EXHIBIT 10.2
FORM 10-Q
QUARTER ENDED SEPTEMBER 30, 1995
SEPARATION AGREEMENT AND MUTUAL RELEASE
This Separation Agreement and Mutual Release (the
"Agreement") is made and entered into as of the Effective Date of
this Agreement (as set forth in Paragraph 15 below), by and
between Xxxxxxx X. Xxxx ("Xxxx"), residing at S96 W32644 Valley
Ct. Road, Mukwonago, WI 53122 and Bucyrus-Erie Company ("BEC"),
a Delaware corporation, located at 0000 Xxxxxxxxx Xxxxxx, Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000, on behalf of itself individually
and any past and present parents and subsidiaries (collectively,
the "Company").
WHEREAS, Xxxx and BEC have been parties to an
Employment and Consulting Agreement dated July 1, 1992, as
amended by the amendment dated November 28, 1994 (the "Employment
Agreement");
WHEREAS, Xxxx was employed in senior executive
positions by the Company and has been a member of the Board of
Directors of BEC;
WHEREAS, Xxxx voluntarily resigns his employment and
all positions held by him effective immediately upon his
execution of this Agreement; and
WHEREAS, Xxxx voluntarily resigns as a member of the
Board of Directors effective immediately upon his execution of
this Agreement;
NOW, THEREFORE, in an effort to clearly state the
mutual obligations between Xxxx and the Company (the "Parties"),
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 hereby
agree as follows:
1. Termination of Prior Agreements and
Understandings. The Parties agree that any prior agreements and
understandings between them, whether oral or written and of
whatever nature, are hereby canceled, terminated and superseded
by this Agreement and shall be of no further force or effect,
including, without limitation, the Employment Agreement.
2. Xxxx'x Termination and Last Day of Employment.
Effective immediately upon his execution of this Agreement, Xxxx
voluntarily resigns his employment and all positions he held with
the Company, and also effective immediately upon his execution of
this Agreement, Xxxx voluntarily resigns his membership on the
Board of Directors of BEC.
3. Payments and Benefits to Xxxx.
(a) BEC shall pay or cause to be paid to Xxxx the
sum of $419,907.06 (four hundred nineteen thousand nine hundred
and seven U.S. dollars and six cents), less applicable
withholdings and deductions, the net of which shall be payable in
eighteen (18) equal monthly installments (the "Separation
Payment"). BEC shall make this Separation Payment by mailing to
Xxxx'x address listed in Paragraph 16 or any other address
designated in writing by Xxxx each installment via check payable
to the order of "Xxxxxxx Xxxx", on the fifteenth of each month
commencing on August 15, 1995 and continuing through and
including January 15, 1997. Each monthly installment shall be
adjusted in accordance with the following formula:
Sa = S x CPI
2
CPI
1
where: Sa = adjusted compensation for a given
month;
S = unadjusted monthly compensation as
set forth above;
CPI = Consumers Price Index (all Items,
2 Wage Earners and Clerical Workers,
Revised ((CPI-W) (1967 = 100)) in
effect for the month which is two
months prior to the given month);
CPI = Consumers Price Index in effect on
1 the date which is eight months
prior to the date of termination.
(b) Commencing February 15, 1997, BEC shall pay
or cause to be paid to Xxxx the sum of $200,000.00 (two hundred
thousand U.S. dollars), less applicable withholdings or
deductions, the net of which shall be payable in sixty (60) equal
monthly installments, which shall constitute the special payment
to Xxxx (the "Special Payment"). BEC shall commence the Special
Payment by mailing to the address listed in Paragraph 16 below,
or to any other address designated in writing by Xxxx, each
installment via check payable to the order of "Xxxxxxx Xxxx", on
the fifteenth of each month, commencing on February 15, 1997 and
continuing through and including January 15, 2002.
