Exhibit 10(jj)
CLEVELAND-CLIFFS INC
CHANGE IN CONTROL SEVERANCE PAY PLAN
CLEVELAND-CLIFFS INC
CHANGE IN CONTROL SEVERANCE PAY PLAN
TABLE OF CONTENTS
PAGE
1. General Statement of Purpose.........................................1
2. Effective and Termination Dates......................................1
3. Definitions..........................................................1
4. Eligibility; Termination Following a Change in Control...............5
5. Severance Compensation...............................................7
6. Certain Additional Payments by the Company...........................8
7. No Mitigation Obligation............................................11
8. Certain Payments not Considered for Other Benefits, etc.............11
9. Confidentiality; Confidential Information; Noncompetition...........11
10. Release.............................................................12
11. Legal Fees and Expenses.............................................12
12. Employment Rights...................................................13
13. Withholding of Taxes................................................14
14. Successors and Binding Effect.......................................14
15. Governing Law.......................................................14
16. Validity............................................................14
17. Captions............................................................15
18. Construction........................................................15
19. Administration of the Plan..........................................15
20. Amendment and Termination...........................................16
21. Other Plans, etc....................................................16
EXHIBIT A...................................................................A-1
EXHIBIT B - Form of Confidentiality and Non-Compete Agreement...............B-1
EXHIBIT C - Form of Release.................................................C-1
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CLEVELAND-CLIFFS INC
CHANGE IN CONTROL SEVERANCE PAY PLAN
1. GENERAL STATEMENT OF PURPOSE. The Board of Directors of Cleveland-Cliffs
Inc (the "Company") has considered the effect a change in control of the Company
may have on executives of the Company and its Subsidiaries (as defined below).
The executives have made and are expected to continue to make major
contributions to the short-term and long-term profitability, growth and
financial strength of the Company and its Subsidiaries. The Company recognizes
that, as is the case for most publicly held companies, the possibility of a
change in control exists, desires to assure itself of both the present and
future continuity of management, desires to establish certain minimum severance
benefits for certain of its executives applicable in a change in control, and
wishes to insure that its executives are not practically disabled from
discharging their duties in respect of a proposed or actual transaction
involving a change in control.
As a result, the Board believes that the Cleveland-Cliffs Inc Change in
Control Severance Pay Plan (the "Plan") will assist the Company in attracting
and retaining qualified executives. Accordingly, the Plan is hereby adopted and
supersedes any other change in control arrangement for Executives (as defined
below).
2. EFFECTIVE AND TERMINATION DATES. The Plan shall be effective as of
January 1, 2000 (the "Effective Date"). The Plan will automatically terminate on
the later of (i) December 31, 2001 or (ii) the second anniversary of a Change in
Control (the "Termination Date"); provided, however, that commencing on January
1, 2001 and each January 1 thereafter, the Termination Date set forth in
Subsection (i) of this Section will automatically be extended for an additional
year unless, not later than September 30 of the immediately preceding year, the
Company shall have given written notice to the Executives that the Termination
Date is not to be so extended.
3. DEFINITIONS. Where the following words and phrases appear in the Plan,
they shall have the respective meanings set forth below, unless their context
clearly indicates otherwise:
(1) "Base Pay" means the Executive's annual base salary rate as in
effect from time to time.
(2) "Board" means the Board of Directors of the Company.
(3) "Cause" means that, prior to any termination pursuant to Section
4(b), Section 4(c), or Section 4(d) the Executive shall have committed:
(1) and been convicted of a criminal violation involving fraud,
embezzlement or theft in connection with his duties or in the course of his
employment with the Company or any Subsidiary;
(2) intentional wrongful damage to property of the Company or any
Subsidiary;
(3) intentional wrongful disclosure of secret processes or
confidential information of the Company or any Subsidiary; or
(4) intentional wrongful engagement in any Competitive Activity;
and any such act shall have been demonstrably and materially harmful to the
Company. For purposes of the Plan, no act or failure to act on the part of
the Executive shall be deemed "intentional" if it was due primarily to an
error in judgment or negligence, but shall be deemed "intentional" only if
done or omitted to be done by the Executive not in good faith and without
reasonable belief that the Executive's action or omission was in the best
interest of the Company. Notwithstanding the foregoing, the Executive shall
not be deemed to have been terminated for "Cause" hereunder unless and
until there shall have been delivered to the Executive a copy of a
resolution duly adopted by the affirmative vote of not less than three
quarters of the Board then in office at a meeting of the Board called and
held for such purpose, after reasonable notice to the Executive and an
opportunity for the Executive, together with the Executive's counsel (if
the Executive chooses to have counsel present at such meeting), to be heard
before the Board, finding that, in the good faith opinion of the Board, the
Executive had committed an act constituting "Cause" as herein defined and
specifying the particulars thereof in detail. Nothing herein will limit the
right of the Executive or his beneficiaries to contest the validity or
propriety of any such determination.
(4) "Change in Control" means the occurrence during the Term of any of
the following events:
(i) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a "Person")
of beneficial ownership (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of 30% or more of the combined voting power of the then
outstanding Voting Stock of the Company; provided, however, that for
purposes of this Section 1(d)(i), the following acquisitions shall not
constitute a Change in Control: (A) any issuance of Voting Stock of the
Company directly from the Company that is approved by the Incumbent Board
(as defined in Section 1(d)(ii), below), (B) any acquisition by the Company
of Voting Stock of the Company, (C) any acquisition of Voting Stock of the
Company by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any Subsidiary, or (D) any acquisition of
Voting Stock of the Company by any Person pursuant to a Business
Combination that complies with clauses (A), (B) and (C) of Section
1(d)(iii), below; or
(ii) individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a majority
of the Board; provided, however, that any individual becoming a Director
subsequent to the date hereof whose election, or nomination for election by
the Company's shareholders, was approved by a vote of at least a majority
of the Directors then comprising the Incumbent Board (either by a
specific vote or by approval of the proxy statement of the Company in which
such person is named as a nominee for director, without objection to such
nomination) shall be deemed to have been a member of the Incumbent Board,
but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened election
contest (within the meaning of Rule 14a-11 of the Exchange Act) with
respect to the election or removal of Directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person
other than the Board; or
(iii) consummation of a reorganization, merger or consolidation
involving the Company, a sale or other disposition of all or substantially
all of the assets of the Company, or any other transaction involving the
Company (each, a "Business Combination"), unless, in each case, immediately
following such Business Combination, (A) all or substantially all of the
individuals and entities who were the beneficial owners of Voting Stock of
the Company immediately prior to such Business Combination beneficially
own, directly or indirectly, more than 55% of the combined voting power of
the then outstanding shares of Voting Stock of the entity resulting from
such Business Combination (including, without limitation, an entity which
as a result of such transaction owns the Company or all or substantially
all of the Company's assets either directly or through one or more
subsidiaries) in substantially the same proportions relative to each other
as their ownership, immediately prior to such Business Combination, of the
Voting Stock of the Company, (B) no Person (other than the Company, such
entity resulting from such Business Combination, or any employee benefit
plan (or related trust) sponsored or maintained by the Company, any
Subsidiary or such entity resulting from such Business Combination)
beneficially owns, directly or indirectly, 30% or more of the combined
voting power of the then outstanding shares of Voting Stock of the entity
resulting from such Business Combination, and (C) at least a majority of
the members of the Board of Directors of the entity resulting from such
Business Combination were members of the Incumbent Board at the time of the
execution of the initial agreement or of the action of the Board providing
for such Business Combination; or
(iv) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company, except pursuant to a Business
Combination that complies with clauses (A), (B) and (C) of Section
1(d)(iii).
(5) "Code" means the Internal Revenue Code of 1986, as amended, or any
successor thereto.
(6) "Committee" means the Organization and Compensation Committee of
the Board.
