Shares tendered by book-entry transfer of such Shares into the Depositary's
account at the Depository Institution pursuant to the procedures set forth in
Section 3, such Shares will be credited to an account maintained with such
Depository Institution), as soon as practicable following expiration or
termination of the Offer.
The Purchaser reserves the right to transfer or assign in whole or in part
from time to time to one or more direct or indirect subsidiaries of Parent the
right to purchase all or any portion of the Shares tendered pursuant to the
Offer, but any such transfer or assignment will not relieve the Purchaser of its
obligations under the Offer and will in no way prejudice the rights of tendering
shareholders to receive payment for Shares validly tendered and accepted for
payment pursuant to the Offer.
3. PROCEDURE FOR TENDERING SHARES.
VALID TENDER.
To tender Shares pursuant to the Offer, either (a) a properly completed and
duly executed Letter of Transmittal (or a facsimile thereof) in accordance with
the instructions of the Letter of Transmittal, with any required signature
guarantees, certificates for the Common Stock (and Rights, if applicable) to be
tendered, and any other documents required by the Letter of Transmittal, must be
received by the Depositary at one of its addresses set forth on the back cover
of this Offer to Purchase prior to the Expiration Date, (b) such Common Stock
and Rights must be delivered pursuant to the procedures for book-entry transfer
described below (and a confirmation of such delivery received by the Depositary,
including an Agent's Message if the tendering shareholder has not delivered a
Letter of Transmittal), prior to the Expiration Date, or (c) the tendering
shareholder must comply with the guaranteed delivery procedures set forth below.
The term "Agent's Message" means a message, transmitted by the Book-Entry
Transfer Facility (as defined below) to, and received by, the Depositary and
forming a part of a Book-Entry Confirmation (as defined below), which states
that the Book-Entry Transfer Facility has received an express acknowledgment
from the participant in such Book-Entry Transfer Facility tendering the Common
Stock and, if applicable, Rights which are the subject of such book-entry
confirmation, that such participant has received and agrees to be bound by the
terms of the Letter of Transmittal and that the Purchaser may enforce such
agreement against the participant.
4
<PAGE>
SHAREHOLDERS WILL BE REQUIRED TO TENDER ONE RIGHT (SUBJECT TO ADJUSTMENT)
FOR EACH SHARE TENDERED IN ORDER TO EFFECT A VALID TENDER OF SHARES.
ACCORDINGLY, SHAREHOLDERS WHO SELL THEIR RIGHTS SEPARATELY FROM THEIR SHARES AND
DO NOT OTHERWISE ACQUIRE RIGHTS MAY NOT BE ABLE TO SATISFY THE REQUIREMENTS OF
THE OFFER FOR A VALID TENDER OF SHARES.
Until the close of business on the Distribution Date, the Rights will be
transferred with and only with the certificates for Common Stock and the
surrender for transfer of any certificates for Common Stock will also constitute
the transfer of the Rights associated with the Common Stock represented by such
certificate.
If separate certificates representing the Rights are issued to holders of
Common Stock prior to the time a holder's shares of Common Stock are tendered
pursuant to the Offer, certificates representing a number of Rights equal to the
number of shares of Common Stock tendered must be delivered to the Depositary,
or, if available, a Book-Entry Confirmation received by the Depositary with
respect thereto, in order for such shares of Common Stock to be validly
tendered. If the Distribution Date occurs and separate certificates representing
the Rights are not distributed prior to the time shares of Common Stock are
tendered pursuant to the Offer, Rights may be tendered prior to a shareholder
receiving the certificates for Rights by use of the guaranteed delivery
procedure described below. A tender of shares of Common Stock constitutes an
agreement by the tendering shareholder to deliver certificates representing all
Rights formerly associated with the number of shares of Common Stock tendered
pursuant to the Offer to the Depositary prior to expiration of the period
permitted by such guaranteed delivery procedures for delivery of certificates
for, or a Book-Entry Confirmation with respect to, Rights (the "Rights Delivery
Period"). However, after expiration of the Rights Delivery Period, the Purchaser
may elect to reject as invalid a tender of shares of Common Stock with respect
to which certificates for, or a Book-Entry Confirmation with respect to, the
number of Rights required to be tendered with such Common Stock have not been
received by the Depositary. Nevertheless, the Purchaser will be entitled to
accept for payment shares of Common Stock tendered by a shareholder prior to
receipt of the certificates for the Rights required to be tendered with such
shares of Common Stock, or a Book-Entry Confirmation with respect to such
Rights, and either (a) subject to complying with applicable rules and
regulations of the Commission, withhold payment for such shares of Common Stock
pending receipt of the certificates for, or a Book-Entry Confirmation with
respect to, such Rights or (b) make payment for shares of Common Stock accepted
for payment pending receipt of the certificates for, or a Book-Entry
Confirmation with respect to, such Rights in reliance upon the agreement of a
tendering shareholder to deliver Rights and such guaranteed delivery procedures.
Any determination by the Purchaser to make payment for shares of Common Stock in
reliance upon such agreement and such guaranteed delivery procedures or, after
expiration of the Rights Delivery Period, to reject a tender as invalid will be
made in the sole and absolute discretion of the Purchaser.
BOOK-ENTRY DELIVERY.
The Depositary will establish accounts with respect to the Shares at the
Depository Trust Company (the "Book-Entry Transfer Facility") for purposes of
the Offer within two business days after the date of this Offer to Purchase. Any
financial institution that is a participant in the Book-Entry Transfer
Facility's systems may make book-entry transfer of Shares by causing the
Book-Entry Transfer Facility to transfer such Shares into the Depositary's
account in accordance with such Book-Entry Transfer Facility's procedures for
such transfer. However, although delivery of Shares may be effected through
book-entry transfer, either the Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, together with any required signature
guarantees, or an Agent's Message in lieu of the Letter of Transmittal, and any
other required documents, must, in any case, be transmitted to and received by
the Depositary at one of its addresses set forth on the back cover of this Offer
to Purchase by the Expiration Date, or the tendering shareholder must comply
with the guaranteed delivery procedures described below. If the Distribution
Date occurs, the Depositary will also make a request to establish
5
<PAGE>
an account with respect to the Rights at the Book-Entry Transfer Facility, but
no assurance can be given that book-entry transfer of Rights will be available.
If book-entry transfer of Rights is available, the foregoing book-entry transfer
procedures will also apply to Rights. If book-entry transfer of Rights is not
available and the Distribution Date occurs, a tendering shareholder will be
required to tender Rights by means of physical delivery to the Depositary of
certificates for Rights (in which event references in this Offer to Purchase to
Book-Entry Confirmations with respect to Rights will be inapplicable). The
confirmation of a book-entry transfer of Shares or Rights into the Depositary's
account at the Book-Entry Transfer Facility as described above is referred to
herein as a "Book-Entry Confirmation". DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY
TRANSFER FACILITY IN ACCORDANCE WITH SUCH BOOK-ENTRY TRANSFER FACILITY'S
PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
THE METHOD OF DELIVERY OF SHARES, RIGHTS, THE LETTER OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH THE BOOK-ENTRY TRANSFER
FACILITY, IS AT THE ELECTION AND RISK OF THE TENDERING SHAREHOLDER. SHARES WILL
BE DEEMED DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY (INCLUDING, IN
THE CASE OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION). IF DELIVERY IS
BY MAIL, IT IS RECOMMENDED THAT THE SHAREHOLDER USE PROPERLY INSURED REGISTERED
MAIL WITH RETURN RECEIPT REQUESTED. IN ALL CASES, SUFFICIENT TIME SHOULD BE
ALLOWED TO ENSURE TIMELY DELIVERY.
SIGNATURE GUARANTEES.
Except as otherwise provided below, all signatures on a Letter of
Transmittal must be guaranteed by a financial institution (including most
commercial banks, savings and loan associations and brokerage houses) that is a
participant in the Security Transfer Agents Medallion Program, the New York
Stock Exchange Medallion Signature Guarantee Program or the Stock Exchange
Medallion Program (an "Eligible Institution"). Signatures on a Letter of
Transmittal need not be guaranteed (a) if the Letter of Transmittal is signed by
the registered holder (which term, for purposes of this section, includes any
participant in any of the Book-Entry Transfer Facility's systems whose name
appears on a security position listing as the owner of the Shares or Rights) of
Shares and Rights tendered therewith and such registered holder has not
completed the box entitled "Special Payment Instructions" or the box entitled
"Special Delivery Instructions" on the Letter of Transmittal or (b) if such
Shares and Rights are tendered for the account of an Eligible Institution. See
Instructions 1 and 5 of the Letter of Transmittal. If the certificates for
Shares or Rights are registered in the name of a person other than the signer of
the Letter of Transmittal, or if payment is to be made or certificates for
Shares or Rights not tendered or not accepted for payment are to be returned to
a person other than the registered holder of the certificates surrendered, then
the tendered certificates must be endorsed or accompanied by appropriate stock
powers, in either case signed exactly as the name or names of the registered
holders or owners appear on the certificates, with the signatures on the
certificates or stock powers guaranteed as described above. See Instructions 1
and 5 of the Letter of Transmittal.
GUARANTEED DELIVERY.
A shareholder who desires to tender Shares (or Rights, if applicable)
pursuant to the Offer and whose certificates for Shares (or Rights, if
applicable) are not immediately available (including because certificates for
Rights have not yet been distributed by the Rights Agent), or who cannot comply
with the procedure for book-entry transfer on a timely basis, or who cannot
deliver all required documents to the Depositary prior to the Expiration Date,
may tender such Shares (and/or Rights, if applicable) by following all of the
procedures set forth below:
(i) such tender is made by or through an Eligible Institution;
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<PAGE>
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form provided by the Purchaser, is received
by the Depositary (as provided below) prior to the Expiration Date; and
(iii) the certificates for all tendered Shares and/or Rights, in proper
form for transfer (or a Book-Entry Confirmation with respect to all such
Shares and/or Rights), together with a properly completed and duly executed
Letter of Transmittal (or facsimile thereof), with any required signature
guarantees (or, in the case of a book-entry transfer, an Agent's Message in
lieu of the Letter of Transmittal), and any other required documents, are
received by the Depositary within (a) in the case of Shares, three trading
days after the date of execution of such Notice of Guaranteed Delivery or
(b) in the case of Rights, a period ending on the later of (1) three trading
days after the date of execution of such Notice of Guaranteed Delivery or
(2) three trading days after the date certificates for Rights are
distributed to shareholders by the Rights Agent. A "trading day" is any day
on which the New York Stock Exchange, Inc. is open for business.
The Notice of Guaranteed Delivery may be delivered by hand to the Depositary
or transmitted by telegram, facsimile transmission or mail to the Depositary and
must include a guarantee by an Eligible Institution in the form set forth in
such Notice of Guaranteed Delivery.
OTHER REQUIREMENTS.
Notwithstanding any provision hereof, payment for Shares accepted for
payment pursuant to the Offer will in all cases be made only after timely
receipt by the Depositary of (a) certificates for (or a timely Book-Entry
Confirmation with respect to) such Shares and, if the Distribution Date occurs,
certificates for (or a timely Book-Entry Confirmation, if available, with
respect to) the associated Rights (unless the Purchaser elects to make payment
for such Shares pending receipt of the certificates for, or a Book-Entry
Confirmation with respect to, such Rights as described above), (b) a Letter of
Transmittal (or facsimile thereof), properly completed and duly executed, with
any required signature guarantees (or, in the case of a book-entry transfer, an
Agent's Message in lieu of the Letter of Transmittal) and (c) any other
documents required by the Letter of Transmittal. Accordingly, tendering
shareholders may be paid at different times depending upon when certificates for
Shares (or Rights) or Book-Entry Confirmations with respect to Shares (or
Rights, if available) are actually received by the Depositary. UNDER NO
CIRCUMSTANCES WILL INTEREST ON THE PURCHASE PRICE OF THE SHARES BE PAID BY THE
PURCHASER, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH
PAYMENT.
TENDER CONSTITUTES AN AGREEMENT.
The valid tender of Shares and, if applicable, Rights pursuant to one of the
procedures described above will constitute a binding agreement between the
tendering shareholder and the Purchaser upon the terms and subject to the
conditions of the Offer.
APPOINTMENT.
By executing and delivering a Letter of Transmittal as set forth above, the
tendering shareholder irrevocably appoints designees of the Purchaser as such
shareholder's proxies, each with full power of substitution, to the full extent
of such shareholder's rights with respect to the Shares tendered by such
shareholder and accepted for payment by the Purchaser and with respect to any
and all other Shares or other securities issued or issuable in respect of such
Shares on or after June 18, 1999. All such proxies will be considered coupled
with an interest in the tendered Shares. Such appointment is effective when, and
only to the extent that, the Purchaser deposits the payment for such Shares with
the Depositary. Upon the effectiveness of such appointment, all prior powers of
attorney, proxies and consents given by such shareholder will be revoked, and no
subsequent powers of attorney, proxies and consents may be given (and, if given,
will not be deemed effective). The Purchaser's designees will, with respect to
the
7
<PAGE>
Shares for which the appointment is effective, be empowered to exercise all
voting and other rights of such shareholder as they, in their sole discretion,
may deem proper at any annual, special or adjourned meeting of the shareholders
of the Company, by written consent in lieu of any such meeting or otherwise. The
Purchaser reserves the right to require that, in order for Shares to be deemed
validly tendered, immediately upon the Purchaser's payment for such Shares, the
Purchaser must be able to exercise full voting rights to the extent permitted
under applicable law with respect to such Shares.
DETERMINATION OF VALIDITY.
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance of any tender of Shares or Rights will be determined by
the Purchaser in its sole discretion, which determination will be final and
binding. The Purchaser reserves the absolute right to reject any and all tenders
determined by it not to be in proper form or the acceptance for payment of or
payment for which may, in the opinion of the Purchaser's counsel, be unlawful.
The Purchaser also reserves the absolute right to waive any defect or
irregularity in the tender of any Shares or Rights of any particular shareholder
whether or not similar defects or irregularities are waived in the case of other
shareholders. No tender of Shares or Rights will be deemed to have been validly
made until all defects and irregularities relating thereto have been cured or
waived. None of the Parent, the Purchaser, the Depositary, the Information
Agent, the Dealer Manager or any other person will be under any duty to give
notification of any defects or irregularities in tenders or incur any liability
for failure to give any such notification. The Purchaser's interpretation of the
terms and conditions of the Offer (including the Letter of Transmittal and
Instructions thereto) will be final and binding.
4. RIGHTS OF WITHDRAWAL.
Tenders of Shares made pursuant to the Offer are irrevocable, except that
Shares tendered pursuant to the Offer may be withdrawn at any time prior to the
Expiration Date and, unless theretofore accepted for payment by the Purchaser
pursuant to the Offer, may also be withdrawn at any time after August 16, 1999.
To be effective, a written, telegraphic, telex or facsimile transmission
notice of withdrawal must be timely received by the Depositary at one of its
addresses set forth on the back cover of this Offer to Purchase. Any notice of
withdrawal must specify the name of the person having tendered the Shares to be
withdrawn, the number of Shares to be withdrawn and the names in which the
certificate(s) evidencing the Shares to be withdrawn are registered, if
different from that of the person who tendered such Shares. The signature(s) on
the notice of withdrawal must be guaranteed by an Eligible Institution, unless
such Shares have been tendered for the account of any Eligible Institution. If
Shares have been tendered pursuant to the procedures for book-entry transfer as
set forth in Section 3, any notice of withdrawal must specify the name and
number of the account at the Depository Institution to be credited with the
withdrawn Shares. If certificates have been delivered or otherwise identified to
the Depositary, the name of the registered holder and the serial numbers of the
particular certificates evidencing the Shares withdrawn must also be furnished
to the Depositary as aforesaid prior to the physical release of such
certificates. All questions as to the form and validity (including time of
receipt) of any notice of withdrawal will be determined by the Purchaser, in its
sole discretion, which determination shall be final and binding. None of the
Purchaser, Parent, the Dealer Manager, the Depositary, the Information Agent, or
any other person will be under any duty to give notification of any defects or
irregularities in any notice of withdrawal or incur a liability for failure to
give such notification. Any Shares properly withdrawn will be deemed not to have
been validly tendered for purposes of the Offer. However, withdrawn Shares may
be retendered by following one of the procedures descried in Section 3 at any
time prior to the Expiration Date.
If the Purchaser extends the Offer, is delayed in its acceptance for payment
of Shares, or is unable to accept for payment Shares pursuant to the Offer, for
any reason, then, without prejudice to the
8
<PAGE>
Purchaser's rights under this Offer, the Depositary may, nevertheless, on behalf
of the Purchaser, retain tendered Shares, and such Shares may not be withdrawn
except to the extent that tendering shareholders are entitled to withdrawal
rights as set forth in this Section 4.
5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF THE OFFER.
Sales of Shares pursuant to the Offer and the exchange of Shares for cash
pursuant to the Merger will be taxable transactions for Federal income tax
purposes and may also be taxable under applicable state, local, foreign, and
other tax laws. For Federal income tax purposes, a shareholder whose Shares are
purchased pursuant to the Offer or who receives cash as a result of the Merger
will realize gain or loss equal to the difference between the adjusted basis of
the Shares sold or exchanged and the amount of cash received therefor. Such gain
or loss will be capital gain or loss if the Shares are held as capital assets by
the shareholder and will be long-term capital gain or loss if the shareholder's
holding period in such Shares for Federal income tax purposes is more than one
year at the time of the sale or exchange. Long-term capital gain of a
non-corporate shareholder is generally subject to a maximum tax rate of 20%. In
addition, a shareholder's ability to use capital losses to offset ordinary
income is limited.
BACKUP WITHHOLDING.
In order to avoid "backup withholding" of Federal income tax on payments of
cash pursuant to the Offer, a shareholder surrendering Shares in the Offer must,
unless an exemption applies, provide the Depositary with such shareholder's
correct taxpayer identification number ("TIN") on a Substitute Form W-9 and
certify under penalties of perjury that such TIN is correct and that such
shareholder is not subject to backup withholding. If a shareholder does not
provide such shareholder's correct TIN or fails to provide the certifications
described above, the Internal Revenue Service (the "IRS") may impose a penalty
on such shareholder and payment of cash to such shareholder pursuant to the
Offer may be subject to backup withholding of 31%. All shareholders surrendering
Shares pursuant to the Offer should complete and sign the main signature form
and the Substitute Form W-9 included as part of the Letter of Transmittal to
provide the information and certification necessary to avoid backup withholding
(unless an applicable exemption exists and is proved in a manner satisfactory to
the Purchaser and the Depositary). Certain shareholders (including, among
others, all corporations and certain foreign individuals and entities) are not
subject to backup withholding. Non-corporate foreign shareholders should
complete and sign the main signature form and a Form W-8, Certificate of Foreign
Status, a copy of which may be obtained from the Depositary, in order to avoid
backup withholding.
THE INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL
INFORMATION ONLY AND MAY NOT BE APPLICABLE TO SHAREHOLDERS IN SPECIAL SITUATIONS
SUCH AS SHAREHOLDERS WHO RECEIVED THEIR SHARES UPON THE EXERCISE OF EMPLOYEE
STOCK OPTIONS OR OTHERWISE AS COMPENSATION AND SHAREHOLDERS WHO ARE NOT UNITED
STATES PERSONS. SHAREHOLDERS SHOULD CONSULT THEIR OWN TAX ADVISORS WITH RESPECT
TO THE SPECIFIC TAX CONSEQUENCES TO THEM OF THE OFFER AND THE MERGER, INCLUDING
THE APPLICATION AND EFFECT OF STATE, LOCAL, FOREIGN OR OTHER TAX LAWS.
6. PRICE RANGE OF SHARES; DIVIDENDS.
The Common Stock is listed on the NASDAQ National Market System
("NASDAQ/NMS"). The following table sets forth, for the calendar quarters
indicated, the high and low sales prices for the
9
<PAGE>
Common Stock on the NASDAQ/NMS and the amount of cash dividends paid per share,
based upon public sources:
<TABLE>
<CAPTION>
COMMON STOCK
- ----------------------------------------------------------------------------------------------------
CASH
DIVIDENDS
CALENDAR YEAR HIGH LOW PAID
- ----------------------------------------------------------------- ------- ------- -----------
<S> <C> <C> <C>
1997:
First Quarter.................................................. $24 $17 --
Second Quarter................................................. $23 3/4 $20 1/8 --
Third Quarter.................................................. $29 $22 3/4 --
Fourth Quarter................................................. $29 1/2 $20 7/8 --
1998:
First Quarter.................................................. $31 7/8 $24 11/16 --
Second Quarter................................................. $33 3/8 $28 1/2 --
Third Quarter.................................................. $30 3/8 $24 7/8 --
Fourth Quarter................................................. $27 1/4 $17 1/4 --
1999:
First Quarter.................................................. $20 1/4 $15 5/8 --
Second Quarter (through June 17, 1999)......................... $26 11/16 $18 3/8 --
</TABLE>
The Rights trade together with the Common Stock. On June 11, 1999, the last
full trading day prior to the public announcement of the terms of the Offer and
the Merger, the reported closing price on the NASDAQ/NMS was $23.75 per Share.
