EXHIBIT 10.30
Employee's name: Xxxxx Xxxxxx
Date: August 18, 1998
Amendment
To
Employment Agreement
This Amendment ("Amendment"), dated as of the date set forth above, supplements
and amends the Employment Agreement, dated July 1, 1997 ("Agreement"), by and
among Superior Services, Inc., a Wisconsin corporation ("Company"), and the
named executive set forth above ("Employee"). All defined terms used herein and
not defined shall have the same meaning as in the Agreement.
Whereas, pursuant to Section 8 of the Agreement, the Executive and the Company
desire to supplement and amend the Agreement as specifically set forth in this
amendment.
Now, Therefore, in consideration of the foregoing and of the mutual covenants
and agreements herein set forth, and for other valuable consideration, the
parties hereto covenant and agree as follows:
1. Section 2 of the Agreement is hereby amended and restated to read in
its entirely as follows:
2. TERM 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 two (2) years. The term of this Agreement shall be automatically
extended for one additional year on each anniversary date of this Agreement
unless, at least one (1) year prior to such anniversary date, either Employee or
the Company shall have given written notice to the other that it does not wish
to extend the Term. References herein to the Term shall refer to both the
initial Term and any such extended Term.
2. Section 4 of the Agreement is hereby amended and restated to read in
its entirety as follow:
4. TERMINATION
4.1 Termination by the Company Defined
(a) Termination Without Cause. Subject to the provisions set
forth in Paragraph 4.3 below, "Termination Without Cause" shall constitute any
termination by the Company other than termination for "Cause" (as defined in
Paragraph 4.1(b) below).
(b) Termination for Cause. Subject to the provisions set
forth in Paragraph 4.3 below, during the Term, the Company shall have the right
to terminate this Agreement for "Cause." For purposes of this Agreement, "Cause"
shall mean (i) the willful and continued failure of Employee substantially to
perform his or her duties (other than as a result of physical or mental illness)
or (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 pleaded nolo contendere to, a felony or any other crime
involving moral turpitude.
(c) Termination by Reason of Death or Disability. Subject to
the provisions set forth in Paragraph 4.3 below, during the Term, this Agreement
shall terminate by reason of Employee's death or Permanent Disability. For
purposes of this Agreement, "Permanent Disability" shall have the same
definition as contained in the group long-term disability insurance policy
maintained by the Company.
4.2 Termination by Employee Defined
(a) Termination Other Than For Good Reason following a Change
in Control. Subject to the provisions set forth in Paragraph 4.3 below, Employee
shall have the
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right to terminate this Agreement for any reason other than for Good Reason (as
defined in Paragraph 4.2 (b) below), upon written notice delivered to the
Company 30 days prior to the effective date of termination specified in such
notice (which date shall be the applicable Early Termination Date).
(b) Good Reason Following a Change in Control. Following a
Change in Control, "Good Reason" shall mean, without Employee's express written
consent, a material breach of this Agreement by the Company, including the
occurrence of any of the following circumstances, which breach is not fully
corrected within 30 days after written notice thereof specifying the nature of
such breach has been delivered to the Company:
(i) the assignment to Employee of any duties
inconsistent with the position in the Company that Employee held
immediately prior to the Change in Control, or an adverse
alteration in the nature or status of Employee's responsibilities
from those in effect immediately prior to such change;
(ii) a substantial change in the nature of the
business operations of the Company;
(iii) a reduction by the Company in employee's
Base Salary as in effect on the date hereof or as the same may be
increased from time to time;
(iv) the relocation of the Company's principal
executive offices to a location more than 25 miles from the
Company's headquarters location immediately prior to the Change
in Control, or the Company's requiring Employee to be based
anywhere other than the Company's principal executive offices,
except for required travel on the Company's business to an extent
substantially consistent with Employee's business travel
obligations immediately prior to the Change in Control;
(v) the failure by the Company to pay Employee any
portion of his current compensation;
(vi) the failure by the Company to continue in
effect any compensation plan in which Employee participates
immediately prior to the Change in Control which is material to
Employee's total compensation, unless an equitable arrangement
(embodied in an ongoing substitute or alternative plan) has been
made with respect to such plan, or the failure by the Company to
continue the Employee's participation therein (or in such
substitute or alternative plan) on a basis not materially less
favorable, both in terms of the amount of benefits provided and
the level of participation relative to other participants, as
existed at the time of the Change in Control;
(vii) the failure by the Company to continue to
provide Employee with benefits substantially similar to those
under any of the Company's medical, health and accident, or
disability plans in which Employee was participating at the time
of the Change in Control, the taking of any action by the Company
which would directly or indirectly materially reduce any of such
benefits or deprive Employee of any material fringe benefit
enjoyed by him or her at the time of the Change in Control, or
the failure by the Company to provide Employee with the number of
paid vacation days to which he or she is entitled on the basis of
years of service with the Company in accordance with Company's
normal vacation policy in effect at the time of the Change in
Control or pursuant to Employee's existing employment agreement,
if any; or
(viii) the failure of the Company to obtain a
satisfactory agreement from any successor to assume and agree to
perform this Agreement.