(7) "Competitive Activity" means the Executive's participation,
without the written consent of an officer of the Company, in the management of
any business enterprise if such enterprise engages in substantial and direct
competition with the Company and such enterprise's sales of any product or
service competitive with any product or service of the Company amounted to 10%
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of such enterprise's net sales for its most recently completed fiscal year and
if the Company's net sales of said product or service amounted to 10% of the
Company's net sales for its most recently completed fiscal year. "Competitive
Activity" will not include (i) the mere ownership of securities in any such
enterprise and the exercise of rights appurtenant thereto or (ii) participation
in the management of any such enterprise other than in connection with the
competitive operations of such enterprise.
(8) "Employee Benefits" means the perquisites, benefits and service
credit for benefits as provided under any and all employee retirement income and
welfare benefit policies, plans, programs or arrangements in which Executive is
entitled to participate, including without limitation any stock option,
performance share, performance unit, stock purchase, stock appreciation,
savings, pension, supplemental executive retirement, or other retirement income
or welfare benefit, deferred compensation, incentive compensation, group or
other life, health, medical/hospital or other insurance (whether funded by
actual insurance or self-insured by the Company or a Subsidiary), disability,
salary continuation, expense reimbursement and other employee benefit policies,
plans, programs or arrangements that may now exist or any equivalent successor
policies, plans, programs or arrangements that may be adopted hereafter by the
Company or a Subsidiary, providing perquisites, benefits and service credit for
benefits at least as great in value in the aggregate as are payable thereunder
prior to a Change in Control.
(9) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(10) "Executive" means an elected officer who is a full-time employee
of the Company and who is a Senior Vice President, Vice President, Controller or
Secretary of the Company, or who is a Mine General Manager of a Subsidiary, and
who does not have an individual Severance Agreement with the Company providing
for benefits upon a Change in Control.
(11) "Incentive Pay" means an annual bonus, incentive or other payment
of compensation, in addition to Base Pay, made or to be made in regard to
services rendered in any year or other period pursuant to any bonus, incentive,
profit-sharing, performance, discretionary pay or similar agreement, policy,
plan, program or arrangement (whether or not funded) of the Company or a
Subsidiary, or any successor thereto.
(12) "Industry Service" means professionally related service, prior to
his employment by the Company or a Subsidiary, by the Executive as an employee
within the iron, steel and mining industries or service within an industry to
which such Executive's position with the Company relates. The Executive shall be
given credit for one year of Industry Service for every two years of service
with the Company, as designated in writing by, or in minutes of the actions of,
the Compensation and Organization Committee of the Board, and such years of
credited Industry Service shall be defined as "Credited Years of Industry
Service."
(13) "Retirement Plans" means the retirement income, supplemental
executive retirement, excess benefits and retiree medical, life and similar
benefit plans providing retirement
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perquisites, benefits and service credit for benefits at least as great in value
in the aggregate as are payable thereunder prior to a Change in Control.
(14) "Severance Compensation" means Severance Pay and other benefits
provided by Section 5(a) and (b).
(15) "Severance Pay" means the amounts payable as set forth in Section
5(a) and (b).
(16) "Severance Period" means the period of time commencing on the
date of the first occurrence of a Change in Control and continuing until the
earlier of (i) the second anniversary of the occurrence of the Change in
Control, or (ii) the Executive's death.
(17) "Subsidiary" means an entity in which the Company directly or
indirectly beneficially owns 50% or more of the outstanding capital or profits
interests or Voting Stock.
(18) "Supplemental Retirement Plan" or "SRP" means the
Cleveland-Cliffs Inc Supplemental Retirement Benefit Plan (as Amended and
Restated as of January 1, 1999), as it may be amended prior to a Change in
Control, and modified as provided in Exhibit A, Paragraph (3).
(19) "Termination Date" means the date of termination of the Plan as
specified in Section 2.
(20) "Voting Stock" means securities entitled to vote generally in the
election of directors.
4. ELIGIBILITY; TERMINATION FOLLOWING A CHANGE IN CONTROL.
(1) Subject to the limitations described below, the Plan applies to
Executives who are employed on the date that a Change in Control occurs.
(2) If an Executive's employment is terminated by the Company or any
Subsidiary during the Severance Period and such termination is without Cause,
the Executive will be entitled to the Severance Compensation described in
Section 5.
(3) An Executive who is a Senior Vice President, Vice President,
Controller or Secretary of the Company may, during the Severance Period,
terminate his employment with the Company or any Subsidiary with the right to
Severance Compensation upon the occurrence of one or more of the following
events (regardless of whether any other reason, other than Cause, for such
termination exists or has occurred, including without limitation other
employment):
(1) (A) A significant adverse change in the nature or scope of the
authorities, powers, functions, responsibilities or duties attached to the
position with the Company and
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any Subsidiary which the Executive held immediately prior to the Change in
Control, (B) a reduction in the Executive's Base Pay, (C) a reduction in
the Executive's opportunity to receive Incentive Pay from the Company and
any Subsidiary, or (D) the termination or denial of the Executive's rights
to Employee Benefits or a reduction in the scope or value thereof, any of
which is not remedied by the Company within 10 calendar days after receipt
by the Company of written notice from the Executive of such change,
reduction or termination, as the case may be;
(2) The liquidation, dissolution, merger, consolidation or
reorganization of the Company or transfer of all or substantially all of
its business and/or assets, unless the successor or successors (by
liquidation, merger, consolidation, reorganization, transfer or otherwise)
to which all or substantially all of its business and/or assets have been
transferred (by operation of law or otherwise) assumed all duties and
obligations of the Company under the Plan pursuant to Section 14(a);
(3) The Company relocates its principal executive offices (if such
offices are the principal location of Executive's work), or requires the
Executive to have his principal location of work changed, to any location
that, in either case, is in excess of 25 miles from the location thereof
immediately prior to the Change in Control, without his prior written
consent; or
(4) Without limiting the generality or effect of the foregoing, any
material breach of the Plan by the Company or any successor thereto which
is not remedied by the Company within 10 calendar days after receipt by the
Company of written notice from the Executive of such breach.
(4) An Executive who is a Mine General Manager may, during the
Severance Period, terminate his employment with the Company or any Subsidiary
with the right to Severance Compensation upon the occurrence of one or more of
the following events (regardless of whether any other reason, other than Cause,
for such termination exists or has occurred, including without limitation other
employment):
(1) (A) A reduction in the Executive's Base Pay, (B) a reduction in
the Executive's opportunity to receive Incentive Pay from the Company and
any Subsidiary, or (C) the termination or denial of the Executive's rights
to Employee Benefits or a reduction in the scope or value thereof, any of
which is not remedied by the Company within 10 calendar days after receipt
by the Company of written notice from the Executive of such reduction or
termination, as the case may be;
(2) The liquidation, dissolution, merger, consolidation or
reorganization of the Company or transfer of all or substantially all of
its business and/or assets, unless the successor or successors (by
liquidation, merger, consolidation, reorganization, transfer or otherwise)
to which all or substantially all of its business and/or assets, have been
transferred
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(directly or by operation of law) assumed all duties and obligations of the
Company under the Plan pursuant to Section 14(a);
(3) The Company relocates its principal executive offices (if such
offices are the principal location of Executive's work), or requires the
Executive to have his principal location of work changed, to any location
that, in either case, is in excess of 25 miles from the location thereof
immediately prior to the Change in Control, without his prior written
consent; or
(4) Without limiting the generality or effect of the foregoing, any
material breach of its obligations under the Plan by the Company or any
successor thereto which is not remedied by the Company within 10 calendar
days after receipt by the Company of written notice from the Executive of
such breach.