(c) The payments provided in Paragraphs 3(a) and
3(b) shall be made without regard to whether Xxxx is able to
perform services for the Company during the Consultation Period
(as defined in Paragraph 4 hereof) or whether other employment is
available to Xxxx or whether the Company desires consulting
services from Xxxx. In the event Xxxx dies while receiving
payments pursuant to Paragraphs 3(a) and 3(b), the remainder of
such payments shall each be converted to a lump sum pursuant to
the following formula:
LSC = C + C + ... C
2 P
(1+I) (1+I) (1+I)
LSC = total amount of lump sum compensation
C = amount of last payment prior to Xxxx'x death
in the event of the application of this
formula to the Separation Payment or
$3,333.33 in the event of application of this
formula to the Special Payment
P = the number of months remaining until the last
installment of the Special Payment or the
Separation Payment, as applicable, is made
1/12
I = (1 + N) - 1
N = (A - B) X .01
A = The Corporate high grade AAA Bond Index yield
to maturity annual percentage rate reported
by Standard and Poors Corporation as of the
end of the month two (2) months prior to the
month in which the full-time employment of
Xxxx is terminated.
B = The percentage increase in the Consumers
Price Index (as defined in subparagraph 3(a)
hereof) during the twelve (12) month period
ending on the end of the month two (2) months
prior to the month in which the full-time
employment of Xxxx is terminated.
Payment of such lump sum shall be made at the end of the month in
which Xxxx dies to his surviving spouse, and if he is deceased
without leaving a surviving spouse, said payment shall be made to
his estate. In the event Xxxx becomes disabled while receiving
payments pursuant to Paragraph 3(a) or 3(b), he shall continue to
receive such payments on the same basis as before he became
disabled. If Xxxx violates in any material respect the non-
competition provisions contained in subparagraph 4(a) hereof or
the provisions of Paragraphs 4(b), 9(a) or 11 of this Agreement,
he shall have no right to any payments, and shall promptly return
to the Company all amounts paid to him pursuant to this
Agreement.
(d) Through January 15, 2002, except for periods
during which Xxxx is employed full-time by another party, Xxxx
shall also be provided by BEC with such insurance benefits
(including life and medical insurance and dental and vision care)
as BEC generally provides for any group or class of employee of
which Xxxx would have been a member had his employment continued.
When Xxxx is employed full-time by another party prior to January
15, 2002, he shall first look to said other party for payment of
all insurance benefits of the kind described in the preceding
sentence which are available to employees of said other party and
BEC shall provide him with such insurance only to the extent of
any excess of insurance available under BEC's plan over the
insurance available under said other party's plan. This
provision shall be deemed to satisfy any obligation to Xxxx which
BEC may have pursuant to the Consolidated Omnibus Budget
Reconciliation Act of 1985.
(e) The Consultation Period (as defined in
Paragraph 4 hereof) shall be counted for purposes of determining
Credited Service under the Bucyrus Salaried Employees Retirement
Plan and the Company's Supplementary Retirement Benefit Plan and
compensation paid to Xxxx during the Consultation Period shall be
counted for the purpose of determining Xxxx'x benefits pursuant
to said plans to the extent that such compensation falls within
the scope of compensation as defined in said plans. Also, Xxxx
shall be entitled to participate in the Company's 401-K Savings
Plan on the same basis as regular salaried employees with respect
to such compensation.
(f) Xxxx shall be reimbursed for all reasonable
costs and expenses previously approved by the Company and
incurred by Xxxx in providing services to the Company pursuant to
Paragraphs 4(a) and 10(a) hereof.
4. Consultant Agreement.
(a) In consideration for the Separation Payment,
Special Payment and other valuable consideration in this
Agreement, for two years following the date of execution of this
Agreement by Xxxx (the "Consultation Period"), Xxxx shall serve
as consultant to BEC. During the Consultation Period Xxxx will
supply advice from time to time on reasonable advance notice with
respect to the affairs of the Company, but during the
Consultation Period Xxxx may at his sole discretion serve as a
part-time or full-time regular employee of any other business
which does not compete with the business of the Company or its
subsidiaries, and his consulting services shall not require his
presence at times and places not compatible with such other
employment. Xxxx shall promptly notify the Company in writing
whenever he commences or terminates employment elsewhere during
the Consultation Period, giving the name of the employer, the
nature of its business and the title of Xxxx'x position. A
business which competes with the business of the Company or its
subsidiaries is defined to be any business having any product or
products or service or services which compete with a product or
products or service or services of the Company or its
subsidiaries representing collectively at least ten percent (10%)
of the net revenue of the Company and its subsidiaries during the
last full fiscal year of the Company. For the purpose of
determining whether Xxxx is employed by a competing business, the
term "business" shall be defined to include not only the entity
by whom Xxxx is employed but also any direct or indirect parent
or subsidiary of such entity and any other entity controlled
directly or indirectly by an entity directly or indirectly
controlling such entity.
