EXHIBIT 10(q)
[Conformed Copy]
FIRST AMENDMENT TO TRUST AGREEMENT NO. 4
This Amendment No. 1 to Trust Agreement made on April 9, 1991, by and between
Cleveland-Cliffs Inc, an Ohio corporation ("Cleveland-Cliffs") and Ameritrust
Company National Association, a national banking association, as trustee (the
"Trustee");
W I T N E S S E T H:
WHEREAS, on October 28, 1987, Cleveland-Cliffs and the Trustee entered
into a Trust Agreement ("Trust Agreement");
WHEREAS, the Trust Agreement is for the purpose of providing benefits
under the Plan for Deferred Payment of Directors' Fees of The Cleveland-Cliffs
Iron Company, adopted June 4, 1981 and assumed by Cleveland-Cliffs, effective
July 1, 1985; and
WHEREAS, Cleveland-Cliffs has reserved the right, with the Trustee,
pursuant to Section 12 of the Trust Agreement, to amend the Trust Agreement
without the consent of any Trust Beneficiaries, as defined in the Trust
Agreement
NOW, THEREFORE, Cleveland-Cliffs and the Trustee hereby agree that the
Trust Agreement shall be amended as follows:
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1. The Trust Agreement is hereby renamed "Trust Agreement No. 4," and
each reference in such Trust Agreement No 4 to "Trust Agreement" shall be
amended to read "Trust Agreement No. 4."
2. The second WHEREAS clause is amended by deleting the words "in the
event of a `Change of Control' (as defined herein)" from the end thereof.
3. Section 1(a) is amended to read as follows:
1. Trust Fund: (a) Subject to the claims of its creditors to
the extent set forth in Section 3 hereof, Cleveland-Cliffs (i)
hereby deposits with the Trustee in trust Ten Dollars ($10.00)
which shall become the principal of this Trust, and (ii)
Cleveland-Cliffs may from time to time make additional deposits of
cash or other property in the Trust to augment such principal. The
principal and income of the Trust shall be held, administered and
disposed of by the Trustee as herein provided, but no payment of
all or any portion of the principal of the Trust or earnings
thereon shall be made to Cleveland-Cliffs or any other person or
entity on behalf of Cleveland-Cliffs except as herein expressly
provided.
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4. The first sentence of Section 1(b) is amended to read as follows:
(b) The Trust hereby established shall be irrevocable.
5. Section 1(c) is amended to read as follows:
(c) Upon the earlier to occur of (i) a Change of Control or
(ii) a declaration by the Board of Directors of Cleveland-Cliffs
that a Change of Control imminent, Cleveland-Cliffs shall promptly,
and in any event within five (5) business days, transfer to the
Trustee to be added to the principal of the Trust under this Trust
Agreement No. 4 property or each equal to the then value of the
separate accounts of the Directors under the provisions of the
Plan, less the balances in the Directors' accounts provided in
Section 7(b) hereof as of the most recent completed valuation
thereof, as certified by the Trustee; provided, however, if the
Trustee does not so certify by the end of the fourth (4th) business
day after the earlier of (i) or (ii) above, then the balances of
such accounts shall be deemed to be zero. Any payments by the
Trustee pursuant to this Trust Agreement No. 4 shall, to the extent
thereof, discharge the
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obligation of Cleveland-Cliffs to pay benefits under the Plan.
6. Section 1(g) is amended by adding at the end thereof the
following:
The Trust is not designed to qualify under section 401(a) of
the Code or to be subject to the provisions of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"). The
Trust established under this Trust Agreement No. 4 does not fund
and is not intended to fund the Plan or any other employee benefit
plan or program of Cleveland-Cliffs. Such Trust is and is intended
to be a depository arrangement with the Trustee for the setting
aside of cash and other assets of Cleveland-Cliffs as and when it
so determines in its sole discretion for the meeting of part or all
of its future obligations with respect to Benefits to some or all
of the Trust Beneficiaries under the Plan.
