UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES AND EXCHANGE ACT OF 1934
JULY 25, 1995
(Date of Report)
Bucyrus-Erie Company
(Exact name of registrant as specified in its charter)
Delaware 1-871 39-0188050
(State or other jurisdiction (Commission File (IRS Employer
of incorporation) Number) ID Number)
P.O. Box 500
1100 Milwaukee Avenue
South Milwaukee, Wisconsin 53172
(Address of principal executive offices)
(414) 768-4000
(Registrant's telephone number, including area code)
<PAGE>
Item 5. Other Events
On July 25, 1995, Phillip W. Mork resigned as President and a
member of the Board of Directors of Bucyrus-Erie Company (the
"Company"). Frank W. Miller, a consultant to the Board of
Directors of the Company, has been appointed by the Board of
Directors to serve as the interim President and Chief Executive
Officer of the Company 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 as Vice President-
Finance and Treasurer. The Board of Directors of the Company 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 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.
Messrs. Mork, Verville and Goelzer have agreed to remain as
consultants to the Company.
Frank Miller, James Annand and certain other persons associated
with Miller Associates have agreed to perform services for the
Company pursuant to the terms of a Management Agreement, dated
July 21, 1995, between the Company and Miller Associates.
<PAGE>
Item 7. Financial Statements and Exhibits
(c) Exhibits:
99.1 Press Release, dated July 25, 1995, of Bucyrus-Erie Company
announcing the resignation of certain members of management
and the appointment of interim management.
99.2 Management Agreement, dated July 21, 1995, between Bucyrus-
Erie Company and Miller Associates.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
BUCYRUS-ERIE COMPANY
(Registrant)
By: /s/C. R. Mackus
Name: C. R. Mackus
Title: Controller
Date: August 11, 1995
<PAGE>
BUCYRUS-ERIE COMPANY
EXHIBIT INDEX
TO
CURRENT REPORT ON FORM 8-K
Incorporated
Exhibit Herein By Filed Sequential
Number Description Reference Herewith Page Number
99.1 Press Release, dated July X
25, 1995, of Bucyrus-Erie
Company announcing the
resignation of certain
members of management and
the appointment of interim
management.
99.2 Management Agreement, X
dated July 21, 1995,
between Bucyrus-Erie
Company and Miller
Associates.
EXHIBIT 99.1
FORM 8-K
JULY 25, 1995
PRESS RELEASE
BUCYRUS-ERIE COMPANY
FOR IMMEDIATE RELEASE
South Milwaukee, Wisconsin, 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)
768-4099.
EXHIBIT 99.2
FORM 8-K
JULY 25, 1995
MANAGEMENT AGREEMENT
Management Agreement (the "Agreement"), dated July 21,
1995 between Bucyrus-Erie Company, a Delaware corporation (the
"Company"), and Miller Associates, a Massachusetts corporation
("Associates").
WHEREAS, the Company wishes to engage Associates to
provide the management services and expertise of Frank W. Miller
("Miller"), James D. Annand ("Annand"), Charles Macaluso
("Macaluso"), Dan Fluet ("Fluet") and certain other persons
retained by Associates (collectively, the "Project Team") to the
Company; and
WHEREAS, Associates is willing to provide to the
Company the management services and expertise of the Project
Team.
THEREFORE, the parties agree as follows:
1. Term.
The engagement under this Agreement is for the period
(the "Term") commencing on August 2, 1995, or such earlier date
as the Board of Directors of the Company shall approve, and
terminating on the date specified in Section 5 (the "Termination
Date").
2. Positions; Duties and Reporting Relationship.
(a) The Company hereby appoints and retains
Associates to provide the management services and expertise of
the Project Team to serve the Company and manage the operations
and business of the Company, and Associates hereby accepts the
appointment and retention by the Company upon the terms and
subject to the conditions provided for herein. In addition to
the other duties and responsibilities herein, Associates and the
Project Team shall be responsible for the objectives set forth in
the proposal letter dated July 12, 1995 from Associates to the
Company.