(b) As part of this Agreement, during the
Consultation Period, Xxxx further agrees not to solicit, directly
or indirectly, any of the Company's customers, nor to employ,
directly or indirectly, any person employed by the Company as of
the date of his execution of this Agreement. For purposes of
this Paragraph, "indirect" solicitation or employment shall mean
solicitation or employment through Xxxx'x efforts by any entity
with which Xxxx becomes associated.
(c) During the Consultation Period, at Xxxx'x
option (to be exercised by the written request mailed to any
officer of the Company or to its Director or Manager of Human
Resources), the Company will provide, at its expense,
outplacement services by a professional third party specialized
in providing such assistance on an individual basis to key
executives and employees. Reasonable initial travel expenses for
consultation with the outplacement firm will be reimbursed for
travel outside the greater Milwaukee area, when such travel is at
the request of the outplacement firm. Services will be provided
by Xxxxxxx Xxxx Xxxx & Associates, 0000 Xxxxx Xxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxx 00000, unless an alternative firm is agreed
to by the Company and Xxxx.
5. Purpose of Payment. The Company is providing and
Xxxx is accepting the Separation Payment, the Special Payment and
the other good and valuable consideration provided for in this
Agreement in full and complete satisfaction of all of Xxxx'x
Claims (as defined in Paragraph 7 hereof) against the Company,
its successors and assigns, and all of their past and present
directors, officers, shareholders, consultants, agents,
representatives, attorneys, employees, employee benefit plans and
plan fiduciaries (collectively, the "Releasees"). Xxxx
acknowledges (i) that no other monies or other consideration,
except as expressly set forth in this Agreement, are due and
owing to him or on his behalf by the Company or any of the other
Releasees; and (ii) the sufficiency of the consideration for this
Agreement generally and specifically for the release of any
claims up to the Effective Date of this Agreement he may have
ever had, may now have or may hereafter assert against the
Releasees arising under the Age Discrimination in Employment Act
of 1967, as amended by, inter alia, the Older Workers Benefit
Protection Act of 1990.
6. No Admissions. This Agreement does not constitute
an admission by the Company or any of the Releasees of any
violation of any contract or of any statutory, constitutional or
common law of any federal, state or local government of the
United States or of any other country or political subdivision
thereof, and Xxxx and the Releasees expressly deny any such
liability. This Agreement may not be introduced in any action or
proceeding by anyone for any purpose except to evidence its
terms.
7. Release by Xxxx.
(a) In consideration of this Agreement and the
monies and other good and valuable consideration provided to Xxxx
pursuant to this Agreement, Xxxx hereby irrevocably and
unconditionally releases, waives and forever discharges the
Company and each of the other Releasees from any and all actions,
causes of action, claims, demands, damages, rights, remedies and
liabilities (hereinafter referred to as "Xxxx'x Claims") 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 Xxxx'x employment and
positions with the Company or the termination of that employment
and those positions, from the beginning of time to the Effective
Date hereof, 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, the Americans with Disabilities Act
of 1990, the Wisconsin Fair Employment Act and employment and
labor laws, or the Delaware Fair Employment Practices Act and
employment and labor laws, as each may have been amended from
time to time, and (ii) any and all other claims 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 of Xxxx'x Claims 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 the
Company's policies, rules, regulations, handbooks or manuals,
breach of express or implied covenants of good faith, wrongful
termination, discharge or dismissal, and failure to pay in whole
or part any compensation, bonus, incentive compensation,
severance pay or benefits of any kind whatsoever, including but
not limited to any rights Xxxx may have under the Employment
Agreement; provided, however, that nothing herein shall be deemed
a release of any entitlements Xxxx may have with respect to
vested benefits under the terms of any employee pension,
retirement, savings, deferred compensation or similar plan
maintained by the Company for the benefit of its employees
generally or any release of indemnification rights Xxxx may have
in his capacity as an officer, director or employee of the
Company under the Company's Bylaws or the Delaware General
Corporation Law.
