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EXHIBIT 10(f)
INDEMNIFICATION AGREEMENT
This indemnification Agreement ("Agreement") is made of the _____ day of
__________________, 1987, by and between Cleveland-Cliffs Inc, an Ohio
corporation (the "Company") and _____________________ (the "Indemnitee"), a
Director of the Company.
RECITALS
A. The Indemnitee is presently serving as a Director of the Company
and the Company desires the Indemnitee to continue in that capacity. The
Indemnitee is willing, subject to certain conditions including without
limitation the execution and performance of this Agreement by the Company, to
continue in that capacity.
B. In addition to the indemnification to which the Indemnitee is
entitled under the Regulations of the Company (the "Regulations"), the Company
has obtained, at its sole expense, insurance protecting the Company and its
officers and directors including the Indemnitee against certain losses arising
out of actual or threatened actions, suits, or proceedings to which such
persons may be made or threatened to be made parties. However, as a result of
circumstances having no relation to, and beyond the control of, the company and
the Indemnitee, the scope of that insurance has been reduced and there can be
no assurance of the continuation or renewal of that insurance.
Accordingly, and in order to induce the Indemnitee to continue to serve
in his present capacity, the Company and the Indemnitee agree as follows:
1. Continued Service. The Indemnitee shall continue to serve at the
will of the Company as a Director of the Company so long as he is duly elected
and qualified in accordance with the Regulations or until he resigns in writing
in accordance with applicable law.
2. Initial Indemnity. (a) The Company shall indemnify the
Indemnitee, if or when he is a party or is threatened to be made a party to any
threatened, pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative (other than an action by or in the
right of the Company), by reason of the fact that he is or was a Director of
the Company or is or was serving at the request of the Company as a director,
trustee, officer, employee, or agent of another corporation, domestic or
foreign, nonprofit or for profit, partnership, joint venture, trust, or other
enterprise, or by reason of any action alleged to have been taken or omitted in
any such capacity, against any and all costs, charges, expenses (including
without limitation fees and expenses of attorneys and/or others; all such
costs, charges and expenses being herein jointly referred to as "Expenses"),
judgments, fines, and amounts paid in settlement, actually and reasonably
incurred by the Indemnitee in connection therewith including any appeal of or
from any judgment or decision, unless it is proved by clear and convincing
evidence in a court of competent jurisdiction that the Indemnitee's action or
failure to act involved an act or omission undertaken with deliberate intent to
cause injury to the Company or Undertaken with reckless disregard for the best
interests of the Company.
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In addition, with respect to any criminal action or proceeding, indemnification
hereunder shall be made only if the Indemnitee had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment. order, settlement, or conviction, or upon a plea of no
lo contendere or its equivalent, shall not, of itself, create a presumption
that the Indemnitee did not satisfy the foregoing standard of conduct to the
extent applicable thereto.
(b) The Company shall indemnify the Indemnitee, if or when he is a
party or is threatened to be made a party to any threatened, pending, or
completed action, suit. or proceeding by or in the right of the Company to
procure a judgment in its favor, by reason of the fact that the Indemnitee is
or was a Director of the Company or is or was serving at the request of the
Company as a director, trustee, officer, employee, or agent of another
corporation, domestic or foreign, nonprofit or for profit, partnership, joint
venture, trust, or other enterprise, against any and all Expenses actually and
reasonably incurred by the Indemnitee in connection with the defense or
settlement thereof or any appeal of or from any judgment or decision, unless it
is proved by clear and convincing evidence in a court of competent jurisdiction
that the Indemnitee's action or failure to act involved an act or omission
undertaken with deliberate intent to cause injury to the Company or undertaken
with reckless disregard for the best interests of the Company, except that no
indemnification shall be made in respect of any action or suit in which the
only liability asserted against Indemnitee is pursuant to Section 1701.95 of
the Ohio Revised Code.
(c) Any indemnification under Section 2(a) or 2(b) (unless ordered by
a court) shall be made by the Company only as authorized in the specific case
upon a determination that indemnification of the Indemnitee is proper in the
circumstances because he has met the applicable standard of conduct set forth
in Section 2(a) or 2(b). Such authorization shall be made (i) by the Directors
of the Company (the "Boards") by a majority vote of a quorum consisting of
Directors who were not and are not parties to or threatened with such action,
suit, or proceeding or (ii) if such a quorum of disinterested Directors is not
available or if a majority of such quorum so directs, in a written opinion by
independent legal counsel (designated for such purpose by the Board) which
shall not be an attorney, or a firm having associated with it an attorney, who
has been retained by or who has performed services for the Company, or any
person to be indemnified, within the five years preceding such determination,
or (iii) by the shareholders of the Company (the "Shareholders"), or (iv) by
the court in which such action, suit, or proceeding was brought.