On June 17, 1999, the last full trading day prior to commencement of the Offer,
the reported closing price on the NASDAQ/NMS was $26.69 per Share. SHAREHOLDERS
ARE URGED TO OBTAIN A CURRENT MARKET QUOTATION FOR THE SHARES.
7. EFFECT OF THE OFFER ON MARKET FOR THE SHARES, STOCK EXCHANGE LISTING, AND
EXCHANGE ACT REGISTRATION.
The purchase of Shares by the Purchaser pursuant to the Offer will reduce
the number of Shares that might otherwise trade publicly and may reduce the
number of holders of Shares, which could adversely affect the liquidity and
market value of the remaining Shares held by the public.
The shares of Common Stock and associated Rights are listed on the
NASDAQ/NMS. According to the published guidelines of the National Association of
Securities Dealers Automated Quotation System, Inc. ("NASDAQ"), the Shares would
no longer be included in the NASDAQ's National Market System if, among other
things, the number of publicly-held Shares (excluding Shares held directly or
indirectly by officers, directors and any person who is a beneficial owner of
more than 10% of the Shares) was less than 200,000, the aggregate market value
of publicly-held Shares was less than $1,000,000 or there were fewer than 400
holders of the Shares or 300 holders in round lots. If these standards were not
met, quotations might continue to be published in the over-the-counter
"additional list" or one of the "local lists" unless, as set forth in NASDAQ's
published guidelines, the number of publicly-held Shares was less than 100,000,
or there were fewer than 300 holders in total. As of June 7, 1999, there were
1,068 holders of record of shares of Common Stock and, as of such date, there
were 32,365,094 shares of Common Stock outstanding. If the Common Stock were to
be delisted, the associated Rights would be delisted as well.
10
<PAGE>
If the Company were to delist the shares of Common Stock and associated
Rights, the market therefore could be adversely affected. It is possible that
the shares of Common Stock and associated Rights would be traded on other
securities exchanges or in the over-the-counter market, and that price
quotations would be reported by such exchanges, or through NASDAQ or other
sources. The extent of the public market for the shares of Common Stock and
associated Rights and the availability of such quotations would, however, depend
upon the number of shareholders and/or the aggregate market value of the shares
of Common Stock and associated Rights remaining at such time, the interest in
maintaining a market in the shares of Common Stock and associated Rights on the
part of securities firms, the possible termination of registration of the Shares
under the Exchange Act and other factors.
The shares of Common Stock are presently "margin securities" under the
regulations of the Federal Reserve Board, which has the effect, among other
things, of allowing brokers to extend credit on the collateral of such shares of
Common Stock. Depending upon factors similar to those described above regarding
listing and market quotations, the shares of Common Stock might no longer
constitute "margin securities" for the purposes of the Federal Reserve Board's
margin regulations in which event the shares of Common Stock would be ineligible
as collateral for margin loans made by brokers.
The shares of Common Stock and associated Rights are currently registered
under the Exchange Act. Such registration may be terminated by the Company upon
application to the Commission if the outstanding shares of Common Stock and
associated Rights are not listed on a national securities exchange and if there
are fewer than 300 holders of record of shares of Common Stock and associated
Rights. Termination of registration of the shares of Common Stock and associated
Rights under the Exchange Act would reduce the information required to be
furnished by the Company to its shareholders and to the Commission and would
make certain provisions of the Exchange Act, such as the short-swing profit
recovery provisions of Section 16(b) and the requirement of furnishing a proxy
statement in connection with shareholders' meetings pursuant to Section 14(a)
and the related requirement of furnishing an annual report to shareholders, no
longer applicable with respect to the shares of Common Stock and Rights.
Furthermore, the ability of "affiliates" of the Company and persons holding
"restricted securities" of the Company to dispose of such securities pursuant to
Rule 144 under the Securities Act of 1933, as amended, may be impaired or
eliminated. If registration of the shares of Common Stock under the Exchange Act
were terminated, the shares of Common Stock would no longer be eligible for
NASDAQ reporting or for continued inclusion on the Federal Reserve Board's list
of "margin securities". The Purchaser intends to seek to cause the Company to
apply for termination of registration of the shares of Common Stock and
associated Rights as soon as possible after consummation of the Offer if the
requirements for termination of registration are met.
8. CERTAIN INFORMATION CONCERNING THE COMPANY.
The Company is a Wisconsin corporation with its principal executive offices
located at 125 South 84th Street, Suite 200, Milwaukee, Wisconsin.
The Company is an acquisition-oriented integrated solid waste services
company providing a range of collection, transfer, transportation, disposal and
recycling services to generators of solid waste and special waste. The Company
provides solid waste collection, transfer, transportation, recycling and
disposal services to over 750,000 residential, commercial and industrial
customers in Alabama, Florida, Georgia, Illinois, Michigan, Minnesota, Missouri,
New Jersey, Ohio, Pennsylvania, West Virginia and Wisconsin. The Company also
provides other integrated waste services, most of which are project-based and
many of which provide additional waste volumes to the Company's landfills and
recycling facilities. As of December 31, 1998, the Company owned and operated 19
landfills (including a greenfield landfill), 45 solid waste collection
operations, 15 recycling facilities and 19 solid waste transfer stations. The
Company also manages four other third party owned landfills.
11
<PAGE>
Set forth below is certain summary consolidated financial information for
the Company's last three fiscal years as contained in the Company's Annual
Report on Form 10-K for the year ended December 31, 1998 and for the three
months ended March 31, 1998 and March 31, 1999, as contained in the Company's
Quarterly Report on Form 10-Q for the quarter ended March 31, 1999. More
comprehensive financial information is included in such report (including
management's discussion and analysis of financial condition and results of
operation) and other documents filed by the Company with the Commission, and the
following summary is qualified in its entirety by reference to such report and
other documents and all of the financial information and notes contained
therein. Copies of such report and other documents may be examined at or
obtained from the Commission in the manner set forth below.
SUPERIOR SERVICES, INC.
SELECTED CONSOLIDATED FINANCIAL INFORMATION
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
YEAR ENDED DECEMBER 31, MARCH 31,
---------------------------------- ----------------------
1996 1997 1998 1998 1999
---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenues............................................. $ 180,720 $ 253,241 $ 319,673 $ 68,163 $ 80,008
Cost of operations................................... 99,150 144,377 184,964 39,879 46,395
Selling, general and administrative expenses......... 30,416 38,458 40,224 9,934 10,298
Merger costs......................................... -- 1,035 10,599 1,543 --
Unusual charges...................................... -- 2,873 -- -- --
Depreciation and amortization........................ 24,389 32,397 39,121 9,316 10,966
---------- ---------- ---------- ---------- ----------
Operating income..................................... 26,765 34,101 44,765 7,491 12,349
Interest expense..................................... (2,617) (3,440) (3,116) (1,023) (950)
Other income......................................... 2,069 1,888 912 538 588
---------- ---------- ---------- ---------- ----------
Income before income taxes........................... 26,217 32,549 42,561 7,006 11,987
---------- ---------- ---------- ---------- ----------
Net income (loss).................................... $ 16,403 $ 19,637 $ 20,501 $ 3,319 $ 7,042
---------- ---------- ---------- ---------- ----------
Earnings (loss) per share:
Basic.............................................. $ 0.65 $ 0.70 $ 0.64 $ 0.10 $ 0.22
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
Diluted............................................ $ 0.64 $ 0.69 $ 0.63 $ 0.10 $ 0.22
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
</TABLE>
<TABLE>
<CAPTION>
AT DECEMBER 31, AT MARCH 31,
---------------------------------- ----------------------
1996 1997 1998 1998 1999
---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Cash and cash equivalents............................ $ 23,657 $ 44,955 $ 9,715 $ 27,829 $ 8,464
Property and equipment, net.......................... 149,226 251,414 312,497 226,876 325,438
Total assets......................................... 256,183 442,855 526,842 381,747 572,480
Long-term debt, net of current maturities............ 18,815 27,215 66,284 4,359 108,085
Total common shareholders' investment................ 133,271 285,384 316,742 269,544 323,790
</TABLE>
12
<PAGE>
Except as otherwise set forth herein, the information concerning the Company
contained in this Offer to Purchase has been taken from or based upon publicly
available documents and records on file with the Commission and other public
sources and is qualified in its entirety by reference thereto. Although Parent
has no knowledge that would indicate that any statements contained herein based
on such documents and records are untrue, Parent cannot take responsibility for
the accuracy or completeness of the information contained in such documents and
records, or for any failure by the Company to disclose events which may have
occurred or may affect the significance or accuracy of any such information but
which are unknown to Parent.
The Company is subject to the information and reporting requirements of the
Exchange Act and in accordance therewith is obligated to file reports and other
information with the Commission relating to its business, financial condition
and other matters. Information, as of particular dates, concerning the Company's
directors and officers, their remuneration, stock options granted to them, the
principal holders of the Company's securities, any material interests of such
persons in transactions with the Company and other matters is required to be
disclosed in proxy statements distributed to the Company's shareholders and
filed with the Commission. Such reports, proxy statements and other information
should be available for inspection at the public reference room at the
Commission's office 450 Fifth Street, N.W., Room 1024, Judiciary Plaza,
Washington, D.C., and also should be available for inspection and copying at the
following regional offices of the Commission: 7 World Trade Center, Suite 1300,
New York, New York 10048; Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511. Copies may be obtained by mail, upon payment of
the Commission's customary charges, by writing to its principal office at 450
Fifth Street, N.W., Room 1024, Judiciary Plaza, Washington, D.C. 20549. Further
information on the operation of the Commission's Public Reference Room in
Washington, D.C. can be obtained by calling the Commission at 1-800-SEC-0330.
The Commission also maintains an Internet worldwide web site that contains
reports, proxy statements and other information about issuers, such the Company,
who file electronically with the Commission. The address of that site
http://www.sec.gov.
In addition, in the course of the discussions between Company management and
Parent, Parent was provided with certain financial information and projections
prepared by Company management, for the years ending December 31, 1999, 2000,
2001, 2002 and 2003, as follows:
<TABLE>
<CAPTION>
1999E 2000P 2001P 2002P 2003P
--------- --------- --------- --------- ---------
(DOLLARS IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C>
Revenues........................................ $ 417 $ 570 $ 701 $ 839 $ 983
EBITDA.......................................... $ 136 $ 189 $ 234 $ 279 $ 327
EBIT............................................ $ 81 $ 114 $ 140 $ 168 $ 197
EPS............................................. $ 1.30 $ 1.69 $ 2.03 $ 2.41 $ 2.84
</TABLE>
The projections were based on various assumptions, including, among other
things: (i) internal revenue growth of approximately 5% annually; (ii) EBITDA
margins of 32.6% in 1999, 33.2% in 2000, and 33.3% in 2001 and thereafter; (iii)
depreciation/amortization of 13.3% of revenue in 1999, 13.2% in 2000 and 13.3%
thereafter; (iv) capital expenditures of $55 million, $60 million, $70 million,
$85 million and $100 million, in the years 1999, 2000, 2001, 2002, and 2003,
respectively; and (v) a change in working capital relative to the change in
revenue of 3.3%, 4.0%, 5.9%, 6.8% and 7.7% in
13
<PAGE>
1999, 2000, 2001, 2002 and 2003, respectively. In addition, the projections were
based on the following assumptions regarding acquisitions from 1999 to 2003:
<TABLE>
<CAPTION>
1999E 2000P 2001P 2002P 2003P
--------- --------- --------- --------- ---------
(DOLLARS IN MILLIONS)
<S> <C> <C> <C> <C> <C>
Revenue Acquired.................................... $ 135 $ 100 $ 100 $ 100 $ 100
Purchase Price/Revenue Acquired..................... 1.75x 1.75x 1.75x 1.75x 1.75x
</TABLE>
THE COMPANY HAS ADVISED PARENT AND THE PURCHASER THAT IT DOES NOT AS A
MATTER OF COURSE DISCLOSE PROJECTIONS AS TO FUTURE REVENUES, EARNINGS OR OTHER
INCOME STATEMENT DATA AND THE PROJECTIONS WERE NOT PREPARED WITH A VIEW TO
PUBLIC DISCLOSURE. IN ADDITION, THE PROJECTIONS WERE NOT PREPARED IN ACCORDANCE
WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES, OR WITH A VIEW TO COMPLIANCE WITH
THE PUBLISHED GUIDELINES OF THE COMMISSION OR THE AMERICAN INSTITUTE OF
CERTIFIED PUBLIC ACCOUNTANTS REGARDING PROJECTIONS, WHICH WOULD REQUIRE A MORE
COMPLETE PRESENTATION OF THE DATA THAN AS SHOWN ABOVE. THE PROJECTIONS HAVE NOT
BEEN EXAMINED, REVIEWED OR COMPILED BY THE COMPANY'S INDEPENDENT AUDITORS, AND
ACCORDINGLY THEY HAVE NOT EXPRESSED AN OPINION OR ANY OTHER ASSURANCE ON IT. THE
FORECASTED INFORMATION IS INCLUDED HEREIN SOLELY BECAUSE SUCH INFORMATION WAS
FURNISHED TO PARENT AND THE PURCHASER AND ITS FINANCIAL ADVISORS PRIOR TO THE
OFFER. ACCORDINGLY, THE INCLUSION OF THE PROJECTIONS IN THIS OFFER SHOULD NOT BE
REGARDED AS AN INDICATION THAT PARENT OR THE PURCHASER OR THE COMPANY OR THEIR
RESPECTIVE FINANCIAL ADVISORS OR THEIR RESPECTIVE OFFICERS AND DIRECTORS
CONSIDER SUCH INFORMATION TO BE ACCURATE OR RELIABLE, AND NONE OF SUCH PERSONS
ASSUMES ANY RESPONSIBILITY FOR THE ACCURACY THEREOF. IN ADDITION, BECAUSE THE
ESTIMATES AND ASSUMPTIONS UNDERLYING THE PROJECTIONS ARE INHERENTLY SUBJECT TO
SIGNIFICANT ECONOMIC AND COMPETITIVE UNCERTAINTIES AND CONTINGENCIES, WHICH ARE
DIFFICULT OR IMPOSSIBLE TO PREDICT ACCURATELY AND ARE BEYOND THE CONTROL OF THE
COMPANY, PARENT AND THE PURCHASER, THERE CAN BE NO ASSURANCE THAT RESULTS SET
FORTH IN THE ABOVE PROJECTIONS WILL BE REALIZED AND IT IS EXPECTED THAT THERE
WILL BE DIFFERENCES BETWEEN ACTUAL AND PROJECTED RESULTS, AND ACTUAL RESULTS MAY
BE MATERIALLY HIGHER OR LOWER THAN THOSE SET FORTH ABOVE.
9. CERTAIN INFORMATION CONCERNING THE PURCHASER AND PARENT.
The Purchaser is a Wisconsin corporation and, to date, has engaged in no
activities other than those incident to its formation and the commencement of
the Offer. The Purchaser is an indirect wholly owned subsidiary of Parent. The
principal executive offices of the Purchaser are located at 42, Avenue de
Friedland, 75380 Paris Cedex 08 France.
Parent is a SOCIETE ANONYME organized under the laws of France. Through its
subsidiaries and affiliates, Parent engages in a variety of businesses,
including water, energy, waste management, construction and telecommunications.
Parent has 235,000 employees, annual sales of about $35 billion and a market
capitalization of about $41 billion. Its principal executive offices are located
at 42, Avenue de Friedland, 75380 Paris Cedex 08 France.
The name, citizenship, business address, present principal occupation, and
material positions held during the past five years of each of the directors and
executive officers of Parent and the Purchaser are set forth in Schedule A to
this Offer to Purchase.
Except as set forth in Section 11, neither the Purchaser nor Parent, nor, to
the best of their knowledge, any of the persons listed in Schedule A hereto nor
any associate or majority-owned subsidiary of any of the foregoing, beneficially
owns or has a right to acquire any equity securities of the Company. Neither the
Purchaser nor Parent, nor, to the best of their knowledge, any of the persons or
entities referred to above, nor any director, executive officer or subsidiary of
any of the foregoing, has effected any transaction in such equity securities
during the past 60 days.
14
<PAGE>
Except as set forth in Sections 11, neither the Purchaser nor Parent, nor,
to the best of their knowledge, any of the persons listed in Schedule A hereto,
has any contract, arrangement, understanding or relationship with any other
person with respect to any securities of the Company, including, but not limited
to, any contract, arrangement, understanding or relationship concerning the
transfer or the voting of any such securities, joint ventures, loan or option
arrangements, puts or calls, guaranties of loans, guaranties against loss or the
giving or withholding of proxies. Except as set forth in Section 10, there have
been no contacts, negotiations or transactions since January 1, 1996, between
Parent or the Purchaser, or, to the best of their knowledge, any of the persons
listed in Schedule A hereto, on the one hand, and the Company or its affiliates,
on the other hand, concerning a merger, consolidation or acquisition, a tender
offer or other acquisition of securities, an election of directors, or a sale or
other transfer of a material amount of assets. Neither the Purchaser nor Parent,
nor, to the best of their knowledge, any of the persons listed in Schedule A
hereto, has since January 1, 1996, had any transaction with the Company or any
of its executive officers, directors or affiliates that would require disclosure
under the rules and regulations of the Commission applicable to the Offer.
10. BACKGROUND OF THE OFFER; CONTACTS WITH THE COMPANY.
In mid-February 1999, after being contacted by Deutsche Banc Alex. Brown
("Alex. Brown"), Parent expressed an interest in exploring a potential
acquisition of the Company and entered into a confidentiality agreement with the
Company on March 3, 1999. On March 5, 1999, the Company's Chief Executive
Officer, G. William Dietrich, and Chief Financial Officer, George K. Farr,
together with representatives from Alex. Brown, met with Parent's Executive Vice
President of its Water and Wastewater Management Division, Henri Proglio, and
other senior officers of Parent, together with Parent's investment bankers,
Lazard Freres & Co. LLC and Lazard Freres et Cie. (collectively, "Lazard"), to
discuss the Company's business and prospects, the two companies' respective
business philosophies and cultures, and the parties' mutual interest in
exploring a business combination between the two companies.
Further discussions regarding similar matters were held in Paris, France,
from March 9, 1999, through March 11, 1999, between Messrs. Dietrich and Farr,
together with a representative of Alex. Brown and with Mr. Proglio and other
senior officers of Parent, together with representatives of Lazard.
On March 18, 1999, based on an indicated price range, Mr. Proglio and Mr.
Dietrich agreed that the Company would agree to a limited exclusivity period to
permit Parent to conduct a due diligence investigation of the Company and to
further determine its level of price interest.
From late March 1999 through mid-April 1999, representatives of Parent,
together with its advisors and various consultants, conducted a due diligence
investigation of the Company. In late April 1999, representatives of Lazard
indicated to representatives of Alex. Brown that Parent would be willing to
acquire the Company for a specified price in cash, provided that the Company's
senior management team agreed to continue to manage and operate the Company
after the acquisition. The suggested price offered on behalf of Parent was
rejected as inadequate.
During the first week of May 1999, Messrs. Proglio and Dietrich held several
telephone discussions in which Mr. Proglio reaffirmed Parent's interest in
continuing to pursue an acquisition of the Company. Mr. Proglio indicated that
Parent might be willing to pay a higher price than indicated in late April.
On June 4, 1999, Mr. Proglio proposed a price per share of $27.00. The two
parties agreed to meet on June 7, 1999, to hold further discussions on the other
material terms and conditions of the transaction.
15
<PAGE>
On June 7, 1999, Mr. Dietrich, together with other Company executives and
advisors, met with Mr. Proglio, other senior officers of Parent and Parent's
advisors to discuss the other material terms and conditions of the transaction,
including the proposed terms of employment for management.
From June 7, 1999, through June 11, 1999, the Company and Parent continued
to negotiate the terms of the Merger Agreement, the Stock Option Agreement and
the other ancillary agreements, including the Employment Agreements (as defined
herein).