(5) A termination by an Employer pursuant to Subsection (b) of this
Section or by an Executive pursuant to Subsections (c) or (d) of this Section
will not affect any rights that the Executive may have pursuant to any
agreement, policy, plan, program or arrangement of the Company or Subsidiary
providing Employee Benefits, which rights shall be governed by the terms
thereof, except for any rights to severance compensation to which an Executive
may be entitled upon termination of employment under any severance pay policy,
plan, program or arrangement of the Company, which rights shall, during the
Severance Period, be superseded by the Plan.
(6) Notwithstanding the preceding provisions of this Section, an
Executive will not be entitled to Severance Compensation if his employment with
an Employer is terminated during the Severance Period because:
(1) of the Executive's death; or
(2) the Executive becomes permanently disabled within the meaning of,
and begins actually to receive disability benefits pursuant to, the
long-term disability plan in effect for, or applicable to, the Executive
immediately prior to the Change in Control.
5. SEVERANCE COMPENSATION.
(1) If an Executive's employment is terminated pursuant to Section
4(b) or if an Executive terminates his employment pursuant to Section 4(c) or
4(d), the Company will pay to the Executive as Severance Pay the amounts
described on Exhibit A within 10 business days after the termination date, or,
if later, upon the expiration of the revocation period provided for in Exhibit
C, and will continue to provide to the Executive the other Severance
Compensation described on Exhibit A for the periods described therein.
(2) Without limiting the rights of an Executive at law or in equity,
if the Company fails to make any payment or provide any benefit required to be
made or provided hereunder on a
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timely basis, the Company will pay interest on the amount or value thereof at an
annualized rate of interest equal to the so-called composite "prime rate" as
quoted from time to time during the relevant period in the Midwest Edition of
THE WALL STREET JOURNAL plus 2%. Such interest will be payable as it accrues on
demand. Any change in such prime rate or maximum rate will be effective on and
as of the date of such change.
(3) Notwithstanding any provision of the Plan to the contrary, the
rights and obligations under this Section and under Sections 6 and 11, the last
sentence of Section 12 and Paragraph (3) of Exhibit A will survive any
termination or expiration of the Plan or the termination of an Executive's
employment following a Change in Control for any reason whatsoever.
(4) Unless otherwise expressly provided by the applicable policy,
plan, program or agreement, after the occurrence of a Change in Control, the
Company shall pay in cash to the Executive a lump sum amount equal to the value
of any annual bonus or long-term incentive pay (including, without limitation,
incentive-based annual cash bonuses and performance units, but not including any
equity-based compensation or compensation provided under a qualified plan)
earned or granted with respect to the Executive's service during the performance
period or periods that includes the date on which the Change in Control
occurred, disregarding any applicable vesting requirements; provided that such
amount shall be calculated at the plan target rate, but prorated on the portion
of the Executive's service that had elapsed during the applicable performance
period. Such payment shall take into account service rendered through the
payment date and shall be made at the earlier of (i) the date prescribed for
payment pursuant to the applicable plan, program or agreement, and (ii) within
five business days after the Termination Date.
(5) Notwithstanding any provision to the contrary in any applicable
grants and policy, plan, program or agreement, upon the occurrence of a Change
in Control, all equity incentive grants and awards held by the Executive shall
become fully vested and all stock options held by the Executive shall become
fully exercisable.
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6. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(1) Anything in the Plan to the contrary notwithstanding, in the event
that it shall be determined (as hereafter provided) that any payment or
distribution by the Company or any of its affiliates to or for the benefit of an
Executive, whether paid or payable or distributed or distributable pursuant to
the terms of the Plan or otherwise pursuant to or by reason of any other
agreement, policy, plan, program or arrangement, including without limitation
any stock option, performance share, performance unit, stock appreciation right
or similar right, or the lapse or termination of any restriction on, or the
vesting or exercisability of, any of the foregoing (a "Payment"), would be
subject to the excise tax imposed by Section 4999 of the Code (or any successor
provision thereto) by reason of being considered "contingent on a change in
ownership or control" of the Company, within the meaning of Section 280G of the
Code (or any successor provision thereto) or to any similar tax imposed by state
or local law, or any interest or penalties with respect to such tax (such tax or
taxes, together with any such interest and penalties, being hereafter
collectively referred to as the "Excise Tax"), then the Executive shall be
entitled to receive an additional payment or payments (collectively, a "Gross-Up
Payment"); provided, however, that no Gross-up Payment shall be made with
respect to the Excise Tax, if any, attributable to (i) any incentive stock
option, as defined by Section 422 of the Code ("ISO") granted prior to the
execution of the Plan, or (ii) any stock appreciation or similar right, whether
or not limited, granted in tandem with any ISO described in clause (i). The
Gross-Up Payment shall be in an amount such that, after payment by the Executive
of all taxes (including any interest or penalties imposed with respect to such
taxes), including any Excise Tax imposed upon the Gross-Up Payment, the
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payment.
(2) Subject to the provisions of Subsection (f) of this Section, all
determinations required to be made under this Section, including whether an
Excise Tax is payable by the Executive and the amount of such Excise Tax and
whether a Gross-Up Payment is required to be paid by the Company to the
Executive and the amount of such Gross-Up Payment, if any, shall be made by the
accounting firm serving as the Company's independent public accountants
immediately prior to the change in control (the "Accounting Firm"). The Company
shall direct the Accounting Firm to submit its determination and detailed
supporting calculations to both the Company and the Executive within 30 calendar
days after the Termination Date, if applicable, and any such other time or times
as may be requested by the Company or the Executive. If the Accounting Firm
determines that any Excise Tax is payable by the Executive, the Company shall
pay the required Gross-Up Payment to the Executive within 5 business days after
receipt of such determination and calculations with respect to any Payment to
the Executive. If the Accounting Firm determines that no Excise Tax is payable
by the Executive, it shall, at the same time as it makes such determination,
furnish the Company and the Executive an opinion that the Executive has
substantial authority not to report any Excise Tax on his federal, state or
local income or other tax return. As a result of the uncertainty in the
application of Section 4999 of the Code (or any successor provision thereto) and
the possibility of similar uncertainty regarding applicable state or local tax
law at the time of any determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments which will not have been made by the Company
should have been made (an "Underpayment"), consistent with the calculations
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required to be made hereunder. In the event that the Company exhausts or fails
to pursue its remedies pursuant to Subsection (f) of this Section and the
Executive thereafter is required to make a payment of any Excise Tax, the
Executive shall direct the Accounting Firm to determine the amount of the
Underpayment that has occurred and to submit its determination and detailed
supporting calculations to both the Company and the Executive as promptly as
possible. Any such Underpayment shall be promptly paid by the Company to, or for
the benefit of, the Executive within 5 business days after receipt of such
determination and calculations.
(3) The Company and the Executive shall each provide the Accounting
Firm access to and copies of any books, records and documents in the possession
of the Company or the Executive, as the case may be, reasonably requested by the
Accounting Firm, and otherwise cooperate with the Accounting Firm in connection
with the preparation and issuance of the determinations and calculations
contemplated by Subsection (b) of this Section. Any determination by the
Accounting Firm as to the amount of the Gross-Up Payment shall be binding upon
the Company and the Executive.
(4) The federal, state and local income or other tax returns filed by
the Executive shall be prepared and filed on a consistent basis with the
determination of the Accounting Firm with respect to the Excise Tax payable by
the Executive. The Executive shall make proper payment of the amount of any
Excise Payment, and at the request of the Company, provide to the Company true
and correct copies (with any amendments) of his federal income tax return as
filed with the Internal Revenue Service and corresponding state and local tax
returns, if relevant, as filed with the applicable taxing authority, and such
other documents reasonably requested by the Company, evidencing such payment. If
prior to the filing of the Executive's federal income tax return, or
corresponding state or local tax return, if relevant, the Accounting Firm
determines that the amount of the Gross-Up Payment should be reduced, the
Executive shall within 5 business days pay to the Company the amount of such
reduction.