(b) Execution of this Agreement by Xxxx operates
as a complete bar and defense against any and all of Xxxx'x
Claims against the Company or the other Releasees. If Xxxx
should hereafter raise any of Xxxx'x Claims in any action, claim
or proceeding against the Company or any of the Releasees, the
Agreement may be raised as and shall constitute a complete bar to
any such action, claim or proceeding and the Company or the
Releasees shall recover from Xxxx all costs incurred including
attorneys' fees. Nothing contained herein is intended to prevent
Xxxx from enforcing this Agreement.
8. Release by the Company.
(a) The Company agrees to forever release and
discharge Xxxx from any and all actions, causes of action,
claims, demands, damages, rights, remedies and liabilities
(hereinafter referred to as "Company Claims") of whatsoever kind
or character, in law or equity, suspected or unsuspected, past or
present, that it has ever had, may now have, or may later assert,
against Xxxx, whether or not arising out of or related to his
employment and the positions he has held with the Company, from
the beginning of time to the Effective Date hereof, with the
exception of those claims stated in Subparagraph 8(b) below to be
expressly excluded from the Company's release.
(b) Execution of this Agreement by XXX operates
as a complete bar and defense against any and all of the Company
Claims against Xxxx, provided that BEC may enforce its rights
under this Agreement (including without limitation BEC's rights
pursuant to Paragraphs 4, 9 and 10 of this Agreement), and
provided further, that expressly excluded from BEC's release and
covenant not to sue are any: (i) Company Claims against Xxxx in
regard to any criminal violations of law where Xxxx is convicted
or pleads guilty and as to which Xxxx had no reasonable cause to
believe his conduct was lawful; and (ii) Company Claims against
Xxxx in regard to any matter as to which Xxxx did not act in good
faith and did not act in a manner he reasonably believed to be in
or not opposed to the best interests of the Company. If the
Company should hereafter make any of the Company Claims (other
than any excluded from the Company's release in this Paragraph
8(b)) in any action, claim or proceeding against Xxxx, this
Agreement may be raised as and shall constitute a complete bar to
any such action, claim or proceeding and Xxxx shall recover from
the Company all costs incurred, including attorneys' fees.
Nothing contained herein is intended to prevent the Company from
enforcing this Agreement.
9. Confidentiality.
(a) Xxxx agrees that he will not, directly or
indirectly, use or disclose, or permit or aid the disclosure, to
any person, firm, entity or corporation, of any privileged,
confidential or proprietary business information relating to the
business, affairs, clients, plans, proposals, finances or
financial condition of the Company or any of the other Releasees,
except with the Company's express written consent or in direct
response to any subpoena or other legal process initiated against
or served upon Xxxx. In the event disclosure is sought from Xxxx
in direct response to any such subpoena or other legal process,
Xxxx shall give the Company reasonable notice under the
circumstances in order to afford the Company an opportunity to
evaluate its legal rights and take such action as may be
appropriate to protect the interests of the Company. Xxxx
acknowledges that he is not authorized to and shall not waive the
attorney-client privilege on behalf of the Company or any of the
Releasees.
(b) Xxxx and the Company agree that the existence
of this Agreement and its terms and conditions shall remain
confidential except to the extent that such Party is advised by
counsel that disclosure is required by law or regulations of any
governmental authority, or, as to the Company only, in connection
with the conduct of business by the Company.
(c) Xxxx is obligated to surrender and
acknowledges that he has surrendered all papers, contracts,
drafts, data, records, plans, proposals and other information,
including any copies thereof, related to the Company or any of
the other Releasees in the possession of or under the control of
Xxxx, including but not limited to any such items in the
possession or under the control of his attorneys.