(b) Except as provided herein, during the Term
the Company agrees that Miller shall be elected and appointed to
serve as Interim President and Chief Executive Officer of the
Company. Associates shall cause Miller and Miller agrees to
devote his entire business time and to use his skills and render
services to the best of his abilities in supervising, managing
and conducting the operations and business of the Company;
provided, however, that the foregoing shall not prevent Miller
from devoting time and effort to certain directorships currently
held by him in companies other than the Company, but only for so
long as they do not interfere with the performance of his duties
hereunder. In his capacity as Interim President and Chief
Executive Officer of the Company, Miller shall have the executive
responsibilities and duties typically held by the president and
chief executive officer of corporations of similar size and
scope. Without in any way limiting the foregoing, as part of his
duties hereunder, Miller shall be responsible for managing the
Company's relationships with its (i) lenders and financial
advisors, (ii) customers and suppliers and (iii) employees or
their representatives. In addition, Miller is hereby directed to
(x) evaluate and negotiate on behalf of the Company, with the
assistance of advisors, all material transactions involving the
Company, including, without limitation, joint ventures,
divestitures, acquisitions, mergers or other significant
investments or divestment, and (y) plan and implement the
strategic focus of the Company's marketing, sales and production
efforts. Associates shall cause Miller and Miller agrees to
perform such additional duties as are reasonably requested by the
Board of Directors of the Company or any committee thereof (the
"Board") consistent with Miller's position and the
responsibilities and duties set forth above. Associates and
Miller shall (i) in carrying out their responsibilities under
this Agreement, take all action consistent with the Company's
standard corporate operating practices and guidelines in effect
from time to time, (ii) at all times be subject to the authority
of the Board, and (iii) report to the Board at regularly
scheduled meetings and with reasonable promptness in the event of
any material developments in connection with the business and
affairs of the Company. In addition, Associates and Miller shall
present all material transactions to the Board for prior
approval.
(c) Except as provided herein, during the Term
the Company agrees that Annand shall be elected and appointed to
serve as Interim Chief Financial Officer of the Company.
Associates shall cause Annand and Annand agrees to devote his
entire business time and to use his skills and render services to
the best of his abilities in supervising, managing and conducting
the financial affairs of the Company. In his capacity as Interim
Chief Financial Officer of the Company, Annand shall have the
executive responsibilities and duties typically held by the chief
financial officer of corporations of similar size and scope.
Associates shall cause Annand and Annand agrees to perform such
additional duties as are reasonably requested by the Board
consistent with Annand's position and the responsibilities and
duties set forth above. Associates and Annand shall at all times
be subject to the authority of the Board and, in addition to
reporting to the Interim President and Chief Executive Officer,
shall report to the Board at regularly scheduled meetings and
with reasonable promptness in the event of any material
developments in connection with the business and affairs of the
Company. In addition, Associates and Annand shall present all
material transactions to the Board for prior approval.
(d) Except as provided herein, during the Term
Associates shall cause Macaluso, Fluet and other members of the
Project Team to devote such time and to use their skills and
render services to the best of their abilities in discharging
responsibilities and tasks assigned to them by the Board or by
Miller. Associates and such members of the Project Team shall at
all times be subject to the authority of the Board and shall
report to the Board at regularly scheduled meetings and with
reasonable promptness in the event of any material developments
in connection with the business and affairs of the Company. In
addition, Associates and such members of the Project Team shall
present all material transactions to the Board for prior
approval.
3. Personnel Provided by Associates.
(a) Neither Associates nor any affiliate or
employee of Associates shall be or shall be deemed to be an
employee of the Company for any purpose whatsoever. In
conformance with and without limitation on any application of the
preceding sentence, Associates shall be responsible for payment
of compensation to Associates' affiliates or employees assigned
to perform services hereunder and, to the extent required, for
payment of all workers' compensation, disability benefits, and
unemployment insurance as well as for paying and withholding
unemployment, social security and other payroll taxes on those of
its employees who are engaged in the performance of services.