On June 11, 1999, (i) the Company, Parent and Purchaser entered into the
Merger Agreement, (ii) the Company and Parent entered into the Stock Option
Agreement, (iii) Mr. Tate entered into the Shareholder Tender Agreement with
Parent and (iv) the Company and Parent entered into employment agreements with
each of Messrs. Dietrich, Ruud and Farr. The terms of each of the Merger
Agreement, the Stock Option Agreement, the Shareholder Tender Agreement and the
Employment Agreement are set forth in Section 11.
On June 14, 1999, the Company and Parent jointly announced the acquisition.
11. PURPOSE OF THE OFFER; PLANS FOR THE COMPANY; THE MERGER; THE MERGER
AGREEMENT; THE STOCK OPTION AGREEMENT; THE SHAREHOLDER TENDER AGREEMENT;
EMPLOYMENT AGREEMENTS.
The purpose of the Offer is to acquire for cash as many outstanding Shares
as possible as a first step in acquiring the entire equity interest in the
Company. If the Purchaser acquires 75% of the issued and outstanding Shares (on
a fully diluted basis, but excluding the Shares subject to the option granted
under the Stock Option Agreement) pursuant to the Offer, it will have the votes
necessary under Wisconsin law to approve the Merger.
THE MERGER AGREEMENT
The Merger Agreement provides that, promptly after the purchase of Shares
pursuant to the Offer and receipt of any required approval by the Company's
shareholders of the Merger Agreement and the satisfaction or waiver of certain
other conditions, the Purchaser will be merged with and into the Company. Upon
consummation of the Merger, each then outstanding Share (other than Shares owned
by Parent or its direct or indirect subsidiaries, held in the treasury of the
Company, owned by any wholly-owned subsidiary of the Company, or held by
shareholders who exercise dissenters' rights under the Wisconsin Business
Corporation Law ("WBCL") law, if any) will be canceled and converted into the
right to receive $27.00 in cash without interest, or any higher price which may
be paid pursuant to the Offer (the "Merger Consideration").
The obligations of the Company, the Purchaser and Parent to effect the
Merger are subject to the satisfaction of certain conditions set forth in the
Merger Agreement, including (i) the purchase by the Purchaser of Shares pursuant
to the Offer, (ii) the receipt of shareholder approval and governmental consents
or approvals (except for governmental consents or approvals, the failure of
which to receive are not reasonably likely to have a Material Adverse Effect (as
defined below) on the Company) and (iii) there being no statute, rule,
regulation, judgment, decree, injunction or other order (an "Order") enacted,
issued, promulgated, entered or enforced by any United States or state court or
governmental or regulatory authority which is in effect and prohibits
consummation of the transactions contemplated by the Merger Agreement or imposes
material restrictions on Parent 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 which is reasonably likely to have a Material Adverse
Effect (provided that before invoking this condition, each party shall have used
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
16
<PAGE>
Effect). As used in the Merger Agreement, the term "Material Adverse Effect"
means with respect to either Parent or the Company, as applicable, a material
adverse effect on the financial condition, properties, business or results of
operations of the Company or the Parent, as applicable, and its respective
subsidiaries, taken as a whole.
According to its terms, the Merger Agreement may be terminated at any time
prior to the Effective Time, whether before or after approval by the
shareholders of the Company by the mutual consent of Parent and the Company, by
action of their respective Board of Directors. In addition the Merger Agreement
may be terminated by either Parent or the Company if (i) the Purchaser shall
have terminated the Offer without purchasing any Shares pursuant thereto in
accordance with the Merger Agreement; (ii) the approval of shareholders shall
not have been obtained at a meeting duly convened therefor (provided that
Purchaser complies with its obligations to vote Shares it owns in favor of the
Merger Agreement at such meeting); or (iii) any court of competent jurisdiction
or other governmental or regulatory authority 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, that before
invoking this condition, the party invoking this condition shall have used 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).
The Merger Agreement may be terminated by Parent if, among other things, the
Board of Directors of the Company (or a special committee thereof) has amended,
withdrawn or modified in a manner adverse to Parent or the Purchaser its
approval or recommendation of the Offer, the Merger Agreement or the Merger or
the Board of Directors of the Company fails to reaffirm such approval or
recommendation within two business days of Parent's or Purchaser's written
request to do so or publicly endorses, approves or recommends any other
Acquisition Proposal (as defined below) or publicly announces that it has
resolved to do any of the foregoing. The Merger Agreement may also be terminated
by Parent if, prior to the purchase of Shares pursuant to the Offer in
accordance with the Merger Agreement, the Company shall fail to perform in any
respect any of the covenants or agreements contained in the Merger Agreement to
be complied with or performed by the Company at or prior to the 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 (i) ten business days following the giving of written
notice to the Company of such failure (provided that the Purchaser and Parent
shall be required to extend only the initially selected expiration date of the
Offer) and (ii) two business days prior to the date on which the Offer is then
scheduled to expire. The Merger Agreement may also be terminated by Parent if
the Company or any of the Company's representatives shall (i) initiate, solicit
or encourage, directly or indirectly, any inquiries or the making of any
proposals 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 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, except for such actions permitted by the
Merger Agreement to be taken if required by fiduciary obligations under
applicable law as advised by outside counsel.
The Merger Agreement may be terminated by the Company if, among other
things, (x) the Board of Directors of the Company authorizes the Company,
subject to complying with the terms of the Merger Agreement, to enter into a
binding written agreement concerning a transaction that is more
17
<PAGE>
favorable to the Company's shareholders from a financial point of view than the
Offer and the Merger (a "Superior Proposal") and the Company notifies Parent 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) Parent 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 such a transaction, an offer that the Board of Directors of the
Company determines, in good faith after consultation with its financial
advisors, is at least as favorable, from a financial point of view, to the
shareholders of the Company and (z) the Company, prior to such termination, pays
to Parent in immediately available funds the fees required to be paid pursuant
to the Merger Agreement. The Merger Agreement provides that if (x)(i) the Offer
shall have remained open for a minimum of at least 20 business days, (ii) after
the date of the Merger Agreement 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 Parent or Purchaser 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 Tender Condition shall not
have been satisfied and the Offer is terminated without the purchase of any
Shares thereunder, (y) Purchaser shall have terminated this Agreement because
the Board of Directors of the Company shall have amended, withdrawn or modified
in a manner adverse to Parent or Purchaser its approval or recommendation of the
Offer, the Merger or the Merger Agreement or the Board of Directors of the
Company shall have failed to reaffirm such approval or recommendation within two
business days of the written request of Parent or Purchaser to do so or has
previously approved, endorsed or recommended any Acquisition Proposal or because
the Company shall have taken any actions that are required pursuant to fiduciary
obligations under applicable law with respect to Acquisition Proposals, or (z)
the Company shall have terminated this Agreement to enter into a Superior
Proposal, then the Company shall promptly, but in no event later than two
business days after the date of such termination, pay Parent a fee of $26
million (the "Termination Fee"), and shall reimburse Parent and Purchaser (not
later than two business days after written request by Parent or Purchaser 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 Parent or Purchaser through the date of termination in connection with the
Merger Agreement and the transactions contemplated by the Merger Agreement, up
to a maximum amount of $4 million (the "Reimbursement Amount"), in each case
payable by wire transfer in same day funds; provided, that, in the event the
Company shall terminate the Merger Agreement in connection with a Superior
Proposal, the Company shall pay the amount due prior to any such termination. If
the Merger Agreement is terminated under circumstances as a result of which the
Termination Fee and Reimbursement Amount are payable, the option granted to
Parent under the Stock Option Agreement becomes exercisable. See "The Stock
Option Agreement" below.
Subject to the applicable provisions of the WBCL, the Merger Agreement may
be amended by action taken by the Company, Parent and the Purchaser at any time
prior to the Effective Time.
The Merger Agreement also provides that each holder of an outstanding option
to purchase Shares (an "Option") granted under any employee stock option plan of
the Company, whether or not then exercisable, shall be entitled to receive at
the Effective Time, a single lump sum amount in cash in cancellation of such
Option 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. Notwithstanding the
foregoing, the Merger Agreement provides that on the
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date the Purchaser irrevocably accepts for payment Shares tendered pursuant to
the Offer, those Options held by the employees designated in the Merger
Agreement (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.
The Merger Agreement provides that, after the Effective Time, Parent and the
surviving corporation in the Merger will maintain in full effect the Company's
existing directors' and officers' liability insurance for a period of six years
after the Effective Time, provided that there shall be no obligation to pay
annual premiums in excess of 200% of the last annual premium paid prior to the
date of the Merger Agreement. If the existing directors' and officers' liability
insurance expires, is terminated or canceled during such six-year period, each
of Parent and the surviving corporation are required by the Merger Agreement to
use its reasonable best efforts to obtain as much insurance as can be obtained
for the remainder of such period for a premium not in excess (on an annualized
basis) of the current premium. The Merger Agreement also provides that, after
the Effective Time, Parent will cause the surviving corporation to indemnify and
hold harmless each present and former director and officer of the Company and
its subsidiaries, determined as of the Effective Time, to the fullest extent the
Company would have been permitted or required to do so under the WBCL and its
restated articles of incorporation and by-laws in effect on the date of the
Merger Agreement.
Parent has agreed in the Merger Agreement that, during the period commencing
at the Effective Time and ending on the first anniversary thereof, employees of
the Company and its subsidiaries will continue to be provided with employee
benefits (other than stock option and similar plans) which in the aggregate are
substantially comparable to those currently provided by the Company and its
subsidiaries to such employees, provided that employees covered by collective
bargaining agreements need not be provided such benefits. Parent will also cause
each employee benefit plan of Parent 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 Parent. 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 Parent for which deductibles or co-payments are
required. Parent shall also cause each medical, health or dental plan of Parent,
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 employee benefit plan of the Company 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. Parent will,
and will cause the surviving corporation in the Merger to, timely and fully
honor 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
agreed between the parties in the Merger Agreement, all employee severance plans
(or policies), employment agreements and severance agreements in existence on
the date of the Merger Agreement.
Pursuant to the Merger Agreement, after the Purchaser has accepted Shares
for payment pursuant to the Offer, Parent has the right to have persons
designated by it become directors of the Company so that the total number of
such persons equals the number, rounded up to the next whole number, which is
the product of (i) the total number of directors on the Board of Directors of
the Company multiplied by (ii) a fraction, the numerator of which is the
aggregate number of Shares beneficially owned by Purchaser or any affiliate of
Purchaser and the denominator of which is the total number of
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Shares then outstanding. Notwithstanding the foregoing, prior to the Effective
Time, the Board of Directors of the Company shall always have at least two
members who are not officers, directors, shareholders or designees of Parent or
any of Parent's affiliates.
Pursuant to the Merger Agreement, the Company has agreed that neither the
Company nor any of its subsidiaries will, and the Company will 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 subsidiaries) 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 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. Notwithstanding the foregoing, nothing in the Merger Agreement
prevents the Company or the Board of Directors of the Company from complying
with Rules 14d-9 and 14e-2 under the Exchange Act, and, 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) of the previous sentence if (A) any person
delivers a bona fide written Acquisition Proposal for which all necessary
financing is then in the judgment of the Board of Directors of the Company
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 Parent and the Company (as determined by the Company after
consultation with its outside counsel), (C) the Board of Directors of the
Company determines in good faith by a vote of a majority of the members of the
full Board of Directors of the Company 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 Board of
Directors of the Company 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, financial and
regulatory aspects of the proposal, the person making the proposal and all other
relevant factors) and would, if consummated, result in a Superior Proposal.
The Merger Agreement also contains certain other restrictions as to the
conduct of business by the Company pending the Merger, as well as
representations and warranties of each of the parties customary in transactions
of this kind.
DISSENTERS' RIGHTS.
Under Sections 180.1301 through 180.1331 of the WBCL, dissenters' rights may
be available to holders and beneficial owners of Shares (each a "Dissenting
Shareholder"), subject to the procedures described therein. Dissenters' rights
permit a shareholder to object to the Merger and demand payment of the "fair
value" of their Shares in cash in connection with the consummation of the
Merger.
Under the WBCL, Dissenters' rights are available to shareholders of a
company in a merger if (i) a "resident domestic corporation" is a party to the
merger and (ii) shareholder approval for the merger is required under the WBCL.
A "resident domestic corporation" means a Wisconsin corporation that has a class
of voting stock registered under Section 12(g) of the Exchange Act and that has
certain jurisdictional contacts with the State of Wisconsin. See Section 15. The
Company currently qualifies as a "resident business corporation" under the WBCL.
Accordingly, if the Merger is consummated, it will be considered a "business
combination" under the WBCL.
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The "fair value" of the Shares is determined pursuant to Section
180.1130(9)(a), which provides that if shares are quoted on the NASDAQ/NMS (as
is the case with respect to the Shares), "fair value" is the highest closing
sales price per share reported on the NASDAQ/NMS during the 30-day period
preceding the date on which the fair value is determined. The "fair value", as
so determined in accordance with the WBCL, could be more or less than the value
per Share to be paid pursuant to the Merger.
THE STOCK OPTION AGREEMENT
As an inducement to, and a condition of, Parent entering into the Merger
Agreement, concurrently with the execution of the Merger Agreement, the Company
and Parent entered into a Stock Option Agreement (the "Stock Option Agreement")
pursuant to which the Company granted to Parent an irrevocable option to
purchase 6,440,653 Shares at an exercise price (the "Exercise Price") of $23.75
per share. The Shares subject to such option represent approximately 19.9% of
the outstanding Shares (before giving effect to the issuance of the Shares
subject to the option). The Option becomes exercisable by Parent after the
occurrence of any event as a result of which Parent is entitled to receive the
Termination Fee pursuant to the terms of the Merger Agreement (a "Purchase
Event"), as described in this Section 11.
In addition, if (a) Purchaser has accepted Shares for payment pursuant to
the terms of the Offer and (b) Parent and Purchaser thereafter own at least 61
percent of the then outstanding Shares (determined on a fully diluted basis, but
excluding Shares subject to the option granted under the Stock Option
Agreement), Parent will exercise the option with respect to that number of
Shares equal to the Applicable Amount (as defined herein). The "Applicable
Amount" is that number of Shares which, when added to the number of Shares
Parent and Purchaser own immediately prior to the exercise of the option,
results in Parent and Purchaser owning that number of Shares that provides
Parent and Purchaser with at least 50.1% of the votes represented by outstanding
Shares (determined on a fully diluted basis). Parent will not exercise the
option if Parent and Purchaser 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 under the Stock Option Agreement). If Parent
exercises the option under the circumstances set forth in this paragraph, Parent
will have the votes necessary under Wisconsin law to approve the Merger.
The option granted under the Stock Option Agreement will expire upon the
earliest of (i) the effective time of the Merger, (ii) 12 months after the first
occurrence of a Purchase Event, and (iii) termination of the Merger Agreement in
accordance with its terms prior to the occurrence of a Purchase Event.
The number and type of securities subject to the option and the Exercise
Price will be adjusted to preserve the economic benefit of the option if there
is any change in the Shares by reason of a stock dividend, split-up,
combination, recapitalization, exchange of shares or similar transaction.
The Stock Option Agreement provides that at any time that the option is
exercisable, Parent may require the Company to pay to Parent, in exchange for
the cancellation of the option with respect to such number Shares subject to the
option as Parent specifies, an amount in cash equal to such number of Shares
multiplied by the difference between (i) an average closing price (as determined
in the Stock Option Agreement) and (ii) the Exercise Price.
The Stock Option Agreement provides that Parent's total profit from the
Stock Option Agreement, the Termination Fee and the Reimbursement Amount cannot
exceed $31.5 million.
The Stock Option Agreement further provides that for a period of two years
following the first exercise of the option by Parent, Parent will have certain
registration rights in respect of the Shares received upon the exercise of the
option.
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THE SHAREHOLDER TENDER AGREEMENT
Pursuant to the Shareholder Tender Agreement, Mr. Joseph P. Tate, who owns
2,539,931 Shares (approximately 8 percent of the outstanding Shares), has agreed
to tender in the Offer and not withdraw all Shares owned by him. In addition,
Mr. Tate has granted Parent an option to purchase such Shares at the Offer Price
in the event (i) he withdraws such Shares from the Offer or (ii)(x) any person
acquires fifteen percent or more of the Shares, any person commences or
publically announces a tender or exchange offer for at least fifteen percent of
the Shares or any person enters into a definitive agreement or a written
agreement in principle with respect to an Acquisition Proposal and (y) Parent
and Purchaser terminate the Offer.
If Purchaser purchases Mr. Tates's Shares pursuant to such option and
subsequently sells, transfers or exchanges such Shares to or with a third party
in connection with an alternative business combination transaction involving the
Company or the Shares, Purchaser has agreed to pay to Mr. Tate one-half of
difference between the amount Purchaser pays Mr. Tate for such Shares pursuant
to the option and the amount received by Purchaser upon such disposition.
EMPLOYMENT AGREEMENTS
Prior to the execution of the Merger Agreement, Superior entered into
employment agreements and Key Employee Employment and Severance Agreements
(together, the "prior agreements") with G. William Dietrich, George K. Farr, and
Peter J. Ruud (collectively, the "executives"), which provided for, among other
things, the payment of severance amounts and benefits upon certain terminations
of employment in connection with a change in control of the Company. Pursuant to
the terms of the prior agreements, Mr. Dietrich will receive a payment of
$3,032,170, Mr. Farr will receive a payment of $3,782,188, and Mr. Ruud will
receive a payment of $387,000 upon the closing of the tender offer (the
"effective date").
As of the effective date, the prior agreements between the Company and the
executives will be superceded by new employment agreements (the "Employment
Agreements") entered into in connection with the Merger Agreement (except with
respect to certain benefits which the Company will continue to provide to the
executives under the prior agreements). The new employment agreements will
remain in effect until December 31, 2003, with optional renewals for additional
one year terms by mutual agreement between the executive and the Company. Copies
of the new employment agreements are filed as Exhibits (c)(4), (c)(5), and
(c)(6) to the Tender Offer Statement on Schedule 14D-1 to which this Offer to
Purchase is an exhibit and are incorporated herein by reference and the
following summary is qualified in its entirety by reference to such agreements.
The new agreements provide that the executives shall serve the Company in
the same position and role in which they served prior to the effective date.
Each executive shall receive the same salary as he earned immediately prior to
the effective date, which may be increased but not decreased. Each shall
participate in an annual bonus plan no less favorable than the Company's
Management Incentive Plan. The Management Incentive Plan will be amended to
replace earnings per share with pre-tax earnings as the basis upon which awards
are granted. For 1999, the Management Incentive Plan will be amended to provide
a first bonus amount based on financial results for the six month period ending
June 30, 1999, payable in cash plus fair market value of options and a second
bonus amount based on pre-tax earnings for the six month period ending December
31, 1999, payable in cash plus the fair market value of options. The fair market
value of options is deemed to be one-half of the excess of $27.00 over the
closing sale price for the Shares on the last business day prior to the date of
the Merger Agreement.
Each of the three executives shall also be designated a participant in the
Company's Long Term Performance Award Plan (the "LTPAP"), which measures the
Company's performance over a four and one-half year period ending December 31,
2003 (the "performance period"). Under the LTPAP, each executive will receive a
cash payment no later than 45 days after the conclusion of the performance
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period equal to between 6-10% of the total amount of the pool, which amount
shall be based on the Company's adjusted pre-tax earnings. If an executive is
terminated by the Company without Cause, voluntarily terminates for Good Reason
(as such terms are defined in the new employment agreements) dies, retires or
becomes disabled, he shall receive a pro-rata portion of the payment through his
termination to be paid at the same time as other payments under the LTPAP. Upon
sale of all, or substantially all of the assets or capital stock of the Company
or Parent or other business combination which results in a change in control of
the Company or Parent, (each, a "change in control transaction") all payments
shall be accelerated and immediately paid to all participants with the total
amount of the pool equal to the sum of $10 million plus $1,000 for each 0.00333%
increase in adjusted pre-tax earnings through the date of such change in control
transaction ("change in control date") above the pre-tax target earnings
pro-rated through such "change in control date."
If the Company terminates the agreement without Cause or executive
terminates for Good Reason, or following a Change in Control (as such term is
defined in the prior agreements) or a sale of the Company or Parent, the
executive will receive (i) his unpaid base salary plus accrued annual bonus
through date of termination, any previously vested benefits plus any deferred
compensation; (ii) a lump sum cash payment equal to number of years (including
fractions thereof) remaining under the agreement multiplied by the sum of (x)
annual base salary plus (y) annual bonus received for year prior to date of
termination; and (iii) payment under the LTPAP, equal to the amount the
executive would have received as if his retirement date was the date of
termination. If the executive terminates due to death or disability or without
Good Reason or the Company terminates for Cause, he will receive base salary
plus accrued annual bonus through the end of the month of his termination. In
addition, if the executive's employment is terminated for death or disability,
he shall receive a lump sum cash payment equal to 150% multiplied by the sum of
his base salary plus his annual bonus for the year prior to termination.
