EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of January
1, 1997, by and between Superior Services, Inc, a Wisconsin corporation
(the "Company"), and Xxxx Blacktopp ("Employee").
RECITALS:
The Company recognizes that the efforts of its officers and key management
employees have contributed and will continue to contribute to the growth
and success of the Company.
The Company believes that, in the Company's best interest, it is essential
that its officers and key management employees, including the Employee, be
retained and that the Company be in a position to rely on their ongoing
dedication and commitment to render services to the Company.
The Company wishes to take steps to assure that the Company will continue
to have the Employee's services available to the Company by entering into
an agreement with the Employee concerning his employment by the Company.
In consideration of the foregoing, the mutual provisions contained herein,
and for other good and valuable consideration, the parties agree with each
other as follows:
1. EMPLOYMENT
A. The Company hereby employs the Employee and the Employee hereby
accepts employment as one of the Company's Operating Vice Presidents on
the terms and conditions hereinafter set forth. The Employee shall
perform such duties, and have such powers, authority, functions, and
responsibilities as may be assigned to him by the Company's President and
Chief Executive Officer.
B. The Employee shall not, during the term of his employment under
this Agreement, be engaged in any other activities if such activities
interfere materially with the Employee's current duties, authority, and
responsibilities for the Company, except for those other activities as
shall hereafter be carried on with the Company's consent.
2. TERM
A. Subject only to the provisions of Section 4 of this Agreement,
the term of the Employee's employment under this Agreement shall be for a
term of one (1) year. The term of this Agreement shall renew
automatically for successive one (1) year terms unless a party gives
notice to the other not less than sixty (60) days prior to the end of the
then current term that this Agreement is not to be renewed.
3. COMPENSATION
For all services rendered by the Employee under this Agreement, the
Company agrees to compensate the Employee for each compensation year
(January 1 through December 31) during the term hereof, as follows:
A. Base Salary. A base salary shall be payable to the Employee
equal initially to One Hundred Forty Five Thousand Dollars ($145,000) for
each compensation year (as the same may be adjusted by the Company from
time to time, the "Base Salary"), which shall be payable in intervals
consistent with the Company's normal payroll schedules.
In addition to the Base Salary, the Employee shall be eligible to
receive such annual cash bonus and any stock option grant upon achievement
of the criteria and targets established adjusted annually to reflect the
Company's budgeted and targeted financial performance.
B. Fringe Benefits. The Employee shall have the right to
participate in the other fringe benefit plans generally provided by the
Company to its full-time employees, subject to the Employee's
qualification for participation in such benefit plans pursuant to the
terms and conditions under which such benefit plans are offered.
C. Expenses. The Employee may incur reasonable business expenses
while on Company business, including expenses for hotels, meals, air
travel, telephone, gasoline, and similar items. The Company shall either
pay such reasonable expenses directly or promptly reimburse Employee for
such reasonable out-of-pocket expenses incurred by the Employee upon
presentation of receipts and an itemized accounting of the expenses for
which such reimbursement is sought and any other documentation necessary
to comply with applicable Internal Revenue Service rules and regulations.
D. Vacation. The Employee shall be entitled to paid vacation and
"personal days", to be scheduled at times mutually acceptable to the
Employee and the Company and otherwise in accordance with policies
established by the Company.
4. TERMINATION
A. Termination By The Company. The employment of the Employee
under this Agreement, may be terminated at any time by the Company,
(i) for cause in the event of the Employee's deliberate and
intentional continuing refusal to substantially perform his duties and
obligations under this Agreement (except by reason of incapacity due to
illness or accident),
(ii) upon a determination that the Employee (A) has engaged in
willful fraud or defalcation involving funds or other assets of the
Company, or (B) has been convicted of, or has pled nolo contendere to, a
felony or other crime involving moral turpitude, or
(iii) upon termination of the initial one (1) year term or
any renewal term if the Company has delivered notice to the Employee at
least sixty (60) days prior to such date.
