EXHIBIT 10.4
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 Xxxxx X. Xxxxxxx ("Xxxxxxx"), residing at 0000 X. Xxxxxx
Xxxx, Xxx Xxxxx, XX 00000 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, Goelzer 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, Goelzer was employed in senior executive
positions by the Company; and
WHEREAS, Goelzer voluntarily resigns as Vice President
and Secretary of BEC effective immediately upon execution of the
Agreement, and resigns his employment and all other positions he
may be holding, including but not limited to his position as
General Counsel of BEC, effective October 1, 1995 or at such an
earlier date as may be set by the interim President of XXX;
NOW, THEREFORE, in an effort to clearly state the
mutual obligations between Goelzer 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whatever nature, are hereby canceled, terminated and superseded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. Xxxxxxx'x Termination and Last Day of Employment.
Effective immediately upon his execution of this Agreement,
Goelzer voluntarily resigns his positions as Vice President and
Secretary of the Company. In addition, unless the interim
President of XXX sets an earlier date for Xxxxxxx'x resignation
from employment, Goelzer hereby voluntarily resigns his
employment and all other positions he may be holding, including
but not limited to his position as General Counsel of BEC,
effective midnight, October 1, 1995. Goelzer xxxxxx agrees that
his resignation from employment and all other positions he may be
holding shall take effect immediately upon his notification by
the interim President of BEC of such resignation prior to October
1, 1995.
3. Payments and Benefits to Goelzer.
(a) BEC shall pay or cause to be paid to Goelzer
his current base salary, less applicable withholdings and
deductions, through October 1, 1995, or through such earlier date
on which Goelzer voluntarily resigns his employment, including
but not limited to his position as General Counsel.
(b) BEC shall pay or cause to be paid to Goelzer
the sum of $223,206.12 (two hundred twenty three thousand two
hundred six U.S. dollars and twelve 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
Xxxxxxx'x address listed in Paragraph 16 or any other address
designated in writing by Goelzer each installment via check
payable to the order of "Xxxxx Xxxxxxx", on the fifteenth of each
month, commencing on October 15, 1995, or the fifteenth day of
the month following the month in which he ceases to be an
employee of the Company, whichever is earlier, and continuing
through and including March 15, 1997, but not later than 18
months after the date of the first Separation Payment. 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, Wage
2 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 the
1 date which is eight months prior to the
date of termination.
(c) Commencing April 15, 1997, or 18 months after the
date of the first Separation Payment, whichever is earlier, BEC
shall pay or cause to be paid to Goelzer 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 Goelzer (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
Goelzer, each installment via check payable to the order of
"Xxxxx Xxxxxxx", on the fifteenth of each month, commencing on
April 15, 1997 or 18 months after the date of the first
Separation Payment, whichever is earlier, and continuing through
and including March 15, 1999 but not later than 24 months after
the first Special Payment, whichever is earlier.
(d) The payments provided in Paragraphs 3(b) and 3(c)
shall be made without regard to whether Goelzer 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 Goelzer or whether the Company desires consulting
services from Goelzer. In the event Goelzer dies while receiving
payments pursuant to Paragraphs 3(b) and 3(c), 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 Xxxxxxx'x
death in the event of the application of this
formula to the Separation Payment or
$2,083.33 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
Goelzer is terminated.
B = The percentage increase in the Consumers
Price Index (as defined in subparagraph 3(b)
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 Goelzer is terminated.
Payment of such lump sum shall be made at the end of the month in
which Goelzer 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 Goelzer becomes disabled while
receiving payments pursuant to Paragraph 3(b) or 3(c), he shall
continue to receive such payments on the same basis as before he
became disabled. If Goelzer violates in any material respect the
non-competition provisions contained in subparagraph 4(a) hereof
or the provisions of Paragraph 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.
(e) Through March 15, 1999, or 42 months after the
date of the first Separation Payment, whichever is earlier,
except for periods during which Goelzer is employed full-time by
another party, Goelzer 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 Goelzer would have been a member
had his employment continued. When Goelzer is employed full-time
by another party prior to March 15, 1999, or 42 months after the
date of the first Separation Payment, whichever is earlier, 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 Goelzer which BEC may have
pursuant to the Consolidated Omnibus Budget Reconciliation Act of
1985.
(f) 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 Goelzer during the Consultation Period shall
be counted for the purpose of determining Xxxxxxx'x benefits
pursuant to said plans to the extent that such compensation falls
within the scope of compensation as defined in said plans. Also,
Goelzer 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.