During the term of the Employment Agreements and for two years following an
executive's termination for any reason, each executive is prohibited from
competing with the Company (limited to the solid waste industry), or soliciting
Superior's clients or employees. The Company is required to pay each executive's
legal fees reasonably incurred for any good faith dispute or in connection with
any tax audit involving the golden parachute excise tax. All disputes are to be
arbitrated in Milwaukee, Wisconsin.
Copies of each of the Merger Agreement, the Stock Option Agreement, the
Shareholder Tender Agreement and each of the Employment Agreements have been
filed as Exhibits to the Schedule 14D-1 filed by Parent with the Commission and
are available for inspection and copying at the principal office of the
Commission in the manner set forth in Section 8. The foregoing descriptions of
these documents are qualified in their entireties by reference to such
documents.
Rule 13e-3 under the Exchange Act, which Parent does not believe would be
applicable to the Merger, would require, among other things, that certain
financial information concerning the Company and certain information relating to
the fairness of the proposed transaction and the consideration offered to
shareholders of the Company therein, be filed with the Commission and disclosed
to shareholders of the Company prior to consummation of the transaction.
12. RIGHTS AGREEMENT.
Set forth below is a summary description of the Rights, as filed with the
Company's Registration Statement on Form 8-A, dated February 28, 1997, relating
to the Rights:
On February 21, 1997, the Board of Directors of the Company declared a
dividend of one Right for each outstanding share of Common Stock. The dividend
was payable on March 24, 1997, to the shareholders of record on March 10, 1997
(the "Record Date"). Each Right entitles the registered
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holder to purchase from the Company one share of the Company's common stock at a
price of $90.00 per share, subject to adjustment to prevent dilution (the
"Purchase Price").
Until the earlier to occur of (i) the public announcement that a person or
group of affiliated or associated persons (other than the Company, a subsidiary
of the Company, an employee benefit plan of the Company or a subsidiary, or
certain existing shareholders as of the date of the Rights Agreement) (an
"Acquiring Person") has acquired beneficial ownership of 15 percent or more of
the outstanding Shares (the "Shares Acquisition Date") or (ii) 10 business days
following the commencement of, or announcement of an intention to make, a tender
offer or exchange offer the consummation of which would result in the beneficial
ownership by a person or group (other than the Company, a subsidiary of the
Company, an employee benefit plan of the Company or a subsidiary, or certain
existing shareholders as of the date of the Rights Agreement) of 15 percent or
more of such outstanding shares of the Company's Common Stock (the earlier of
such dates being called the "Distribution Date"), the Rights will be evidenced,
with respect to any of the share certificates outstanding as of the Record Date,
by such share certificate.
The Rights Agreement provides that, until the Distribution Date, the Rights
are only transferable with shares of the Company's Common Stock. Until the
Distribution Date (or earlier redemption or expiration of the Rights, as
described below), the surrender for transfer of any certificates for shares of
the Company's Common Stock, outstanding as of the Record Date will also
constitute the transfer of the Rights associated with the shares represented by
such certificate. As soon as practicable following the Distribution Date,
separate certificates evidencing the Rights will be mailed to holders of record
of the shares as of the close of business on the Distribution Date and such
separate Right certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights will
expire on February 21, 2007, unless the Rights are earlier redeemed or exchanged
by the Company, or the Rights Agreement is amended, in each case as described
below.
In the event that any person becomes an Acquiring Person (a "Flip-In
Event"), each holder of a Right will thereafter generally have the right to
purchase for the Purchase Price that number of shares of common stock of the
Company having a market value of two times the then current Purchase Price.
Notwithstanding any of the foregoing, following the occurrence of a Flip-In
Event all Rights that are, or (under certain circumstances specified in the
Rights Agreement) were, or subsequently become beneficially owned by an
Acquiring Person, related persons and transferees will be null and void.
In the event that, at any time following the Shares Acquisition Date, (i)
the Company is acquired in a merger or other business combination transaction or
(ii) 50% or more of its consolidated assets or earning power are sold, proper
provision will be made so that each holder of a Right will thereafter have the
right to purchase for the Purchase Price that number of shares of common stock
of the acquiring company having a market value of two times the then current
Purchase Price.
At any time after a person becomes an Acquiring Person and prior to the
acquisition by any Acquiring Person of 50% or more of the outstanding shares of
the Company's Common Stock, the Board of Directors of the Company may exchange
the Rights (other than Rights owned by any Acquiring Person which have become
void), in whole or in part, at an exchange ratio of one share of the Company's
Common Stock per Right (subject to adjustment).
At any time prior to a person becoming an Acquiring Person, the Board of
Directors of the Company may redeem the Rights in whole, but not in part, at a
price of $.01 per Right (the "Redemption Price"). The redemption of the Rights
may be made effective at such time, on such basis and with such conditions as
the Board of Directors of the Company in its sole discretion may establish.
Immediately upon any redemption of the Rights, the right to exercise the Rights
will terminate and the only right of the holders of Rights will be to receive
the Redemption Price.
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In connection with the Company entering into the Merger Agreement, the
Company has amended the Rights Agreement, (i) to render the Rights Agreement
inapplicable to the Merger Agreement, the Stock Option Agreement, the Offer and
the Merger, (ii) to ensure that (A) Parent and Purchaser, or either of them or
their respective affiliates or subsidiaries, are not deemed to be an Acquiring
Person pursuant to the Rights Agreement and (B) neither a Distribution Date nor
a Shares Acquisition Date occur by reason of the execution and delivery of the
Merger Agreement, the Stock Option Agreement or the Shareholder Tender Agreement
or by the announcement or consummation of the Offer or the Merger and (C) no
Rights shall separate from the shares of Common Stock or otherwise become
exercisable and (D) 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 shareholders of the Company will have no rights, remedy or claim, whether
legal or equitable, under the Rights or the Rights Agreement (in connection with
the Offer and the Merger).
Unless separate certificates for the Rights are issued, a tender of shares
of Common Stock will also constitute a tender of the associated Rights. See
Section 1.
13. SOURCE AND AMOUNT OF FUNDS.
Parent and the Purchaser estimate that the total amount of funds required to
purchase all of the outstanding Shares pursuant to the Offer and the Merger and
to pay related fees and expenses will be approximately $1.0 billion. Parent will
obtain sufficient funds from available cash on hand and available lines of
credit.
14. CERTAIN CONDITIONS OF THE OFFER.
Notwithstanding any other provision of the Offer, but subject to its
obligations under the Merger Agreement, Purchaser shall not be obligated to
accept for payment or, subject to any applicable rules and regulations of the
Commission, including Rule 14e-1(c) under the Exchange Act (relating to
Purchaser'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 Parent or Purchaser, constitutes 75% or more of the
outstanding 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 Tender 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 in the Merger Agreement)
applicable to the Offer and the Merger shall not have been obtained on terms
satisfactory to Parent in its sole judgment or (ii) on or after the date of the
Merger 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, 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
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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 Merger 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 Merger 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 Parent is provided
(provided that Parent and Purchaser 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 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 Parent or
Purchaser 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, Parent
or Purchaser any damages that are reasonably likely to have a Material
Adverse Effect on the Company or Parent or to prevent, materially delay or
materially impair the ability of the Company to consummate the transactions
contemplated by the Merger Agreement or the Stock Option Agreement; (ii)
seeking to prohibit, or impose any material limitations on, Parent's or
Purchaser's ownership or operation of all or any material portion of
Parent'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 Parent or Purchaser to dispose of or hold separate all or any
material portion of Parent'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 acceptance
for payment, purchase of, or payment for, some or all of the Shares illegal
or render Purchaser unable to, or result in a delay of more than 10 business
days in, or materially restrict, the ability of Purchaser 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
Parent or Purchaser 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 purchased
by them on an equal basis with all other Shares on all matters properly
presented to the Company's shareholders;
(d) any statute, rule, regulation, order or injunction shall be enacted,
promulgated, entered, enforced or deemed or become applicable 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,
26
<PAGE>
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 the Merger Agreement);
(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 Board of Directors of the Company (or a special committee
thereof) shall have amended, withdrawn or modified, in a manner adverse to
Parent or Purchaser, its approval or recommendation of the Offer, the Merger
Agreement or the Merger, or shall fail to reaffirm such approval or
recommendation within two business days of the written request by Parent or
Purchaser 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 Merger Agreement shall have been terminated by the Company,
Parent or Purchaser in accordance with its terms or Parent or Purchaser
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 Parent and Purchaser, in any such case, and
regardless of the circumstances (including any action or inaction by Parent or
Purchaser, provided Parent and Purchaser are not in violation of the Merger
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 Parent and Purchaser
and, subject to the terms of the Agreement, may be asserted by Parent or
Purchaser regardless of the circumstances (including any action or inaction by
Parent or Purchaser, provided Parent and Purchaser are not in violation of the
Merger Agreement) giving rise to any such condition or may be waived by Parent
or Purchaser, 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
Merger Agreement. The failure of Purchaser 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 particular 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.
Notwithstanding the fact that Purchaser reserves the right to assert the
occurrence of a condition following acceptance for payment but prior to payment
in order to delay payment or cancel its obligation to pay for properly tendered
Shares, the Purchaser will either promptly pay for such Shares or promptly
return such Shares.
A public announcement shall be made of a material change in, or waiver of,
such conditions, and the Offer may, in certain circumstances, be extended in
connection with any such change or waiver.
27
<PAGE>
15. CERTAIN LEGAL MATTERS.
GENERAL.
Except as otherwise disclosed herein, Parent and the Purchaser are not aware
of any licenses or other regulatory permits which appear to be material to the
business of the Company and which might be adversely affected by the acquisition
of Shares by the Purchaser pursuant to the Offer or of any approval or other
action by any governmental, administrative or regulatory agency or authority
which would be required for the acquisition or ownership of Shares by the
Purchaser pursuant to the Offer. Should any such approval or other action be
required, it is currently contemplated that such approval or action would be
sought or taken. There can be no assurance that any such approval or action, if
needed, would be obtained or, if obtained, that it will be obtained without
substantial conditions or that adverse consequences might not result to the
Company's or Parent's business or that certain parts of the Company's or
Parent's business might not have to be disposed of in the event that such
approvals were not obtained or such other actions were not taken, any of which
could cause the Purchaser to elect to terminate the Offer without the purchase
of the Shares thereunder. The Purchaser's obligation under the Offer to accept
for payment and pay for Shares is subject to certain conditions. See Section 14.
ANTITRUST COMPLIANCE.
Under the HSR Act and the rules that have been promulgated thereunder by the
Federal Trade Commission ("FTC"), certain acquisition transactions may not be
consummated unless certain information has been furnished to the Antitrust
Division of the Department of Justice (the "Antitrust Division") and the FTC and
certain waiting period requirements have been satisfied. The acquisition of
Shares by the Purchaser is subject to these requirements. See Section 2 of this
Offer to Purchase as to the effect of the HSR Act on the timing of the
Purchaser's obligation to accept Shares for payment.
Pursuant to the HSR Act, Parent expects to file a Notification and Report
Form with respect to the acquisition of Shares pursuant to the Offer with the
Antitrust Division and the FTC on June 22, 1999. Under the provisions of the HSR
Act applicable to the purchase of Shares pursuant to the Offer, such purchases
may not be made until the expiration of a 15-calendar day waiting period
following the filing by Parent. Accordingly, if the Notification and Report Form
is filed on such date, the waiting period under the HSR Act will expire at 11:59
p.m., New York City time, on July 7, 1999, unless early termination of the
waiting period is granted or Parent receives a request for additional
information or documentary material prior thereto. Pursuant to the HSR Act,
Parent expects to request early termination of the waiting period applicable to
the Offer. There can be no assurances given, however, that the 15-day HSR Act
waiting period will be terminated early. If either the FTC or the Antitrust
Division were to request additional information or documentary material from
Parent, the waiting period would expire at 11:59 p.m., New York City time, on
the tenth calendar day after the date of substantial compliance by Parent with
such request. Thereafter, the waiting period could be extended only by agreement
or by court order. If the acquisition of Shares is delayed pursuant to a request
by the FTC or the Antitrust Division for additional information or documentary
material pursuant to the HSR Act, the purchase of and payment for Shares will be
deferred until 10 days after the request is substantially complied with unless
the waiting period is sooner terminated by the FTC or the Antitrust Division.
See Section 2. Only one extension of such waiting period pursuant to a request
for additional information is authorized by the rules promulgated under the HSR
Act, except by agreement or by court order. Any such extension of the waiting
period will not give rise to any withdrawal rights not otherwise provided for by
applicable law. See Section 4. Although the Company is required to file certain
information and documentary material with the Antitrust Division and the FTC in
connection with the Offer, neither the Company's failure to make such filings
nor a request from the Antitrust
28
<PAGE>
Division or the FTC for additional information or documentary material made to
the Company will extend the waiting period.
The Antitrust Division and the FTC frequently scrutinize the legality under
the antitrust laws of transactions such as the proposed acquisition of Shares by
the Purchaser pursuant to the Offer. At any time before or after the Purchaser's
purchase of Shares, the Antitrust Division or the FTC could take such action
under the antitrust laws as it deems necessary or desirable in the public
interest, including seeking to enjoin the acquisition of Shares pursuant to the
Offer or seeking divestiture of Shares acquired by the Purchaser or the
divestiture of substantial assets of Parent, the Company or any of their
respective subsidiaries. Private parties may also bring legal action under the
antitrust laws under certain circumstances. There can be no assurance that a
challenge to the Offer on antitrust grounds will not be made or, if a challenge
is made, what the result will be. See Section 14 for certain conditions to the
Offer that could become applicable in the event of such a challenge.
STATE TAKEOVER LAWS.
A number of states have adopted laws and regulations applicable to offers to
acquire securities of corporations which are incorporated in such states and/or
which have substantial assets, shareholders, principal executive offices or
principal places of business therein. In EDGAR V. MITE CORPORATION, the Supreme
Court of the United States held that the Illinois Business Takeover Statute,
which made the takeover of certain corporations more difficult, imposed a
substantial burden on interstate commerce and was therefore unconstitutional. In
CTS CORPORATION V. DYNAMICS CORPORATION OF AMERICA, the Supreme Court held that
as a matter of corporate law, and in particular, those laws concerning corporate
governance, a state may constitutionally disqualify an acquiror of "Control
Shares" (ones representing ownership in excess of certain voting power
thresholds, e.g., 20%, 33 1/3% or 50%) of a corporation incorporated in its
state and meeting certain other jurisdictional requirements from exercising
voting power with respect to those shares without the approval of a majority of
the disinterested shareholders.
Sections 180.1140 to 180.1144 of the WBCL (the "Wisconsin Business
Combination Statute") regulate a broad range of "business combinations" between
a Wisconsin corporation and an "interested stockholder." The Wisconsin Business
Combination Statute defines a "business combination" to include a merger or
share exchange, sale, lease, exchange, mortgage, pledge, transfer or other
disposition of assets equal to at least 5% of the market value of the stock or
assets of the company or 10% of its earning power, or issuance of stock or
rights to purchase stock with a market value equal to at least 5% of the
outstanding stock, adoption of a plan of liquidation and certain other
transactions involving an "interested stockholder." An "interested stockholder"
is defined as a person who beneficially owns, directly or indirectly, 10% of the
voting power of the outstanding voting stock of a corporation or who is an
affiliate or associate of the corporation and beneficially owned 10% of the
voting power of the then outstanding voting stock within the last three years.
The Wisconsin Business Combination Statute prohibits a corporation from engaging
in a business combination (other than a business combination of a type
specifically excluded from the coverage of the statute) with an interested
stockholder for a period of three years following the date such person becomes
an interested stockholder, unless the board of directors approved the business
combination or the acquisition of the stock that resulted in a person becoming
an interested stockholder before such acquisition. Business combinations after
the three-year period following the stock acquisition date are permitted only if
(i) the board of directors approved the acquisition of the stock prior to the
date on which the interested stockholder became such; (ii) the business
combination is approved by a majority of the outstanding voting stock not
beneficially owned by the interested stockholder; or (iii) the consideration to
be received by shareholders meets certain requirements of the statute with
respect to form and amount. The Wisconsin Business Combination Statute's
prohibition on business combinations applies for three years after the
acquisition of at least 10% of the outstanding shares without regard to the
percentage of
29
<PAGE>
shares owned by the interested stockholder and cannot be avoided by subsequent
action of the board of directors or shareholders. The Company's Board of
Directors approved Parent's and Purchaser's acquisitions of Shares in the Offer
in connection with entering into the Merger Agreement and, therefore, the
Wisconsin Business Combination Statute will not apply to the Merger.
Sections 180.1130 to 180.1132 of the WBCL provide that certain mergers and
share exchanges involving a resident domestic corporation and a "significant
shareholder" or an affiliate of a "significant shareholder" are subject to a
supermajority vote of shareholders (the "Wisconsin Fair Price Statute"), in
addition to any approval otherwise required. A "significant shareholder" is
defined as a person who beneficially owns, directly or indirectly, 10% or more
of the voting stock of a corporation or an affiliate of the corporation which
beneficially owned, directly or indirectly, 10% or more of the voting stock of
the corporation within the last two years. Business combinations subject to the
Wisconsin Fair Price Statute must be approved by 80% of the voting power of the
corporation's stock and at least two-thirds of the voting power of the
corporation's stock not beneficially held by the significant shareholder who is
party to the relevant transaction or any of its affiliates or associates, in
each case, voting together as a single group. The supermajority voting
provisions do not apply if the following fair price standards have been met: (i)
the aggregate value of the per share consideration to be received by
shareholders in the business combination is equal to the highest of (a) the
highest price paid for any common shares of the corporation by the significant
shareholder in the transaction in which it became a significant shareholder or
within two years before the date of the business combination; (b) the market
value of the corporation's shares on the date of commencement of any tender
offer by the significant shareholder, the date on which the person became a
significant shareholder or the date of the first public announcement of the
proposed business combination, whichever is higher, or (c) the highest
liquidation or dissolution distribution to which holders of the shares would be
entitled; and (ii) either cash, or the form of consideration used by the
significant shareholder to acquire the largest number of shares, is offered. The
amount to be paid for each Share in the Merger currently satisfies each of the
conditions of the Wisconsin Fair Price Statute. Accordingly, the restrictions
contained in such statute are not currently applicable to the Merger.
Under Section 180.1150 (the "Wisconsin Control Share Statute") of the WBCL,
unless the articles of incorporation otherwise provide the voting power of
shares, including shares issuable upon conversion of convertible securities or
exercise of options or warrants, of a "resident domestic corporation" (such as
the Company) held by any person or persons acting as a group in excess of 20% of
the voting power in the election of directors is limited to 10% of the full
voting power of those shares. The effect of the Wisconsin Control Share Statute
is to require any person seeking to acquire more than 50 percent of the voting
power at such corporation to own at least 75 percent of the issued and
outstanding shares of such corporation. This restriction does not apply to
shares acquired directly from the resident domestic corporation, in certain
specified transactions, or in a transaction in which the corporation's
shareholders have approved restoration of the full voting power of the otherwise
restricted shares.
Under the WBCL, a "resident domestic corporation" is defined as a Wisconsin
corporation that as of a relevant date satisfies any of the following four
tests:
1. Its principal offices are located in the State of Wisconsin.
2. It has significant business operations located in the State of
Wisconsin.
3. More than 10% of the holders of record of its shares are residents of
the State of Wisconsin.
4. More than 10% of its shares are held of record by residents of the
State of Wisconsin.
The Wisconsin Administrative Code Section DFI-Section 6.05 (the "Wisconsin
Going Private Rule") provides that an issuer, or any affiliated party of an
issuer, is deemed to violate Section 551.41 of the
30
<PAGE>
Wisconsin Statutes, which section prohibits any "device, scheme or artifice" to
defraud holders of securities, if the issuer or affiliated person enters into
any transaction involving a purchase of any equity securities of the issuer,
other than an arm's length purchase by a person not affiliated with the issuer,
which transaction has, or may have, the effect of (i) causing a class of equity
securities of the issuer to be subject to delisting from a national securities
exchange registered under the Exchange Act or cease to be authorized to be
quoted on NASDAQ or (ii) causing a class of equity securities of the issuer to
be eligible for termination of registration, or suspension of reporting
requirements under the Exchange Act. The Wisconsin Going Private Rule applies to
any issuer whose equity securities of any class are registered under Section 12
of the Exchange Act, and which has 100 or more record holders of the securities
in the State of Wisconsin (which number constitutes 20 percent or more of the
total number of record holders of the securities) on the date of the initial
offer, notice or solicitation relating to the proposed transaction. The
Securities Division of the Wisconsin Department of Financial Institutions will
consider and rule upon a request for an opinion or "no action" position
confirming that a proposed transaction does not constitute a violation of the
Wisconsin Going Private Rule on the grounds that the transaction is fair to
Wisconsin shareholders. Purchaser intends to seek and expects to receive an
opinion or "no action" letter to the effect that neither purchases of Shares
pursuant to this Offer nor completion of the Merger constitute transactions
prohibited under the Wisconsin Going Private Rule.