(d) To the extent that the Indemnitee has been successful on the
merits or otherwise, including without limitation the dismissal of an action
without prejudice, in defense of any action, suit, or proceeding referred to in
Section 2(a) or 2(b), or in defense of any claim, issue, or matter therein, he
shall be indemnified against Expenses actually and reasonably incurred by him
in connection therewith. Expenses actually and reasonably incurred by the
Indemnitee in defending any such action, suit, or proceeding shall be paid by
the Company as they are incurred in advance of the final disposition of such
action, suit, or proceeding under the procedure set forth in Section 4(b)
hereof.
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(e) For purposes of this Agreement, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on the Indemnitee with respect to any employee benefit
plan; references to "serving at the request of the Company" shall include any
service as a director, officer, employee, or agent of the Company which imposes
duties on, or involves services by, the Indemnitee with respect to an employee
benefit plan, its participants or beneficiaries; references to the masculine
shall include the feminine; and references to the singular shall include the
plural and VICE VERSA.
3. Additional Indemnification. Pursuant to Section 1701.13(E)(6) of
the Ohio Revised Code (the "ORC"), without limiting any right which the
Indemnitee may have pursuant to Section 2 hereof or any other provision of this
Agreement or the Articles of Incorporation, the Regulations, the ORC, any
policy of insurance, or otherwise, but subject to any limitation on the maximum
permissible indemnity which may exist under applicable law at the time of any
request for indemnity hereunder and subject to the following provisions of this
Section 3, the Company shall indemnify the Indemnitee against any amount which
he is or becomes obligated to pay relating to or arising out of any claim made
against him because of any act, failure to act, or neglect or breach of duty,
including any actual or alleged error, misstatement, or misleading statement,
which he commits, suffers, permits, or acquiesces in while acting in his
capacity as a Director of the Company. The payments which the Company is
obligated to make pursuant to this Section 3 shall include without limitation,
judgments, fines, and amounts paid in settlement and any and all Expenses
actually and reasonably incurred by the Indemnitee in connection therewith
including any appeal of or from any judgment or decision; PROVIDED, HOWEVER,
that the Company shall not be obligated under this Section 3 to make any
payment in connection with any claim against the Indemnitee:
(a) to the extent of any fine or similar governmental
imposition which the Company is prohibited by applicable law from
paying which results from a final, nonappealable order; or
(b) to the extent based upon or attributable to the Indemnitee
having actually realized a personal gain or profit to which he was not
legally entitled, including without limitation profit from the purchase
and sale by the Indemnitee of equity securities of the Company which are
recoverable by the Company pursuant to Section 16(G) of the Securities
Exchange Act of 1934, or profit arising from transactions in publicly
traded securities of the Company which were effected by the Indemnitee
in violation of Section 10(b) of the Securities Exchange Act of 1934, or
Rule 10b-5 promulgated thereunder.
A determination as to whether the Indemnitee shall be entitled to
indemnification under this Section 3 shall be made in accordance with Section
4(a) hereof. Expenses incurred by the Indemnitee in defending any claim to
which this Section 3 applies shall be paid by the Company as they are actually
and reasonably incurred in advance of the final disposition of such claim under
the procedure set forth in Section 4(b) hereof.
4. Certain Procedures Relating to Indemnification. (a) For
purposes of pursuing his rights to indemnification under Section 3 hereof,
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the Indemnitee shall (i) submit to the Board a sworn statement of request for
indemnification substantially in the form of Exhibit I attached hereto and made
a part hereof (the "Indemnification Statement") averring that he is entitled to
indemnification hereunder; and (ii) present to the Company reasonable evidence
of all amounts for which indemnification is requested. Submission of an
Indemnification Statement to the Board shall create a presumption that the
Indemnitee is entitled to indemnification hereunder, and the Company shall,
within 60 calendar days after submission of the Indemnification Statement, make
the payments requested in the Indemnification Statement to or for the benefit
of the Indemnitee, unless (i) within such 60-calendar-day period the Board
shall resolve by vote of a majority of the Directors at a meeting at which a
quorum is present that the Indemnitee is not entitled to indemnification under
Section 3 hereof, (ii) such vote shall be based upon clear and convincing
evidence (sufficient to rebut the foregoing presumption), and (iii) the
Indemnitee shall have received within such period notice in writing of such
vote, which notice shall disclose with particularity the evidence upon which
the vote is based. The foregoing notice shall be sworn to by all persons who
participated in the vote and voted to deny indemnification. The provisions of
this Section 4(a) are intended to be procedural only and shall not affect the
right of Indemnitee to indemnification under Section 3 of this Agreement so
long as Indemnitee follows the prescribed procedure and any determination by
the Board that Indemnitee is not entitled to indemnification and any failure to
make the payments requested in the Indemnification Statement shall be subject
to judicial review by any court of competent jurisdiction.