10. Cooperation.
(a) At the request by or on behalf of the
Company, and upon reasonable notice to Xxxx, Xxxx agrees to
cooperate with the Company in connection with the financial
affairs, legal affairs or business matters arising during Xxxx'x
employment about which Xxxx has knowledge or information and/or
with respect to any investigation, litigation, legal proceedings
or other circumstances arising in connection with such financial
affairs, legal affairs and/or business matters (collectively,
"Such Matters"), including providing the Company with full,
complete, truthful and accurate information, to the best of his
knowledge, concerning Such Matters, and/or testifying in regard
to Such Matters. In requesting Xxxx'x cooperation, BEC will not
unreasonably interfere with Xxxx'x employment elsewhere. Subject
to and without limiting the provisions of Paragraph 9 hereof,
this Paragraph shall not act to impede Xxxx from discussing Such
Matters personally relating to Xxxx with his lawyers or from
cooperating with any government investigation of the businesses
of the Company to the extent required by law or from giving
testimony under oath in any legal proceeding. If Xxxx discusses
Such Matters with his lawyers, Xxxx shall cause his lawyers to
honor the confidentiality provisions of Paragraph 9 of this
Agreement.
(b) The Company shall issue the press release and
employee communication attached hereto as Exhibits A and B,
respectively.
(c) With regard to reference requests from
prospective employers, Xxxx shall request that any prospective
employers communicate directly with the then President of BEC
("the President") in order to inquire about Xxxx'x employment by
BEC. Upon any inquiry from a prospective employer, Xxxx hereby
consents to having the President only confirm that Xxxx was
employed by BEC and shall give Xxxx'x final position, dates of
employment, and final salary.
11. No Derogatory Comments.
(a) Xxxx represents and warrants that he shall
refrain from any action that materially xxxxx the reputation or
goodwill of the Company, including its parent corporations,
subsidiaries or affiliates and any of its officers, directors,
employees, agents or shareholders, including, but not limited to
(1) making derogatory comments to the Company's employees,
lenders, suppliers, customers, and others in the trade about the
character and ability of the Company's directors, officers,
executives, employees, representatives and agents, and the manner
in which the Company conducts its business, and (2) divulging any
information regarding the operations of the Company to any
federal, state or local agency or authority unless as a result of
any subpoena served on Xxxx or as otherwise required by law.
(b) The Company represents and warrants that it
shall refrain from any action that materially xxxxx the
reputation or good will of Xxxx, including but not limited to (1)
making derogatory comments to the Company's employees, lenders,
suppliers, customers and others in the trade about the character
and ability of Xxxx and the manner in which he conducted his
business as an employee, director and officer of the Company, and
(2) divulging any information regarding Xxxx to any federal,
state or local agency or authority unless as a result of any
subpoena served on the Company or as otherwise required by law.
12. No Assignments. Each of the Parties hereto
represents and warrants to each other Party hereto that he or it
has not heretofore assigned or transferred, or purported to
assign or transfer, to any person or entity, any claim and/or the
proceeds of any claim released by such Party hereunder.
13. Remedies for Breach. In the event that either
Party fails or refuses to comply with any of the provisions,
terms or conditions of this Agreement, in its sole discretion the
non-breaching Party may in addition to the remedies provided in
subparagraph 3(c) recover against the breaching Party damages
(including reasonable attorneys' fees) accruing to the non-
breaching Party as a consequence of the breach. Regardless of
and in addition to any right to damages the non-breaching Party
may have, the non-breaching Party shall have the right to seek
injunctive relief.
14. Miscellaneous Provisions.
(a) This Agreement contains the entire agreement
between the Parties 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 Agreement exist. This Agreement cannot be
changed or terminated orally. Should any provision of this
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 Agreement shall remain in
full force and effect.
(b) This Agreement shall extend to, be binding
upon, and inure to the benefit of the Parties and their
respective successors, heirs and assigns.
(c) This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
By his execution hereof, Xxxx hereby waives any right he may have
to arbitration as against the Company, including but not limited
to BEC and any of the other Releasees, and, as to any dispute
with regard to this Agreement, hereby submits to the exclusive
jurisdiction of the state and federal courts located in the State
of Delaware and further agrees not to assert that any action
brought in such jurisdiction has been brought in an inconvenient
forum.