The Purchaser does not believe that any state takeover laws (other than the
Wisconsin Control Share Statute and the Wisconsin Going Private Rule) apply to
the Offer. Should any government official or third party seek to apply any state
takeover law to the Offer, the Purchaser will take such action as then appears
desirable.
If it is asserted that one or more other state takeover laws applies to the
Offer and it is not determined by an appropriate court that such act or acts do
not apply or are invalid as applied to the Offer, the Purchaser might be
required to file certain information with, or receive approvals from, the
relevant state authorities. In addition, if enjoined, the Purchaser might be
unable to accept for payment any Shares tendered pursuant to the Offer, or be
delayed in consummating the Offer. In such case, the Purchaser may not be
obligated to accept for payment any Shares tendered. See Section 14.
EXON-FLORIO.
Under Section 721 of Title VII of the United States Defense Production Act
of 1950, as amended by Section 5021 of the Omnibus Trade and Competitiveness Act
of 1988 ("Exon-Florio"), the President of the United States is authorized to
prohibit or suspend acquisitions, mergers or takeovers by foreign persons of
persons engaged in interstate commerce in the United States if the President
determines, after investigation, that such foreign persons in exercising control
of such acquired persons might take action that threatens to impair the national
security of the United States and that other provisions of existing law do not
provide adequate authority to protect national security. Pursuant to
Exon-Florio, notice of an acquisition by a foreign person is to be made to the
Committee on Foreign Investment in the United States ("CFIUS"), which is
comprised of representatives of the Departments of the Treasury, State,
Commerce, Defense and Justice, the Office of Management and Budget, the United
States Trade Representative's Office and the Council of Economic Advisors and
which has been selected by the President to administer Exon-Florio, either
voluntarily by the parties to such proposed acquisition, merger or takeover or
by any member of CFIUS.
A determination that an investigation is called for must be made within 30
days after notification of a proposed acquisition, merger or takeover is first
filed with CFIUS. Any such investigation must be completed within 45 days of
such determination. Any decision by the President to take action must be
announced within 15 days of the completion of the investigation. Although
Exon-Florio does not require the filing of a notification, nor does it prohibit
the consummation of an acquisition, merger or takeover if notification is not
made, such an acquisition, merger or takeover thereafter remains
31
<PAGE>
indefinitely subject to divestment should the President subsequently determine
that the national security of the United States has been threatened or impaired.
The Purchaser does not believe that the Offer or the Merger threatens to impair
the national security of the United States and does not intend to notify CFIUS
of the proposed transaction.
16. FEES AND EXPENSES.
The Purchaser has retained Innisfree M&A Incorporated to act as the
Information Agent in connection with the Offer. The Information Agent may
contact holders of Shares by mail, telephone, telex, telegraph and personal
interviews and may request brokers, dealers and other nominee shareholders to
forward materials relating to the Offer to beneficial owners of Shares. The
Information Agent will receive $15,000 for such services, plus reimbursement of
out-of-pocket expenses and the Purchaser will indemnify the Information Agent
against certain liabilities and expenses in connection with the Offer, including
liabilities under the federal securities laws.
The Purchaser will pay the Depositary reasonable and customary compensation
for its services in connection with the Offer, plus reimbursement for
out-of-pocket expenses, and will indemnify the Depositary against certain
liabilities and expenses in connection therewith, including liabilities under
the federal securities laws. Brokers, dealers, commercial banks and trust
companies will be reimbursed by the Purchaser for customary mailing and handling
expenses incurred by them in forwarding material to their customers.
17. MISCELLANEOUS.
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares in any jurisdiction in which the making of the
Offer or the acceptance thereof would not be in compliance with the laws of such
jurisdiction. However, the Purchaser may, in its sole discretion, take such
action as it may deem necessary to make the Offer in any such jurisdiction and
extend the Offer to holders of Shares in such jurisdiction.
Neither the Purchaser nor Parent is aware of any jurisdiction in which the
making of the Offer or the acceptance of Shares in connection therewith would
not be in compliance with the laws of such jurisdiction.
The Purchaser and Parent have filed with the Commission a Statement on
Schedule 14D-1 pursuant to Rule 14d-3 of the General Rules and Regulations under
the Exchange Act, furnishing certain additional information with respect to the
Offer, and may file amendments thereto. Such Statement and any amendments
thereto, including exhibits, may be examined and copies may be obtained from the
principal office of the Commission in Washington, D.C. in the manner set forth
in Section 8.
No person has been authorized to give any information or make any
representation on behalf of Parent or the Purchaser not contained in this Offer
to Purchase or in the Letter of Transmittal and, if given or made, such
information or representation must not be relied upon as having been authorized.
ONYX SOLID WASTE ACQUISITION CORP.
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<PAGE>
SCHEDULE A
DIRECTORS AND EXECUTIVE OFFICERS OF PARENT
The name, business address, present principal occupation or employment and
five-year history of each of the directors and executive officers of the
Purchaser are set forth below. Unless otherwise indicated, the business address
of each such director and each such executive officer is care of Vivendi-USA,
800 Third Avenue, 38th Floor, New York, NY 10022. Unless otherwise indicated,
all directors and executive officers listed below are citizens of France.
DIRECTORS
<TABLE>
<CAPTION>
PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME AND ADDRESS 5-YEAR EMPLOYMENT HISTORY
- --------------------------------------- ------------------------------------------------------------------------
<S> <C>
Bernard Arnault........................ Chairman and CEO of LVMH
LVMH
30, avenue Hoche
75008 Paris
France
Eric Licoys............................ Chairman and CEO of Havas and General Manager of Vivendi; formerly
HAVAS Chairman of Fonds Partenaires Gestion and General Manager of HAVAS
31, rue du Colisee
75008 Paris
France
Philippe L. Germond.................... CEO of Cegetel and Senior Executive Vice President of Vivendi; formerly
Cegetel General Manager of Hewlett-Packard Europe and CEO of SFR
1, Place Carpeaux
92 Paris La Defense
France
Simon Murray........................... Executive at Simon Murray and Associates (UK) Ltd., Chairman of Gens
Simon Murray and (HK) Ltd., Director of Tommy Hilfiger, Director of Usinor Sacilor and
Associates (U.K.) Ltd Director of Hutchison Waampta Hong Kong; formerly Chairman of Deutsche
Princes House Bank Asia
38 Jermyn Street
England
Esther Koplowitz....................... Vice President of F.C.C.
F.C.C.--Madrid--Spain
Plaza Pablo Ruiz Picasso
28020 Madrid
Spain
Serge Tchuruk.......................... Chairman and CEO of Alcatel; formerly Chairman and CEO of Total S.A.
Alcatel
64, rue de la Boetie
75008 Paris
France
Ambroise Roux.......................... Executive of Pinault-Printemps-Redoute and Vice President of Vivendi;
Pinault-Printemps-Redoute formerly Director of Compagnie Generale des Eaux
8 bis, rue Margueritte
75017 Paris
France
</TABLE>
33
<PAGE>
<TABLE>
<CAPTION>
PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME AND ADDRESS 5-YEAR EMPLOYMENT HISTORY
- --------------------------------------- ------------------------------------------------------------------------
<S> <C>
Philippe Foriel-Destezet............... Co-Chairman of Addeco, Chairman of Ecco SA, and Chairman of Nescofin
Nescofin
43 Rutlandgate
S.W. 71 ED London
England
Jacques Friedmann...................... Chairman of the Supervisory Board of AXA; formerly Chairman of UAP
AXA
9, Place Vendome
75001 Paris
France
Henri Lachmann......................... Chairman and CEO of Schneider S.A. and Schneider Electric S.A.; formerly
Schneider S.A. Chairman and CEO of the Strafor Facom Group
64/70 Avenue Jean-Baptiste
Clement
92646 Boulogne Billancourt
France
Jacques Calvet......................... Retired; formerly Chairman and CEO of PSA-Peugeot-Citroen
7, rue de Tilsitt
75017 Paris
France
Marc Vienot............................ Chairman of Paris-Europlace, Honorary Chairman and Director of Societe
Paris Europlace Generale and Director of Rhone Poulenc; formerly Chairman and CEO of
39, rue Cambon Societe Generale, Director of Alcatel- Alsthom, Director of Havas
75039 Paris Cedex 1er
France
Rene Thomas............................ Honorary Chairman of Banque Nationale de Paris
Banque Nationale de Paris
16, boulevard des Italiens
75009, Paris
France
Jean-Louis Beffa....................... Chairman and CEO of Compagnie Saint-Gobain; formerly Vice- Chairman of
Compagnie de Saint-Gobain Compagnie des Eaux
"Les Miroirs"
92096 La Defense Cedex
France
</TABLE>
34
<PAGE>
EXECUTIVE OFFICERS
<TABLE>
<CAPTION>
PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME AND ADDRESS 5-YEAR EMPLOYMENT HISTORY
- --------------------------------------- ------------------------------------------------------------------------
<S> <C>
Jean-Marie Messier..................... Chairman and CEO of Vivendi; formerly General Manager of Vivendi
Vivendi
42, Avenue de Friedland
75009 Paris
France
Henri Proglio.......................... Senior Executive Vice President of Vivendi
Vivendi
42, Avenue de Friedland
75008 Paris
France
Stephanie Richard...................... Chairman and CEO of CGIS, Managing Director of Compagnie Immobiliere
CGIS (Vivendi Group) Phenix and Chairman of CGIS
8, rue du general Foy
75008, Paris
France
Antoine Zacharias...................... Chairman and CEO of Societe Generale d'Entreprises; formerly Chairman of
Societe Generale Ecco SA
d'Entreprises
1, cours Ferdinance de Lesseps
95851, Rueil Malmaison
France
Guy Dejouany........................... President of Honor of Vivendi; formerly President of Compagnie Generale
Vivendi-Compagnie Generale des Eaux
des Eaux
52, Rue d'Anjou
75008, Paris
France
</TABLE>
35
<PAGE>
DIRECTORS AND EXECUTIVE OFFICERS OF THE PURCHASER
The name, business address, present principal occupation or employment and
five-year history of each of the directors and executive officers of the
Purchaser are set forth below. Unless otherwise indicated, the business address
of each such director and each such executive officer is care of Vivendi, 42,
Avenue de Friedland, 75380 Paris Cedex 08 France. With the exception of Mr.
Farman, who is a citizen of the United States of America, all directors and
executive officers listed below are citizens of France.
DIRECTOR
<TABLE>
<CAPTION>
POSITION WITH THE PURCHASER; PRINCIPAL
OCCUPATION OR EMPLOYMENT; 5-YEAR
NAME AND ADDRESS EMPLOYMENT HISTORY
- --------------------------------------- ------------------------------------------------------------------------
<S> <C>
Michel Avenas.......................... Vice-President of Purchaser; formerly Assistant to the Chairman of
Compagnie Generale des Eaux
Denis Gasquet.......................... President and CEO of Purchaser; CEO of CGEA
Michel Gourvennec...................... Vice President of Purchaser; President and CEO of Montenay International
</TABLE>
EXECUTIVE OFFICERS
<TABLE>
<CAPTION>
POSITION WITH THE PURCHASER; PRINCIPAL
OCCUPATION OR EMPLOYMENT; 5-YEAR
NAME AND ADDRESS EMPLOYMENT HISTORY
- --------------------------------------- ------------------------------------------------------------------------
<S> <C>
Michel Avenas.......................... Vice-President of Purchaser; formerly Assistant to the Chairman of
Compagnie Generale des Eaux
Christian Farman....................... Chief Financial Officer of Purchaser; Vice President and Chief Financial
Officer of Vivendi North America
Denis Gasquet.......................... President and CEO of Purchaser; CEO of CGEA
Pascal Gauthier........................ Vice President of Purchaser; Deputy Vice President of CGEA
Michel Gourvennec...................... Vice President of Purchaser; President and CEO of Montenay International
Axel de Saent Quantien................. Secretary of Purchaser; Vice President of Finance and Chief Financial
Officer of Montenay International Corp.
</TABLE>
36
<PAGE>
Facsimile copies of the Letter of Transmittal will be accepted. The Letter of
Transmittal, certificates for the Shares and any other required documents should
be sent by each shareholder of the Company or his broker-dealer, commercial
bank, trust company or other nominee to the Depositary as follows:
THE DEPOSITARY FOR THE OFFER IS:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
<TABLE>
<S> <C> <C>
BY MAIL: BY HAND: BY OVERNIGHT:
Reorganization Department Reorganization Department Reorganization Department
P.O. Box 3301 120 Broadway 85 Challenger Road,
South Hackensack, NJ 07606 13th Floor Mail Drop-Reorg
New York, NY 10271 Ridgefield Park, NJ 07660
BY FACSIMILE TRANSMISSION:
(FOR ELIGIBLE INSTITUTIONS ONLY)
(201) 296-4293
CONFIRM FACSIMILE TRANSMISSION:
BY TELEPHONE ONLY
(201) 296-4860
</TABLE>
Any questions or requests for assistance or additional copies of the Offer to
Purchase and the Letter of Transmittal may be directed to the Information Agent
or the Dealer Manager at their respective telephone numbers and locations listed
below. You may also contact your broker, dealer, commercial bank or trust
company or other nominee for assistance concerning the Offer.
THE INFORMATION AGENT FOR THE OFFER IS:
Innisfree M&A Incorporated
501 MADISON AVENUE,
20TH FLOOR
NEW YORK, NEW YORK 10022
BANKS AND BROKERS CALL COLLECT: (212) 750-5833
ALL OTHERS CALL TOLL FREE: (888) 750-5834
THE DEALER MANAGER FOR THE OFFER IS:
LAZARD FRERES & CO. LLC
30 ROCKEFELLER PLAZA
NEW YORK, NY 10020
(212) 632-6717
<PAGE>
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS TO PURCHASE COMMON STOCK)
OF
SUPERIOR SERVICES, INC.
AT
$27.00 NET PER SHARE
BY
ONYX SOLID WASTE ACQUISITION CORP.
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
VIVENDI
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON FRIDAY JULY 16, 1999, UNLESS THE OFFER IS EXTENDED.
THE DEPOSITARY FOR THE OFFER IS:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
<TABLE>
<S> <C> <C>
BY MAIL: BY HAND: BY OVERNIGHT:
Reorganization Department Reorganization Department Reorganization Department
P.O. Box 3301 120 Broadway 85 Challenger Road
South Hackensack, NJ 07606 13th Floor Mail Drop-Reorg
New York, NY 10271 Ridgefield Park, NJ 07660
BY FACSIMILE TRANSMISSION:
(FOR ELIGIBLE INSTITUTIONS
ONLY)
(201) 296-4293
CONFIRM FACSIMILE
TRANSMISSION:
BY TELEPHONE ONLY
(201) 296-4860
</TABLE>
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY.
<PAGE>
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE
READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------
DESCRIPTION OF SHARES TENDERED
-------------------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) OF REGISTERED OWNER(S)
(PLEASE FILL IN, IF BLANK, EXACTLY AS NAME(S) APPEAR(S) SHARES TENDERED
ON CERTIFICATE(S)) (ATTACH ADDITIONAL LIST IF NECESSARY)
<S> <C> <C> <C>
- -------------------------------------------------------------------------------------------------
<CAPTION>
TOTAL NUMBER
OF SHARES
REPRESENTED NUMBER
CERTIFICATE BY OF SHARES
NUMBER(S)(1) CERTIFICATE(S)(1) TENDERED(2)
<S> <C> <C> <C>
- -------------------------------------------------------------------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
Total Shares
- -------------------------------------------------------------------------------------------
(1) Need not be completed by Book-Entry Shareholders.
(2) Unless otherwise indicated, it will be assumed that all Shares described above are being
tendered. See Instruction 4.
- -------------------------------------------------------------------------------------------
</TABLE>
2
<PAGE>
This Letter of Transmittal is to be used either if certificates for Shares
(as defined below) are to be forwarded herewith or, unless an Agent's Message
(as defined in Section 3 of the Offer to Purchase (as defined below)) is
utilized, if delivery of Shares is to be made by book-entry transfer to an
account maintained by the Depositary (as defined in the Introduction to the
Offer to Purchase) at the Book-Entry Transfer Facility (as defined in Section 3
of the Offer to Purchase) pursuant to the procedures set forth in Section 3 of
the Offer to Purchase. Shareholders who deliver Shares by book-entry transfer
are referred to herein as "Book-Entry Shareholders" and other shareholders are
referred to herein as "Certificate Shareholders." Shareholders whose
certificates for Shares are not immediately available or who cannot comply with
the procedure for book-entry transfer on a timely basis, or who cannot deliver
all required documents to the Depositary prior to the Expiration Date (as
defined in Section 1 of the Offer to Purchase), may tender their Shares in
accordance with the guaranteed delivery procedure set forth in Section 3 of the
Offer to Purchase. See Instruction 2. DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY
TRANSFER FACILITY IN ACCORDANCE WITH SUCH BOOK-ENTRY TRANSFER FACILITY'S
PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
MADE TO AN ACCOUNT MAINTAINED BY THE DEPOSITARY WITH THE BOOK-ENTRY TRANSFER
FACILITY AND COMPLETE THE FOLLOWING (ONLY FINANCIAL INSTITUTIONS THAT ARE
PARTICIPANTS IN THE SYSTEM OF ANY BOOK-ENTRY TRANSFER FACILITY MAY DELIVER
SHARES BY BOOK-ENTRY TRANSFER):
Name of Tendering Institution ______________________________________________
Account Number _____________________________________________________________
Transaction Code Number ____________________________________________________
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE
FOLLOWING:
Name(s) of Registered Owner(s) _____________________________________________
Date of Execution of Notice of Guaranteed Delivery _________________________
Name of Institution which Guaranteed Delivery ______________________________
Account Number _____________________________________________________________
Transaction Code Number ____________________________________________________
3
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
The undersigned hereby tenders to Onyx Solid Waste Acquisition Corp., a
Wisconsin corporation (the "PURCHASER") and an indirect wholly owned subsidiary
of Vivendi, a SOCIETE ANONYME organized under the laws of France ("PARENT"), the
above-described shares of common stock, par value $.01 per share (the "COMMON
STOCK"), including the associated rights to purchase Common Stock (the "RIGHTS"
and, together with the Common Stock, the "SHARES"), of Superior Services, Inc.,
a Wisconsin corporation (the "COMPANY"), pursuant to the Offer to Purchase,
dated June 18, 1999 (the "OFFER TO PURCHASE"), at a price of $27.00 per Share,
net to the seller in cash, on the terms and subject to the conditions set forth
in the Offer to Purchase, receipt of which is hereby acknowledged, and in this
Letter of Transmittal (which, together with the Offer to Purchase, constitute
the "OFFER"). The undersigned understands that the Purchaser reserves the right
to transfer or assign, from time to time, in whole or in part, to one or more of
its affiliates, the right to purchase the Shares tendered herewith.
On the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of such extension or
amendment), subject to, and effective upon, acceptance for payment of, and
payment for, the Shares tendered herewith in accordance with the terms of the
Offer, the undersigned hereby sells, assigns and transfers to, or upon the order
of, the Purchaser, all right, title and interest in and to all of the Shares
being tendered hereby and any and all cash dividends, distributions, rights,
other Shares or other securities issued or issuable in respect of such Shares on
or after June 18, 1999 (collectively, "DISTRIBUTIONS"), and appoints ChaseMellon
Shareholder Services, L.L.C. (the "DEPOSITARY") the true and lawful agent and
attorney-in-fact of the undersigned with respect to such Shares (and any
Distributions) with full power of substitution (such power of attorney being
deemed to be an irrevocable power coupled with an interest) to the fullest
extent of such shareholder's rights with respect to such Shares (and any
Distributions) (a) to deliver such Share Certificates (as defined herein) (and
any Distributions) or transfer ownership of such Shares (and any Distributions)
on the account books maintained by the Book-Entry Transfer Facility, together,
in either such case, with all accompanying evidences of transfer and
authenticity, to or upon the order of the Purchaser, (b) to present such Shares
(and any Distributions) for transfer on the books of the Company and (c) to
receive all benefits and otherwise exercise all rights of beneficial ownership
of such Shares (and any Distributions), all in accordance with the terms and the
conditions of the Offer.