(5) The fees and expenses of the Accounting Firm for its services in
connection with the determinations and calculations contemplated by Subsection
(b) of this Section shall be borne by the Company. If such fees and expenses are
initially paid by the Executive, the Company shall reimburse the Executive the
full amount of such fees and expenses within 10 business days after receipt from
the Executive of a statement therefor and reasonable evidence of his payment
thereof.
(6) The Executive shall notify the Company in writing of any claim by
the Internal Revenue Service or any other taxing authority that, if successful,
would require the payment by the Company of a Gross-Up Payment. Such
notification shall be given as promptly as practicable but no later than 10
business days after the Executive actually receives notice of such claim and the
Executive shall further apprise the Company of the nature of such claim and the
date on which such claim is requested to be paid (in each case, to the extent
known by the Executive). The Executive shall not pay such claim prior to the
earlier of (i) the expiration of the 30-calendar-day period following the date
on which he gives such notice to the Company and (ii) the date that any payment
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of amount with respect to such claim is due. If the Company notifies the
Executive in writing prior to the expiration of such period that it desires to
contest such claim, the Executive shall:
(1) provide the Company with any written records or documents in
his possession relating to such claim reasonably requested by the
Company;
(2) take such action in connection with contesting such claim as
the Company shall reasonably request in writing from time to time,
including without limitation accepting legal representation with
respect to such claim by an attorney competent in respect of the
subject matter and reasonably selected by the Company;
(3) cooperate with the Company in good faith in order effectively
to contest such claim; and
(4) permit the Company to participate in any proceedings relating
to such claim;
provided, however, that the Company shall bear and pay directly all costs
and expenses (including interest and penalties) incurred in connection with
such contest and shall indemnify and hold harmless the Executive, on an
after-tax basis, for and against any Excise Tax or income tax, including
interest and penalties with respect thereto, imposed as a result of such
representation and payment of costs and expenses. Without limiting the
foregoing provisions of this Subsection, the Company shall control all
proceedings taken in connection with the contest of any claim contemplated
by this Subsection and, at its sole option, may pursue or forego any and
all administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim (provided, however, that the
Executive may participate therein at his own cost and expense) and may, at
its option, either direct the Executive to pay the tax claimed and sue for
a refund or contest the claim in any permissible manner, and the Executive
agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or
more appellate courts, as the Company shall determine; provided, however,
that if the Company directs the Executive to pay the tax claimed and sue
for a refund, the Company shall advance the amount of such payment to the
Executive on an interest-free basis and shall indemnify and hold the
Executive harmless, on an after-tax basis, from any Excise Tax or income or
other tax, including interest or penalties with respect thereto, imposed
with respect to such advance; and provided further, however, that any
extension of the statute of limitations relating to payment of taxes for
the taxable year of the Executive with respect to which the contested
amount is claimed to be due is limited solely to such contested amount.
Furthermore, the Company's control of any such contested claim shall be
limited to issues with respect to which a Gross-Up Payment would be payable
hereunder and the Executive shall be entitled to settle or contest, as the
case may be, any other issue raised by the Internal Revenue Service or any
other taxing authority.
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(7) If, after the receipt by the Executive of an amount advanced by
the Company pursuant to Subsection (f) of this Section, the Executive receives
any refund with respect to such claim, the Executive shall (subject to the
Company's complying with the requirements of Subsection (f) of this Section)
promptly pay to the Company the amount of such refund (together with any
interest paid or credited thereon after any taxes applicable thereto). If, after
the receipt by the Executive of an amount advanced by the Company pursuant to
Section (f) of this Section, a determination is made that the Executive shall
not be entitled to any refund with respect to such claim and the Company does
not notify the Executive in writing of its intent to contest such denial or
refund prior to the expiration of 30 calendar days after such determination,
then such advance shall be forgiven and shall not be required to be repaid and
the amount of any such advance shall offset, to the extent thereof, the amount
of Gross-Up Payment required to be paid by the Company to the Executive pursuant
to this Section.
7. NO MITIGATION OBLIGATION. The Company hereby acknowledges that it
will be difficult and may be impossible for an Executive to find reasonably
comparable employment following his termination of employment with the Company
and the Subsidiaries and that the non-competition agreement required by Section
9 will further limit the employment opportunities for an Executive. In addition,
the Company acknowledges that its severance pay plans applicable in general to
its salaried employees do not provide for mitigation, offset or reduction of any
severance payment received thereunder. Accordingly, the provision of Severance
Compensation by the Company to an Executive in accordance with the terms of the
Plan is hereby acknowledged by the Company to be reasonable, and an Executive
will not be required to mitigate the amount of any payment provided for in the
Plan by seeking other employment or otherwise, nor will any profits, income,
earnings or other benefits from any source whatsoever create any mitigation,
offset, reduction or any other obligation on the part of an Executive hereunder
or otherwise, except as expressly provided in the last sentence of Paragraph
2(a)(iii) of Exhibit A.
8. CERTAIN PAYMENTS NOT CONSIDERED FOR OTHER BENEFITS, ETC. The
Gross-up Payment, legal fee and expense reimbursement provided under Section 11
and reimbursements for outplacement counseling provided under Paragraph 6 of
Exhibit A will not be included as earnings for the purpose of calculating
contributions or benefits under any employee benefit plan of the Company. Such
payments and payments of Severance Pay will not be made from any benefit plan
funds, and shall constitute an unfunded unsecured obligation of the Company.
9. CONFIDENTIALITY; CONFIDENTIAL INFORMATION; NONCOMPETITION. Receipt
of Severance Compensation by an Executive is conditioned upon the Executive
executing and delivering to the Company a confidentiality and non-compete
agreement substantially in the form provided in Exhibit B for the period
specified on Exhibit A.
10. RELEASE. Receipt of Severance Compensation by an Executive is
conditioned upon the Executive executing and delivering to the Company a release
substantially in the form provided in Exhibit C.
12
11. LEGAL FEES AND EXPENSES.
(1) It is the intent of the Company that the Executive not be required
to incur legal fees and the related expenses associated with the interpretation,
enforcement or defense of Executive's rights under the Plan by litigation or
otherwise because the cost and expense thereof would substantially detract from
the benefits intended to be extended to the Executive hereunder. Accordingly, if
it should appear to the Executive that the Company has failed to comply with any
of its obligations under the Plan or in the event that the Company or any other
person takes or threatens to take any action to declare the Plan void or
unenforceable, or institutes any litigation or other action or proceeding
designed to deny, or to recover from, the Executive the benefits provided or
intended to be provided to the Executive hereunder, the Company irrevocably
authorizes the Executive from time to time to retain counsel of Executive's
choice, at the expense of the Company as hereafter provided, to advise and
represent the Executive in connection with any such interpretation, enforcement
or defense, including without limitation the initiation or defense of any
litigation or other legal action, whether by or against the Company or any
Director, officer, stockholder or other person affiliated with the Company, in
any jurisdiction. Notwithstanding any existing or prior attorney-client
relationship between the Company and such counsel, the Company irrevocably
consents to the Executive's entering into an attorney-client relationship with
such counsel, and in that connection the Company and the Executive agree that a
confidential relationship shall exist between the Executive and such counsel.
Without respect to whether the Executive prevails, in whole or in part, in
connection with any of the foregoing, the Company will pay and be solely
financially responsible for any and all attorneys' and related fees and expenses
incurred by the Executive in connection with any of the foregoing; provided
that, in regard to such matters, the Executive has not acted in bad faith or
with no colorable claim of success.
(2) To ensure that the provisions of this Agreement can be enforced by
the Executive, certain trust arrangements ("Trusts") have been established
between KeyTrust Company of Ohio, N.A., as Trustee ("Trustee"), and the Company.
