EXHIBIT 10.2
FORM 10-Q
QUARTER ENDED JUNE 30, 1999
SEPARATION AGREEMENT
This Separation Agreement is made and entered into the 22nd
day of July, 1999 (the "Execution Date"), by and between Bucyrus
International, Inc., a Delaware corporation ("Bucyrus") and Xxxxxx X.
Smoke ("Executive").
WHEREAS, Executive is employed as Chief Financial Officer of
Bucyrus pursuant to an Employment Agreement ("Employment Agreement")
dated November 7, 1996 and Amendment No. 1 to Employment Agreement
("Amendment No. 1") dated March 17, 1998 (hereinafter collectively
referred to as the "Amended Employment Agreement"); and
WHEREAS, the parties hereto have mutually determined to
terminate Executive's employment as specifically provided in this
Separation Agreement.
NOW, THEREFORE, for and in consideration of the mutual
promises and covenants herein contained and for good and valuable
consideration, the sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Termination of Prior Agreements. The parties agree
that on September 30, 1999, except as specifically provided in this
Separation Agreement, the Amended Employment Agreement and any
exhibits, amendments or addendums thereto, and any prior agreements and
understandings between the parties, whether oral or written are hereby
canceled, terminated and superseded by this Separation Agreement and
shall be of no further force or effect.
2. Terms of Separation. The parties agree as follows:
(a) Executive's employment with Bucyrus will
terminate on September 30, 1999. Executive has been given two months
written notice of termination as provided in Paragraph 9(a) of the
Employment Agreement.
(b) From the Execution Date through September 30,
1999:
(1) Executive will not be required to be
physically in his office at Bucyrus.
(2) Executive will be on call to Bucyrus on an
"as needed basis". Provided, however, that Executive will be given
reasonable notice if travel is required, he will be reimbursed for all
out of pocket expenses, and further provided that the parties agree that
Executive will be unavailable to Bucyrus during the period August 15,
1999 to September 4, 1999.
(3) Executive will have use of his laptop
computer.
(c) Executive shall have use of his company
automobile until July 31, 1999, at which time he will return the
automobile to a representative of Bucyrus.
(d) The Change of Control provision of the Amended
Employment Agreement shall remain in effect through and until
September 30, 1999.
(e) After September 30, 1999, if Bucyrus requests
consulting services and Executive agrees to provide consulting services
to Bucyrus as an independent contractor, such consulting services will
be provided at a rate of $1,000.00 per day, plus expenses.
(f) For the period October 1, 1999 through
September 30, 2000 (the "Severance Period"), Executive shall be entitled
to a continuation of his Base Salary and, provided Executive continues
to pay the employee portion of the premium, his insurance benefits
(group health, life, dental and vision), all as provided in
Paragraph 9(d) of the Employment Agreement. During the Severance
Period, Executive shall also continue to accrue pension service under
the Bucyrus Salaried Employee Retirement Plan and can continue as a
participant in the Bucyrus International, Inc. Salaried Employees
Savings Plan.
(g) For the period October 1, 2000 to December 31,
2000 (the "Extended Severance Period"), Executive shall be entitled to a
continuation of his Base Salary and, provided Executive continues to pay
the employee portion of the premium, his insurance benefits (group
health, life, dental and vision). During the Extended Severance Period,
Executive shall also continue to accrue pension service under the
Bucyrus Salaried Employee Retirement Plan and can continue as a
participant in the Bucyrus International, Inc. Salaried Employee Savings
Plan. In exchange for the severance benefits provided during the
Extended Severance Period, Executive agrees:
(1) To waive, release, relinquish and
terminate any rights or claims to any Options under the Company's 1998
Management Stock Option Plan and under Section 4, Options, of Amendment
No. 1. Without limiting the generality of the preceding sentence
hereof, Executive specifically relinquishes any rights he may have under
Paragraph 4.4 of Amendment No. 1 relating to the vesting of Options in
the event of termination of employment.