Notwithstanding the above, during the one-year period immediately
following the occurrence of a Change in Control, "Good Reason" shall mean
termination of employment by the Employee for any reason other than death or
Permanent Disability.
Employee's right to terminate Employee's employment for Good Reason shall
not be affected by Employee's incapacity due to physical or mental illness.
Employee's continued employment shall not
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constitute consent to, or a waiver of rights with respect to, any circumstance
constituting Good Reason hereunder.
4.3 Effect of Termination. In the event that this Agreement is
terminated by the Company or Employee during the Term in accordance with the
provisions of this Paragraph 4, the obligations and covenant of the parties
under this Paragraph 4 shall be of no further force and effect, except for (i)
the obligations of the parties set forth below in this Paragraph 4.3, and (ii)
the provisions of Paragraph 5 below. Except as otherwise specifically set forth,
all amounts due upon termination shall be payable on the date such amounts would
otherwise have been paid had this Agreement continued through the Term.
In the event of any such early termination in accordance with the
provisions of this Paragraph 4.3, employee shall be entitled to the following:
(a) Termination by the Company
(i) Termination Without Cause. In the event that
the Company terminates this Agreement without Cause pursuant to
paragraph 4.1(a) above, Employee shall be entitled to (i) Earned
Base Salary (as defined below) through the Early Termination
Date; (ii) earned benefits and reimbursable expenses through the
Early Termination Date; (iii) any earned bonus which Employee has
been awarded pursuant to the terms of this Agreement or any other
plan or arrangement as of the Early Termination Date, but which
has not been received by Employee as of such date; and (iv) the
Severance Payment (as defined in Paragraph 4.4 below).
(ii) Termination For Cause. In the event that the
Company terminates this Agreement for Cause pursuant to paragraph
4.1(b) above, Employee shall be entitled to (i) Earned Base
Salary through the Early Termination Date; (ii) any earned bonus
which Employee has been awarded pursuant to the terms of this
Agreement or any other plan or arrangement as of the Early
Termination Date, but which has not been received by Employee as
of such date; and (iii) earned benefits and reimbursable expenses
through the Early Termination Date. Employee shall not be
entitled to any future annual bonus or Severance Payment.
(iii) Termination Due to Death or Permanent
Disability. In the event that the Company terminates the
Agreement by reason of employee's death or Permanent Disability
pursuant to Paragraph 4.1(c) above, Employee shall be entitled to
(i) Earned Base Salary through the Early Termination Date; (ii)
earned benefits and reimbursable expenses through the Early
Termination Date; and (iii) any earned bonus which Employee has
been awarded pursuant to the terms of this Agreement or any other
plan or arrangement as of the Early Termination Date, but which
has not been received by Employee as of such date.
(b) Termination by Employee
(i) Termination Other Than For Good Reason. In the
event that Employee terminates this Agreement other than for Good
Reason, employee shall be entitled to (i) Earned Base Salary
through the Early Termination Date; (ii) any earned bonus which
Employee has been awarded pursuant to the terms of this Agreement
or any other plan or arrangement as of the Early Termination
Date, but which has not been received by Employee as of such
date; and (iii) earned benefits and reimbursable expenses through
the Early Termination Date. Employee shall not be entitled to any
future annual bonus or Severance payment.
(ii) Termination For Good Reason. In the event
that Employee terminates the Agreement for Good Reason employee
shall be entitled to (i) Earned Base Salary through the Early
Termination Date; (ii) earned benefits and reimbursable expenses
through the Early Termination Date; (iii) any earned bonus which
Employee has been awarded pursuant to the terms of this Agreement
or any other plan or arrangement as of the Early Termination
Date, but which has not been received by Employee as of such
date; and (iv) the Severance Payment.
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The term "Earned Base Salary" shall mean all semimonthly installments of
the Base Salary which have become due and payable to Employee, together with any
partial monthly installment prorated on a daily basis up to and including the
applicable Early Termination Date.