Each of Trust Agreement No. 1 (Amended and Restated Effective June 1, 1997)
("Trust Agreement No. 1"), Trust Agreement No. 2 (Amended and Restated Effective
June 1, 1997) ("Trust Agreement No. 2"), and Trust Agreement No. 7 dated April
9, 1991, as amended ("Trust Agreement No. 7"), as it may be subsequently amended
and/or restated, between the Trustee and the Company, sets forth the terms and
conditions relating to payment from Trust Agreement No. 1 of compensation,
pension benefits and other benefits pursuant to the Plan owed by the Company,
payment from Trust Agreement No. 2 for attorneys' fees and related fees and
expenses pursuant to Section 11(a) hereof owed by the Company, and payment from
Trust Agreement No. 7 of pension benefits owed by the Company. Executive shall
make demand on the Company for any payments due Executive pursuant to Section
11(a) hereof prior to making demand therefor on the Trustee under Trust
Agreement No. 2.
(3) Upon the earlier to occur of (i) a Change in Control or (ii) a
declaration by the Board that a Change Control is imminent, the Company shall
promptly to the extent it has not previously done so, and in any event within
five (5) business days:
13
(1) transfer to Trustee to be added to the principal of the Trust
under Trust Agreement No. 1 a sum equal to (I) the present value on the
date of the Change in Control (or on such fifth business day if the Board
has declared a Change in Control to be imminent) of the payments to be made
to each Executive under the provisions of Annex A and Section 6 hereof,
such present value to be computed using the assumptions set forth in Annex
A hereof and the computations provided for in Section 6 hereof less (II)
the balance in the Executives' accounts provided for in Trust Agreement No.
1 as of the most recent completed valuation thereof, as certified by the
Trustee under Trust Agreement No. 1 less (III) the balance in the
Executives' accounts provided for in Trust Agreement No. 7 as of the most
recently completed valuation thereof, as certified by the Trustee under
Trust Agreement No. 7; provided, however, that if the Trustee under Trust
Agreement No. 1 and/or Trust Agreement No. 7 does not so certify by the end
of the fourth (4th) business day after the earlier of such Change in
Control or declaration, then the balance of such respective accounts shall
be deemed to be zero. Any payments of compensation, pension or other
benefits by the Trustee pursuant to Trust Agreement No. 1 or Trust
Agreement No. 7 shall, to the extent thereof, discharge the Company's
obligation to pay compensation, pension and other benefits hereunder, it
being the intent of the Company that assets in such Trusts be held as
security for the Company's obligation to pay compensation, pension and
other benefits under this Plan; and
(2) transfer to the Trustee to be added to the principal of the Trust
under Trust Agreement No. 2 the sum of TWO HUNDRED FIFTY THOUSAND DOLLARS
($250,000) less any principal in such Trust on such fifth business day. Any
payments of the Executive's attorneys' and related fees and expenses by the
Trustee pursuant to Trust Agreement No. 2 shall, to the extent thereof,
discharge the Company's obligation hereunder, it being the intent of the
Company that assets in such Trust be held as security for the Company's
obligation under Section 11(a) hereof. The entire corpus of the Trust under
Trust Agreement No. 2 will be $250,000 and said amount will be available to
discharge not only the obligations of the Company to Executive under
Section 11(a) hereof, but also similar obligations of the Company to other
executives and employees under similar provisions of other agreements and
plans.
12. EMPLOYMENT RIGHTS. Nothing expressed or implied in the Plan shall
create any right or duty on the part of the Company, a Subsidiary or an
Executive to have the Executive remain in the employment of the Company or a
Subsidiary at any time prior to or following a Change in Control. Any
termination of employment of the Executive or the removal of the Executive from
the office or position in the Company or a Subsidiary prior to a Change in
Control but following the commencement of any discussion with any third person
that ultimately results in a Change in Control shall be deemed to be a
termination or removal of the Executive after a Change in Control for all
purposes of the Plan.
14
13. WITHHOLDING OF TAXES. The Company may withhold from any amounts
payable under the Plan all federal, state, city or other taxes as shall be
required pursuant to any law or government regulation or ruling.
14. SUCCESSORS AND BINDING EFFECT.
(1) The Company shall require any successor, (including without
limitation any persons acquiring directly or indirectly all or substantially all
of the business and/or assets of the Company whether by purchase, merger,
consolidation, reorganization or otherwise, and such successor shall thereafter
be deemed the Company for the purposes of the Plan), to assume and agree to
perform the obligations under the Plan in the same manner and to the same extent
the Company would be required to perform if no such succession had taken place.
The Plan shall be binding upon and inure to the benefit of the Company and any
successor to the Company, but shall not otherwise be assignable, transferable or
delegable by the Company.
(2) The rights under the Plan shall inure to the benefit of and be
enforceable by each Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees and/or legatees.
(3) The rights under the Plan are personal in nature and neither the
Company nor any Executive shall, without the consent of the other, assign,
transfer or delegate the Plan or any rights or obligations hereunder except as
expressly provided in this Section. Without limiting the generality of the
foregoing, an Executive's right to receive payments hereunder shall not be
assignable, transferable or delegable, whether by pledge, creation of a security
interest or otherwise, other than by a transfer by his or her will or by the
laws of descent and distribution and, in the event of any attempted assignment
or transfer contrary to this Section, the Company shall have no liability to pay
any amount so attempted to be assigned, transferred or delegated.
(4) The obligation of the Company to make payments and/or provide
benefits hereunder shall represent an unsecured obligation of the Company.
(5) The Company recognizes that each Executive will have no adequate
remedy at law for breach by the Company of any of the agreements contained
herein and, in the event of any such breach, the Company hereby agrees and
consents that each Executive shall be entitled to a decree of specific
performance, mandamus or other appropriate remedy to enforce performance of
obligations of the Company under the Plan.
15. GOVERNING LAW. The validity, interpretation, construction and
performance of the Plan shall be governed by the laws of the State of Ohio,
without giving effect to the principals of conflict of laws of such State.
15
16. VALIDITY. If any provisions of the Plan or the application of any
provision hereof to any person or circumstance is held invalid, unenforceable or
otherwise illegal, the remainder of the Plan and the application of such
provision to any other person or circumstances shall not be affected, and the
provision so held to be invalid, unenforceable or otherwise illegal shall be
reformed to the extent (and only to the extent) necessary to make it
enforceable, valid and legal.
17. CAPTIONS. The captions in the Plan are for convenience of
reference only and do not define, limit or describe the scope or intent of the
Plan or any part hereof and shall not be considered in any construction hereof.
18. CONSTRUCTION. The masculine gender, where appearing in the Plan,
shall be deemed to include the feminine gender and the singular shall be deemed
to include the plural, unless the context clearly indicates to the contrary.
19. ADMINISTRATION OF THE PLAN.
(1) IN GENERAL: The Plan shall be administered by the Company,
which shall be the named fiduciary under the Plan.
(2) DELEGATION OF DUTIES: The Company may delegate any of its
administrative duties, including, without limitation, duties with respect to the
processing, review, investigation, approval and payment of Severance Pay and
Gross-up Payments, to named administrator or administrators.
(3) REGULATIONS: The Company shall promulgate any rules and
regulations it deems necessary in order to carry out the purposes of the Plan or
to interpret the terms and conditions of the Plan; provided, however, that no
rule, regulation or interpretation shall be contrary to the provisions of the
Plan.
(4) CLAIMS PROCEDURE: Subject to the provisions of Section 6, the
Company shall determine the rights of any employee of the Company to any
Severance Compensation or a Gross-up Payment hereunder. Any employee or former
employee of the Company or a Subsidiary who believes that he has not received
any benefit under the Plan to which he believes he is entitled, may file a claim
in writing with the Vice President Human Resources. The Company shall, no later
than 90 days after the receipt of a claim, either allow or deny the claim by
written notice to the claimant. If a claimant does not receive written notice of
the Company's decision on his claim within such 90-day period, the claim shall
be deemed to have been denied in full.