7. Section 2(a) is amended to read as follows:
(a) Provided that the Trustee has not actually received notice
as provided in Section 3 hereof that Cleveland-Cliffs is Insolvent,
the Trustee shall make payments of Benefits to each Trust
Beneficiary from the assets of the Trust in
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accordance with the terms of the Plan and subject to Section 9
hereof. The Trustee shall make provision for withholding of any
federal, state, or local taxes that may be required to be withheld
by the Trustee in connection with the payment of any Benefits
hereunder.
8. Section 4 is amended to read as follows:
4. PAYMENTS TO CLEVELAND-CLIFFS:
Cleveland-Cliffs shall have no right or power to direct the
Trustee to return any of the Trust assets to Cleveland-Cliffs
before all payments of Benefits have been made to all Trust
Beneficiaries as herein provided.
9. Section 5 is amended by adding the following at the end of the
second sentence thereof:
, and including investments in common or collective funds or
trusts, and mutual funds or investment companies, including
affiliated investment companies and 12 B-1 funds. Cleveland-Cliffs
acknowledges and agrees that the Trustee may receive fees as a
participating depository institution for services relating to the
investment of funds in an eligible mutual fund.
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10. Section 7 is amended to read as follows:
7. ACCOUNTING BY TRUSTEE: (a) The Trustee shall maintain
such books, records and accounts as may be necessary for the proper
administration of the Trust assets, including such specific records
as shall be agreed upon in writing by Cleveland-Cliffs and the
Trustee, and shall render to Cleveland-Cliffs within 60 days
following the close of each calendar year following the date of
this Trust until the termination of this Trust or the removal or
resignation of the Trustee (and within 60 days after the date of
such termination, removal or resignation), an accounting with
respect to the Trust assets as of the end of the then most recent
calendar year (and as of the date of such termination, removal or
resignation, as the case may be). The Trustee shall furnish to
Cleveland-Cliffs on a quarterly basis (or as Cleveland-Cliffs shall
direct from time to time) and in a timely manner such information
regarding the Trust as Cleveland-Cliffs shall require for purposes
of preparing its statements of financial condition. The Trustee
shall at all times maintain separate bookkeeping accounts for each
Trust Beneficiary as prescribed by Section 7(b)
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hereof, and shall provide each Trust Beneficiary with an annual
statement of his account. Upon the written request of
Cleveland-Cliffs or, on or after the date on which a Change of
Control has occurred, a Trust Beneficiary, the Trustee shall
deliver to such Trust Beneficiary or Cleveland-Cliffs, as the case
may be, a written report setting forth the amount held in the Trust
and a record of the deposits made with respect thereto by
Cleveland-Cliffs. Unless Cleveland-Cliffs or any Trust Beneficiary
shall have filed with the Trustee written exception or objection to
any such statement and account within 90 days after receipt
thereof, Cleveland-Cliffs and the Trust Beneficiaries shall be
deemed to have approved such statement and account, and in such
case the Trustee shall be forever released and discharged with
respect to all matters and things reported in such statement and
account as though it had been settled by a decree of a court of
competent jurisdiction in an action or proceeding to which the
Company and the Trust Beneficiaries were parties.
(b) The Trustee shall maintain a separate account for each
Trust Beneficiary. The Trustee
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shall credit or debit each Trust Beneficiary's account as
appropriate to reflect such Trust Beneficiary's allocable portion
of the Trust assets, as such Trust assets may be adjusted from time
to time pursuant to the terms of this Trust Agreement No. 4. Prior
to the date of a Change of Control, all deposits of principal
pursuant to Section 1(a) hereof shall be allocated as directed by
Cleveland-Cliffs; on or after such date deposits of principal, once
allocated, may not be reallocated by Cleveland-Cliffs. Income,
expense, gain or loss on assets allocated to the separate accounts
of the Trust Beneficiaries shall be allocated separately to such
accounts by the Trustee in proportion to the balances of the
separate accounts of the Directors.
IN WITNESS WHEREOF, Cleveland-Cliffs and the Trustee have caused
counterparts of the First Amendment to Trust Agreement No. 4 to be executed on
April 9, 1991.