(2) That on October 1, 1999, Bucyrus will
exercise its Repurchase Option under Section 3 of Stockholders Agreement
dated as of March 17, 1998 (the "Stockholders Agreement") and shall
repurchase the Management Shares of Bucyrus owned by the Executive
pursuant to the procedure set out in Paragraphs 3(a) and 3(b) of the
Stockholders Agreement. Executive agrees to sell all of the Management
Shares owned by the Executive as provided in Xxxxxxx 0, Xxxxxxxxxx
Option, of the Stockholders Agreement.
(h) The parties hereto agree that Paragraph 11,
Executive Covenants; Covenant Not to Compete, of the Employment
Agreement shall continue and remain in full force and effect and shall
not be replaced, superseded or terminated by this Separation Agreement.
In addition, the Confidentiality Agreement signed by Executive on
May 26, 1999 shall remain in full force and effect.
3. Release by Executive.
(a) In consideration of this Separation Agreement
and the monies and other good and valuable consideration provided to
Executive pursuant to this Separation Agreement, Executive hereby
irrevocably and unconditionally releases, waives and forever discharges
Bucyrus, any predecessor company or any affiliate or subsidiary
companies (the "Releasees"), from any and all actions, causes of action,
claims, demands, damages, rights, remedies and liabilities of whatever
kind or character, in law or equity, suspected or unsuspected, past or
present, that he has ever had or may now have (even if later asserted)
against the Releasees or any of them arising out of or related to
Executive's employment and positions with Bucyrus or the termination of
that employment and those positions, from the beginning of time,
including without limitation: (i) any claims arising from any federal,
state and/or local labor or civil rights laws including, without
limitation, the federal Civil Rights Acts of 1866, 1871, 1964 and 1991,
the Age Discrimination in Employment Act of 1967, as amended by, inter
alia, the Older Workers Benefit Protection Act of 1990, the Workers'
Adjustment and Retraining Notification Act, the Employee Retirement
Income Security Act of 1974, as amended, the Consolidated Omnibus Budget
Reconciliation Act of 1985 (except Executive shall have COBRA rights
arising out of the termination of his employment with Bucyrus), the
Americans with Disabilities Act of 1990, the Wisconsin Fair Employment
Act and employment and labor laws, as each may have been amended from
time to time, and (ii) any and all other claims occuring on or before
the Execution Date arising under or in regard to any contract, any and
all other federal, state or local constitutions, statutes, rules or
regulations, or under any common law right of any kind whatsoever, or
under the laws of any country or political subdivision, and including,
without limitation, any claim for any kind of tortious conduct
(including but not limited to any defamation, business tort or
intentional infliction of emotional distress), breach of contract,
promissory or equitable estoppel, breach of Bucyrus' policies, rules,
regulations, handbooks or manuals, breach of express or implied
covenants of good faith, wrongful termination, discharge or dismissal.
(b) Execution of this Separation Agreement by
Executive operates as a complete bar and defense against any and all
claims against the Releasees. If Executive should hereafter raise any
action, claim or proceeding against any of the Releasees, the Separation
Agreement may be raised as and shall constitute a complete bar to any
such action, claim or proceeding and the Releasees shall recover from
Executive all costs incurred including attorneys' fees. Nothing
contained herein is intended to prevent Executive from enforcing this
Separation Agreement.
4. Miscellaneous Provisions.
(a) This Separation Agreement contains the entire
agreement between the parties hereto and supersedes any and all prior
agreements, arrangements, negotiations, discussions or understandings
between the parties relating to the subject matter hereof. No oral
understanding, statements, promises or inducements contrary to the terms
of this Separation Agreement exist. This Separation Agreement cannot be
changed or terminated orally. Should any provision of this Separation
Agreement be held invalid, illegal or unenforceable, it shall be deemed
to be modified so that its purpose can lawfully be effectuated and the
balance of this Separation Agreement shall remain in full force and
effect.
(b) This Separation Agreement shall extend to, be
binding upon, and inure to the benefit of the parties and their
respective successors, heirs and assigns.
(c) This Separation Agreement shall be governed by
and construed in accordance with the laws of the State of Wisconsin. By
his execution hereof, Executive hereby waives any right he may have to
arbitration as against Bucyrus and any of the other Releasees, and, as
to any dispute with regard to this Separation Agreement, hereby submits
to the jurisdiction of the state and federal courts located in the State
of Wisconsin and further agrees not to assert that any action brought in
such jurisdiction has been brought in an inconvenient forum.