A denial of a claim by the Company, wholly or partially, shall be written in a
manner calculated to be understood by the claimant and shall include:
(1) the specific reason or reasons for the denial;
16
(2) specific reference to pertinent Plan provisions on which the
denial is based;
(3) a description of any additional material or information
necessary for the claimant to perfect the claim and an explanation of
why such material or information is necessary; and
(4) an explanation of the claim review procedure.
A claimant whose claim is denied (or his duly authorized representative) may,
within 30 days after receipt of denial of his claim, request a review of such
denial by the Company by filing with the Secretary of the Company a written
request for review of his claim. If the claimant does not file a request for
review with the Company within such 30-day period, the claimant shall be deemed
to have acquiesced in the original decision of the Company on his claim. If a
written request for review is so filed within such 30-day period, the Company
shall conduct a full and fair review of such claim. During such full review, the
claimant shall be given the opportunity to review documents that are pertinent
to his claim and to submit issues and comments in writing. The Company shall
notify the claimant of its decision on review within 60 days after receipt of a
request for review. Notice of the decision on review shall be in writing. If the
decision on review is not furnished to the claimant within such 60-day period,
the claim shall be deemed to have been denied on review.
(5) REVOCABILITY OF ACTION: Any action taken by the Company with
respect to the rights or benefits under the Plan of any Executive shall be
revocable by the Company as to payments or distributions not yet made to such
person, and acceptance of Severance Pay or a Gross-up Payment under the Plan
constitutes acceptance of and agreement to the Company making any appropriate
adjustments in future payments or distributions to such person to offset any
excess or underpayment previously made to him.
(6) REQUIREMENT OF RECEIPT: Upon receipt of any Severance
Compensation or a Gross-up Payment hereunder, the Company reserves the right to
require any Executive to execute a receipt evidencing the amount and payment of
such Severance Compensation and/or Gross-up Payment.
20. AMENDMENT AND TERMINATION. The Company reserves the right, except
as hereinafter provided, at any time and from time to time, to amend, modify,
change or terminate the Plan and/or any Committee Action, including any Exhibit
thereto; provided, however, that any such amendment, modification, change or
termination that adversely affects the rights of any Executive who benefits from
Section 4(c) of the Plan may not be made without the written consent of such
Executive; and provided, further, however, that after the occurrence of a Change
in Control any such amendment, modification, change or termination that
adversely affects the rights of any Executive under the Plan may not be made
without the written consent of any such Executive.
21. OTHER PLANS, ETC. If the terms of this Plan are inconsistent with
the provisions of any other plan, program, contract or arrangement of the
Company or any Subsidiary, to the extent such
17
plan, program, contract or arrangement may be amended by the Company or a
Subsidiary, the terms of the Plan will be deemed to so amend such plan, program,
contract or arrangement, and the terms of the Plan will govern. The Plan
supersedes and replaces the Cleveland-Cliffs Inc Key Employee Severance Pay
Plan, which is terminated effective January 1, 2000.
IN WITNESS WHEREOF, Cleveland-Cliffs Inc has caused the Plan to be
executed this ___ day of February, 2000.
CLEVELAND-CLIFFS INC
By: /s/ Richard F. Novak
--------------------------------------
Its: Vice President - Human Resources
--------------------------------------
18
CLEVELAND-CLIFFS INC
CHANGE IN CONTROL SEVERANCE PAY PLAN
EXHIBIT A
SEVERANCE COMPENSATION
1. PROVISIONS APPLICABLE TO EXECUTIVES WHO ARE SENIOR VICE PRESIDENTS,
VICE PRESIDENTS, CONTROLLER AND SECRETARY:
(1) A lump sum payment in an amount equal to two times the sum of (A)
Base Pay (at the highest rate in effect for any period prior to the Executive's
date of termination), plus (B) Incentive Pay (in an amount equal to not less
than the greater of (i) the target bonus and/or target award opportunity for the
fiscal year immediately preceding the year in which the Change in Control
occurred, or (ii) the target bonus and/or target award opportunity for the
fiscal year in which the Executive's date of termination occurs).
(2) For a period of 24 months following the Executive's date of
termination (the "Continuation Period"), the Company will arrange to provide the
Executive with Employee Benefits that are welfare benefits (but not stock
option, performance share, performance unit, stock purchase, stock appreciation
or similar compensatory benefits) substantially similar to those that the
Executive was receiving or entitled to receive immediately prior to the
Executive's date of termination (or, if greater, immediately prior to the
reduction, termination, or denial described in Section 4(c)(ii) or Section
4(d)(i)). If and to the extent that any benefit described in this Paragraph 2 is
not or cannot be paid or provided under any policy, plan, program or arrangement
of the Company or any Subsidiary, as the case may be, then the Company will
itself pay or provide for the payment to the Executive, his dependents and
beneficiaries, of such Employee Benefits along with, in the case of any benefit
described in this Paragraph 2 which is subject to tax because it is not or
cannot be paid or provided under any such policy, plan, program or arrangement
of the Company or any Subsidiary, an additional amount such that after payment
by the Executive, or his dependents or beneficiaries, as the case may be, of all
taxes so imposed, the recipient retains an amount equal to such taxes.
Notwithstanding the foregoing, or any other provision of the Plan, for purposes
of determining the period of continuation coverage to which the Executive or any
of his dependents is entitled pursuant to Section 4980B of the Code (or any
successor provision thereto) under the Company's medical, dental and other group
health plans, or successor plans, the Executive's "qualifying event" shall be
the termination of the Continuation Period and the Executive shall be considered
to have remained actively employed on a full-time basis through that date.
Without otherwise limiting the purposes or effect of Section 5, Employee
Benefits otherwise receivable by the Executive pursuant to this Paragraph 2 will
be reduced to the extent comparable welfare benefits are actually received by
the Executive from another employer during the Continuation Period following the
Executive's date of termination, and any such benefits actually received by the
Executive shall be reported by the Executive to the Company.
A-1
2. PROVISIONS APPLICABLE TO EXECUTIVES WHO ARE MINE GENERAL MANAGERS:
(1) A lump sum payment in an amount equal to one times the sum of (A)
Base Pay (at the highest rate in effect for any period prior to the Executive's
date of termination), plus (B) Incentive Pay (in an amount equal to not less
than the greater of (i) the target bonus and/or target award opportunity for the
fiscal year immediately preceding the year in which the Change in Control
occurred, or (ii) the target bonus and/or target award opportunity for the
fiscal year in which the Executive's date of termination occurs).
(2) For a period of 12 months following the Executive's date of
termination (the "Continuation Period"), the Company will arrange to provide the
Executive with Employee Benefits that are welfare benefits (but not stock
option, performance share, performance unit, stock purchase, stock appreciation
or similar compensatory benefits) substantially similar to those that the
Executive was receiving or entitled to receive immediately prior to the
Executive's date of termination (or, if greater, immediately prior to the
reduction, termination, or denial described in Section 4(c)(ii) or Section
4(d)(i)). If and to the extent that any benefit described in this Paragraph 2 is
not or cannot be paid or provided under any policy, plan, program or arrangement
of the Company or any Subsidiary, as the case may be, then the Company will
itself pay or provide for the payment to the Executive, his dependents and
beneficiaries, of such Employee Benefits along with, in the case of any benefit
described in this Paragraph 2 which is subject to tax because it is not or
cannot be paid or provided under any such policy, plan, program or arrangement
of the Company or any Subsidiary, an additional amount such that after payment
by the Executive, or his dependents or beneficiaries, as the case may be, of all
taxes so imposed, the recipient retains an amount equal to such taxes.