(b) For purposes of obtaining payments of Expenses in advance of
final disposition pursuant to the second sentence of Section 2(d) or the last
sentence of Section 3 hereof, the Indemnitee shall submit to the Company a
sworn request for advancement of Expenses substantially in the form of Exhibit
2 attached hereto and made a part hereof (the "Undertaking"), averring that he
has reasonably incurred actual Expenses in defending an action, suit or
proceeding referred to in Section 2(a) or 2(b) or any claim referred to in
Section 3, or pursuant to Section 7 hereof. Unless at the time of the
Indemnitee's act or omission at issue, the Articles of Incorporation or
Regulations of the Company prohibit such advances by specific reference to ORC
Section 1701.13(E)(5)(a) and unless the only liability asserted against the
Indemnitee in the subject action, suit or proceeding is pursuant to ORC Section
1701.95, the Indemnitee shall be eligible to execute Part A of the Undertaking
by which he undertakes to (a) repay such amount if it is proved by clear and
convincing evidence in a court of competent jurisdiction that the Indemnitee's
action or failure to act involved an act or omission undertaken with deliberate
intent to cause injury to the Company or undertaken with reckless disregard for
the best interests of the Company and (b) reasonably cooperate with the Company
concerning the action, suit, proceeding or claim. In all cases, the Indemnitee
shall be eligible to execute Part B of the Undertaking by which he undertakes
to repay such amount if it ultimately is determined that he is not entitled to
be indemnified by the Company under this Agreement or otherwise. In the event
that the Indemnitee is eligible to and does execute both Part A and Part B of
the Undertaking, the Expenses which are paid by the Company pursuant thereto
shall be required to be repaid by the Indemnitee only if he is required to do
so under the terms of both Part A and Part B of the Undertaking. Upon receipt
of the Undertaking the Company
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shall thereafter promptly pay such Expenses of the Indemnitee as are noticed to
the Company in writing and in reasonable detail arising out of the matter
described in the Undertaking. No security shall be required in Connection with
any Undertaking.
5. Limitation on Indemnity. Notwithstanding anything contained
herein to the contrary, the Company shall not be required hereby to indemnify
the Indemnitee with respect to any action, suit, or proceeding that was
initiated by the Indemnitee unless (i) such action, suit, or proceeding was
initiated by the Indemnitee to enforce any rights to indemnification arising
hereunder and such person shall have been formally adjudged to be entitled to
indemnity by reason hereof, (ii) authorized by another agreement to which the
Company is a party whether heretofore or hereafter entered, or (iii) otherwise
ordered by the court in which the suit was brought.
6. Subrogation; Duplication of Payments. (a) In the event of any
payment under this Agreement, the Company shall be subrogated to the extent of
such payment to all of the rights of recovery previously vested in the
Indemnitee, who shall execute all papers required and shall do everything that
may be necessary to secure such rights, including the execution of such
documents necessary to enable the Company effectively to bring suit to enforce
such rights.
(b) The Company shall not be liable under this Agreement to make any
payment in connection with any claim made against Indemnitee to the extent
Indemnitee has actually received payment (under any insurance policy, the
Company's Regulations or otherwise) of the amounts otherwise payable hereunder.
7. Fees and Expenses of Enforcement. It is the intent of the
Company that the Indemnitee not be required to incur the expenses associated
with the enforcement of his rights under this Agreement by litigation or other
legal action because the cost and expense thereof would substantially detract
from the benefits intended to be extended to the Indemnitee hereunder.
Accordingly, if it should appear to the Indemnitee that the Company has failed
to comply with any of its obligations under this Agreement or in the event that
the Company or any other person takes any action to declare this Agreement void
or unenforceable, or institutes any action, suit or proceeding to deny, or to
recover from, the Indemnitee the benefits intended to be provided to the
Indemnitee hereunder, the Company irrevocably authorizes the Indemnitee from
time to time to retain counsel of his choice, at the expense of the Company as
hereafter provided, to represent the Indemnitee in connection with the
initiation or defense of any litigation or other legal action, whether by or
against the Company or any director, officer, shareholder, or other person
affiliated with the Company, in any jurisdiction. Regardless of the outcome
thereof, the Company shall pay and be solely responsible for any and all costs,
charges, and expenses, including without limitation fees and expenses of
attorneys and others, reasonably incurred by the Indemnitee pursuant to this
Section 7.