CLEVELAND-CLIFFS INC
By: Richard F. Novak
----------------
Its: V.P. of Human Resources
--------------------------------
AMERITRUST COMPANY NATIONAL
ASSOCIATION
By: /s/ J. R. Russell
---------------------------------
Its: Vice President
--------------------------------
8077B
SECOND AMENDMENT TO TRUST AGREEMENT NO. 4
This Amendment No. 2 to Trust Agreement No. 4 is made on this 9th day of
March, 1992, by and between Cleveland-Cliffs Inc, an Ohio corporation
("Cleveland-Cliffs") and Ameritrust Company National Association, a national
banking association, as trustee (the "Trustee");
WITNESSETH:
WHEREAS, on October 28, 1987, Cleveland-Cliffs and the Trustee entered
into a trust agreement ("Trust Agreement No. 4");
WHEREAS, on April 9, 1991, Cleveland-Cliffs and the Trustee entered
into Amendment No. 1 to Trust Agreement No. 4
WHEREAS, Trust Agreement No. 4, as amended, is for the purpose of
providing benefits under the Cleveland-Cliffs Inc Plan for Deferred Payment of
Directors' Fees;
WHEREAS, Cleveland-Cliffs has reserved the right, with the Trustee,
pursuant to Section 12 of Trust Agreement No. 4, to amend Trust Agreement No. 4
without the consent of any Trust Beneficiaries, as defined in Trust Agreement
No. 4.
NOW, THEREFORE, Cleveland-Cliffs and the Trustee hereby agree that
Trust Agreement No. 4 shall be amended as follows:
1. The third sentence of Section 1(b) of Trust Agreement No. 4 is
hereby amended to read as follows:
"The term "Change of Control" shall mean the occurrence of any of the
following events:
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(i) Cleveland-Cliffs shall merge into itself, or be merged or
consolidated with, another corporation and result of such merger or
consolidation less than 70% of the outstanding voting securities of the
surviving or resulting corporation shall be owned in the aggregate by the
former shareholders of Cleveland-Cliffs as the same shall have existed
immediately prior to such merger or consolidation;
(ii) Cleveland-Cliffs shall sell or transfer to one or more persons,
corporations or entities, in a single transaction or a series of related
transactions, more than one-half of the assets accounted for on the Statement
of Consolidated Financial Position of Cleveland-Cliffs as "properties" or
"investments in associated companies" (or such replacements for these accounts
as may be adopted from time to time) unless by an affirmative vote of
two-thirds of the members of the Board of Directors, the transaction or
transactions are exempted from the operation of this provision based on a good
faith finding that the transaction or transactions are not within the intended
scope of this definition for purposes of this instrument;
(iii) a person within the meaning of Section 3(a)(9) or of Section
13(d)(3) (as in effect on the date hereof) of the Securities Exchange Act of
1934, shall become the beneficial owner (as defined in Rule 13d-3 of the
Securities and Exchange Commission pursuant to the Securities Exchange Act of
1934) of 30% or more of the
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outstanding voting securities of Cleveland-Cliffs (whether directly or
indirectly); or
(iv) during any period of three consecutive years, including, without
limitation, the year 1991, individuals who at the beginning of any such period
constitute the Board of Directors of Cleveland-Cliffs cease, for any reason, to
constitute at least a majority thereof, unless the election, or the nomination
for election by the shareholders of Cleveland-Cliffs, of each Director first
elected during any such period was approved by a vote of at least one-third of
the Directors of Cleveland-Cliffs who are Directors of Cleveland-Cliffs on the
date of the beginning of any such period."
IN WITNESS WHEREOF, Cleveland-Cliffs and the Trustee have caused
counterparts of this Amendment No. 2 to Trust Agreement No. 4 to be executed on
March 9, 1992.
CLEVELAND-CLIFFS INC
By: R. F. Novak
-----------
Its: Vice President
--------------
AMERITRUST COMPANY NATIONAL
ASSOCIATION
By: J. R. Russell
---------------
Its: Vice President
----------------
2993F