(b) Upon the Company's request at any time,
Associates shall promptly provide to the Company documentation of
such type as the Company may require to verify that any
individual assigned by Associates to participate in the
performance of services is in fact an affiliate or employee of
Associates (including, but not limited to, Forms 1099, W-2 Forms,
W-4 Forms and pay stubs showing withholding).
(c) In the event that any claim, action or
proceeding is commenced against the Company alleging that the
personnel provided by Associates are employees of the Company for
any purpose, Associates agrees to indemnify and hold the Company
harmless from all liabilities, costs and expenses (including, but
not limited to, attorneys' fees) associated with such claim,
action or proceeding.
4. Payments for Services Rendered.
During the Term, the Company shall pay Associates an
aggregate amount per month in advance, payable not earlier than
the first day of each month within ten days after receipt of a
monthly statement for professional services rendered from
Associates, in accordance with the following schedule: $65,000
for each of August and September 1995, $55,000 for each of
October and November 1995, $45,000 for each of December 1995 and
January 1996 and $35,000 for each month thereafter. To the
extent not previously paid, if the Termination Date occurs after
November 30, 1995, the Company shall pay Associates on such date
an amount equal to Associates' pro rata share of the applicable
monthly amount based on the number of days between the beginning
of such month and the Termination Date. If the Termination Date
occurs after November 30, 1995, and Associates has been paid the
applicable monthly amount pursuant to this Section 4 in respect
of that month, Associates shall pay to the Company on such date
an amount equal to the difference between such applicable monthly
amount and Associates' pro rata share of the applicable monthly
amount based on the number of days between the beginning of such
month and the Termination Date.
5. Termination.
Associates' engagement hereunder shall terminate upon
the occurrence of any of the events and in accordance with the
terms set forth in subsections (a) through (c) of this Section.
In the event of termination under subsections (b) or (c),
Associates shall only be entitled to receive amounts which have
accrued pursuant to Section 4 but have not been paid prior to the
Termination Date, and Associates shall promptly repay to the
Company any excess amounts.
(a) Termination by the Company at Will.
Should the Company wish to terminate the
engagement hereunder for any reason during the Term, it shall
give Associates seven days prior written notice and specifying
the date as of which such termination is to become effective;
provided that, if the Company terminates the engagement hereunder
pursuant to this Section 5(a) and the Termination Date is prior
to December 1, 1995, the Company shall continue to provide
Associates with the amounts that Associates would otherwise be
entitled to pursuant to Section 4 through November 30, 1995.
(b) Death or Permanent Disability.
The Company may terminate the engagement hereunder
upon the death of Miller or in the event of Miller's Permanent
Disability (as defined below), seven days after written notice of
the Permanent Disability of Miller is received by the parties
hereto. Miller shall be deemed to be Permanently Disabled if in
the written opinion of a qualified physician designated by the
Company and reasonably acceptable to Associates, Miller will be
unable to perform in a reasonable manner his duties and
obligations under this Agreement.
(c) For Cause.
The engagement hereunder shall terminate at the
option of the Company, for "Cause" (as defined below) immediately
upon receipt by Associates of written notice from the Company
setting forth in reasonable detail the grounds for termination
which constitute Cause. For purposes of this Agreement, a
termination shall be for "Cause" if any member of the Project
Team (i) intentionally commits an act of fraud, embezzlement or
misappropriation involving the Company, (ii) is convicted by a
court of competent jurisdiction of, or enters a plea of guilty
to, any felony involving moral turpitude or dishonesty,
(iii) acts, or fails to act, constituting willful misconduct or
gross negligence and which results in material harm to the
Company, or (iv) willfully fails to substantially perform his
duties hereunder, after demand for substantial performance is
made by the Board.
6. Expenses, Reimbursement.
The Company shall promptly reimburse Associates for all
reasonable out-of-pocket costs and expenses incurred by
Associates or the Project Team in connection with or arising out
of the Project Team's performance under this Agreement,
including, without limitation, reasonable out-of-pocket costs and
expenses for travel, transportation, lodging and business meals.