4.4 Severance Payment
(a) Definition of Severance Payment. For purposes of this
Agreement, the term "Severance Payment" shall mean an amount equal to the sum of
the Base Salary otherwise payable to Employee during the remainder of the Term
had such early termination of the Agreement not occurred ("Severance Period");
provided, however, that in the event that, following a Change in Control, the
Company terminates this Agreement without Cause pursuant to Paragraph 4.1(a)
above or Employee terminates this Agreement for Good Reason pursuant to
Paragraph 4.2(b) above, the term "Severance Payment" shall mean an amount equal
to two (2) times Employee's Base Salary then in effect.
(b) Payment of Severance Payment. In the event that Employee
is entitled to any Severance Payment pursuant to Paragraph 4.3 above, that
portion of such Severance Payment that represents Base Salary shall be payable
in monthly installments, and that portion of such Severance Payment that
represents the earned bonus, if any, shall be Payable on the dates such amounts
would have been paid had Employee continued in the Company's employment for the
Severance Period; provided, however, that in the event of a Termination
Following a Change in Control (as defined in Paragraph 4.4(e) below, the
Severance Payment shall be payable in a lump sum within ten days following such
termination.
(c) Full Settlement of All Obligations. Employee hereby
acknowledges and agrees that any Severance Payment paid to Employee hereunder
shall be deemed to be in full and complete settlement of all obligations of the
Company under this Agreement.
(d) Change in Control. For purposes of this Agreement,
"Termination Following a Change in Control" shall mean a termination of
Employee's employment with the Company following a "Change in Control" by
Employee for Good Reason or by the Company other than for Cause. A "Change in
Control" shall be deemed to have occurred if, at any time after the date hereof
during the Term:
(i) Any Person, as such term is used in section
3(a)(9) of the Securities Exchange Act of 1934 as amended from
time to time (the "Exchange Act"), as modified and used in
sections 13(d) and 14(d) thereof (other than (A) the Company or
any of its subsidiaries, (B) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or any
of its affiliates, (C) an underwriter temporarily holding
securities pursuant to an offering of such securities, (D) a
corporation owned, directly or indirectly, by the stockholders of
the Company in substantially the same proportions as their
ownership of stock of the Company, or (E) a person or group as
used in Rule 13d-1(b) under the Exchange Act, that is or becomes
the Beneficial Owner, as such term is defined in Rule 13d-3 under
the Exchange Act, directly or indirectly, of securities of the
Company and is entitled to file on Schedule 13G or any successor
form with respect to such securities becomes the Beneficial Owner
of securities of the Company (not including in the securities
beneficially owned by such Person any securities acquired
directly from the Company or its affiliates other than in
connection with the acquisition by the Company or its affiliates
of a business) representing 25% or more of the combined voting
power of the Company's then outstanding securities; or
(ii) The following individuals cease for any
reason to constitute a majority of the number of directors then
serving: individuals who, as of immediately after August 18,
1998, constitute the Board and any new director (other than a
director whose initial assumption of office is in connection with
an actual or threatened election contest, including but not
limited to a consent solicitation, relating to the election of
directors of the Company) whose appointment or election by the
Board or nomination for election by the Company's stockholders
was approved or recommended by a vote of at least two-thirds of
the directors then still in office who either were directors as
of immediately after August 18, 1998 or whose appointment,
election or nomination for election was previously so approved or
recommended; or
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(iii) There is consummated a merger or
consolidation of the Company with any other corporation, other
than (A) a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior to
such merger or consolidation continuing to represent (either by
remaining outstanding or by being converted into voting
securities of the surviving entity or any parent thereof), in
combination with the ownership of any trustee or other fiduciary
holding securities under an employee benefit plan of the Company
or any subsidiary of the Company, at least 51% of the combined
voting power of the securities of the Company or such surviving
entity or any parent thereof outstanding immediately after such
merger or consolidation, or (B) a merger or consolidation
effected to implement a recapitalization of the Company (or
similar transaction) in which no Person is or becomes the
Beneficial Owner, directly or indirectly, of securities acquired
directly from the Company or its affiliates other than in
connection with the acquisition by the Company or its affiliates
of a business) representing 25% or more of the combined voting
power of the Company's then outstanding securities; or
(iv) The stockholders of the Company approve a
plan of complete liquidation or dissolution of the Company or
there is consummated an agreement for the sale or disposition by
the Company of all or substantially all of the Company's assets,
other than a sale or disposition by the Company of all or
substantially all of the Company's assets to an entity, at least
51% of the combined voting power of the voting securities of
which are owned by stockholders of the Company in substantially
the same proportions as their ownership of the Company
immediately prior to such sale."
