EXHIBIT 10.23
Employee's Name: G. Xxxxxxx Xxxxxxxx
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT (this "Amendment"), dated as of August 18, 1998,
supplements and amends the Employment Agreement, dated January 1, 1996 (the
"Agreement"), by and between SUPERIOR SERVICES, INC., a Wisconsin corporation
(the "Company"), and the named executive set forth above (the "Employee"). All
defined terms used herein and not defined shall have the same meaning as in the
Agreement.
W I T N E S S E T H
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(A) of the Agreement is hereby amended and restated to read
in its entirety as follows:
"(A) Termination by the Company. The employment of the Employee
under this Agreement, while the Employee is on active status, may
be terminated at any time by the Company:
(i) if the Board of Directors of the Company (by a
two-thirds vote) shall determine that this Agreement shall be
terminated for 'Cause;' provided, however, that the Employee shall
not be deemed to have been terminated for Cause without (i)
reasonable written notice to the Employee, setting forth the
reasons for the Company's intention to terminate him for 'Cause;'
(ii) an opportunity for the Employee, together with his counsel,
to be heard before the Board; and (iii) delivery to the Employee
of a written notice of termination (which date of delivery of such
notice shall be the 'Early Termination Date') from the Board,
finding that, in the good faith reasonable opinion of the Board
(as evidenced by a two-thirds vote thereof), the Employee was
guilty of conduct constituting 'Cause' and specifying the
particulars thereof in detail; for purposes of this Agreement,
'Cause' shall mean the following and only the following: the
Employee's final and nonappealable conviction of, and sentencing
for, a felony offense for a crime involving an act by the Employee
of conduct on behalf of the Company that results in the Employee
being physically imprisoned in a federal or state penitentiary; or
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(ii) for any reason, in its sole discretion, after written
notice to the Employee, which termination shall be effective at
the end of the term of this Agreement as in effect at the date of
such notice, so that the term of this Agreement will not be
shortened by such notice of termination, but no future extensions
of the term hereof shall occur after such notice.
2. Section 4(B) of the Agreement is hereby amended and restated to read
in its entirety as follows:
"(B) Termination Payment and Benefits. In the event of termination
of the Employee's employment under this Agreement by the Company
under Section 4(A)(i), the Employee shall only be entitled to
receive the monthly installment of his Base Salary being paid at
the time of such termination and, notwithstanding anything to the
contrary herein contained, the Employee shall receive all
compensation, expense reimbursements and other benefits to which
he is otherwise entitled hereunder through the date of the
Employee's termination for Cause and, in addition, shall receive
all other benefits to which he is otherwise entitled under any
benefit plans as then in effect or otherwise under this or any
other agreement. If this Agreement is terminated pursuant to
Section 4(A)(ii), the Company shall be obligated to pay to the
Employee a severance payment equal to the average of the
Employee's annual total compensation reportable by the Company on
Form W-2 (i.e., base salary, plus bonus amounts and all other
taxable compensation) over the five (5) fiscal years of the
Company (or such shorter period that the Employee has been
employed by the Company) immediately prior to such termination,
multiplied by three (3). Such severance payment shall be payable
in a lump sum payment within fifteen (15) days of the termination
of the Employee's employment. If this Agreement is terminated
pursuant to Section 4(A)(ii), until the Employee reaches age 85,
the Employee and his wife, and each of their children until they
reach the age of 21, shall also each be entitled to receive,
without premium, co-pay or deductible charges, full health and
medical, dental and vision care as provided by the Company to its
senior executive employees; provided, that the Employee and his
wife shall not be limited to their choice(s) of doctor or the
location(s) at which such care is provided. If, after this
Agreement is terminated pursuant to Section 4(A)(ii), the Employee
dies prior to reaching age 85, his wife shall continue to receive
such health care benefits on the same terms and conditions, until
the date when the Employee would have otherwise reached age 85 but
for his death, and each of their children shall continue to
receive such health care benefits on the same terms and conditions
until they reach age 21."
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3. Section 4(C) of the Agreement is hereby amended and restated to read
in its entirety as follows:
"(C) Termination by Employee; Automatic Termination Upon Change in
Control.
(i) Employee shall have the right at any time during his
employment, by giving written notice to the Secretary of the
Company, to terminate the Employee's employment under this
Agreement effective ninety (90) days after the date on which such
notice is given by the Employee. In the event the Employee shall
make such election under this Subsection 4(C)(i), 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
during such ninety (90) day period following the giving of such
notice. 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.
