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
May 31, 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 4. Change in Registrant's Certifying Accountant
(a) Previous Independent Accountants
(i) On May 31, 1995, Bucyrus-Erie Company (the "Registrant") dismissed
Deloitte & Touche LLP as its independent accountants.
(ii) Deloitte & Touche LLP's reports on the Registrant's financial
statements for the year ended December 31, 1993, the period
January 1, 1994 to December 13, 1994 and the period December 14,
1994 to December 31, 1994 and on the financial statements of the
former parent of the Registrant, B-E Holdings, Inc. ("Holdings")
for the year ended December 31, 1993 contained no adverse opinion
or disclaimer of opinion and were not qualified or modified as to
uncertainty, audit scope or accounting principles, except that:
(A) such reports for the year ended December 31, 1993
relating to the Registrant and Holdings, respectively,
included the following statements: (1) a statement as to
uncertainty about the Registrant's and Holdings' ability to
continue as a going concern, and (2) a statement that since
the Registrant and Holdings had filed voluntary petitions
for relief under chapter 11 of the United States Bankruptcy
Code and a prepackaged joint plan of reorganization in the
United State Bankruptcy Court, Eastern District of
Wisconsin, the Registrant's and Holdings' financial
statements did not purport to reflect or provide for the
consequences of the bankruptcy proceedings and in particular
did not purport to show (a) as to assets, their realizable
value on a liquidation basis or their availability to
satisfy liabilities; (b) as to pre-petition liabilities, the
amounts that might be allowed for claims or contingencies,
or the status and priority thereof; (c) as to shareholder
accounts, the effect of any changes that might be made in
the capitalization of the Registrant and Holdings; or (d) as
to operations, the effect of any changes that might be made
in the Registrant's and Holdings' business, and
(B) such reports for the period January 1, 1994 to
December 13, 1994 and for the period December 14, 1994 to
December 31, 1994 include two statements as to the
uncertainty of the ultimate outcome of (1) a matter
involving a claim seeking unspecified money damages and
other equitable relief against the Registrant's current
and/or former officers and directors who have rights to
indemnification from the Registrant, and (2) a matter
involving a claim against the Registrant for reimbursement
of fees and disbursements incurred in connection with the
Registrant's chapter 11 proceedings.
(iii) The Registrant's Board of Directors approved the decision to
change the Registrant's independent accountants upon the
recommendation of the Registrant's Audit Committee.
(iv) During the Registrant's two most recent fiscal years and through
May 31, 1995, there have been no disagreements with Deloitte &
Touche LLP on any matters of accounting principles or practices,
financial statement disclosures or auditing scope or procedure,
which disagreements, if not resolved to the satisfaction of
Deloitte & Touche LLP, would have caused that firm to make
reference to the subject matter of the disagreement in connection
with its report on the financial statements for such years.
(v) During the Registrant's two most recent fiscal years and through
May 31, 1995, there have been no reportable events (as defined in
Regulation S-K Item 304(a)(1)(v)).
(vi) The Registrant has provided Deloitte & Touche LLP with a copy of
the disclosures contained herein and requested that Deloitte &
Touche LLP furnish it with a letter addressed to the Securities
and Exchange Commission ("SEC") as required by Item 304(a) of
Regulation S-K. A copy of Deloitte & Touche LLP's letter to the
SEC is attached as Exhibit 16 to this Form 8-K.
(b) New Independent Accountants
On May 31, 1995, the Registrant engaged Arthur Andersen LLP as its
independent accountants. The Registrant's Board of Directors approved
the decision to select Arthur Andersen LLP as the Registrant's
independent accountants upon the recommendation of the Registrant's
Audit Committee. During the Registrant's two most recent fiscal years
and through May 31, 1995, the Registrant has not consulted Arthur
Andersen LLP with respect to any matter described in Regulation S-K
Item 304(a)(2)(i) and (ii).
Item 5. Other Events
Pursuant to a Settlement Agreement dated May 23, 1995 (the "Settlement
Agreement") between the Registrant and Jackson National Life Insurance
Company, the holder of approximately 41.58% of the Registrant's Common Stock
("JNL"), JNL has agreed: (a) to execute general releases of all claims, known
or unknown, arising at any time through the date of such releases, in favor of
Messrs. William B. Winter (former Chairman of the Board of the Registrant),
Ray G. Olander (former Vice Chairman and director of the Registrant),
Norbert J. Verville (the Registrant's Vice President - Finance and Treasurer
and former director) and David M. Goelzer (the Registrant's Vice President,
Secretary and General Counsel and former director) (the "Releasees") and
(b) to discontinue with prejudice, and without costs as against any party, its
action against the Releasees pending in the United States District Court for
the Southern District of New York (the "JNL Suit"). The Releasees have rights
to indemnification from the Registrant for any costs and expenses incurred by
them in connection with the JNL Suit, as described in the Registrant's Annual
Report on Form 10-K for the year ended December 31, 1994 (the "1994 10-K").
As described in the 1994 10-K, JNL has filed an Application for
Allowance of Expenses with the United States Bankruptcy Court, Eastern
District of Wisconsin (the "Bankruptcy Court"), seeking reimbursement from the
Registrant pursuant to Section 503(b) of the Bankruptcy Code for professional
fees and disbursements incurred by JNL during the Registant's reorganization
proceedings under chapter 11 of the Bankruptcy Code (the "Section 503(b)
Claim"). Pursuant to the Settlement Agreement, JNL has agreed that, in the
event that the Section 503(b) Claim is allowed in whole or in part by the
Bankruptcy Court, in lieu of requiring payment of any award in cash JNL will
accept payment in common stock of the Registrant at a price equal to the
average closing price of such stock on the Nasdaq National Market for the five
trading days prior to a date, not earlier than June 12, 1995 and not later
than June 30, 1995, to be determined by the Registrant on or before June 5,
1995 in its sole discretion.