Notwithstanding the foregoing, or any other provision of the Plan, for purposes
of determining the period of continuation coverage to which the Executive or any
of his dependents is entitled pursuant to Section 4980B of the Code (or any
successor provision thereto) under the Company's medical, dental and other group
health plans, or successor plans, the Executive's "qualifying event" shall be
the termination of the Continuation Period and the Executive shall be considered
to have remained actively employed on a full-time basis through that date.
Without otherwise limiting the purposes or effect of Section 5, Employee
Benefits otherwise receivable by the Executive pursuant to this Paragraph 2 will
be reduced to the extent comparable welfare benefits are actually received by
the Executive from another employer during the Continuation Period following the
Executive's date of termination, and any such benefits actually received by the
Executive shall be reported by the Executive to the Company.
3. PROVISIONS APPLICABLE TO ALL EXECUTIVES:
(1) A lump sum payment (the "SRP Payment") in an amount equal to the
sum of the future pension benefits (converted to a lump sum of actuarial
equivalence) which the Executive would have been entitled to receive two years
following the Executive's date of termination of employment, under the SRP, and
as modified by this Paragraph (3) (assuming Base Salary and Incentive Pay as
determined in Paragraph (1), if the Executive had remained in the full-time
A-2
employment of the Company until two years following the Executive's date of
termination of employment.
The calculation of the SRP Payment and its actuarial equivalence shall be made
as of the Executive's date of termination. The lump sum of actuarial equivalence
shall be calculated as of two years following the Executive's date of
termination of employment using the assumptions and factors used in the SRP, and
such sums shall be discounted to the date of payment using a discount rate
prescribed for purposes of valuation computations under Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code") or any successor
provision thereto, or if no rate is so prescribed, a rate equal to the then
"applicable interest rate" under Section 417 (e)(3)(A) (ii)(II) of the Code.
The Company hereby waives the discretionary right, at any time subsequent to the
date of a Change in Control, to amend or terminate the SRP as to the Executive
as provided in paragraph 8 thereof or to terminate the rights of the Executive
or his beneficiary under the SRP in the event Executive engages in a competitive
business as provided in any plan or arrangement between the Company and the
Executive or applicable to the Executive, including but not limited to, the
provisions of paragraph 4 of the SRP, or any similar provisions of any such plan
or arrangement or other plan or arrangement supplementing or superseding the
same. This Paragraph (3) shall constitute a "Supplemental Agreement" as defined
in Paragraph 1.J of the SRP. If the Company shall terminate the Executive's
employment during the Severance Period, other than for Cause as defined in
Section 3(c)(i), 3(c)(ii) or 3(c)(iii) of the Plan, or if the Executive shall
terminate his employment pursuant to Section 4(c) or Section 4(d) of the Plan,
or if, following the end of the Severance Period, the Executive's employment is
terminated for any reason, for the purposes of computing the Executive's period
of continuous service and of calculating and paying his benefit under the SRP:
(A) At the time of his termination of employment with the Company
(by death or otherwise), the Executive shall be credited with years of
continuous service for benefit accrual and eligibility equal to the
greater of (i) the number of his actual years of continuous service or
(ii) the number of years of continuous service he would have had if he
had continued his employment with the Company until the expiration of
the second anniversary of his termination of employment, and had he
attained the greater of (iii) his actual chronological age, (iv)
sixty-five, or (v) his chronological age at the expiration of the
second anniversary of his termination of employment. In addition, the
Executive shall be eligible for a 30-year pension benefit based upon
his years of continuous service as computed under the preceding
sentence. Such Executive shall be eligible to commence the 30-year
pension benefit on the earlier of (vi) the date upon which the
Executive would have otherwise reached 30 years of continuous service
with the Company but for his termination of employment after the
Change in Control at which time the Executive shall be deemed to be
age 65, or (vii) the date upon which the sum of the Executive's years
of continuous service (as computed in the first sentence of this
subparagraph (A)) and the Executive's Credited Years of Industry
Service is equal to 30 years of service, at which time the Executive
shall be deemed to be age 65; and
A-3
(B) The Executive shall be a "Participant" in the SRP,
notwithstanding any limitations therein. The terms of the Plan and
this Exhibit A shall take precedence to the extent they are contrary
to provisions contained in the SRP.
Payment of the SRP Payment by the Company shall be deemed to be a satisfaction
of all obligations of the Company to the Executive under the SRP.
(4) Base Salary through the Executive's date of termination plus pro
rata Incentive Pay for the year in which the Executive's date of termination
occurs calculated at the greater of (i) the target bonus and/or target
opportunity or (ii) actual performance, in each case for the fiscal year in
which the Executive's date of termination occurs.
(5) In lieu of the Executive's right to receive deferred compensation
under the Voluntary Non-Qualified Deferred Compensation Plan or any other plan
providing for deferral of amounts otherwise payable to the Executive, a lump sum
payment in cash in an amount equal to 100% of the Executive's cash and stock
account balances under such plans.
(6) Outplacement services by a firm selected by the Executive, at the
expense of the Company in an amount up to 15% of the Executive's Base Pay.
(7) Post-retirement, medical, hospital, surgical and prescription drug
coverage for the lifetime of the Executive, his spouse and any eligible
dependents equivalent to that which would have been furnished on the day prior
to a change in control to an officer who retired on such date with full
eligibility for such benefits.
(8) NON-COMPETE PERIOD. The non-competition period for each Executive
who is a Senior Vice President, a Vice President, Controller or Secretary of the
Company is two (2) years following his termination of employment with the
Company and the Subsidiaries. The non-competition period for each Executive who
is a Mine General Manager of a Subsidiary is one (1) year following his
termination of employment with the Company and the Subsidiaries.
A-4
CLEVELAND-CLIFFS INC
CHANGE IN CONTROL SEVERANCE PAY PLAN
EXHIBIT B
FORM OF CONFIDENTIALITY AND NON-COMPETE AGREEMENT
WHEREAS, the Executive's employment has been terminated in
accordance with Section 4(b), (c) or (d) of the Cleveland-Cliffs Inc Change in
Control Severance Pay Plan (the "Plan"); and
WHEREAS, the Executive is required to sign this
Confidentiality and Non-Compete Agreement ("Agreement") in order to receive the
Severance Compensation (as such term is defined in the Plan) as described in
Exhibit A of the Plan and the other benefits described in the Plan.
NOW THEREFORE, in consideration of the promises and agreements
contained herein and other good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, and intending to be legally bound, the
Executive agree as follows:
1. EFFECTIVE DATE OF AGREEMENT. This Agreement is effective on the
date hereof and will continue in effect as provided herein.
2. CONFIDENTIALITY; CONFIDENTIAL INFORMATION. In consideration of the
payments to be made and the benefits to be received by the Executive pursuant to
the Plan:
(a) The Company and the Executive agree that the Company and its
Subsidiaries have disclosed to Executive their confidential or
proprietary information (as defined in this Section 2 to the extent
necessary for Executive to carry out his prior obligations to the
Company. The Executive hereby covenants and agrees that he will not,
without the prior written consent of the Company, during the Term or
thereafter disclose to any person not employed by the Company or a
Subsidiary, or use in connection with engaging in competition with the
Company, any confidential or proprietary information of the Company or
a Subsidiary. For purposes of this Agreement, the term "confidential
or proprietary information" will include all information of any nature
and in any form that is owned by the Company and that is not publicly
available (other than by Executive's breach of this Section 2(a)) or
generally known to persons engaged in businesses similar or related to
those of the Company. Confidential or proprietary information will
include, without limitation, the Company's financial matters,
customers, employees, industry contracts, strategic business plans,
product development (or other proprietary product data), marketing
plans, and all other secrets and all other information of a
confidential or proprietary nature. For purposes of the preceding two
sentences, the term "Company" will also include any Subsidiary
(collectively, the "Restricted Group"). The foregoing obligations
imposed by this Section 2(a) will not
B-1
apply (i) if such confidential or proprietary information will have
become, through no fault of the Executive, generally known to the
public or (ii) if the Executive is required by law to make disclosure
(after giving the Company notice and an opportunity to contest such
requirement).