B. Termination Payment. In the event of termination of the
Employee's employment under this Agreement by the Company under either
Section 4(A)(i) or (ii), the Employee shall only be entitled to receive
his Base Salary through the date of such termination. If this Agreement
is terminated pursuant to Section 4(A)(iii) the Company shall be obligated
to pay to the Employee a severance payment equal to the unpaid balance of
the Employee's Base Salary, through the expiration of the initial term or
the renewal term within which the notice is given. Provided, however, in
the event that Employee's employment is terminated due to a "change of
control", Company shall pay Employee, in lieu of the severance payment
payable under the preceding sentence, a severance payment equal to one
year of the Employee's Base Salary at the rate in effect on the effective
date of the change in control. A "change in control" shall be deemed to
have occurred if:
(a) any person (other than any employee benefit plan of the
Company, any subsidiary of the Company or any person
organized, appointed, or established pursuant to the terms
of any such benefit plan) is or becomes the beneficial
owner of securities of the Company representing at least
50% of the combined voting power of the Company's then
outstanding securities; or
(b) there shall be consummated (x) any consolidation, merger,
share exchange or other business combination of the Company
in which the Company is not the continuing or surviving
corporation or pursuant to which shares of the Company's
capital stock would be converted into cash, securities, or
other property, other than a merger of the Company in which
the holders of the Company's capital stock immediately
prior to the merger have the same proportionate ownership
of capital stock of the surviving corporation immediately
after the merger, or (y) any sale, lease, exchange, or
other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the
consolidated assets of the Company.
C. Termination By Employee. Employee shall have the right at any
time during his employment, by giving written notice to the President and
Chief Executive Officer of the Company, to terminate the Employee's
employment under this Agreement effective thirty (30) days after the date
on which such notice is given by the Employee (unless such effective date
shall be accelerated at the option of the Company). In the event the
Employee shall make such election under this Section 4(C), the Employee
shall, in addition to all other reimbursements, payments, or other
allowances required to be paid under this Agreement or under any other
plan, agreement, or policy which survives the termination of this
Agreement, be entitled to be paid, the Base Salary payable through the
effective date of termination. Thereupon, this Agreement shall terminate
and Employee shall have no further rights under or be entitled to any
other benefits of this Agreement, provided that the provisions of Section
5 shall survive such termination.
D. Death. In the event of the Employee's death during the term of
his employment hereunder, the Company shall pay to the Employee's
surviving spouse or to the executor or administrator of the Employee's
estate (if his spouse shall not survive him) an amount equal to the
installments of his Base Salary then payable pursuant to Section 3(A),
solely for the month in which he dies.
E. Disability. This Agreement shall terminate as of the date the
Employee shall become permanently disabled (as defined in the group long-
term disability insurance policy maintained by the Company) because of
physical or mental illness or personal injury. In such event the Company
shall pay to the Employee or his guardian an amount equal the installments
of his Base Salary then payable pursuant to Section 3(A), solely for the
month in which be becomes disabled.
5. CONFIDENTIALITY OBLIGATIONS OF THE EMPLOYEE; NONCOMPETITION
A. During and following the Employee's employment by the Company,
the Employee shall hold in confidence and not directly or indirectly
disclose or use or copy or make lists of any confidential information or
proprietary data of the Company, except to the extent authorized in
writing by the President and Chief Executive Officer of the Company or
required by any court or administrative agency other than to an employee
of the Company or a person to whom disclosure is reasonably necessary or
appropriate in connection with the performance by the Employee of duties
as an executive of the Company. Confidential information shall not
include any information known generally to the public. All records,
files, documents, and materials, or copies thereof, relating to the
business of the Company which the Executive shall prepare, or use, or come
into contact with, shall be and remain the sole property of the Company
and shall be promptly returned to the Company upon termination of
employment with the Company.
B. The Employee agrees that, for a period of two (2) years after
the termination date of the Employee's employment under this Agreement the
Employee shall not, within a one hundred (100) mile radius of any office,
landfill, or facility of the Company, except as permitted by the Company's
prior written consent (which shall not be unreasonably withheld),
participate in the management of any business which is a direct and
substantial competitor of the Company. The ownership of less than one
percent of any class of securities of any corporation listed on a national
securities exchange or regularly traded over the county even though such
corporation may be a competitor of the Company as specified above, shall
not be deemed as constituting a financial interest in such competitor.
6. ASSIGNMENT; SUCCESSORS
This Agreement shall not be assignable by the Company. This Agreement and
all rights of the Employee shall inure to the benefit of and be
enforceable by the Employee's personal or legal representatives,
executors, administrators, heirs, and beneficiaries.