(d) This Separation Agreement may be executed in any
number of counterparts each of which when so executed shall be deemed to
be an original and all of which when taken together shall constitute one
and the same agreement.
5. Effective Date/Revocation. Executive may revoke this
Separation Agreement in writing at any time during a period of seven (7)
calendar days after the Execution Date of this Separation Agreement by
the parties (the "Revocation Period"). This Separation Agreement shall
become effective and enforceable automatically on the date of actual
receipt by the Company of the Certificate of Non-Revocation of
Separation Agreement (the form of which is Exhibit A hereto) executed
and dated by Executive at least one day after expiration of the
Revocation Period (the "Effective Date").
6. Representations. Each party hereto represents,
warrants and acknowledges that in executing this Separation Agreement,
he or it does not rely and has not relied upon any representation or
statement made by any other party or any other party's agents,
representatives or attorneys with regard to the subject matter, basis or
effect of this Separation Agreement or otherwise, other than those
representations, warranties, assurances and statements contained in the
Separation Agreement itself.
7. Notices. Any notices or requests under this
Separation Agreement shall be in writing, addressed as follows:
(a) If to Executive:
Xx. Xxxxxx X. Smoke
P. O. Xxx 000000
Xxx Xxxxx, Xxxxxxxx 00000
(b) If to Bucyrus:
Bucyrus International, Inc.
P. O. Box 500
0000 Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxxxxx, XX 00000-0000
Attention: President and CEO
IN SIGNING THIS SEPARATION AGREEMENT, EXECUTIVE ACKNOWLEDGES
THAT: (A) HE HAS READ AND UNDERSTANDS THIS SEPARATION AGREEMENT AND HE
IS HEREBY ADVISED IN WRITING TO CONSULT WITH AN ATTORNEY PRIOR TO
SIGNING THIS SEPARATION AGREEMENT, (B) HE HAS SIGNED THIS SEPARATION
AGREEMENT VOLUNTARILY, ON THE ADVICE OF HIS ATTORNEY, AND UNDERSTANDS
THAT IT CONTAINS A FULL AND FINAL RELEASE OF ALL CLAIMS, AS SET FORTH IN
PARAGRAPH THREE AGAINST THE RELEASEES AS OF THE EXECUTION DATE OF THIS
SEPARATION AGREEMENT, (C) HE HAS BEEN OFFERED AT LEAST TWENTY-ONE (21)
CALENDAR DAYS TO CONSIDER THE MATTERS MEMORIALIZED IN THIS SEPARATION
AGREEMENT, AND (D) THIS SEPARATION AGREEMENT IS NOT MADE IN CONNECTION
WITH AN EXIT INCENTIVE OR OTHER EMPLOYMENT TERMINATION PROGRAM OFFERED
TO A GROUP OR CLASS OF EMPLOYEES.
IN WITNESS WHEREOF, the parties hereto have executed this
Separation Agreement in Wisconsin as of the day and year first above
written.
BUCYRUS INTERNATIONAL, INC.
By: /s/ X. Xxxxx
Name: X. X. Xxxxx
Title: V. P. Human Resources
/s/ Xxxxxx X. Smoke
Xxxxxx X. Smoke, Executive
EXHIBIT A
CERTIFICATE OF NON-REVOCATION OF
SEPARATION AGREEMENT
I hereby certify and represent that seven (7) calendar days have
passed since the parties have signed the Separation Agreement and that I
have NOT exercised my rights to revoke that Separation Agreement pursuant
to the Older Workers Benefit Protection Act of 1990. I understand that
Bucyrus International, Inc. on behalf of themselves and their subsidiaries
and affiliates, in providing me with benefits under the Separation
Agreement, is relying on this Certificate, and that I can no longer revoke
the Separation Agreement.
______________________________ _______________________ , 1999
Xxxxxx X. Smoke Date of Execution
by Executive
IMPORTANT:
This Certificate should be signed, dated and returned to the
Company's Vice President and General Counsel, Xxxxxxx X. Xxxxxxxxx, no
earlier than on the eighth (8th) calendar day after the Separation
Agreement is executed by the parties.
