EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of
July 10, 1997, by and between Superior Services, Inc, a Wisconsin
corporation (the "Company"), and Xxxxx X. Xxxxxx ("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 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, subject to termination as
set forth in Section 4.
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 Twenty Thousand Dollars ($120,000) 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) without cause, upon sixty (60) days prior written
notice.
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 one year of the
Employee's Base Salary, in effect on the date the notice is given. In the
event that Employee's employment is terminated due to a "change of
control", Employee's employment shall be deemed to have been terminated
under Section 4(A)(iii), and Company shall pay Employee, 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. (i) If during the first six (6) months of the term
of this Agreement 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,
this Agreement shall terminate as of the date of such permanent
disability. In such event the Company shall pay to the Employee or his
guardian an amount equal to the installments of his Base Salary then
payable pursuant to Section 3(A), solely for the month in which he becomes
permanently disabled. (ii) In the event the Employee shall become
permanently disabled (as defined in the group long-term disability
insurance policy maintained by the Company) after the first six (6) months
of the term of this Agreement, the Employee shall receive disability
insurance benefits in accordance with the Company's disability insurance
policy. (iii) If during the first six (6) months of the term of this
Agreement the Employee shall become temporarily disabled (as defined in
the group short-term disability insurance policy maintained by the
Company) because of physical or mental illness or personal injury, this
Agreement shall not terminate, and all payments of Base Salary shall
continue during said six (6) month period. Thereafter, the Employee shall
receive disability insurance benefits in accordance with the Company's
disability insurance policy.
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 one (1) year after the
termination date of the Employee's employment under this Agreement for any
reason the Employee shall not:
(i) Directly or indirectly, either individually or as an
employee, agent, partner, shareholder, consultant, or in any other
capacity, participate in, engage in, or have a financial or other interest
in any Venture in Competition; provided, however, that ownership of less
than one percent (1.0%) interest in a corporation whose shares of stock
are traded on a recognized stock exchange or traded on the over-the-
counter markets shall not be deemed a violation of this section.
(ii) Directly or indirectly, individually, or as an employee,
agent, partner, shareholder, consultant, or in any other capacity, canvas,
contact, solicit, or accept any of Superior's customers for the purpose of
providing services that are substantially similar to the services or
business of Superior. (For purposes of this Agreement, "customer" shall
include, on any given date, any customer who was serviced by Superior
during the last two (2) years of employee's employment.)
(iii) In any manner induce, attempt to induce, or assist
others to induce any customer, client, employee, insurer, or any other
person having a business or employment relationship with Superior to
terminate such relationship.
(iv) Directly or indirectly, either as an employee, agent,
partner, shareholder, consultant, or in any other capacity, use or
disclose, or cause to be used or disclosed, any confidential or
proprietary information acquired by Employee during Employee's employment
with Superior, including but not limited to customer lists, price lists,
agreements, procedures, sales techniques, marketing strategies, matters
relating to operations, business software and computer programs and
printouts, techniques, engineering information or financial information
relating to Superior.
C. "Venture in Competition" is defined to mean any business that,
at any given date, owns or operates a landfill business, or in any manner
collects, stores, transports, recycles, or disposes of solid, hazardous,
or other waste products or provides hazardous material emergency response
or environmental remediation services, within one hundred (100) miles of
any location in which duties were assigned to Employee during the last two
(2) years of Employee's employment.
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
Employee's current address according to the Company's payroll records, 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:__________________________________
Xxxxx X. Xxxxxx X. X. "Xxxx" Xxxxxxxx
President and Chief Executive Officer