(g) Goelzer shall be reimbursed for all reasonable
costs and expenses previously approved by the Company and
incurred by Goelzer in providing services to the Company pursuant
to Paragraphs 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 Xxxxxxx'x last day of
employment (the "Consultation Period") Goelzer shall serve as
consultant to BEC. During the Consultation Period Goelzer will
supply advice from time to time on reasonable advance notice with
respect to the affairs of the Company, but during the
Consultation Period Goelzer 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. Goelzer 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 Xxxxxxx'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 Goelzer is employed by a competing business,
the term "business" shall be defined to include not only the
entity by whom Goelzer 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, Goelzer 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 execution of this Agreement by Goelzer.
For purposes of this Paragraph, "indirect" solicitation or
employment shall mean solicitation or employment through
Xxxxxxx'x efforts by any entity with which Goelzer becomes
associated.
(c) During the Consultation Period, at Xxxxxxx'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 Goelzer.
5. Purpose of Payment. The Company is providing and
Goelzer 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
Xxxxxxx'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"). Goelzer
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 Goelzer 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 Goelzer.
(a) In consideration of this Agreement and the
monies and other good and valuable consideration provided to
Goelzer pursuant to this Agreement, Goelzer 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 "Xxxxxxx'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 Xxxxxxx'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 Xxxxxxx'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 Goelzer may have under the Employment
Agreement; provided, however, that nothing herein shall be deemed
a release of any entitlements Goelzer 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 Goelzer 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 Goelzer
operates as a complete bar and defense against any and all of
Xxxxxxx'x Claims against the Company or the other Releasees. If
Goelzer should hereafter raise any of Xxxxxxx'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 Goelzer all costs
incurred including attorneys' fees. Nothing contained herein is
intended to prevent Goelzer from enforcing this Agreement.
8. Release by the Company.
(a) The Company agrees to forever release and
discharge Goelzer 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 Goelzer, 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 Goelzer, 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 Goelzer
in regard to any criminal violations of law where Goelzer is
convicted or pleads guilty and as to which Goelzer had no
reasonable cause to believe his conduct was lawful; and
(ii) Company Claims against Goelzer in regard to any matter as to
which Goelzer 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 Goelzer, this Agreement may be raised as and
shall constitute a complete bar to any such action, claim or
proceeding and Goelzer 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) Goelzer 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 Goelzer. In the event disclosure is sought from
Goelzer in direct response to any such subpoena or other legal
process, Goelzer 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. Goelzer
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) Goelzer 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) As of the last day of employment, Goelzer is
obligated to surrender and will acknowledge 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 Goelzer, 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 Goelzer, Goelzer agrees to
cooperate with the Company in connection with the financial
affairs, legal affairs or business matters arising during
Xxxxxxx'x employment about which Goelzer 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 Xxxxxxx'x
cooperation, BEC will not unreasonably interfere with Xxxxxxx'x
employment elsewhere. Subject to and without limiting the
provisions of Paragraph 9 hereof, this Paragraph shall not act to
impede Goelzer from discussing Such Matters personally relating
to Goelzer 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 Goelzer discusses Such Matters with his
lawyers, Goelzer 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, Goelzer shall request that any prospective
employers communicate directly with the then President of BEC
(the "President"), in order to inquire about Xxxxxxx'x employment
by XXX. Upon any inquiry from a prospective employer, Goelzer
hereby consents to having the President only confirm that Goelzer
was employed by BEC and shall give Xxxxxxx'x final position,
dates of employment, and final salary.
11. No Derogatory Comments.
(a) Goelzer 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 Goelzer 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 Goelzer, 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 Goelzer and the manner in which he
conducted his business as an employee and officer of the Company,
and (2) divulging any information regarding Goelzer 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(d), 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, Goelzer hereby waives any right he may
have to arbitration as against the Company, including but not
limited to BEC and any of the other Releases, 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. Goelzer 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 Goelzer
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 Goelzer:
X.X. Xxxxxxx
0000 X. Xxxxxx Xxxx
Xxx Xxxxx, XX 00000
Telephone No. (000) 000-0000
Fax No.
with a copy to:
Xxxxxxx & Xxxx, SC
000 X. Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telephone No. (000) 000-0000
Fax No. (000) 000-0000
Attention: Xxxxxxxx Xxxxxx, 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"), GOELZER 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/ Xxxxx X. Xxxxxxx July 25 , 1995
Xxxxx X. Xxxxxxx Date of Execution
by Goelzer
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/ X X Xxxxxxx August 2 , 1995
Xxxxx Xxxxxxx Date of Execution
by Goelzer
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.