<PAGE>
Item 7. Financial Statements and Exhibits
(c) Exhibits:
10. Settlement Agreement between Registrant and Jackson National
Life Insurance Company, dated May 23, 1995.
16. Letter of Deloitte & Touche LLP to the SEC.
<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/ PHILLIP W. MORK
Name: Phillip W. Mork
Title: President
Date: May 31, 1995
<PAGE>
BUCYRUS-ERIE COMPANY
EXHIBIT INDEX
TO
CURRENT REPORT ON FORM 8-K
Incorporated Sequential
Exhibit Herein By Filed Page
Number Description Reference Herewith Number
10 Settlement Agreement X
between Registrant
and Jackson National
Life Insurance Company,
dated May 23, 1995.
16 Letter of Deloitte & X
Touche LLP to the SEC.
E-1
EXHIBIT 10
FORM 8-K
MAY 31, 1995
Bucyrus-JNL Settlement Agreement
A. JNL's 503(b) Claim
1. Bucyrus will not withdraw its objections to JNL's 503(b)
claim.
2. Bucyrus and JNL will not initiate any discovery in
connection with JNL's 503(b) claim. The Office of the
United States Trustee will initiate any discovery requests
by June __ [date to be agreed]. It is contemplated that
no other party will initiate discovery. All discovery
will be completed by July __ [date to be agreed].
3. Each party to the hearing on the claim will serve on all
other parties a list of witnesses and proposed exhibits by
July __ [date to be agreed]. All parties will attempt in
good faith to stipulate to uncontested facts and to the
authenticity and admissibility of exhibits. JNL and
Bucyrus shall be jointly responsible for preparing the
stipulation.
4. Bucyrus and JNL shall seek a hearing on JNL's claim at the
earliest practicable date.
5. The parties reserve their rights to participate fully in
any hearing the Court may have in connection with the
claim.
6. The parties reserve their rights to appeal from any
decision or order of the Court issued in connection with
the claim.
7. JNL agrees to accept any award it may receive on its
503(b) claim in common stock of Bucyrus at a price equal
to the average closing price of the stock on the NASDAQ
National Market for the five trading days prior to a date,
not earlier than June 12, 1995 and not later than June 30,
1995, to be determined by Bucyrus on or before June 5,
1995 in its sole discretion.
8. The foregoing will be memorialized in an agreed order to
be presented to the Court on June 2.
<PAGE>
B. Releases and Discontinuance of Litigation
1. On or before June 9, 1995, JNL will execute and deliver
general releases of all claims, known or unknown, arising
at any time through the date of such releases, to each of
Messrs. Goelzer, Verville, Winter and Olander (the
"Releasees").
2. On or before June 9, 1995, JNL will discontinue with
prejudice, and without costs as against any party, its
action against the Releasees pending in the United States
District Court for the Southern District of New York (the
"Southern District Action").
3. Pursuant to the terms of the indemnification provided by
Bucyrus to the Releasees, Bucyrus will indemnify the
Releasees for any and all costs and expenses incurred in
connection with defending the Southern District Action.
4. Bucyrus agrees not to seek indemnification from JNL under
the Indemnification Agreement, dated November 30, 1994,
among Bucyrus-Erie Company, B-E Holdings, Inc. and JNL for
amounts paid on behalf of the Releasees in connection with
the Southern District Action.
C. Acknowledgement of Lack of Grounds to Revoke Order of
Confirmation
1. JNL acknowledges that it is not aware as of the date of
this settlement of grounds for the revocation of the Order
of Confirmation of Bucyrus' Plan of Reorganization, dated
December 2, 1994, pursuant to section 1144 of the United
States Bankruptcy Court, 11 U.S.C. Section 1144, or for
any other reason.
<PAGE>
D. Professional Fees in Stock
1. Bucyrus will request its outside professionals to consider
accepting any award of professional fees in common stock
of Bucyrus at the same price as determined in paragraph A
(7), above. It is expressly understood that the
effectiveness of this Settlement Agreement is not
contingent in any way on any of these professionals
agreeing or even considering to accept professional fees
in the form of Bucyrus common stock at the same price as
determined in paragraph A (7), above.
Dated: May 23, 1995
AGREED:
BUCYRUS-ERIE COMPANY
By: /s/ P. W. Mork
JACKSON NATIONAL LIFE INSURANCE COMPANY
By: PPM AMERICA, INC.
By: /s/ F. J. Stark, III
EXHIBIT 16
FORM 8-K
MAY 31, 1995
Deloitte &
Touche LLP
___________ ___________________________________________________
411 East Wisconsin Avenue Telephone: (414) 271-3000
Milwaukee, Wisconsin 53202-4496
June 5, 1995
Securities and Exchange Commission
Mail Stop 9-5
450 5th Street, N.W.
Washington, D.C. 20549
Dear Sirs/Madams:
We have read and agree with the comments in Item 4 of Form 8-K of
Bucyrus-Erie Company dated May 31, 1995.
Yours truly,
DELOITTE & TOUCHE LLP
_______________
Deloitte Touche
Tohmatsu
International
_______________
