EXHIBIT (c)(8)
AMENDMENT NO. 1 TO CONFIDENTIALITY AGREEMENT
AMENDMENT NO. 1, dated as of June 11, 1999 (this "AMENDMENT"),
to the Confidentiality Agreement, dated as of March 3, 1999 (the "AGREEMENT"),
between SUPERIOR SERVICES, INC., a Wisconsin corporation (the "COMPANY") and
VIVENDI, a SOCIETE ANONYME organized under the laws of France ("VIVENDI").
W I T N E S S E T H:
WHEREAS, the Company, Vivendi and ONYX SOLID WASTE ACQUISITION
CORP., a Wisconsin corporation and an indirect wholly-owned subsidiary of
Vivendi ("MERGER SUB") have entered into an Agreement and Plan of Merger, dated
as of the date hereof (the "MERGER AGREEMENT"), providing for, among other
things, an Offer by Merger Sub for all the outstanding Shares of the Company
and, subsequent thereto, assuming the Offer is consummated on the terms set
forth in the Offer Documents and all other conditions to the Merger are
satisfied or waived, the Merger of Merger Sub with and into the Company with the
Company as the surviving corporation in the Merger, pursuant to which the
Company will become a wholly-owned subsidiary of Vivendi; and
WHEREAS, as a condition and inducement to each of Vivendi's
and Merger Sub's willingness to enter into the Merger Agreement, Vivendi and the
Company have entered into the Stock Option Agreement, dated as of the date
hereof (the "STOCK OPTION AGREEMENT") pursuant to which the Company has granted
Vivendi an option to purchase Option Shares (as that term is defined in the
Stock Option Agreement) under certain circumstances; and
WHEREAS, as a condition and inducement to each of Vivendi's
and Merger Sub's willingness to enter into the Merger Agreement, Xxxxxx X. Xxxx
("SHAREHOLDER") has entered into a Shareholder Tender Agreement, dated as of the
date hereof (the "SHAREHOLDER TENDER AGREEMENT"), with Vivendi and Merger Sub
pursuant to which Shareholder has, among other things, agreed to tender
Shareholder's Shares (as that term is defined in the Shareholder Tender
Agreement) in the Offer and grant Merger Sub an Option (as that term is defined
in the Shareholder Tender Agreement) to purchase Shareholder's Shares under
certain circumstances; and
WHEREAS, the respective Boards of Directors of the Company and
Vivendi have approved this Amendment and authorized their duly authorized
officers to execute and deliver this Amendment; and
WHEREAS, the Company and Vivendi desire to amend the
Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein, the parties hereto agree as follows:
ARTICLE I
AMENDMENTS TO THE AGREEMENT
1.1 Section 7 of the Agreement is hereby amended as follows:
By deleting the period at the end of the paragraph and
inserting in lieu thereof, the words "; PROVIDED, HOWEVER, that the foregoing
shall not limit any of Recipient's and Merger Sub's rights under each of the
Merger Agreement, the Stock Option Agreement and the Shareholder Tender
Agreement (collectively, the "Agreements") or prohibit or otherwise restrict any
of the transactions contemplated by the Agreements, including, without
limitation, Recipient and Merger Sub's right to (a) commence and consummate each
of the Offer and the Merger pursuant to the Merger Agreement, (b) purchase
Shares pursuant to the option granted to Recipient pursuant to the Stock Option
Agreement, (c) purchase Shares pursuant to the option granted to Recipient
pursuant to the Shareholder Tender Agreement and (d) receive a proxy from
Shareholder with respect to Shareholder's Shares (as that term is defined in the
Shareholder Tender Agreement) pursuant to the Shareholder Tender Agreement.
Capitalized terms used in this Section 7 and not otherwise defined in this
Agreement shall have the respective meanings ascribed to such terms in the
Merger Agreement."
ARTICLE II
MISCELLANEOUS
2.1 DEFINITIONS. Capitalized terms used in this Amendment and not
defined herein shall have the respective meanings assigned to them in the Merger
Agreement.
2.2 ENTIRE AGREEMENT; RESTATEMENT. Other than as amended by Section 1.1
above, the Agreement shall remain in full force and effect unaffected hereby.
The Agreement, as amended by this Amendment, is hereinafter referred to as the
"Agreement", and the parties hereto hereby agree that the Agreement may be
restated to reflect the amendments provided for in this Amendment.
2.3 GOVERNING LAW AND VENUE. THIS AMENDMENT SHALL BE DEEMED TO BE MADE
IN AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN
ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS TO BE
PERFORMED WHOLLY IN SUCH STATE. The parties hereby irrevocably submit to the
jurisdiction of the courts of the State of Delaware and the Federal courts of
the United States of America located in the State of Delaware solely in respect
of the interpretation and enforcement of the provisions of this Amendment and in
respect of the transactions contemplated hereby, and hereby waive, and agree not
to assert, as a defense in any action, suit or proceeding for the interpretation
or enforcement hereof, that it is not subject thereto or that such action, suit
or proceeding may not be brought or is not maintainable in said courts or that
the venue thereof may not be appropriate or that this Amendment may not be
enforced in or by such courts, and the parties hereto irrevocably agree that all
claims with respect to such action or proceeding shall be heard and determined
in such a Delaware State or Federal court. The parties hereby consent to and
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grant any such court jurisdiction over the person of such parties and over the
subject matter of such dispute and agree that mailing of process or other papers
in connection with any such action or proceeding in the manner provided in
Section 10.7 of the Merger Agreement or in such other manner as may be permitted
by law shall be valid and sufficient service thereof.
2.4 COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each such counterpart being deemed an original instrument, and all
such counterparts shall together constitute the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed or caused
this Amendment to be executed as of the date first written above.
SUPERIOR SERVICES, INC.
By: /s/ X. X. Xxxxxxxx
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Name: X. X. Xxxxxxxx
Title: President and CEO
VIVENDI
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Directeur General
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