7. Representations and Warranties.
Associates represents and warrants that:
(a) Associates is a corporation duly organized
and validly existing under the laws of Massachusetts. Associates
has all necessary corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder.
The execution and delivery of this Agreement, and the performance
of its obligations under this Agreement have been duly authorized
by all requisite action, and this Agreement constitutes the
legal, valid and binding obligation of Associates, enforceable
against it in accordance with its terms.
(b) Neither the execution and delivery of this
Agreement or any related documents by Associates, nor the
consummation of the transactions contemplated hereby, will
conflict with, or result in a breach or default of any of the
terms, conditions or provision of Associates' certificate of
incorporation, by-laws or other constituent documents or any law
or any regulation, order, writ, injunction, license, franchise or
decree of any court or governmental instrumentality or agency or
of any agreement or instrument to which Associates is a party or
by which it is bound or to which it or its assets is subject, nor
result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any of the assets of
Associates.
8. Indemnification.
(a) The Company shall indemnify and save and
hold, Associates and the Project Team (individually an
"Indemnified Party" and collectively the "Indemnified Parties")
harmless from and against any and all damages, liabilities,
losses, costs and expenses (including, but not limited to,
reasonable attorney's fees and expenses) resulting from, arising
out of, or in connection with the performance of duties or
rendering of services by any of the Indemnified Parties under
this Agreement or the Consulting Agreement dated April 27, 1995
between Associates and the Company (the "Consulting Agreement"),
except that the Company shall have no liability hereunder in
respect of any act or omission of an Indemnified Party, which act
or omission is caused by Associates' or any member of the Project
Team's willful breach of this Agreement or the Consulting
Agreement, recklessness or gross negligence or failure to act in
good faith.
(b) In order for an Indemnified Party to be
entitled to any indemnification provided for under this Agreement
in respect of, arising out of, or involving any suit, action,
proceeding, claim, demand or written notice made by any third
party against an Indemnified Party (a "Third Party Claim"), such
Indemnified Party must notify the Company in writing of the Third
Party Claim within 10 days after receipt by such Indemnified
Party of written notice of the Third Party Claim; provided,
however, that the failure of any Indemnified Party to give such
notice shall not affect such Indemnified Party's right to
indemnification hereunder except to the extent the Company has
actually been prejudiced or damaged thereby. If a Third Party
Claim is made against an Indemnified Party, the Company shall be
entitled, if it so chooses, to elect to compromise or assume the
defense thereof by delivering written notice to such effect to
the Indemnified Party within 30 days following receipt by the
Company of the notice of the Third Party Claim. Such compromise
or defense shall be at the Company's sole cost and expense, with
counsel selected by the Company. If the Company elects to
compromise or assume the defense of any Third Party Claim, it may
not agree to any settlement or compromise of such claim, other
than a settlement or compromise solely for monetary damages for
which the Company shall be responsible, without the prior written
consent of the Indemnified Party, which will not be unreasonably
withheld. If the Company elects to compromise or assume the
defense of a Third Party Claim, the Indemnified Party will
cooperate with the Company in connection with such compromise or
defense, and shall have the right to participate in such
compromise or defense with counsel selected and paid for by the
Indemnified Party. The Indemnified Party shall not settle or
compromise any Third Party Claim without the consent of the
Company.
9. Covenants.
(a) Neither Associates, the Project Team, nor any
of their respective affiliates or employees shall, during the
Term or at any time thereafter, directly or indirectly, use,
publish or disclose to any person, firm or corporation or other
entity, any confidential information concerning the assets,
business or affairs of the Company, including, without
limitation, any trade secrets, sources of supply, costs, pricing
practices, customer lists, financial data, employee information
or information as to organizational structure.
(b) Neither Associates, the Project Team, nor any
of their respective affiliates or employees shall, during the
Term and for 24 months thereafter, directly or indirectly, engage
in or be interested in (as owner, partner, shareholder, employee,
director, officer, agent, consultant or otherwise), with or
without compensation, any business which is competitive with the
business being conducted by the Company at any time during the
Term, without the prior written approval of the Board.