(ii) In the event of a Change in Control of the Company, as
defined in the Key Executive Employment and Severance Agreement,
dated as of August 15, 1995, between the Company and the Employee,
as amended (the 'KEESA'), this Agreement shall automatically be
terminated upon such Change in Control of the Company, except that
the provisions of this Subsection 4(C)(ii) and Section 5 hereof
shall survive such termination and, on the effective date of such
Change in Control of the Company (in addition to any other
payments or benefits to which the Employee is otherwise entitled
under this Agreement, the KEESA or otherwise), the Company shall
pay or issue to the Employee the maximum amount of all cash, stock
option and other bonuses and benefits that the Employee would
otherwise have been eligible to receive for the year in which such
Change in Control of the Company occurs, prorated for the portion
of such year then completed. Beginning immediately from and after
the effective date of the Change in Control of the Company and the
termination of the Employee's employment hereunder, the Employee
shall continue to serve the Company as an independent contractor
consultant from the date of the Change in Control of the Company
through the expiration of the then current term of this Agreement
that would otherwise have been in effect without taking into
account such Change in Control of the Company (the Consultancy
Period). During the Consultancy Period, the Company shall pay the
Employee, in cash, on a monthly basis, consulting fees equal to
the Employee's Base Salary then in effect at the date of the
Change in Control of the Company. During the Consultancy Period,
the Employee shall not be required to devote, and payment of the
Employee's compensation and benefits under this Subsection
4(C)(ii) may not be conditioned on, delayed, withheld or
diminished by the Employee's failure to devote any
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specific amount of time, energy, effort, expertise or ability as a
consultant to the Company or to perform any services to the
Company at any particular time and/or location or to any specified
level or expectation of performance or results. The Employee may
perform his consulting services under this Subsection in such
manner, at such times and in such locations (including by
telephone, mail, facsimile, telecommunication or the like) as the
Employee determines in his discretion is appropriate or adequate
under the circumstances. During the Consultancy Period, either the
Employee or the Company may, upon notice to the other party as
provided herein, elect to immediately terminate the Consultancy
Period, whereupon the entire amount of the consulting fees that
would otherwise have been paid to the Employee through the end of
the Consultancy Period shall be accelerated and the Company shall
pay all such fees to the Employee in a single lump-sum cash
payment within ten (10) days of the date of such notice. If the
Employee dies or becomes permanently disabled (for purposes of
Section 4(E) below) during the Consultancy Period, then the
payment of the consulting fees that would otherwise have been paid
to the Employee through the end of the Consultancy Period shall be
accelerated and the Company shall pay all such fees to the
Employee or his fiduciary in a single lump-sum cash payment within
ten (10) days of such death or disability.
In the event of a Change in Control of the Company, the Company
shall also pay or reimburse the Employee for any and all costs and
expenses incurred by the Employee, during five (5) years following
such Change in Control of the Company, in connection with the
relocation of his personal permanent residence from his then
current permanent address (the 'Wisconsin Residence') to a new
permanent residence of his choosing, including but not limited to,
moving and storage expenses (for a period of twelve (12) months
following the move) for all personal belongings, real estate
commissions and closing costs incurred in the sale of the
Wisconsin Residence, any loss incurred by the Employee as a result
of the sale of the Wisconsin Residence for less than the
Employee's tax basis therein and any temporary living expenses
incurred by the Employee during such five-year period. The
Employee may, in his sole discretion, determine to sell the
Wisconsin Residence at any time during such five-year period and
at any bona fide price from a third party and receive the benefits
provided in this paragraph. Upon the closing of the sale of the
Wisconsin Residence, the Employer shall repay in full to the
Company, if not already repaid, that certain $75,000 personal loan
borrowed by the Employee from the Company, together with all
stated interest thereon.
For purposes of this Subsection 4(C)(ii), the term 'Company'
refers to the Company or to its acquiror as appropriate."
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4. Section 4(F) of the Agreement is hereby amended and restated to read
in its entirety as follows:
"(F) Effect of KEESA. This Agreement shall be subject in all
respects to the provisions of the KEESA. This Agreement (other
than Subsection 4(C)(ii) and Section 5 hereof) shall terminate
upon a Change in Control of the Company, as defined in the KEESA.
In such event, the Employee shall have no further rights or
obligations under this Agreement (other than pursuant to
Subsection 4(C)(ii) hereof)."
5. 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 immediately as of
the date first written above.
IN WITNESS WHEREOF, the Executive and the Company have set their hands
hereto as of the date above.
SUPERIOR SERVICES, INC.
______________________________ By:______________________________
Executive Xxxxxx X. Xxxx
Chairman of the Board
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