(b) The Executive hereby covenants and agrees that during the
period specified in Section 3, Executive will not, without the prior
written consent of the Company, which consent shall not unreasonably
be withheld, on behalf of Executive or on behalf of any person, firm
or company, directly or indirectly, attempt to influence, persuade or
induce, or assist any other person in so persuading or inducing, any
employee of the Restricted Group to give up, or to not commence,
employment or a business relationship with the Restricted Group.
(c) The Executive further agrees that he shall return, within 10
days of the effective date of his termination as an employee of the
Company and any Subsidiary, in good condition, all property of the
Company and any Subsidiary then in his possession, including, without
limitation, whether in hard copy or in media (i) property, documents
and/or all other materials (including copies, reproductions, summaries
and/or analyses) which constitute, refer or relate to Confidential
Information of the Company or any Subsidiary, (ii) keys to property of
the Company or any Subsidiary, (iii) files and (iv) blueprints or
other drawings.
(d) The Executive further acknowledges and agrees that his
obligation of confidentiality shall survive until and unless such
Confidential Information of the Company or any Subsidiary shall have
become, through no fault of the Executive, generally known to the
public or the Executive is required by law (after providing the
Company with notice and opportunity to contest such requirement) to
make disclosure. The Executive's obligations under this Section are in
addition to, and not in limitation or preemption of, all other
obligations of confidentiality which the Executive may have to the
Company and any Subsidiary under general legal or equitable principles
or statutes.
3. NON-COMPETE. The Executive agrees that he will not, for a period of
_____ years following his termination with the Company and the Subsidiaries,
engage in Competitive Activity.
4. NONSOLICITATION. The Executive further agrees that he will not,
directly or indirectly, for a period of ___ years following his termination with
the Company and the Subsidiaries:
(a) induce or attempt to induce customers, business relations or
accounts of the Company or any of the Subsidiaries to relinquish their
contracts or relationships with the Company or any of the
Subsidiaries; or
(b) solicit, entice, assist or induce other employees, agents or
independent contractors to leave the employ of the Company or any of
the Subsidiaries or to terminate their engagements with the Company
and/or any of the Subsidiaries or assist any competitors
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of the Company or any of the Subsidiaries in securing the services of
such employees, agents or independent contractors.
5. DEFINITIONS. Where the following words and phrases appear in this
Agreement, they have the respective meanings set forth below, unless their
context clearly indicates otherwise:
(a) "Competitive Activity" means the Executive's participation,
without the written consent of an officer of the Company, in the management of
any business enterprise if such enterprise engages in substantial and direct
competition with the Company or any Subsidiary and such enterprise's sales of
any product or service competitive with any product or service of the Company or
any Subsidiary amounted to 5% of such enterprise's net sales for its most
recently completely fiscal year and if the Company's net sales of said product
or service amounted to 5% of, as applicable, the Company's or Subsidiary's net
sales for its most recently completed fiscal year. "Competitive Activity" will
not include (i) the mere ownership of 5% or more of securities in any such
enterprise and the exercise of rights appurtenant thereto or (ii) participation
in the management of any such enterprise other than in connection with the
competitive operations of such enterprise.
(b) "Subsidiary" means any entity in which the Company directly or
indirectly owns more than 50% or more of the outstanding capital or profits
interests or Voting Stock.
(c) "Voting Stock" means securities entitled to vote generally in the
election of directors.
IN WITNESS WHEREOF, the Executive has executed and delivered this
Agreement on the date set forth below.
Dated:
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Executive
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CLEVELAND-CLIFFS INC
CHANGE IN CONTROL SEVERANCE PAY PLAN
EXHIBIT C
FORM OF RELEASE
WHEREAS, the Executive's employment has been terminated in
accordance with Section 4(b), (c) or (d) of the Cleveland-Cliffs Inc Change in
Control Severance Pay Plan (the "Plan"); and
WHEREAS, the Executive is required to sign this Release in
order to receive the Severance Compensation (as such term is defined in the
Plan) as described in Exhibit A of the Plan and the other benefits described in
the Plan.
NOW THEREFORE, in consideration of the promises and agreements
contained herein and other good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, and intending to be legally bound, the
Executive agrees as follows:
1. This Release is effective on the date hereof and will continue in effect
as provided herein.
2. In consideration of the payments to be made and the benefits to be
received by the Executive pursuant to the Plan, which the Executive acknowledges
are in addition to payments and benefits which the Executive would be entitled
to receive absent the Plan (other than severance pay and benefits under any
other severance plan, policy, program or arrangement sponsored by
Cleveland-Cliffs Inc), the Executive, for himself and his dependents,
successors, assigns, heirs, executors and administrators (and his and their
legal representatives of every kind), hereby releases, dismisses, remises and
forever discharges Cleveland-Cliffs Inc, its predecessors, parents,
subsidiaries, divisions, related or affiliated companies, officers, directors,
stockholders, members, employees, heirs, successors, assigns, representatives,
agents and counsel (the "Company") from any and all arbitrations, claims,
including claims for attorney's fees, demands, damages, suits, proceedings,
actions and/or causes of action of any kind and every description, whether known
or unknown, which Executive now has or may have had for, upon, or by reason of
any cause whatsoever ("claims"), against the Company, including but not limited
to:
(a) any and all claims arising out of or relating to Executive's
employment by or service with the Company and his termination from the
Company;
(b) any and all claims of discrimination, including but not limited to
claims of discrimination on the basis of sex, race, age, national origin,
marital status, religion or handicap, including, specifically, but without
limiting the generality of the foregoing, any
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claims under the Age Discrimination in Employment Act, as amended, Title
VII of the Civil Rights Act of 1964, as amended, the Americans with
Disabilities Act, Ohio Revised Code Section 4101.17 and Ohio Revised Code
Chapter 4112, including Sections 4112.02 and 4112.99 thereof; and
(c) any and all claims of wrongful or unjust discharge or breach of
any contract or promise, express or implied.
3. Executive understands and acknowledges that the Company does not
admit any violation of law, liability or invasion of any of his rights and that
any such violation, liability or invasion is expressly denied. The consideration
provided for this Release is made for the purpose of settling and extinguishing
all claims and rights (and every other similar or dissimilar matter) that
Executive ever had or now may have against the Company to the extent provided in
this Release. Executive further agrees and acknowledges that no representations,
promises or inducements have been made by the Company other than as appear in
the Plan.
4. Executive further agrees and acknowledges that:
(a) The release provided for herein releases claims to and
including the date of this Release;
(b) He has been advised by the Company to consult with legal
counsel prior to executing this Release, has had an opportunity to
consult with and to be advised by legal counsel of his choice, fully
understands the terms of this Release, and enters into this Release
freely, voluntarily and intending to be bound;
(c) He has been given a period of 21 days to review and consider
the terms of this Release, prior to its execution and that he may use
as much of the 21 day period as he desires; and
(d) He may, within 7 days after execution, revoke this Release.
Revocation shall be made by delivering a written notice of revocation
to the Vice President Human Resources at the Company. For such
revocation to be effective, written notice must be actually received
by the Vice President Human Resources at the Company no later than the
close of business on the 7th day after Executive executes this
Release. If Executive does exercise his right to revoke this Release,
all of the terms and conditions of the Release shall be of no force
and effect and the Company shall not have any obligation to make
payments or provide benefits to Executive as set forth in Sections 5,
6 and 11 of the Plan.
5. Executive agrees that he will never file a lawsuit or other
complaint asserting any claim that is released in this Release.
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6. Executive waives and releases any claim that he has or may have to
reemployment after ____________________.
IN WITNESS WHEREOF, the Executive has executed and delivered this
Release on the date set forth below.
Dated:
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Executive
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