(d) This 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.
15. Effective Date/Revocation. Xxxx may revoke this
Agreement in writing at any time during a period of seven (7)
calendar days after the execution of this Agreement by the
Parties (the "Revocation Period"). This Agreement shall become
effective and enforceable automatically on the date of actual
receipt by the Company's special counsel, Xxxxxxx X. Xxxxxx, Esq.
of Xxxx, Scholer, Xxxxxxx, Xxxx & Handler, of the Certificate of
Non-Revocation of Separation Agreement and Mutual Release (the
form of which is Exhibit C hereto) executed and dated by Xxxx at
least one day after expiration of the Revocation Period (the
"Effective Date").
16. Representations. Each Party hereto represents,
warrants and acknowledges that in executing this 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 Agreement or otherwise, other than those
representations, warranties, assurances and statements contained
in the Agreement itself.
17. Any notices or requests under this Agreement shall
be in writing, addressed as follows:
(a) If to Xxxx:
Xx. Xxxxxxx X. Xxxx
S96 W32644 Valley Ct. Rd.
Mukwonago, WI 53122
Telephone No. (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxx, S.C.
000 X. Xxxxxxxxxx Xxxx
P.O. Drawer 825
Brookfield, WI 53008-0825
Telephone No. (000) 000-0000
Fax No. (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxxxx, Esq.
(b) If to BEC:
Bucyrus-Erie Company
0000 Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxxxxx, XX 00000-0000
Telephone No. (000) 000-0000
Fax No. (000) 000-0000
Attention: President
With a copy to:
Xxxx, Xxxxxxx, Xxxxxxx, Xxxx & Handler
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No. (000) 000-0000
Fax No. (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
IN SIGNING THIS SEPARATION AGREEMENT AND MUTUAL RELEASE
("AGREEMENT"), XXXX ACKNOWLEDGES THAT: (A) HE HAS READ AND
UNDERSTANDS THIS AGREEMENT AND HE IS XXXXXX ADVISED IN WRITING TO
CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS AGREEMENT, (B) HE
HAS SIGNED THIS 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 SEVEN AGAINST
THE RELEASEES AS OF THE EFFECTIVE DATE OF THIS AGREEMENT, (C) HE
HAS BEEN OFFERED AT LEAST TWENTY-ONE (21) CALENDAR DAYS TO
CONSIDER THE MATTERS MEMORIALIZED IN THIS AGREEMENT, AND (D) THIS
AGREEMENT IS NOT MADE IN CONNECTION WITH AN EXIT INCENTIVE OR
OTHER EMPLOYMENT TERMINATION PROGRAM OFFERED TO A GROUP OR CLASS
OF EMPLOYEES.
/s/ Xxxxxxx X. Xxxx July 25, 1995
Xxxxxxx X. Xxxx Date of Execution
by Xxxx
By:/s/ X. Xxxxx Xxxxxxxx, Xx. July 25, 1995
Bucyrus-Erie Company Date of Execution
Director by XXX
EXHIBIT A
PRESS RELEASE
* * *
FOR IMMEDIATE RELEASE July 25, 1995
The Bucyrus-Erie Company announced today that Xxxxxxx
X. Xxxx has resigned as its President and member of its Board of
Directors, effective immediately. Xxxxx X. Xxxxxx, a consultant
to the Board of Directors of Bucyrus-Erie, has been appointed by
the Board to serve as the interim President and Chief Executive
Officer of Bucyrus-Erie until a successor to Xx. Xxxx is
selected. Xx. Xxxxxx is President of Xxxxxx Associates, a
Lowell, Massachusetts management consulting firm, and formerly
was Vice Chairman and Chief Executive Officer of Darling
International. In making the appointment, the Board of Directors
concluded that Xx. Xxxxxx'x management background meets the
requirements of the Company during this period.
