Exhibit 4
AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT TO RIGHTS AGREEMENT ("Amendment"), dated as of June 11, 1999,
between SUPERIOR SERVICES, INC., a Wisconsin corporation (the "Company"), and
LaSALLE NATIONAL BANK ASSOCIATION, f/k/a LaSALLE NATIONAL BANK, as rights agent
(the "Rights Agent"), to the Rights Agreement, dated as of February 21, 1997,
between the Company and the Rights Agent (the "Rights Agreement").
WHEREAS, the Board of Directors of the Company believes it to be in the
best interest of the Company and its shareholders to enter into an Agreement and
Plan of Merger (the "Merger Agreement"), dated as of the date hereof, by and
among the Company, Vivendi a Societe Anonyme organized under the laws of France
(the "Purchaser"), and Onyx Solid Waste Acquisition Corp., an indirect
wholly-owned subsidiary of Purchaser ("Merger Sub"), which Merger Agreement
provides for, among other things, a tender offer (the "Offer") by Merger Sub,
for all of the issued and outstanding shares of the Company's common stock, $.01
par value per share ("Common Stock") (including the associated Common Stock
purchase rights (the "Rights") to purchase shares of Common Stock pursuant to
the terms of the Rights Agreement) and a Stock Option Agreement, dated the date
hereof, between the Company and Purchaser (the "Stock Option Agreement") which
provides for the grant to Purchaser of an option to Purchase up to 19.9% of the
Company's then outstanding Common Stock under certain conditions.
WHEREAS, as a result of the foregoing, the Board of Directors of the
Company desires that the transactions contemplated by the Merger Agreement and
the Stock Option Agreement, as well as Purchaser, Merger Sub and any affiliates
thereof be exempt from the provisions of the Rights Agreement;
WHEREAS, the Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement;
WHEREAS, pursuant to Section 29 of the Rights Agreement, the Company
may supplement or amend any provision of the Rights Agreement in accordance with
the provisions of Section 29 thereof; and
WHEREAS, all acts and things necessary to make this Amendment a valid
agreement, enforceable according to its terms, have been done and performed, and
the execution and delivery of this Amendment by the Company and the Rights Agent
have been in all respects duly authorized by the Company and the Rights Agent.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the parties hereby agree as follows:
1. Capitalized terms used herein and not otherwise defined are used as
defined in the Rights Agreement.
2. The Agreement is hereby amended to add a new Section 34 to the
Agreement which shall read in its entirety as follows:
Section 34. Excluded Transactions. Notwithstanding anything in this
Agreement to the contrary, (a) neither Vivendi a Societe Anonyme
organized under the laws of France (the "Purchaser"), Onyx Solid Waste
Acquisition Corp., an indirect wholly-owned subsidiary of Purchaser
("Merger Sub") or any of their respective Affiliates or Associates
shall become an Acquiring Person, either individually or collectively,
(b) no Distribution Date or Shares Acquisition Date shall occur, (c) no
Rights shall separate from the shares of Common Shares or otherwise
become exercisable, (d) no holder of Rights or any other Person shall
have any legal or equitable rights, remedy or claim under the Agreement
and (e) no event described in any of clause (a), (b) or (c) of Section
14 shall be deemed to have occurred, in each case solely by virtue of
(i) the announcement of the Offer (as defined in the Merger Agreement
(as defined below)), (ii) the acquisition of Common Shares of the
Company pursuant to the Offer, the Merger (as defined in the Merger
Agreement), the Agreement and Plan of Merger, dated as of June 11,
1999, among Purchaser, the Company and Merger Sub (the "Merger
Agreement"), the Stock Option Agreement, dated as of June 11, 1999, by
and between Purchaser and the Company (the "Stock Option Agreement") or
the Shareholder Tender Agreement, dated as of June 11 1999, among
Purchaser, Merger Sub and Xxxxxx X. Xxxx (the "Shareholder Tender
Agreement") (y) the execution and delivery of any of the Merger
Agreement, the Stock Option Agreement or the Shareholder Tender
Agreement or (z) the consummation of the Offer, the Merger or any of
the other transactions contemplated by the Merger Agreement, the Stock
Option Agreement or the Shareholder Tender Agreement
3. The term "Agreement," as used in the Rights Agreement, shall be
deemed to refer to the Rights Agreement as amended hereby.
4. This Amendment shall be deemed to be a contract made under the laws
of the State of Wisconsin and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to contracts to
be made and performed entirely within such State.
5. This Amendment may be executed in any number of counterparts and
each of such counterparts shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute but one and the same
instrument.
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6. In all respects not inconsistent with the terms and provisions of
this Amendment, the Rights Agreement is hereby ratified, adopted, approved and
confirmed. In executing and delivering this Amendment, the Rights Agent shall be
entitled to all the privileges and amenities afforded to the Rights Agent under
the terms and conditions of the Rights Agreement.
7. If any term, provision, covenant or restriction of this Amendment is
held by a court of competent jurisdiction or other authority to be invalid,
illegal, or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Amendment, and of the Rights Agreement, shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
SUPERIOR SERVICES, INC.
By:
Xxxxx X. Xxxx
Senior Vice President - Administration
LaSALLE BANK NATIONAL ASSOCIATION (f/k/a LaSALLE
NATIONAL BANK)
By:
Name:
Title:
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