Exhibit 10(cc)
FIFTH AMENDMENT TO TRUST AGREEMENT NO. 5
----------------------------------------
WHEREAS, Cleveland-Cliffs Inc ("Cleveland-Cliffs") and AmeriTrust
Company National Association entered into Trust Agreement No. 5, formally known
as Trust Agreement, (the "Agreement") effective October 28, 1987, which
Agreement was amended on four previous occasions;
WHEREAS, Key Trust Company of Ohio, N.A. (the "Trustee") is the
successor in interest to Society National Bank, which was the successor in
interest to AmeriTrust Company National Association; and
WHEREAS, Cleveland-Cliffs and the Trustee desire to amend the
Agreement;
NOW, THEREFORE, effective June 1, 1997, Cleveland-Cliffs and the
Trustee hereby amend the Agreement to provide as follows:
1. The third sentence of Section 1(b) of the Agreement is hereby
amended to read as follows:
"The term "Change of Control" shall mean the occurrence of any of the
following events:
(i) Cleveland-Cliffs shall merge into itself, or be merged
or consolidated with, another corporation and as a 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 have existed
immediately prior to such merger or consolidation;
(ii) Cleveland-Cliffs shall sell or otherwise transfer all
or substantially all of its assets to any other corporation or other
legal person, and immediately after such sale or transfer less than
70% of the combined voting power of the outstanding voting securities
of such corporation or person is held in the aggregate by the former
shareholders of Cleveland-Cliffs as the same shall have existed
immediately prior to such sale or transfer;
(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 outstanding
voting securities of Cleveland-Cliffs (whether directly or
indirectly); or
(iv) During any period of three consecutive years,
individuals who at the beginning of any such period constitute the
Board of Directors of Cleveland-Cliffs cease,
- 2 -
for any reason, to constitute at least a majority thereof, unless the
election, or the nomination for election by the shareholders of
Cleveland-Cliffs or 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 the Company on the date of the
beginning of any such period."
2. Section 8(b) of the Agreement shall be amended to read as follows:
"(b) The Trustee may vote any stock (other than Common Shares of
Cleveland-Cliffs for which it receives instructions as provided in
Section 8(j) below) or other securities and exercise any right
pertinent to any such stock, other securities or other property it
holds, either in person or by general or limited proxy, power of
attorney or other instrument."
3. A new subsection (j) shall be added to Section 8 of the Agreement
to read as follows:
"(j) Each Executive who has full or partial Common Shares of
Cleveland-Cliffs allocated to his account on any record date for a
meeting of shareholders of Cleveland-Cliffs may exercise all voting
rights (including dissenter's rights) in connection with such
- 3 -
meeting, and shall have the right to direct the Trustee as to the
manner in which such Common Shares are to be voted with respect to all
matters to be presented at such meeting. Before a meeting, the Trustee
shall cause to be sent to each Executive who has Common Shares
allocated to his account on the record date for such meeting a copy of
the proxy solicitation material therefore and such other information
as the Trustee deems necessary or appropriate, together with a form
requesting confidential directions from the Executive on how to vote
the Common Shares allocated to his account with respect to the matters
to be presented at the meeting. Upon timely receipt of such form
properly completed from an Executive, the Trustee shall vote the
Common Shares (or, as applicable, exercise any dissenter's rights) as
directed. In the event that the Trustee determines that any such
directions with respect to any Commons Shares are not proper, or are
not in accordance with the terms of this Agreement, or in the event
that the Trustee does not receive timely voting directions with
respect to any Common Shares held in the Trust, and with respect to
any Common Shares that are not allocated to any
- 4 -
account under this Agreement, the Trustee shall vote such Common
Shares (or, as applicable, exercise any dissenter's rights) in a
manner that the Trustee determines to be prudent.
The Trustee shall have such powers and authority as are necessary
to discharge its duties and responsibilities as described in this
Section 8(j). The Trustee shall exercise such powers in its sole
discretion.
Fees and expenses of the Trustee or others in connection with the
exercise of any dissenter's rights will be charged against the account
or accounts with respect to which such rights are exercised. If the
Trustee determines that the account or accounts of any Executive
directing the exercise of any dissenter's rights is or are
insufficient to cover the fees and expenses the Trustee reasonably
estimates will be incurred in connection with such exercise, the
Trustee shall so inform each such Executive and the Trustee will not
be required to take and will be held harmless for not taking any
action with respect to the direction to exercise dissenter's rights
unless and until the Executive wishing to exercise such rights
provides the Trustee with surety and/or an
- 5 -
indemnification satisfactory to the Trustee and sufficient to cover
all costs, expenses and fees associated with such exercise."
IN WITNESS WHEREOF, Cleveland-Cliffs and the Trustee have executed
this Fifth Amendment at Cleveland, Ohio, this 23rd day of May, 1997.
CLEVELAND-CLIFFS INC
By: /s/ X.X. Xxxxx
----------------------------
Title: V.P. - H.R.
-----------------------
KEYTRUST COMPANY OF OHIO, N.A.,
By: /s/ Xxxxxx Xxxxx
----------------------------
Title: VP
-----------------------
and
By: /s/ X.X. Xxxxxxx
----------------------------
Title: VP
-----------------------
- 6 -