In addition, Xxxxxxx X. Xxxxxxxx has resigned today as
Vice President-Finance and Treasurer. The Board of Directors has
appointed Xxxxx X. Xxxxxx, from Xxxxxx Associates, to be interim
Chief Financial Officer. Xx. Xxxxxx has served as the general
manager and chief financial officer of a number of organizations,
including investment, manufacturing and wholesale/retail
businesses.
Xxxxx X. Xxxxxxx has also resigned effective today as
Vice President and Secretary of the Company and is expected to
continue as General Counsel until October 1, 1995 when his
resignation from that position will take effect.
Bucyrus-Erie is pleased that Messrs. Xxxx, Xxxxxxxx and
Goelzer have agreed to remain as consultants to the Company.
In announcing these resignations and the appointment of
Xx. Xxxxxx, the Board of Directors has assured suppliers and
customers of Bucyrus-Erie of its intention to continue to service
its commitments on a mutually beneficial basis in the years to
come.
For additional information, please call X.X. Xxxxxxxx
at (000) 000-0000.
EXHIBIT B
EMPLOYEE COMMUNICATION
TO: ALL EMPLOYEES
FROM: BOARD OF DIRECTORS OF THE BUCYRUS-ERIE COMPANY
DATE: JULY 25, 1995
RE: CHANGE OF LEADERSHIP
We have announced today the resignation of Xxxxxxx X.
Xxxx as President and member of the Board of Directors, effective
immediately. Xxxxx X. Xxxxxx, who has been serving as a
consultant to the Board of Directors, will serve as interim
President and Chief Executive Officer during a search which the
Board has commenced for a new President and Chief Executive
Officer. Xx. Xxxxxx is President of Xxxxxx Associates, a Lowell,
Massachusetts management firm, and former Vice Chairman and Chief
Executive Officer of Darling International. In making the
appointment, the Board of Directors concluded that Xx. Xxxxxx'x
management background meets the requirements of the Company
during this period.
We also have announced the resignation of Xxxxxxx X.
Xxxxxxxx as Vice President-Finance and Treasurer, effective
today. The Board has appointed Xxxxx X. Xxxxxx as interim Chief
Financial Officer. Xx. Xxxxxx has served as the general manager
and chief financial officer of a number of organizations,
including investment, manufacturing and wholesale/retail
businesses.
Finally, also effective today, Xxxxx X. Xxxxxxx has
resigned as Vice President and Secretary. In order to assist in
the transition of leadership, Xx. Xxxxxxx'x resignation as
General Counsel will be effective no later than October 1, 1995.
Messrs. Xxxx, Xxxxxxxx and Goelzer will be serving as consultants
to Bucyrus-Erie.
You should know that we are taking steps today to
notify each of our suppliers and customers of this change and of
our sincere appreciation for their loyalty and cooperation. We
are also informing our suppliers and customers that we look
forward to continuing our business relationships with them during
the years to come.
The Board of Directors takes this opportunity to thank
each of you for your continued dedication to Bucyrus-Erie and for
your hard work. We also thank Messrs. Xxxx, Xxxxxxxx and Goelzer
for their many years of dedicated service and wish them well in
their future endeavors.
EXHIBIT C
CERTIFICATE OF NON-REVOCATION OF
SEPARATION AGREEMENT AND MUTUAL RELEASE
I hereby certify and represent that seven (7) calendar days
have passed since the Parties have signed the Separation
Agreement and Mutual Release (the "Agreement") and that I have
NOT exercised my rights to revoke that Agreement pursuant to the
Older Workers Benefit Protection Act of 1990. I understand that
the Bucyrus-Erie Company on behalf of themselves and their
subsidiaries and affiliates, in providing me with benefits under
the Agreement, is relying on this Certificate, and that I can no
longer revoke the Agreement.
/s/Xxxxxxx X. Xxxx August 2 , 1995
Xxxxxxx X. Xxxx Date of Execution
by Xxxx
IMPORTANT:
This Certificate should be signed, dated and returned
to the Company's special counsel, Xxxxxxx X. Xxxxxx, Esq. of
Xxxx, Xxxxxxx, Fierman, Xxxx & Handler, 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, no earlier than on the eighth (8th)
calendar day after the Agreement is executed by the Parties.