The undersigned hereby irrevocably appoints the designees of the Purchaser,
and each of them, the attorneys-in-fact and proxies of the undersigned, each
with full power of substitution, to the full extent of such shareholder's rights
with respect to the Shares tendered hereby which have been accepted for payment
and with respect to any Distributions. The designees of the Purchaser will, with
respect to the Shares (and any associated Distributions) for which the
appointment is effective, be empowered to exercise all voting and any other
rights of such shareholder, as they, in their sole discretion, may deem proper
at any annual, special or adjourned meeting of the Company's shareholders, by
written consent in lieu of any such meeting or otherwise. This proxy and power
of attorney shall be irrevocable and coupled with an interest in the tendered
Shares. Such appointment is effective when, and only to the extent that, the
Purchaser deposits the payment for such Shares with the Depositary. Upon the
effectiveness of such appointment, without further action, all prior powers of
attorney, proxies and consents given by the undersigned with respect to such
Shares (and any associated Distributions) will be revoked and no subsequent
powers of attorney, proxies, consents or revocations may be given (and, if
given, will not be deemed effective). The Purchaser reserves the right to
require that, in order for Shares to be deemed validly tendered, immediately
upon the Purchaser's acceptance for
4
<PAGE>
payment of such Shares, the Purchaser must be able to exercise full voting
rights, to the extent permitted under applicable law, with respect to such
Shares (and any associated Distributions), including voting at any meeting of
shareholders.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to tender, sell, assign and transfer the Shares (and any
Distributions) tendered hereby and, when the same are accepted for payment by
the Purchaser, the Purchaser will acquire good, marketable and unencumbered
title thereto, free and clear of all liens, restrictions, charges and
encumbrances, and the same will not be subject to any adverse claim. The
undersigned will, upon request, execute and deliver any additional documents
deemed by the Depositary or the Purchaser to be necessary or desirable to
complete the sale, assignment and transfer of the Shares (and any Distributions)
tendered hereby. In addition, the undersigned shall promptly remit and transfer
to the Depositary for the account of the Purchaser any and all Distributions in
respect of the Shares tendered hereby, accompanied by appropriate documentation
of transfer and, pending such remittance or appropriate assurance thereof, the
Purchaser shall be entitled to all rights and privileges as owner of any such
Distributions and may withhold the entire purchase price or deduct from the
purchase price the amount or value thereof, as determined by the Purchaser in
its sole discretion.
All authority conferred or agreed to be conferred pursuant to this Letter of
Transmittal shall not be affected by, and shall survive, the death or incapacity
of the undersigned and any obligation of the undersigned hereunder shall be
binding upon the heirs, personal representatives, successors and assigns of the
undersigned. Except as stated in the Offer to Purchase, this tender is
irrevocable.
The undersigned understands that the valid tender of Shares pursuant to one
of the procedures described in Section 3 of the Offer to Purchase will
constitute a binding agreement between the undersigned and the Purchaser upon
the terms and subject to the conditions of the Offer.
Unless otherwise indicated herein under "Special Payment Instructions,"
please issue the check for the purchase price and/or return any certificates for
Shares not tendered or accepted for payment in the name(s) of the registered
owner(s) appearing under "Description of Shares Tendered." Similarly, unless
otherwise indicated under "Special Delivery Instructions," please mail the check
for the purchase price and/or return any certificates for Shares not tendered or
accepted for payment (and accompanying documents, as appropriate) to the
address(es) of the registered owner(s) appearing under "Description of Shares
Tendered." In the event that both the Special Delivery Instructions and the
Special Payment Instructions are completed, please issue the check for the
purchase price and/or issue any certificates for Shares not tendered or accepted
for payment (and any accompanying documents, as appropriate) in the name of, and
deliver such check and/or return such certificates (and any accompanying
documents, as appropriate) to, the person or persons so indicated. The
undersigned recognizes that the Purchaser has no obligation pursuant to the
Special Payment Instructions to transfer any Shares from the name of the
registered owner thereof if the Purchaser does not accept for payment any of the
Shares so tendered.
5
<PAGE>
- -------------------------------------------
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if certificate(s) for Shares not tendered or not
accepted for payment and/or the check for the purchase price of Shares
accepted for payment are to be issued in the name of someone other than the
undersigned.
Issue: / / Check / / Certificate(s) to:
Name: ______________________________________________________________________
(PLEASE PRINT)
Address: ___________________________________________________________________
____________________________________________________________________________
(INCLUDE ZIP CODE)
__________________________________________________________________________
(TAX IDENTIFICATION OR SOCIAL SECURITY NUMBER)
- ------------------------------------------------------
- ------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5 AND 7)
To be completed ONLY if certificate(s) for Shares not tendered or not
accepted for payment and/or the check for the purchase price of Shares
accepted for payment are to be sent to someone other than the undersigned or
to the undersigned at an address other than that shown above.
Deliver: / / Check / / Certificate(s) to:
Name: ______________________________________________________________________
(PLEASE PRINT)
Address: ___________________________________________________________________
____________________________________________________________________________
(INCLUDE ZIP CODE)
-----------------------------------------------------------
IMPORTANT
SIGN HERE
(ALSO COMPLETE SUBSTITUTE FORM W-9 BELOW)
____________________________________________________________________________
____________________________________________________________________________
(SIGNATURE(S) OF HOLDER(S))
Dated: ________________________ 1999
(Must be signed by registered owner(s) exactly as name(s) appear(s) on stock
certificate(s) or on a security position listing or by person(s) authorized to
become registered owner(s) by certificates and documents transmitted herewith.
If signature is by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in a fiduciary or
representative capacity, please set forth full title and see Instruction 5.)
Name(s) ________________________________________________________________________
________________________________________________________________________________
(PLEASE PRINT)
Capacity (full title) __________________________________________________________
Address ________________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number _________________________________________________
Tax Identification or
Social Security No. ____________________________________________________________
6
<PAGE>
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 1 AND 5)
Authorized Signature ___________________________________________________________
Name ___________________________________________________________________________
(PLEASE TYPE OR PRINT)
Address ________________________________________________________________________
_______________________________________________________________________________
(INCLUDE ZIP CODE)
Name of Firm ___________________________________________________________________
Dated: __________________________ 1999
7
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. Except as otherwise provided below, all
signatures on this Letter of Transmittal must be guaranteed by a financial
institution (including most commercial banks, savings and loan associations and
brokerage houses) which is a participant in the Securities Transfer Agents
Medallion Program, the New York Stock Exchange Medallion Signature Guarantee
Program or the Stock Exchange Medallion Program (each, an "ELIGIBLE
INSTITUTION"). Signatures on this Letter of Transmittal need not be guaranteed
(a) if this Letter of Transmittal is signed by the registered owners (which
term, for purposes of this document, includes any participant in the Book-Entry
Transfer Facility's system whose name appears on a security position listing as
the owner of the Shares) of Shares tendered herewith and such registered owner
has not completed the box titled "Special Payment Instructions" or the box
titled "Special Delivery Instructions" on this Letter of Transmittal or (b) if
such Shares are tendered for the account of an Eligible Institution. See
Instruction 5 of this Letter of Transmittal.
2. DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES OR BOOK-ENTRY
CONFIRMATIONS. This Letter of Transmittal is to be used either if certificates
are to be forwarded herewith or if tenders are to be made pursuant to the
procedures for tender by book-entry transfer set forth in Section 3 of the Offer
to Purchase. Certificates for all physically tendered Shares ("SHARE
CERTIFICATES"), or confirmation of any book-entry transfer into the Depositary's
account at the Book-Entry Transfer Facility of Shares tendered by book-entry
transfer, as well as this Letter of Transmittal properly completed and duly
executed with any required signature guarantees, and any other documents
required by this Letter of Transmittal, must be received by the Depositary at
one of its addresses set forth herein on or prior to the Expiration Date (as
defined in Section 1 of the Offer to Purchase).
Shareholders whose certificates for Shares are not immediately available or
who cannot deliver all other required documents to the Depositary on or prior to
the Expiration Date or who cannot comply with the procedures for book-entry
transfer on a timely basis may nevertheless tender their Shares by properly
completing and duly executing a Notice of Guaranteed Delivery pursuant to the
guaranteed delivery procedure set forth in Section 3 of the Offer to Purchase.
Pursuant to such procedure: (i) such tender must be made by or through an
Eligible Institution; (ii) a properly completed and duly executed Notice of
Guaranteed Delivery substantially in the form provided by the Purchaser must be
received by the Depositary prior to the Expiration Date; and (iii) Share
Certificates or confirmation of any book-entry transfer into the Depositary's
account at the Depository Institution of Shares tendered by book-entry transfer,
as well as a Letter of Transmittal, properly completed and duly executed with
any required signature guarantees (or, in the case of a book-entry transfer, an
Agent's Message), and all other documents required by this Letter of
Transmittal, must be received by the Depositary within three New York Stock
Exchange Inc. trading days after the date of execution of such Notice of
Guaranteed Delivery.
If Share Certificates are forwarded separately to the Depositary, a properly
completed and duly executed Letter of Transmittal must accompany each such
delivery.
THE METHOD OF DELIVERY OF SHARE CERTIFICATES AND ALL OTHER REQUIRED
DOCUMENTS, INCLUDING DELIVERY THROUGH THE BOOK-ENTRY TRANSFER FACILITY, IS AT
THE ELECTION AND RISK OF THE TENDERING SHAREHOLDER. THE DELIVERY WILL BE DEEMED
MADE ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY (INCLUDING, IN THE CASE OF A
BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION). IF SUCH DELIVERY IS BY MAIL,
IT IS RECOMMENDED THAT SUCH CERTIFICATES AND DOCUMENTS BE SENT BY REGISTERED
MAIL, PROPERLY INSURED, WITH RETURN RECEIPT REQUESTED. IN ALL CASES, SUFFICIENT
TIME SHOULD BE ALLOWED TO ASSURE TIMELY DELIVERY.
8
<PAGE>
No alternative, conditional or contingent tenders will be accepted and no
fractional Shares will be purchased. All tendering shareholders, by execution of
this Letter of Transmittal (or facsimile thereof), waive any right to receive
any notice of the acceptance of their Shares for payment.
3. INADEQUATE SPACE. If the space provided herein is inadequate, the
certificate numbers and/or the number of Shares should be listed on a separate
schedule attached hereto.
4. PARTIAL TENDERS (APPLICABLE TO CERTIFICATE SHAREHOLDERS ONLY). If fewer
than all the Shares evidenced by any certificate submitted are to be tendered,
fill in the number of Shares which are to be tendered in the box titled "Number
of Shares Tendered." In such cases, new certificate(s) for the remainder of the
Shares that were evidenced by the old certificate(s) will be sent to the
registered owner, unless otherwise provided in the appropriate box on this
Letter of Transmittal, as soon as practicable after the Expiration Date. All
Shares represented by certificates delivered to the Depositary will be deemed to
have been tendered unless otherwise indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL; STOCK POWERS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered owners of the Shares
tendered hereby, the signature must correspond with the names as written on the
face of the certificates without alteration, enlargement or any other change
whatsoever.
If any of the Shares tendered hereby are owned of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
If any of the tendered Shares are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many separate
Letters of Transmittal as there are different registrations of certificates.
If this Letter of Transmittal or any certificates or stock powers are signed
by trustees, executors, administrators, guardians, attorneys-in-fact, officers
of corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and proper evidence satisfactory to the
Parent of their authority so to act must be submitted.
If this Letter of Transmittal is signed by the registered owner(s) of the
Shares listed and transmitted hereby, no endorsements of certificates or
separate stock powers are required unless payment is to be made to, or
certificates for Shares not tendered or accepted for payment are to be issued in
the name of, a person other than the registered owner(s). Signatures on such
certificates or stock powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered owner of the certificate(s) listed, the certificate(s) must be
endorsed or accompanied by the appropriate stock powers, in either case, signed
exactly as the name or names of the registered owner or holders appears on the
certificate(s). Signatures on such certificates or stock powers must be
guaranteed by an Eligible Institution.
6. STOCK TRANSFER TAXES. The Purchaser will pay any stock transfer taxes
with respect to the transfer and sale of Shares to it or its order pursuant to
the Offer. If, however, payment of the purchase price is to be made to, or (in
the circumstances permitted hereby) if certificates for Shares not tendered or
accepted for payment are to be registered in the name of, any person other than
the registered owner, or if tendered certificates are registered in the name of
any person other than the person(s) signing this Letter of Transmittal, the
amount of any stock transfer taxes (whether imposed on the registered owner or
such person) payable on account of the transfer to such person will be deducted
from the purchase price if satisfactory evidence of the payment of such taxes,
or exemption therefrom, is not submitted.
EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE NECESSARY FOR
TRANSFER TAX STAMPS TO BE AFFIXED TO THE CERTIFICATES LISTED IN THIS LETTER OF
TRANSMITTAL.
9
<PAGE>
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check is to be issued in
the name of, and/or certificates for Shares not tendered or accepted for payment
are to be issued or returned to, a person other than the signer of this Letter
of Transmittal or if a check and/or such certificates are to be mailed to a
person other than the signer of this Letter of Transmittal or to an address
other than that shown above, the appropriate boxes on this Letter of Transmittal
should be completed.
8. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions or requests for
assistance may be directed to the Information Agent or the Dealer Manager at
their respective addresses set forth below or from your broker, dealer,
commercial bank or trust company. Additional copies of the Offer to Purchase,
this Letter of Transmittal, the Notice of Guaranteed Delivery and other tender
offer materials may be obtained from the Information Agent.
9. SUBSTITUTE FORM W-9. Each tendering shareholder is required to provide
the Depositary with a correct Taxpayer Identification Number ("TIN"), generally
the shareholder's social security or federal employer identification number, on
Substitute Form W-9 below. Failure to provide the information on the form may
subject the tendering shareholder to 31-percent federal income tax backup
withholding on the payment of the purchase price. The tendering shareholder may
write "Applied For" in Part I of the Form if the tendering shareholder has not
been issued a TIN and has applied for a TIN or intends to apply for a TIN in the
near future. If "Applied For" is written in Part I of the Substitute Form W-9
and the Depositary is not provided with a TIN within 60 days, the Depositary
will withhold 31 percent of all payments of the purchase price thereafter until
a TIN is provided to the Depositary.
10. LOST, DESTROYED, MUTILATED OR STOLEN CERTIFICATES. If any certificate(s)
representing Shares has been lost, destroyed, mutilated or stolen, the
shareholder should promptly notify the Company's transfer agent, LaSalle Bank
National Association (f/k/a LaSalle National Bank) at (800) 246-5761. The
shareholder will then be instructed as to the steps that must be taken in order
to replace the certificate(s). This Letter of Transmittal and related documents
cannot be processed until the procedures for replacing lost, mutilated or
destroyed certificates have been followed.
IMPORTANT: THIS LETTER OF TRANSMITTAL (TOGETHER WITH SHARE CERTIFICATES OR
CONFIRMATION OF BOOK-ENTRY TRANSFER AND ALL OTHER REQUIRED DOCUMENTS) OR THE
NOTICE OF GUARANTEED DELIVERY MUST BE RECEIVED BY THE DEPOSITARY PRIOR TO THE
EXPIRATION DATE.
IMPORTANT TAX INFORMATION
Under the federal income tax law, a shareholder whose tendered Shares are
accepted for purchase is required by law to provide the Depositary with such
shareholder's correct TIN on Substitute Form W-9 below and to certify that such
TIN is correct (or that such shareholder is awaiting a TIN) or otherwise
establish a basis for exemption from backup withholding. If such shareholder is
an individual, the TIN is his or her social security number. If a shareholder
fails to provide a TIN to the Depositary, such shareholder may be subject to a
$50.00 penalty imposed by the Internal Revenue Service. In addition, payments
that are made to such shareholder with respect to Shares purchased pursuant to
the Offer may be subject to backup withholding of 31 percent.
Certain shareholders (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. In order for a foreign individual to qualify as an exempt
recipient, that shareholder must generally submit a Form W-8, signed under
penalties of perjury, attesting to that individual's exempt status. A Form W-8
can be obtained from the Depositary.
If backup withholding applies, the Depositary is required to withhold 31
percent of any payments made to the shareholder or payee. Backup withholding is
not an additional tax. Rather, the federal income tax liability of persons
subject to backup withholding will be reduced by the amount of tax withheld. If
withholding results in an overpayment of taxes, a refund may be obtained from
the Internal Revenue Service.
10
<PAGE>
If "Applied for" is written in Part I of the Substitute Form W-9, the
Depositary will retain 31 percent of any payment of the purchase price for
tendered Shares during the 60-day period following the date of the Substitute
Form W-9. If a shareholder's TIN is provided to the Depositary within 60 days of
the date of the Substitute Form W-9, payment of such retained amounts will be
made to such shareholder. If a shareholder's TIN is not provided to the
Depositary within such 60-day period, the Depositary will remit such retained
amounts to the Internal Revenue Service as backup withholding and shall withhold
31 percent of any payment of the purchase price for the tendered Shares made to
such shareholder thereafter unless such shareholder furnishes a TIN to the
Depositary prior to such payment.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments made to a shareholder whose
tendered Shares are accepted for purchase, the shareholder should complete and
sign the Substitute Form W-9 included in this Letter of Transmittal and provide
the shareholder's correct TIN and certify, under penalties of perjury, that the
TIN provided on such Form is correct (or that such shareholder is awaiting a
TIN) and that (i) such shareholder is exempt from backup withholding; (ii) such
shareholder has not been notified by the Internal Revenue Service that such
shareholder is subject to backup withholding as a result of failure to report
all interest or dividends; or (iii) the Internal Revenue Service has notified
the shareholder that the shareholder is no longer subject to backup withholding.
The shareholder must sign and date the Substitute Form W-9 where indicated,
certifying that the information on such Form is correct.
WHAT NUMBER TO GIVE THE DEPOSITARY
The shareholder is required to give the Depositary the social security
number or employer identification number of the record owner of the Shares. If
the Shares are in more than one name or are not in the name of the actual owner,
consult the enclosed Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9 for additional guidance on which number to report.
11
<PAGE>
TO BE COMPLETED BY ALL TENDERING SHAREHOLDERS
(SEE INSTRUCTION 9)
PAYER: CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
<TABLE>
<S> <C> <C>
SUBSTITUTE
FORM W-9 NAME:
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE ADDRESS:
REQUEST FOR TAXPAYER Corporation / /
IDENTIFICATION NUMBER (TIN) CHECK APPROPRIATE BOX:
AND CERTIFICATION Other (specify) / /
Individual / /
Partnership / /
PART I. Please provide your taxpayer identification number SSN:
in the space at right. If awaiting TIN, write OR
"Applied For." EIN:
PART II. For Payees exempt from backup withholding. See the enclosed "Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9."
PART III. CERTIFICATION
Under penalties of perjury, I certify that:
(1) The number shown on this form is my correct Taxpayer Identification Number (or I am
waiting for a number to be
issued to me); and
(2) I am not subject to backup withholding because: (a) I am exempt from backup withholding,
or (b) I have not been notified by the IRS that I am subject to backup withholding as a
result of a failure to report all interests or dividends, or (c) the IRS has notified me
that I am no longer subject to backup withholding.
Certification Instructions--You must cross out item (2) above if you have been notified by
the IRS that you are subject to backup withholding because of underreporting of interest or
dividends on your tax return. However, if after being notified by the IRS that you were
subject to backup withholding you received another notification from the IRS that you are no
longer subject to backup withholding, do not cross out item (2).
SIGNATURE DATE , 1999
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31 PERCENT OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE
REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR
ADDITIONAL DETAILS.
12
<PAGE>
THE INFORMATION AGENT FOR THE OFFER IS:
Innisfree M&A Incorporated
501 MADISON AVENUE,
20TH FLOOR
NEW YORK, NEW YORK 10022
BANKS AND BROKERS CALL COLLECT: (212) 750-5833
ALL OTHERS CALL TOLL FREE: (888) 750-5834
THE DEALER MANAGER FOR THE OFFER IS:
LAZARD FRERES & CO. LLC
30 ROCKEFELLER PLAZA
NEW YORK, NEW YORK 10020
(212) 632-6717
June 18, 1999
<PAGE>
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS TO PURCHASE COMMON STOCK)
OF
SUPERIOR SERVICES, INC.
AT
$27.00 NET PER SHARE
BY
ONYX SOLID WASTE ACQUISITION CORP.
