EXHIBIT 10.3
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 Norbert J. Verville ("Verville"), residing at 13500
Highwood Dr., Elm Grove, WI 53122 and Bucyrus-Erie Company
("BEC"), a Delaware corporation, located at 1100 Milwaukee
Avenue, South Milwaukee, Wisconsin 53172-0500, on behalf of
itself individually and any past and present parents and
subsidiaries (collectively, the "Company").
WHEREAS, Verville 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, Verville was employed in senior executive
positions by the Company; and
WHEREAS, Verville voluntarily resigns his employment
and all positions he held with the Company, including his
position as Vice President-Finance and Treasurer, effective
immediately upon his execution of this Agreement;
NOW, THEREFORE, in an effort to clearly state the
mutual obligations between Verville 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, including, without limitation, the Employment
Agreement, are hereby canceled, terminated and superseded by this
Agreement and shall be of no further force or effect.
2. Verville's Termination and Last Day of Employment.
Effective immediately upon his execution of this Agreement,
Verville voluntarily resigns his employment and all positions he
held with the Company.
3. Payments and Benefits to Verville.
(a) BEC shall pay or cause to be paid to Verville
the sum of $334,552.50 (three hundred thirty four thousand five
hundred fifty two U.S. dollars and fifty 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
Verville's address listed in Paragraph 16 or any other address
designated in writing by Verville each installment via check
payable to the order of "Norbert Verville", 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 Verville the sum of $50,000 (fifty
thousand U.S. dollars), less applicable withholdings or
deductions, the net of which shall be payable in twenty-four (24)
equal monthly installments, which shall constitute the special
payment to Verville (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
Verville, each installment via check payable to the order of
"Norbert Verville", on the fifteenth of each month, commencing on
February 15, 1997 and continuing through and including January
15, 1999.
(c) The payments provided in Paragraphs 3(a) and
3(b) shall be made without regard to whether Verville 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 Verville or whether the Company desires consulting
services from Verville. In the event Verville 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 Verville's
death in the event of the application of this
formula to the Separation Payment or $2083.33
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
Verville 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 Verville is terminated.
Payment of such lump sum shall be made at the end of the month in
which Verville 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 Verville 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 Verville violates in any material
respect the non-competition provisions contained in Subpara-
graph 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, 1999, except for periods
during which Verville is employed full-time by another party,
Verville 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 Verville would have been a member had his
employment continued. When Verville is employed full-time by
another party prior to January 15, 1999, 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 Verville 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 Verville during the Consultation Period
shall be counted for the purpose of determining Verville's
benefits pursuant to said plans to the extent that such
compensation falls within the scope of compensation as defined in
said plans. Also, Verville 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) Verville shall be reimbursed for all
reasonable costs and expenses previously approved by the Company
and incurred by Verville in providing services to the Company
pursuant to Sections 4(a) and 10(a) hereof.
4. Consultant Agreement.
(a) In consideration of the Separation Payment,
Special Payment and other valuable consideration in this
Agreement, for two years following the date of execution of this
Agreement by Verville (the "Consultation Period"), Verville shall
serve as consultant to BEC. During the Consultation Period
Verville will supply advice from time to time on reasonable
advance notice with respect to the affairs of the Company, but
during the Consultation Period Verville 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. Verville 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 Verville's
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 Verville is employed by a competing
business, the term "business" shall be defined to include not
only the entity by whom Verville 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, Verville 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 Verville's efforts
by any entity with which Verville becomes associated.
(c) During the Consultation Period, at Verville's
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 Janotta Bray Beal & Associates, 2600 North Mayfair Road,
Milwaukee, Wisconsin 53226, unless an alternative firm is agreed
to by the Company and Verville.
5. Purpose of Payment. The Company is providing and
Verville 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
Verville's 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"). Verville
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 Verville 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 Verville.
(a) In consideration of this Agreement and the
monies and other good and valuable consideration provided to
Verville pursuant to this Agreement, Verville 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 "Verville's 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 Verville's 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 Verville's 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 Verville may have under the Employment
Agreement; provided, however, that nothing herein shall be deemed
a release of any entitlements Verville 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 Verville may
have in his capacity as an officer, director or employee of the
Company under the Company's By-laws or the Delaware General
Corporation Law.
(b) Execution of this Agreement by Verville
operates as a complete bar and defense against any and all of
Verville's Claims against the Company or the other Releasees. If
Verville should hereafter raise any of Verville's 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 Verville all costs
incurred including attorneys' fees. Nothing contained herein is
intended to prevent Verville from enforcing this Agreement.