3. Except as specifically set forth above, all other terms and conditions
of the Agreement shall continue in full force and effect, unaffected by this
Amendment. This Amendment shall be effective for all purposes as of the date
first written above.
In Witness Whereof, the Employee and the Company have set their hands
hereto as of the date above.
Superior Services, Inc.
Employee:
By:________________________________
__________________________________ G.W. "Xxxx" Xxxxxxxx
Xxxxx Xxxxxx President and Chief Executive Officer
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Employee's name: Xxxxx Xxxxxx
Date: November 24, 1998
Amendment No. 2
To
Employment Agreement
This Amendment ("Amendment"), dated as of the date set forth above, supplements
and amends the Employment Agreement, dated July 1, 1997 as amended
("Agreement"), by and among Superior Services, Inc., a Wisconsin corporation
("Company"), and the named key management employee set forth above ("Employee").
All defined terms used herein and not defined shall have the same meaning as in
the Agreement.
Whereas, pursuant to Section 8 of the Agreement, the Employee and the Company
desire to supplement and amend the Agreement as specifically set forth in this
amendment.
Now, Therefore, in consideration of the foregoing and of the mutual covenants
and agreements herein set forth, and for other valuable consideration, the
parties hereto covenant and agree as follows:
1. Section 4.4 (a) of the Agreement is amended and restated to read as
follows:
"(a) Definition of Severance Payment... provided, however,
that in the event that, following a Change in Control, the Company terminates
this Agreement without Cause pursuant to Paragraph 4.1(a) above or Employee
terminates this Agreement for Good Reason pursuant to Paragraph 4.2(b) above,
the term "Severance Payment" shall mean an amount equal to two (2) times
Employee's Base Salary and annualized auto allowance then in effect." (amended
language is italicized for reference)
2. Section 4 of the Agreement is amended to add the following subsection
(e):
"(e) Acceleration of Stock Options. Immediately upon a Change
in Control of the Company, all awards granted to the Employee and then
outstanding under the Company's stock option and incentive compensation plans
("Options") that are not then exercisable by their terms automatically will
become immediately exercisable and fully vested for the remainder of their
stated terms. In addition, for a period of thirty (30) days following such
Change in Control of the Company, the Employee shall have the right to terminate
the Options and to receive a lump-sum payment, in cash, equal to the product of
(a) the excess of (x) the per-unit fair market value of the securities
underlying the Options, over (y) the per-unit exercise price of such Options,
and (b) the number of units of such securities covered by the Options. For
purposes of the preceding sentence, the "fair market value" of securities shall
be based on the highest of (i) the per-unit closing sale price of the securities
underlying the Options, as reported on a national securities exchange or by the
Nasdaq Stock Market, on the execution date of the agreement pursuant to which
the Change in Control of the Company is effected, (ii) the per-unit closing sale
price of the securities underlying the Options, as reported on a national
securities exchange or by the Nasdaq Stock Market, on the effective date of the
transaction constituting a Change in Control of the Company, and (iii) the
highest per-unit price for such securities actually paid in connection with such
Change in Control of the Company. Notwithstanding the foregoing, if the exercise
of any right granted pursuant to this Section 4(e) would make a transaction
constituting a Change in Control of the Company ineligible for pooling of
interests accounting under XXX Xx. 00 which, but for this Section 4(e), would
otherwise be eligible for such accounting treatment, the Board of Directors of
the Company shall have the ability to substitute
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for the cash payable pursuant to this Section 4(e) securities of the Company (or
of the other entity surviving the transaction constituting the Change in Control
of the Company, or its parent corporation, if applicable) having a fair market
value equal to the cash that would otherwise be payable hereunder. For purposes
of the preceding sentence, the "fair market value" of securities shall be based
on the lower of (i) the average closing bid price of such securities for the ten
(10) trading days prior to the execution date of the agreement pursuant to which
the Change in Control of the Company is effected, and (ii) the average of the
closing bid price of such securities for the ten (10) trading days prior to the
effective date of the transaction constituting a Change in Control of the
Company, in each case as such closing bid prices are reported on a national
securities exchange or by the Nasdaq Stock Market".
3. Except as specifically set forth above, all other terms and conditions
of the Agreement shall continue in full force and effect, unaffected by this
Amendment. This Amendment shall be effective for all purposes as of the date
first written above.
In Witness Whereof, the Employee and the Company have set their hands
hereto as of the date above.
Superior Services, Inc.
Employee:
By:________________________________
_______________________________ G.W. "Xxxx" Xxxxxxxx
Xxxxx Xxxxxx President and Chief Executive Officer