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
VIVENDI
- ------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON FRIDAY, JULY 16, 1999, UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
June 18, 1999
To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
We have been engaged by Onyx Solid Waste Acquisition Corp., a Wisconsin
corporation (the "Purchaser") and an indirect wholly owned subsidiary of
Vivendi, a SOCIETE ANONYME organized under the laws of France ("Parent"), to act
as Information Agent in connection with its offer to purchase all of the
outstanding shares of common stock, par value $.01 per share, of Superior
Services, Inc., a Wisconsin corporation (the "Company"), including the
associated common stock purchase rights issued pursuant to the Rights Agreement,
dated as of February 21, 1997, as amended as of June 11, 1999, between the
Company and LaSalle Bank National Association (f/k/a LaSalle National Bank), as
Rights Agent (the "Shares"), at $27.00 per Share, net to the seller in cash,
upon the terms and subject to the conditions set forth in the Offer to Purchase,
dated June 18, 1999 (the "Offer to Purchase") of the Purchaser and in the
related Letter of Transmittal (which, as amended or supplemented from time to
time, together constitute the "Offer"). Please furnish copies of the enclosed
materials to those of your clients for whom you hold Shares registered in your
name or in the name of your nominee.
Enclosed herewith are the following documents:
1. Offer to Purchase, dated June 18, 1999;
2. Letter of Transmittal to be used by shareholders of the Company in
accepting the Offer;
3. Letter to shareholders of the Company from the President and Chief
Executive Officer of the Company, accompanied by the Company's
Solicitation/Recommendation Statement on Schedule 14D-9;
4. A printed form of a letter that may be sent to your clients for whose
account you hold Shares in your name or in the name of your nominee, with
space provided for obtaining such clients' instructions with regard to
the Offer;
5. Notice of Guaranteed Delivery;
6. Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9; and
7. Return envelope addressed to ChaseMellon Shareholders Services, L.L.C.,
the Depositary.
<PAGE>
The Offer is being made pursuant to an Agreement and Plan of Merger (the
"Merger Agreement"), dated as of June 11, 1999, by and among the Company, Parent
and the Purchaser, pursuant to which, after completion of the Offer, the
Purchaser will be merged with and into the Company (the "Merger") and each
issued and outstanding Share (other than Shares owned by the Company, Parent,
the Purchaser or any other subsidiary of Parent or Shares which are held by
shareholders exercising appraisal rights under Wisconsin law) shall, by virtue
of the Merger and without any action on the part of the holder thereof, be
converted into and represent the right to receive the price per Share paid by
the Purchaser in the Offer, without interest.
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED THE MERGER
AGREEMENT, APPROVED THE OFFER AND THE MERGER, DETERMINED THAT THE OFFER AND THE
MERGER ARE IN THE BEST INTERESTS OF THE HOLDERS OF SHARES AND UNANIMOUSLY
RECOMMENDS THAT SHAREHOLDERS ACCEPT THE OFFER AND TENDER THEIR SHARES PURSUANT
TO THE OFFER.
Upon the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of any such extension or
amendment), the Purchaser will be deemed to have accepted for payment, and will
pay for, all Shares validly tendered and not properly withdrawn by the
Expiration Date (as defined in the Offer to Purchase) if, as and when the
Purchaser gives oral or written notice to the Depositary of the Purchaser's
acceptance of the tenders of such Shares for payment pursuant to the Offer.
Payment for Shares purchased pursuant to the Offer will be made only after
timely receipt by the Depositary of (i) certificates for (or a timely Book-Entry
Confirmation (as defined in the Offer to Purchase) with respect to) such Shares
into the Depositary's account at the Book-Entry Transfer Facility (as defined in
the Offer to Purchase), (ii) a properly completed and duly executed Letter of
Transmittal (or facsimile thereof) or, in the case of a book-entry transfer, an
Agent's Message (as defined in the Offer to Purchase), and (iii) any other
documents required by the Letter of Transmittal. Accordingly, tendering
shareholders may be paid at different times depending upon when certificates for
Shares or Book-Entry Confirmations (as defined in the Offer to Purchase) with
respect to Shares are actually received by the Depositary. UNDER NO
CIRCUMSTANCES WILL INTEREST BE PAID ON THE PURCHASE PRICE FOR SHARES, REGARDLESS
OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING PAYMENT PURSUANT TO THE
OFFER.
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares in any jurisdiction in which the making or
acceptance of the Offer would not be in compliance with the laws of such
jurisdiction. In any jurisdiction where the securities, blue sky or other laws
require the Offer to be made by a licensed broker or dealer, the Offer will be
deemed to be made on behalf of the Purchaser by one or more registered brokers
or dealers that are licensed under the laws of such jurisdiction. An envelope in
which to return your instructions to us is enclosed. If you authorize tender of
your Shares, all such Shares will be tendered unless otherwise indicated in such
instruction form. Please forward your instructions to us as soon as possible to
allow us ample time to tender Shares on your behalf prior to the expiration of
the Offer.
In order to tender Shares pursuant to the Offer, a properly completed and
duly executed Letter of Transmittal (or facsimile thereof), with any required
signature guarantees, or an Agent's Message (in the case of any book-entry
transfer), and any other documents required by the Letter of Transmittal, should
be sent to the Depositary, and either certificates representing the tendered
Shares should be delivered or such Shares must be delivered to the Depositary
pursuant to the procedures for book-entry transfers, all in accordance with the
instructions set forth in the Letter of Transmittal and the Offer to Purchase.
Neither Parent nor the Purchaser will pay any fees or commissions to any
broker or dealer or other person (other than the Information Agent and the
Depositary as described in the Offer to Purchase) in connection with the
solicitation of tenders of Shares pursuant to the Offer. You will be
2
<PAGE>
reimbursed upon request for customary mailing and handling expenses incurred by
you in forwarding the enclosed offering materials to your clients.
YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS AS
PROMPTLY AS POSSIBLE. THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00
MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, JULY 16, 1999, UNLESS THE OFFER IS
EXTENDED.
Any inquiries you may have with respect to the Offer may be addressed to the
undersigned at the address and telephone numbers set forth on the back cover
page of the Offer to Purchase. Requests for additional copies of enclosed
materials may be directed to the Information Agent.
Very truly yours,
LAZARD FRERES & CO. LLC
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL RENDER YOU OR
ANY PERSON THE AGENT OF THE PURCHASER, PARENT, THE COMPANY, ANY AFFILIATE OF THE
COMPANY, THE INFORMATION AGENT OR THE DEPOSITARY, OR AUTHORIZE YOU OR ANY OTHER
PERSON TO USE ANY DOCUMENT OR MAKE ANY REPRESENTATION ON BEHALF OF ANY OF THEM
WITH RESPECT TO THE OFFER NOT CONTAINED IN THE OFFER TO PURCHASE OR THE LETTER
OF TRANSMITTAL.
3
<PAGE>
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS TO PURCHASE COMMON STOCK)
OF
SUPERIOR SERVICES, INC.
AT
$27.00 NET PER SHARE
BY
ONYX SOLID WASTE ACQUISITION CORP.
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
VIVENDI
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON FRIDAY, JULY 16, 1999, UNLESS THE OFFER IS EXTENDED.
June 18, 1999
To Holders of Common Stock of Superior Services, Inc.:
Enclosed for your information is an Offer to Purchase, dated June 18, 1999
(the "Offer to Purchase"), and the related Letter of Transmittal (which, as
amended or supplemented from time to time, together constitute the "Offer"),
relating to the Offer by Onyx Solid Waste Acquisition Corp., a Wisconsin
corporation (the "Purchaser") and an indirect wholly owned subsidiary of
Vivendi, a SOCIETE ANONYME organized under the laws of France ("Parent"), to
purchase all of the outstanding shares of common stock, par value $.01 per
share, of Superior Services, Inc. (the "Company"), including the associated
common stock purchase rights issued pursuant to the Rights Agreement, dated as
of February 21, 1997, as amended as of June 11, 1999, between the Company and
LaSalle Bank National Association (f/k/a LaSalle National Bank), as Rights
Agent, (the "Shares"), at $27.00 per Share, net to the seller in cash, upon the
terms and subject to the conditions set forth in the Offer. Also enclosed is a
letter to shareholders of the Company from the President and Chief Executive
Officer of the Company, accompanied by the Company's Solicitation/Recommendation
Statement on Schedule 14D-9.
WE ARE THE HOLDER OF RECORD OF SHARES HELD BY US FOR YOUR ACCOUNT. A TENDER
OF SUCH SHARES CAN BE MADE ONLY BY US AS THE HOLDER OF RECORD AND PURSUANT TO
YOUR INSTRUCTIONS. THE LETTER OF TRANSMITTAL ACCOMPANYING THIS LETTER IS
FURNISHED TO YOU FOR YOUR INFORMATION ONLY AND CANNOT BE USED BY YOU TO TENDER
SHARES HELD BY US FOR YOUR ACCOUNT.
We request instructions as to whether you wish to tender any or all of the
Shares held by us for your account, pursuant to the terms and conditions set
forth in the Offer.
Your attention is directed to the following:
1. The offer price is $27.00 per Share, net to the seller in cash, without
interest thereon, upon the terms and subject to the conditions of the
Offer.
2. The Offer is being made for all of the outstanding Shares.
3. The Offer is being made pursuant to an Agreement and Plan of Merger (the
"Merger Agreement"), dated as of June 11, 1999, by and among the Company,
Parent and the Purchaser, pursuant to which, after completion of the
Offer, the Purchaser will be merged with and into the Company (the
"Merger") and each issued and outstanding Share (other than Shares
<PAGE>
owned by the Company, Parent, the Purchaser or any other subsidiary of
Parent or Shares which are held by shareholders exercising appraisal
rights under Wisconsin law) shall, by virtue of the Merger, and without
any action on the part of the holder thereof, be converted into and
represent the right to receive the price per Share paid by the Purchaser
in the Offer, without interest.
4. THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED THE
MERGER AGREEMENT, APPROVED THE OFFER AND THE MERGER, DETERMINED THAT THE
OFFER AND THE MERGER ARE IN THE BEST INTERESTS OF THE HOLDERS OF SHARES
AND UNANIMOUSLY RECOMMENDS THAT SHAREHOLDERS ACCEPT THE OFFER AND TENDER
THEIR SHARES PURSUANT TO THE OFFER.
5. The Offer is conditioned upon, among other things, there being validly
tendered and not withdrawn prior to the Expiration Date that number of
Shares which represents 75 percent of the then outstanding Shares on a
fully diluted basis, other than Shares subject to an option granted by
the Company to Parent (the "Minimum Tender Condition"), which will permit
the Purchaser to effect the Merger without the vote of any person other
than the Purchaser. Subject to the terms of the Merger Agreement, the
Offer is also subject to other terms and conditions, including receipt of
certain regulatory approvals, set forth in the Offer to Purchase. Any or
all conditions to the Offer, other than the Minimum Tender Condition, may
be waived by the Purchaser.
6. The Offer and withdrawal rights will expire at 12:00 midnight, New York
City time, on Friday, July 16, 1999, unless the Offer is extended.
7. Any stock transfer taxes applicable to the sale of Shares to the
Purchaser pursuant to the Offer will be paid by the Purchaser, except as
otherwise provided in Instruction 6 of the Letter of Transmittal.
If you wish to have us tender any or all of the Shares held by us for your
account, please so instruct us by completing, executing and returning to us the
instruction form set forth below. Please forward your instructions to us in
ample time to permit us to submit a tender on your behalf prior to the
expiration of the Offer. If you authorize the tender of your Shares, all such
Shares will be tendered unless otherwise specified on the instruction form set
forth below.
Payment for Shares accepted for payment pursuant to the Offer will be in all
cases made only after timely receipt by ChaseMellon Shareholder Services, L.L.C.
(the "Depositary"), of (a) certificates for (or a timely Book-Entry Confirmation
(as defined in the Offer to Purchase) with respect to) such Shares, (b) a Letter
of Transmittal, properly completed and duly executed, with any required
signature guarantees, or, in the case of a book-entry transfer effected pursuant
to the procedure set forth in Section 3 of the Offer to Purchase, an Agent's
Message (as defined in the Offer to Purchase), and (c) any other documents
required by the Letter of Transmittal. Accordingly, tendering shareholders may
be paid at different times depending upon when certificates for Shares or
Book-Entry Confirmations with respect to Shares are actually received by the
Depositary. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE PURCHASE PRICE
FOR SHARES, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING
PAYMENT PURSUANT TO THE OFFER.
The Offer is not being made to (nor will tenders be accepted from, or on
behalf of) holders of Shares in any jurisdiction in which the making or
acceptance of the Offer would not be in compliance with the laws of such
jurisdiction. In any jurisdiction where the securities or blue sky laws require
the Offer to be made by a licensed broker or dealer, the Offer will be deemed
made on behalf of the Purchaser by the registered brokers or dealers that are
licensed under the laws of such jurisdiction. An envelope in which to return
your instructions to us is enclosed.
2
<PAGE>
INSTRUCTIONS WITH RESPECT TO THE
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS TO PURCHASE COMMON STOCK)
OF
SUPERIOR SERVICES, INC.
The undersigned acknowledge(s) receipt of your letter and the enclosed Offer
to Purchase, dated June 18, 1999 and the related Letter of Transmittal, in
connection with the offer by Onyx Solid Waste Acquisition Corp., a Wisconsin
corporation (the "Purchaser") and an indirect wholly owned subsidiary of
Vivendi, a SOCIETE ANONYME organized under the laws of France ("Parent"), to
purchase for cash all of the outstanding shares of common stock, par value $.01
per share, of Superior Services, Inc., a Wisconsin corporation (the "Company"),
including the associated common stock purchase rights issued pursuant to the
Rights Agreement, dated as of February 21, 1997, as amended as of June 11, 1999,
between the Company and LaSalle Bank National Association (f/k/a LaSalle
National Bank), as Rights Agent (the "Shares").
This will instruct you to tender the number of Shares indicated below (or if
no number is indicated below, all Shares) that are held by you for the account
of the undersigned, upon the terms and subject to the conditions set forth in
the Offer and the related Letter of Transmittal.
Dated: , 1999
NUMBER OF SHARES TO BE TENDERED:
SHARES(*)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Signature(s)
- --------------------------------------------------------------------------------
Please Print Name(s)
- --------------------------------------------------------------------------------
Please Print Address(es)
- --------------------------------------------------------------------------------
Area Code and Telephone Number(s)
- --------------------------------------------------------------------------------
Tax Identification or Social Security Number(s)
- ------------------------
* Unless otherwise indicated, it will be assumed that all your Shares are to
be tendered.
3
<PAGE>
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS TO PURCHASE COMMON STOCK)
OF
SUPERIOR SERVICES, INC.
BY
ONYX SOLID WASTE ACQUISITION CORP.
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
VIVENDI
As set forth in Section 3 of the Offer to Purchase (as defined below), this
form, or a form substantially equivalent to this form, must be used to accept
the Offer (as defined below) if the certificates representing shares of common
stock, par value $.01 per share, of Superior Services, Inc., a Wisconsin
corporation (the "Company"), including the associated common stock purchase
rights issued pursuant to the Rights Agreement, dated as of February 21, 1997,
as amended as of June 11, 1999, between the Company and LaSalle Bank National
Association (f/k/a LaSalle National Bank), as Rights Agent (the "Shares"), are
not immediately available or time will not permit all required documents to
reach the Depositary prior to the Expiration Date (as defined in the Offer to
Purchase) or the procedures for book-entry transfer cannot be completed on a
timely basis. Such form may be delivered by hand or transmitted by facsimile
transmission or mail to the Depositary and must include a guarantee by an
Eligible Institution (as defined in the Offer to Purchase). See Section 3 of the
Offer to Purchase.
THE DEPOSITARY FOR THE OFFER IS:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
<TABLE>
<S> <C> <C>
BY MAIL: BY HAND: BY OVERNIGHT:
Reorganization Department Reorganization Department Reorganization Department
P.O. Box 3301 120 Broadway 85 Challenger Road,
South Hackensack, NJ 07606 13th Floor Mail Drop-Reorg
New York, NY 10271 Ridgefield Park, NJ 07660
</TABLE>
BY FACSIMILE TRANSMISSION:
(FOR ELIGIBLE INSTITUTIONS ONLY)
(201) 296-4293
CONFIRM FACSIMILE TRANSMISSION:
BY TELEPHONE ONLY
(201) 296-4860
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE
NUMBER OTHER THAN AS LISTED ABOVE, WILL NOT CONSTITUTE A VALID
DELIVERY.
This Notice of Guaranteed Delivery is not to be used to guarantee
signatures. If a signature on a Letter of Transmittal is required to be
guaranteed by an Eligible Institution under the instructions thereto, such
signature guarantee must appear in the applicable space provided in the
signature box on the Letter of Transmittal.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Onyx Solid Waste Acquisition Corp., a
Wisconsin corporation (the "Purchaser") and an indirect wholly owned subsidiary
of Vivendi, a SOCIETE ANONYME organized under the laws of France, upon the terms
and subject to the conditions set forth in the Offer to Purchase, dated June 18,
1999 (the "Offer to Purchase"), and the related Letter of Transmittal (which, as
amended or supplemented from time to time, together constitute the "Offer"),
receipt of which is hereby acknowledged, the number of Shares indicated below
pursuant to the guaranteed delivery procedure set forth in Section 3 of the
Offer to Purchase.
<TABLE>
<CAPTION>
<S> <C>
Number of Shares: Name(s) or Record Holder(s):
Share Certificate Numbers (if available): Please Type or Print
If Shares will be delivered by book-entry Address(es):
transfer: Zip Code
Account Telephone Number:
Number: Area Code
Date: , 1999 Signature(s):
Signatures
</TABLE>
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a participant in the Security Transfer Agents Medallion
Program or any other eligible guarantor institution as defined in Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended (each, an "Eligible
Institution"), hereby guarantees that either the certificates representing the
Shares tendered hereby in proper form for transfer or timely confirmation of a
book-entry transfer of such Shares into the Depositary's account at The
Depository Trust Company (pursuant to procedures set forth in Section 3 of the
Offer to Purchase), together with a properly completed and duly executed Letter
of Transmittal (or facsimile thereof) with any required signature guarantees
(or, in the case of a book-entry transfer, an Agent's Message (as defined in the
Offer to Purchase)) and any other documents required by the Letter of
Transmittal, will be received by the Depositary at one of its addresses set
forth above within three (3) New York Stock Exchange Inc. trading days after the
date of execution hereof.
2
<PAGE>
The Eligible Institution that completes this form must communicate the
guarantee to the Depositary and must deliver the Letter of Transmittal,
certificates for Shares and any other required documents to the Depositary
within the time period shown herein. Failure to do so could result in a
financial loss to such Eligible Institution.
Name of Firm: __________________________________________________________________
Address: _______________________________________________________________________
________________________________________________________________________________
ZIP CODE
Area Code and
Telephone Number: ______________________________________________________________
AUTHORIZED SIGNATURE
Name: __________________________________________________________________________
Please Type or Print
Title: _________________________________________________________________________
Dated: ___________________________________________________________________, 1999
NOTE: DO NOT SEND CERTIFICATES FOR SHARES WITH THIS NOTICE OF GUARANTEED
DELIVERY. CERTIFICATES FOR SHARES ARE TO BE DELIVERED WITH THE LETTER OF
TRANSMITTAL.
3
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER NAME AND IDENTIFICATION NUMBER TO GIVE
THE PAYER.--Social Security numbers have nine digits separated by two hyphens:
I.E., 000-00-0000. Employer identification numbers have nine digits separated by
only one hyphen: I.E., 00-0000000. The table below will help determine the name
and number to give the payer.
<TABLE>
<CAPTION>
- --------------------------------------------------------
FOR THIS TYPE OF ACCOUNT GIVE THE NAME AND
SOCIAL SECURITY
NUMBER OF--
- --------------------------------------------------------
<S> <C> <C>
1. An individual account The individual
2. Two or more individuals The actual owner
(joint account) of the account
or, if combined
funds, any one of
the
individuals(1)
3. Custodian account of a The minor(2)
minor (Uniform Gift to
Minors Act)
4. a. The usual revocable The grantor-
savings trust account trustee(1)
(grantor is also
trustee)
b. So-called trust account The actual
that is not a legal or owner(1)
valid trust under State
law
5. Sole proprietorship The owner(3)
account
- --------------------------------------------------------
<CAPTION>
- --------------------------------------------------------
FOR THIS TYPE OF ACCOUNT GIVE THE NAME AND
EMPLOYER
IDENTIFICATION
NUMBER OF--
- --------------------------------------------------------
<S> <C> <C>
6. Sole proprietorship The owner(3)
account
7. A valid trust, estate, or The legal
pension trust entity(4)
8. Corporate account The corporation
9. Association, club, The organization
religious, charitable,
educational or other
tax-exempt organization
account
10. Partnership The partnership
11. A broker or registered The broker or
nominee nominee
12. Account with the The public entity
Department of Agriculture
in the name of a public
entity (such as a State or
local government, school
district, or prison) that
receives agricultural
program payments
- --------------------------------------------------------
</TABLE>
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) You must show your individual name, but you may also enter your business or
"doing business as" name. You may use either your Social Security Number or
Employer Identification Number.