8. Release by the Company.
(a) The Company agrees to forever release and
discharge Verville 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 Verville, 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 BEC operates
as a complete bar and defense against any and all of the Company
Claims against Verville, 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 Verville
in regard to any criminal violations of law where Verville is
convicted or pleads guilty and as to which Verville had no
reasonable cause to believe his conduct was lawful; and
(ii) Company Claims against Verville in regard to any matter as
to which Verville 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 Verville, this Agreement may be raised as and
shall constitute a complete bar to any such action, claim or
proceeding and Verville 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) Verville 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 Verville. In the event disclosure is sought from
Verville in direct response to any such subpoena or other legal
process, Verville 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. Verville
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) Verville 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) Verville 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
Verville, 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 Verville, Verville agrees
to cooperate with the Company in connection with the financial
affairs, legal affairs or business matters arising during
Verville's employment about which Verville 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 Verville's
cooperation, BEC will not unreasonably interfere with Verville's
employment elsewhere. Subject to and without limiting the
provisions of Paragraph 9 hereof, this Paragraph shall not act to
impede Verville from discussing Such Matters personally relating
to Verville 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 Verville discusses Such Matters with his
lawyers, Verville 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, Verville shall request that any
prospective employers communicate directly with the then
President of BEC (the "President") in order to inquire about
Verville's employment by BEC. Upon any inquiry from a
prospective employer, Verville hereby consents to having the
President only confirm that Verville was employed by BEC and
shall give Verville's final position, dates of employment, and
final salary.
11. No Derogatory Comments.
(a) Verville represents and warrants that he
shall refrain from any action that materially harms 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 Verville or as otherwise
required by law.
(b) The Company represents and warrants that it
shall refrain from any action that materially harms the
reputation or good will of Verville, 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 Verville and the manner in which he
conducted his business as an employee and officer of the Company,
and (2) divulging any information regarding Verville 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, Verville 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. Verville 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, Seymour H. Chalif, Esq.
of Kaye, Scholer, Fierman, Hays & 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 Verville
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 Verville:
Mr. N.J. Verville
13500 Highwood Drive
Elm Grove, WI 53122
Telephone No. (414) 786-8402
Fax No.
with a copy to:
Godfrey & Kahn, S.C.
780 N. Water Street
Milwaukee, WI 53202
Telephone No. (414) 273-3500
Fax No. (414) 273-5198
Attention: Patricia Leiker, Esq.
(b) If to BEC:
Bucyrus-Erie Company
1100 Milwaukee Avenue
South Milwaukee, WI 53172-0500
Telephone No. (414) 768-4000
Fax No. (414) 768-5060
Attention: President
With a copy to:
Kaye, Scholer, Fierman, Hays & Handler
425 Park Avenue
New York, New York 10022
Telephone No. (212) 836-8597
Fax No. (212) 836-7150
Attention: Seymour H. Chalif, Esq.
IN SIGNING THIS SEPARATION AGREEMENT AND MUTUAL RELEASE
("AGREEMENT"), VERVILLE ACKNOWLEDGES THAT: (A) HE HAS READ AND
UNDERSTANDS THIS AGREEMENT AND HE IS HEREBY 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/ Norbert Verville July 25 , 1995
Norbert Verville Date of Execution
by Verville
By:/s/ C. Scott Bartlett, Jr. July 25 , 1995
Bucyrus-Erie Company Date of Execution
Director by BEC
EXHIBIT A
PRESS RELEASE
* * *
FOR IMMEDIATE RELEASE July 25, 1995
The Bucyrus-Erie Company announced today that Phillip
W. Mork has resigned as its President and member of its Board of
Directors, effective immediately. Frank W. Miller, 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 Mr. Mork is
selected. Mr. Miller is President of Miller 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 Mr. Miller's management background meets the
requirements of the Company during this period.
In addition, Norbert J. Verville has resigned today as
Vice President-Finance and Treasurer. The Board of Directors has
appointed James D. Annand, from Miller Associates, to be interim
Chief Financial Officer. Mr. Annand has served as the general
manager and chief financial officer of a number of organizations,
including investment, manufacturing and wholesale/retail
businesses.
David M. Goelzer 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. Mork, Verville and
Goelzer have agreed to remain as consultants to the Company.
In announcing these resignations and the appointment of
Mr. Miller, 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 T.W. Sullivan
at (414) 768-4000.
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 Phillip W.
Mork as President and member of the Board of Directors, effective
immediately. Frank W. Miller, 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. Mr. Miller is President of Miller 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 Mr. Miller's
management background meets the requirements of the Company
during this period.
We also have announced the resignation of Norbert J.
Verville as Vice President-Finance and Treasurer, effective
today. The Board has appointed James D. Annand as interim Chief
Financial Officer. Mr. Annand 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, David M. Goelzer has
resigned as Vice President and Secretary. In order to assist in
the transition of leadership, Mr. Goelzer's resignation as
General Counsel will be effective no later than October 1, 1995.
Messrs. Mork, Verville 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. Mork, Verville 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.
______________________________ __________________ , 1995
Norbert Verville Date of Execution
by Verville
IMPORTANT:
This Certificate should be signed, dated and returned
to the Company's special counsel, Seymour H. Chalif, Esq. of
Kaye, Scholer, Fierman, Hays & Handler, 425 Park Avenue, New
York, New York 10022, no earlier than on the eighth (8th)
calendar day after the Agreement is executed by the Parties.