8. Merger or Consolidation. In the event that the Company shall be
a constituent corporation in a consolidation, merger, or other reorganization,
the Company, if it shall not be the surviving, resulting, or acquiring
corporation therein, shall require as a condition thereto that the
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surviving, resulting, or acquiring corporation agree to assume all of the
obligations of the Company hereunder and to indemnify the Indemnitee to the
full extent provided herein. Whether or not the Company is the resulting,
surviving, or acquiring corporation in any such transaction, the Indemnitee
shall also stand in the same position under this Agreement with respect to the
resulting, surviving, or acquiring corporation as he would have with respect to
the Company if its separate existence had continued.
9. Nonexclusivity and Severability. (a) The rights to
indemnification provided by this Agreement shall not be exclusive of any other
rights of indemnification to which the Indemnitee may be entitled under the
Articles of Incorporation, the Regulations, the ORC or any other statute, any
insurance policy, agreement, or vote of shareholders or directors or otherwise,
as to any actions or failures to act by the Indemnitee, and shall continue
after he has ceased to be a Director, officer, employee, or agent of the
Company or other entity for which his service gives rise to a right hereunder,
and shall inure to the benefit of his heirs, executors, and administrators.
(b) If any provision of this Agreement or the application of any
provision hereof to any person or circumstances is held invalid, unenforceable,
or otherwise illegal, the remainder of this Agreement and the application of
such provision to other persons 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.
10. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Ohio, without giving effect to the
principles of conflict of laws thereof.
11. Modification. This Agreement and the rights and duties of the
Indemnitee and the Company hereunder may be modified only by an instrument in
writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the date first above written.
CLEVELAND-CLIFFS INC
By ______________________________
President and
Chief Executive Officer
______________________________
[Signature of Indemnitee]
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Exhibit 1
INDEMNIFICATION STATEMENT
STATE OF )
) ss:
COUNTY OF )
I, ___________________________ being first duly sworn, do depose and say
as follows:
1. This Indemnification Statement is submitted pursuant to the
Idemnification Agreement, dated __________________________, 1987, between
Cleveland-Cliffs Inc (the "Company"), an Ohio corporation, and the undersigned.
2. I am requesting indemnification against costs, charges, expenses
(which may include fees and expenses of attorneys and/or others), judgments,
fines, and amounts paid in settlement (collectively, "Liabilities"), which have
been actually and reasonably incurred by me in connection with a claim referred
to in Section 3 of the aforesaid Indemnification Agreement.
3. With respect to all matters related to any such claim, I am
entitled to be indemnified as herein contemplated pursuant to the aforesaid
Indemnification Agreement.
4. Without limiting any other rights which I have or may have, I am
requesting indemnification against Liabilities which have or may arise out of
________________________________________________________________________________
________________________________________________.
________________________________
[Signature of Indemnitee]
Subscribed and sworn to before me, a Notary Public in and for said
County and State, this _______ of _________________, 19____.
[Seal]
My commission expires the _____ day of ___________________, 19____.
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Exhibit 2
UNDERTAKING
STATE OF )
) ss:
COUNTY OF )
I, ______________________ being first duly sworn, do depose and say as
follows:
1. This Undertaking is submitted pursuant to the Indemnification
Agreement, dated ____________________, 1987, between Cleveland-Cliffs Inc (the
"Company"), an Ohio corporation, and the undersigned.
2. I am requesting payment of costs, charges, and expenses which I
have reasonably incurred or will reasonably incur in defending an action, suit
or proceeding, referred to in Section 2(a) or 2(b) or any claim referred to in
Section 3, or pursuant to Section 7, of the aforesaid Indemnification
Agreement.
3. The costs, charges, and expenses for which payment is requested
are, in general , all expenses related to ___________________________________
_____________________________________________________________________________.
4. Part A
I hereby undertake to (a) repay amounts paid pursuant hereto if it is
proved by clear and convincing evidence in a court of competent jurisdiction
that my action or failure to act which is the subject of the matter described
herein involved an act or omission undertaken with deliberate intent to cause
injury to the Company or undertaken with reckless disregard for the best
interests of the Company and (b) reasonably cooperate with the Company
concerning the action, suit, proceeding or claim.
______________________________________
(Signature of Indemnitee)
4. Part B
I hereby undertake to repay all amounts paid pursuant hereto if it
ultimately is determined that I am not entitled to be indemnified by the
Company under the aforesaid Indemnification Agreement or otherwise.
______________________________________
(Signature of Indemnitee)
Subscribed and sworn to before me, a Notary Public in and for said
County and State, this _____ day of ______________________________, 19___.
[Seal]
My commission expires the ________ day of ________________, 19____.
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