(4) List first and circle the name of the legal trust, estate, or pension trust.
(Do not furnish the identifying number of the personal representative or
trustee unless the legal entity itself is not designated in the account
title.)
NOTE: If no name is circled when more than one name is listed, the number will
be considered to be that of the first name listed.
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
PAGE 2
OBTAINING A NUMBER
If you don't have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card (for
individuals), or Form SS-4, Application for Employer Identification Number (for
businesses and all other entities), at the local office of the Social Security
Administration or the Internal Revenue Service and apply for a number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
The following is a list of payees specifically exempted from backup
withholding depending upon the type of payment (see below):
(1) A corporation.
(2) An organization exempt from tax under section 501(a), or an IRA or a
custodial account under section 403(b)(7).
(3) The United States or any agency or instrumentality thereof.
(4) A State, the District of Columbia, a possession of the United States, or any
subdivision or instrumentality thereof.
(5) A foreign government, a political subdivision of a foreign government, or
any agency or instrumentality thereof.
(6) An international organization or any agency or instrumentality thereof.
(7) A foreign central bank of issue.
(8) A dealer in securities or commodities required to register in the United
States or a possession of the United States.
(9) A futures commission merchant registered with the Commodity Futures Trading
Commission.
(10) A real estate investment trust.
(11) An entity registered at all times during the tax year under the Investment
Company Act of 1940.
(12) A common trust fund operated by a bank under section 584(a).
(13) A financial institution.
(14) A middleman known in the investment community as a nominee or listed in the
most recent publication of the American Society of Corporate Secretaries,
Inc., Nominee List.
(15) A trust exempt from tax under section 664 or described in section 4947.
For interest and dividends, all listed payees are exempt except item (9).
For broker transactions, payees listed in items (1) through (13) and a person
registered under the Investment Advisers Act of 1940 who regularly acts as a
broker are exempt.
Exempt payees described above should file Form W-9 to avoid possible
erroneous backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH YOUR
TAXPAYER IDENTIFICATION NUMBER, WRITE "EXEMPT" IN PART II OF THE FORM, AND
RETURN IT TO THE PAYER. If you are a nonresident alien or a foreign entity not
subject to backup withholding, give the payer a completed Form W-8, Certificate
of Foreign Status.
PRIVACY ACT NOTICE.--Section 6109 requires most recipients of dividend,
interest, or other payments to give taxpayer identification numbers of payers
who must report the payments to the IRS. The IRS uses the numbers for
identification purposes. Payers must be given the numbers whether or not
recipients are required to file tax returns. Payers must generally withhold 31
percent of taxable interest, dividend, and certain other payments to a payee who
does not furnish a taxpayer identification number to a payer. Certain penalties
may also apply.
PENALTIES
(1) FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER.--If you fail to
furnish your correct taxpayer identification number to a payer, you are subject
to a penalty of $50 for each such failure unless your failure is due to
reasonable cause and not to willful neglect.
(2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.--If
you make a false statement with no reasonable basis which results in no
imposition of backup withholding, you are subject to a penalty of $500.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION.--Willfully falsifying
certifications or affirmations may subject you to criminal penalties including
fines and/or imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL
REVENUE SERVICE.
<PAGE>
Exhibit 99.(a)(7)
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.
2
<PAGE>
Exhibit 99.(a)(8)
This announcement is neither an offer to purchase nor a solicitation of an offer
to sell Shares (as defined below). The Offer (as defined below) is made solely
by the Offer to Purchase, dated June 18, 1999, and the related Letter of
Transmittal and any amendments or supplements thereto, and is being made to all
holders of Shares. The Offer is not being made to (nor will tenders be accepted
from or on behalf of) holders of Shares in any jurisdiction in which the making
of the Offer or the acceptance thereof would not be in compliance with the laws
of such jurisdiction. In any jurisdiction where the securities, blue sky or
other laws require the Offer to be made by a licensed broker or dealer, the
Offer will be deemed to be made on behalf of the Purchaser (as defined
below) by one or more registered brokers or dealers that
are licensed under the laws of such
jurisdiction.
NOTICE OF OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS TO PURCHASE COMMON STOCK)
OF
SUPERIOR SERVICES, INC.
AT
$27.00 NET PER SHARE
BY
ONYX SOLID WASTE ACQUISITION CORP.
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
VIVENDI
Onyx Solid Waste Acquisition Corp., a Wisconsin corporation (the
"Purchaser") and an indirect wholly owned subsidiary of Vivendi, a SOCIETE
ANONYME organized under the laws of France ("Parent"), is offering to purchase
all outstanding shares of common stock, par value $.01 per share, of Superior
Services, Inc. (the "Company"), including the associated common stock purchase
rights issued pursuant to the Rights Agreement, dated as of February 21, 1997,
as amended as of June 11, 1999 (the "Rights Agreement"), between the Company
and LaSalle National Association (f/k/a LaSalle National Bank), as Rights
Agent (the "Shares"), at $27.00 per Share, net to the seller in cash, without
interest, upon the terms and subject to the conditions set forth in the Offer
to Purchase, dated June 18, 1999, and in the related Letter of Transmittal
(which, together with any amendments or supplements thereto, collectively
constitute the "Offer"). Tendering shareholders will not be obligated to pay
brokerage fees or commissions or, except as set forth in Instruction 6 of the
Letter of Transmittal, transfer taxes on the purchase of Shares by the
Purchaser pursuant to the Offer. The purpose of the Offer is to acquire for
cash as many
<PAGE>
outstanding Shares as possible as a first step in acquiring the entire equity
interest in the Company. Following the consummation of the Offer, the Purchaser
intends to effect the Merger (as defined below).
================================================================================
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON FRIDAY, JULY 16, 1999, UNLESS THE OFFER IS EXTENDED.
================================================================================
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (1) THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER AT LEAST 75
PERCENT OF THE THEN OUTSTANDING SHARES ON A FULLY DILUTED BASIS, OTHER THAN
SHARES SUBJECT TO AN OPTION GRANTED BY THE COMPANY TO PARENT AND (2) ANY WAITING
PERIOD UNDER THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976, AS
AMENDED, AND THE REGULATIONS THEREUNDER APPLICABLE TO THE PURCHASE OF SHARES
PURSUANT TO THE OFFER HAVING EXPIRED OR BEEN TERMINATED. CERTAIN OTHER
CONDITIONS TO THE OFFER ARE DESCRIBED IN SECTION 14 OF THE OFFER TO PURCHASE.
The Offer is being made pursuant to an Agreement and Plan of Merger (the
"Merger Agreement"), dated as of June 11, 1999, among the Company, Parent and
the Purchaser, pursuant to which, after completion of the Offer, the Purchaser
will be merged with and into the Company (the "Merger") and each issued and
outstanding Share (other than Shares owned by Parent, the Purchaser or any
other subsidiary of Parent (collectively, the "Parent Companies"), the Company
or Shares which are held by shareholders exercising appraisal rights
("Dissenting Shareholders") pursuant to Section 180.1301 to 180.1331 of the
Wisconsin Business Corporation Law (the "WBCL")) shall, by virtue of the Merger
and without any action on the part of the holder thereof, be converted into and
represent the right to receive an amount in cash, without interest, equal to the
price paid for each Share pursuant to the Offer. The Merger Agreement is more
fully described in the Offer to Purchase. The Company has amended the Rights
Agreement to make the Rights Agreement inapplicable to the Offer, the Merger,
the Merger Agreement and the Stock Option Agreement.
Concurrently with the execution and delivery of the Merger Agreement,
Parent and Purchaser executed a Shareholder Tender Agreement, dated as of
June 11, 1999, with a shareholder of the company, pursuant to which such
shareholder has agreed to validly tender (and not withdraw) approximately 8
percent of the shares in the offer.
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED THE
MERGER AGREEMENT, APPROVED THE OFFER AND THE MERGER, DETERMINED THAT THE
OFFER AND THE MERGER ARE IN THE BEST INTERESTS OF THE HOLDERS OF SHARES AND
UNANIMOUSLY RECOMMENDS THAT SHAREHOLDERS ACCEPT THE OFFER AND TENDER THEIR
SHARES PURSUANT TO THE OFFER.
For purposes of the Offer, the Purchaser will be deemed to have accepted
for payment, and thereby purchased, Shares validly tendered and not withdrawn
as, if and when the Purchaser gives oral or written notice to ChaseMellon
Shareholder Services, L.L.C. (the "Depositary") of the Purchaser's acceptance
for payment of such Shares pursuant to the Offer. Upon the terms and subject to
the conditions of the Offer, payment for Shares accepted for payment pursuant to
the Offer will be made by deposit of the purchase price therefor with the
Depositary, which will act as agent for the tendering shareholders for the
purpose of receiving payments from the Purchaser and transmitting such payments
to the tendering shareholders. UNDER NO CIRCUMSTANCES WILL INTEREST ON THE
PURCHASE PRICE FOR SHARES BE PAID, REGARDLESS OF ANY EXTENSION OF THE OFFER OR
ANY DELAY IN MAKING SUCH PAYMENT.
In all cases, payment for Shares tendered and accepted for payment
pursuant to the Offer will be made only after timely receipt by the Depositary
of (a) certificates for such Shares or timely confirmation of the book-entry
transfer of such Shares into the Depositary's account at The Depository Trust
Company (the "Book-Entry Transfer Facility") pursuant to the procedures set
forth in Section 3 of the Offer to Purchase, (b) a Letter of Transmittal (or
facsimile thereof), properly completed and duly executed, with any required
signature guarantees (or, in the case of a book-entry transfer, an Agent's
Message (as defined in Section 3 of the Offer to Purchase) in lieu of the Letter
of Transmittal), and (c) any other documents required by the Letter of
Transmittal.
The term "Expiration Date" means 12:00 Midnight, New York City time, on
Friday, July 16, 1999, unless and until the Purchaser, in its sole discretion
(but subject to the terms of the Merger Agreement), shall have extended the
period of time during which the Offer is open, in which event the term
"Expiration Date" shall mean the latest time and date on which the Offer, as so
extended by the Purchaser, shall expire. Subject to the terms of the Merger
Agreement and the applicable rules and regulations of the Securities and
Exchange Commission, the Purchaser expressly reserves the right, in its sole
discretion, at any time or from time to time, to extend the period of time
during which the Offer is open by giving oral or written notice of such
extension to the Depositary. Any such extension will be followed as promptly as
practicable by public announcement thereof, such announcement to be issued no
later than 9:00 a.m., New York City time, on the next business day after the
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<PAGE>
previously scheduled expiration date of the Offer. During any such extension,
all Shares previously tendered and not withdrawn will remain subject to the
Offer, subject to the right of a tendering shareholder to withdraw such
shareholder's Shares.
Tenders of Shares made pursuant to the Offer are irrevocable except that
Shares tendered pursuant to the Offer may be withdrawn at any time prior to the
Expiration Date and, unless theretofore accepted for payment by the Purchaser
pursuant to the Offer, may also be withdrawn at any time after August 16, 1999.
For a withdrawal to be effective, a written, or facsimile transmission
notice of withdrawal must be timely received by the Depositary at one of its
addresses set forth on the back cover of the Offer to Purchase. Any such notice
of withdrawal must specify the name of the person having tendered the Shares to
be withdrawn, the number of Shares to be withdrawn and the names in which the
certificate(s) evidencing the Shares to be withdrawn are registered, if
different from that of the person who tendered such Shares. The signature(s) on
the notice of withdrawal must be guaranteed by an Eligible Institution (as
defined in Section 3 of the Offer to Purchase), unless such Shares have been
tendered for the account of any Eligible Institution. If Shares have been
tendered pursuant to the procedures for book-entry transfer as set forth in
Section 3 of the Offer to Purchase, any notice of withdrawal must specify the
name and number of the account at the Book-Entry Transfer Facility to be
credited with the withdrawn Shares and otherwise comply with the Book-Entry
Transfer Facility's procedures. If certificates for Shares to be withdrawn have
been delivered or otherwise identified to the Depositary, the name of the
registered holder and the serial numbers shown on such certificates must also be
furnished to the Depositary as aforesaid prior to the physical release of such
certificates. All questions as to the form and validity (including time of
receipt) of any notice of withdrawal will be determined by the Purchaser, in its
sole discretion, which determination shall be final and binding. None of Parent,
Purchaser, the Depositary, the Information Agent (listed below), or any other
person will be under any duty to give notification of any defects or
irregularities in any notice of withdrawal or incur any liability for failure to
give such notification. Withdrawals of tenders of Shares may not be rescinded,
and any Shares properly withdrawn will be deemed not to have been validly
tendered for purposes of the Offer. However, withdrawn Shares may be retendered
by following one of the procedures described in Section 3 of the Offer to
Purchase at any time prior to the Expiration Date.
The information required to be disclosed by paragraph (e)(1)(vii) of Rule
14d-6 of the General Rules and Regulations under the Securities Exchange Act of
1934, as amended, is contained in the Offer to Purchase and is incorporated
herein by reference.
The Company has provided the Purchaser with the Company's shareholder
lists and security position listings for the purpose of disseminating the Offer
to holders of Shares. The Offer to Purchase and the Letter of Transmittal and,
if required, other relevant materials, will be mailed by the Purchaser to record
holders of Shares and will be furnished to brokers, dealers, commercial banks,
trust companies and similar persons whose names, or the names of whose nominees,
appear on the Company's shareholder list or, if applicable, who are listed as
participants in a clearing agency's security position listing for subsequent
transmittal to beneficial owners of Shares.
THE OFFER TO PURCHASE AND THE LETTER OF THE TRANSMITTAL CONTAIN IMPORTANT
INFORMATION WHICH SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE WITH
RESPECT TO THE OFFER.
Questions and requests for assistance may be directed to the Information
Agent at the address and telephone number set forth below. Requests for
additional copies of the Offer to Purchase and the related Letter of Transmittal
may be directed to the Information Agent or to brokers, dealers, commercial
banks or trust companies. Such additional copies will be furnished at the
Purchaser's expense. The Purchaser will not pay any fees or commissions to any
broker or dealer or any other person (other than the Information Agent) for
soliciting tenders of Shares pursuant to the Offer.
-3-
<PAGE>
The Information Agent for the Offer is:
INNISFREE M&A INCORPORATED
501 Madison Avenue, 20th Floor
New York, New York 10022
Bankers and Brokers Call Collect (212) 750-5833
All Others Call Toll Free (800) 750-5834
The Dealer Manager for the Offer is:
LAZARD FRERES & CO. LLC
30 Rockefeller Plaza
New York, NY 10020
(212) 632-6717
June 18, 1999
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<PAGE>
Exhibit 99.(c)(1)
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 conditions 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
<PAGE>
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 the Employment Agreements 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, covenants 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 Agreement 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.
-2-
<PAGE>
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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<PAGE>
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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<PAGE>
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 opportunity 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 containing 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 information (including, but not limited to, updated lists of
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<PAGE>
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 conditions 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 Company'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 By-Laws.
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
CONSIDERATION"). 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
incorporation 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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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 circumstances 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 respects 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 disclosed 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 subsidiaries 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 disclosed 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 determined 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 Stock Option Agreement and to consummate the
transactions 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. 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, registrations,
approvals, permits or authorizations required to be obtained 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 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.
(i) 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 violation 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 subsidiaries
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 subsidiaries 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 subsidiaries 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 subsidiaries 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 subsidiaries 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 subsidiaries
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 subsidiaries 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 subsidiaries
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 subsidiaries 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 subsidiaries ("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
shareholders (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. 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.
(a) 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.
(b) 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 Company 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 reasonably 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 contemplated 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. STOCK OPTIONS. (a) 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 ending 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
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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.
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
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Purchaser or the Surviving Corporation thereof, but the failure to so notify
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 Purchaser 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 statements 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) Purchaser 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 fulfillment 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 authorizations 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 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 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 approval 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 certain actions to be taken if required by fiduciary
obligations 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, without 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
consummation 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
interpretation 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 beneficiaries 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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Sections shall be binding on all successors and assigns of the Surviving
Corporation or of Purchaser.
10.10. DEFINITION OF "SUBSIDIARY". When a reference is made
in this Agreement to a subsidiary of a party, the word "subsidiary" means any
corporation or other organization 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 requirement 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 paragraph 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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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: /s/ G. William Dietrich
--------------------------------
Name: G. William Dietrich
Title: President and CEO
VIVENDI
By: /s/ Henri Proglio
--------------------------------
Name: Henri Proglio
Title: Director General
ONYX SOLID WASTE ACQUISITION CORP.
By: /s/ Denis Gasquet
--------------------------------
Name: Denis Gasquet
Title: President and CEO
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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. Notwithstanding 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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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
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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 acceptance 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 purchased by them on an equal basis with all other Shares on all
matters properly presented to the Company's shareholders;
A-3
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(d) any statute, rule, regulation, order or injunction shall be
enacted, promulgated, entered, enforced or deemed or become applicable 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
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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 particular 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.
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Exhibit 99.(c)(2)
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").
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(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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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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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, Shareholder'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. Shareholder 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 regulation or
of any agreement, judgment, injunction, order, decree, or other instrument
binding on Shareholder. No consent, approval, order or authorization of, or
registration, declaration 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 Shareholder 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.
(a) 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 understandings, 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: /s/ Denis Gasquet
--------------------------------
Name: Denis Gasquet
Title: President and CEO
VIVENDI
By: /s/ Henri Proglio
--------------------------------
Name: Henri Proglio
Title: Directeur General
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 2,539,931
/s/ Joseph P. Tate
------------------------
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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Exhibit 99.(c)(3)
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 $23.75 (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 no event shall Grantee be
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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
Grantee and Merger Sub owning immediately after its exercise of the Option that
number of Shares that provides Grantee and 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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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 reorganization, consolidation, merger, issuance of
rights, dissolution or sale of assets, or by any other voluntary 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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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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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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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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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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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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(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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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: /s/ Henri Proglio
--------------------------------
Name: Henri Proglio
Title: Directeur General
SUPERIOR SERVICES, INC.
By: /s/ G. William Dietrich
--------------------------------
Name: G. William Dietrich
Title: President and CEO
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Exhibit 99.(c)(4)
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
<PAGE>
Termination" had been effected under the Prior 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
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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.
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
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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 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) 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
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(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 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)
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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
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
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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.
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(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 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.
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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 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.
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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.ab NOTICES.
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:
(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)
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(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 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
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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.
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
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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
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
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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.
(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.
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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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the year and day first above written.
VIVENDI
By: /s/ Henri Proglio
--------------------------------
Henri Proglio
SUPERIOR SERVICES, INC.
By: /s/ George K. Farr
--------------------------------
George K. Farr
/s/ G. William Dietrich
-----------------------------------
G. William Dietrich
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Exhibit 99.(c)(5)
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
<PAGE>
Termination" had been effected under the Prior 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
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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.
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
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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 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
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(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 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)
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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
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
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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.
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(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 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.
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<PAGE>
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 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.
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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:
(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)
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<PAGE>
(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 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
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<PAGE>
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.
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
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<PAGE>
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
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
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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.
(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.
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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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the year and day first above written.
VIVENDI
By: /s/ Henri Proglio
--------------------------------
Henri Proglio
SUPERIOR SERVICES, INC.
By: /s/ G. William Dietrich
--------------------------------
G. William Dietrich
/s/ George K. Farr
-----------------------------------
George K. Farr
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<PAGE>
Exhibit 99.(c)(6)
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
<PAGE>
Termination" had been effected under the Prior 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
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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.
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
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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 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
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(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 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)
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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 termination 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
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
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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.
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<PAGE>
(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 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.
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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 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.
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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:
(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)
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<PAGE>
(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 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
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<PAGE>
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.
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
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<PAGE>
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
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
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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.
(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.
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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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the year and day first above written.
VIVENDI
By: /s/ Henri Proglio
--------------------------------
Henri Proglio
SUPERIOR SERVICES, INC.
By: /s/ G. William Dietrich
--------------------------------
G. William Dietrich
/s/ Peter J. Ruud
-----------------------------------
Peter J. Ruud
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