7. SEVERABILITY
The provisions of this Agreement shall be regarded as divisible, and if
any of said provisions or any part hereof are declared invalid or
unenforceable by a court of competent jurisdiction, the validity and
enforceability of the remainder of such provisions or parts hereof and the
applicability thereof shall not be affected thereby.
8. AMENDMENT
This Agreement may not be amended or modified at any time except by
written instrument executed by the Company and the Employee.
9. WITHHOLDING
The Company shall be entitled to withhold from amounts to be paid to the
Employee hereunder any federal, state, or local withholding or other taxes
or charges which it is from time to time required to withhold; provided,
that the amount so withheld shall not exceed the minimum amount required
to be withheld by law. Company shall be entitled to rely on an opinion of
nationally recognized tax counsel if any question as to the amount or
requirement of any such withholding shall arise.
10. CERTAIN RULES OF CONSTRUCTION
No party shall be considered as being responsible for the drafting of this
Agreement for the purpose of applying any rule construing ambiguities
against the drafter or otherwise. No draft of this Agreement shall be
taken into account in construing this Agreement. Any provision of this
Agreement which requires an agreement in writing shall be deemed to
require that the writing in question be signed by the Employee and an
authorized representative of the Company.
11. GOVERNING LAW
This Agreement and the rights and obligations hereunder shall be governed
by and construed in accordance with the laws of the State of Wisconsin. .
12. NOTICE
Notices given pursuant to this Agreement shall be in writing and shall be
deemed given when actually received by the Employee or actually received
by the Company's Secretary or any officer of the Company other than the
Employee. If mailed, such notices shall be mailed by United States
registered or certified mail, return receipt requested, addressee only,
postage prepaid, if to the Company, to Superior Services, Inc., Attention:
President and Chief Executive Officer, 00000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx
000, Xxxx Xxxxx, Xxxxxxxxx 00000, or if to the Employee , at the address
set forth below the Employee's signature to this Agreement, or to such
other address as the party to be notified shall have theretofore given to
the other party in writing.
13. NO WAIVER
No waiver by either party at any time of any breach by the other party of,
or compliance with, any condition or provision of this Agreement to be
performed by the other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same time or any prior or
subsequent time.
14. HEADINGS
The headings herein contained are for reference only and shall not affect
the meaning or interpretation of any provision of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first written above.
EMPLOYEE SUPERIOR SERVICES, INC.
__________________________________ By:__________________________________
Xxxx Blacktopp G. W. "Xxxx" Xxxxxxxx
President and Chief Executive Officer
Address:
____________________________________
____________________________________
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment made as of the 26th day of August, 1997, by and
between Superior Services, Inc., a Wisconsin Corporation (the
"Corporation"), and Xxxx Blacktopp (the "Employee").
Witnesseth
Whereas, the Corporation and the Employee previously entered into an
Employment Agreement dated as of January 1, 1997 (the "Agreement"); and
Whereas, the parties desire to amend the Agreement as set forth
herein.
Now, Therefore, in consideration of the mutual promises contained
herein, the parties agree as follows:
1. The phrase "one of the Company's Operating Vice Presidents" in
Section 1.A. of the Agreement is deleted and the phrase "Senior Vice
President-Operations" substituted therefor.
2. All references to "one (1) year" in Section 2.A. of the
Agreement are revised to read "two (2) years".
3. Section 4.A.(iii) is amended by deleting the phrase "initial one
(1) year term" and substituting the following: "initial two (2) year
term".
4. The third sentence of Section 4.B. is amended by deleting the
phrase "one year of the Employee's Base Salary" and substituting the
following: "two years of the Employee's Base Salary".
5. Except as set forth herein, and in the letter Agreement of even
date herewith by and between the Corporation and Employee, the terms of
the Employment Agreement shall remain unaltered and in full force and
effect.
In witness whereof, the parties have executed this First Amendment to
Employment Agreement as of the date and year first above written.
EMPLOYEE: SUPERIOR SERVICES, INC.
_________________________ By:______________________________
/s/ Xxxx Blacktopp /s/ G.W. "Xxxx" Xxxxxxxx
Xxxx Blacktopp G.W. "Xxxx" Xxxxxxxx
President and Chief Executive Officer
