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 Xxxxxx X.
Xxxx (the "Employee").
WHEREAS, the Company has entered into an Agreement and Plan of
Merger (the "Merger Agreement"), dated as of June 11, 1999, with Parent and Onyx
Acquisition Corp., a wholly-owned subsidiary of Parent ("Merger Sub"), pursuant
to which Merger Sub (i) a cash tender offer to purchase all of the common stock
of the Company and (ii) following the successful completion of the tender offer,
will merge with and into the Company, with the Company being the surviving
corporation in the merger (collectively, the "Acquisition"); and
WHEREAS, the Employee was employed by the Company prior to the
execution of the Merger Agreement and the Parent desires to secure the
Employee's continued employment with the Company following the date on which the
Merger Sub is irrevocably committed to purchase the tendered shares under
Section 1.1(a) of the Merger Agreement (the "Effective Date").
1. EFFECTIVE DATE; PRIOR AGREEMENTS. On the Effective Date, all obligations
of the Company (including, without limitation, the lump sum cash payment
in immediately available funds of the Termination Payment, the Executive
Awards (including the cashing-out of Employee's stock options), the
Accrued Benefits and any Gross Up Payment) under the Employee's Key
Executive Employment and Severance Agreement dated August 15, 1995, as
amended ("KEESA"), and under the Employee's Employment Agreement ("Prior
Employment Agreement") dated January 1, 1996, as amended (together each, a
"Prior Agreement") resulting from the "Change in Control of the Company"
(as defined under the Prior Agreements) caused by the Effective Date, will
be satisfied as if a "Discretionary
Termination" had been effected under the Prior 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.
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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. 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.
000 Xxxxx 00xx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
(000) 000-0000 (facsimile)
Attention: General Counsel
Copy: Xxxxxx Xxxxx
Xxxxx & Xxxxxxx
Firstar Center
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
(000) 000-0000 (facsimile)
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(c) Parent to:.
Vivendi
00, Xxxxxx Xx Xxxxxxxx
00000 Xxxxx 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 Xxxxx & 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, Xxxxx & 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 Xxxxx & Lardner's role in connection herewith shall not in
any way prevent, adversely affect or limit Xxxxx & 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 Xxxxx & Xxxxxxx 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/ Xxxxx Xxxxxxx
--------------------------------
Xxxxx Xxxxxxx
SUPERIOR SERVICES, INC.
By: /s/ G. Xxxxxxx Xxxxxxxx
--------------------------------
G. Xxxxxxx Xxxxxxxx
/s/ Xxxxxx X. Xxxx
-----------------------------------
Xxxxxx X. Xxxx
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