(c) Neither Associates, the Project Team, nor any
of their respective affiliates or employees shall, during the
Term and for 24 months thereafter, directly or indirectly,
solicit or contact any employee of the Company, with a view to
inducing or encouraging such employee to leave the employ of the
Company.
(d) The provisions of this Section 9 are
reasonable and necessary for the protection of the Company and
the Company will be irrevocably damaged if such covenants are not
specifically enforced. Accordingly, in addition to any other
relief to which the Company may be entitled in the form of actual
or punitive damages, the Company shall be entitled to seek and
obtain injunctive relief from a court of competent jurisdiction
for the purposes of restraining any actual or threatened breach
of such covenants.
10. Amendment or Modification, Waiver.
No provision of this Agreement may be amended or waived
unless such amendment or waiver is agreed to in writing, signed
by a duly authorized representative of Associates and the
Company. No waiver by any party hereto of any breach by another
party hereto of any condition or provision of this Agreement to
be performed by such other party shall be deemed a waiver of a
similar or dissimilar condition or provision at the same time,
any prior time or any subsequent time.
11. Notices.
Any and all notices or consents required or permitted
to be given under any of the provisions of this Agreement shall
be in writing or by written telecommunication and delivered
either by hand delivery or by registered or certified mail,
return receipt requested, to the relevant addresses set out
below, in which event they shall be deemed to have been duly
given upon receipt.
If to Associates, at:
Miller Associates
791 Andover Street
Lowell, MA 01852
Attention: Frank W. Miller
Telecopy: (508) 970-0996
If to the Company, at:
Bucyrus-Erie Company
1100 Milwaukee Avenue
South Milwaukee, WI 53172
Attention: Secretary or Assistant Secretary
Telecopy: (414) 768-5060
In either case, with a copy to:
Kaye, Scholer, Fierman, Hays & Handler
425 Park Avenue
New York, NY 10022
Attention: Seymour H. Chalif, Esq.
Telecopy: (212) 836-7150
12. Survival of Agreements.
Except as set forth herein, all agreements, covenants,
representations and warranties made herein shall survive the
execution and delivery of this Agreement and the Termination Date
and shall continue in full force and effect.
13. Successors and Assigns.
This Agreement may not be assigned by Associates
without the prior written consent of the Company. This Agreement
may not be assigned by the Company without the prior written
consent of Associates, other than to the Company's successor in
the case of a merger or consolidation involving the Company.
This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted
assigns.
14. Entire Agreement.
This Agreement (including the documents referred to
herein) contains the entire agreement of the parties hereto with
respect to the subject matter hereof, supersedes all prior
written agreements and negotiations and oral understandings, if
any, and it may not be amended, supplemented or discharged except
by an instrument in writing signed by the parties hereto.
15. Counterparts.
This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original and
all of which shall be deemed one and the same agreement.
16. Severability.
Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction
be ineffective to the extent of such prohibition or
enforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
17. Governing Law.
This Agreement will be governed by and construed in
accordance with the laws of the State of Delaware, without regard
to its conflicts of laws principles.
18. Effectiveness of Agreement.
This Agreement is binding upon Associates and the
Project Team, but will not be effective unless and until approved
by the Board on or prior to August 4, 1995.
19. Jurisdiction.
The state and federal courts of Delaware shall have
jurisdiction over the parties with respect to any dispute or
controversy arising under or in connection with this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the date first
written above.
MILLER ASSOCIATES
By:/s/Frank W. Miller
Name: Frank W. Miller
Title:
BUCYRUS-ERIE COMPANY
By:/s/C. Scott Bartlett Jr.
Name: C. Scott Bartlett Jr.
Title Director
ACCEPTED AND AGREED TO:
/s/Frank W. Miller
Frank W. Miller
/s/James D. Annand
James D. Annand
