1
EXHIBIT 10(cc)
3234F
AMENDED AND RESTATED TRUST AGREEMENT NO. 6
------------------------------------------
This Amended and Restated Trust Agreement No. 6 ("Trust Agreement
No. 6") 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, Cleveland-Cliffs has entered into and may from time to time
enter into separate indemnification agreements (substantially in the form
attached hereto as Exhibits A and B) with its directors and officers (as listed
on Exhibit C hereto) (each such indemnification agreement being hereinafter
referred to as an "Indemnification Agreement" and each of such persons being
hereinafter referred to as an "Indemnitee");
WHEREAS, each Indemnification Agreement provides, among other
things, for Cleveland-Cliffs to pay and be solely responsible for the expenses
associated with the enforcement of the Indemnitee's rights under the
Indemnification Agreement, including without limitation fees and expenses of
attorneys and others (referred to collectively herein as "Expenses");
WHEREAS, Cleveland-Cliffs and the Trustee entered into a trust
agreement ("Trust Agreement No. 6"), dated January 22,
2
2
1988, to provide for the payment of Expenses associated with the enforcement of
the Indemnitees' rights under the Indemnification Agreements in effect at that
time;
WHEREAS, Trust Agreement No. 6 was amended by a First Amendment to
Trust Agreement No. 6, dated April 9, 1991; and
WHEREAS, Cleveland-Cliffs desires to amend and restate this Trust
Agreement No. 6 heretofore entered into and has transferred or will transfer
to the trust (the "Trust") established by this Trust Agreement No. 6 assets
which shall be held therein until paid to Indemnities with respect to Expenses
in such manner and at such times as specified herein.
NOW, THEREFORE, the parties amend and restate the Trust Agreement
No. 6 and agree that the Trust shall be comprised, held and disposed of as
follows:
0.XXXXX FUND. (a) Cleveland-Cliffs hereby deposits with the Trustee
in trust Two Hundred Fifty Thousand Dollars ($250,000), which shall become the
principal of this Trust, to be held, administered and disposed of by the
Trustee as herein provided.
(b)The Trust hereby established shall be revocable by
Cleveland-Cliffs at any time prior to the date on which occurs a "Change of
Control," as that term is defined in this Section 1(b); on or after such date,
this Trust shall be irrevocable. Cleveland-Cliffs shall notify the Trustee
promptly in the event that a Change of Control has occurred. The term "Change
of Control" shall mean the occurrence of any of the following events:
3
3
(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 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 outstanding voting securities of
Cleveland-Cliffs (whether directly or indirectly); or
4
4
(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.
(c) The principal of the Trust and any earnings thereon shall be held in
trust separate and apart from other funds of Cleveland-Cliffs exclusively for
the uses and purposes herein set forth. No Indemnitee shall have any preferred
claim on, or any beneficial ownership interest in, any assets of the Trust
prior to the time that such assets are paid to an Indemnitee as Expenses as
provided herein.
(d) Cleveland-Cliffs may at any time or from time to time make additional
deposits of cash or other property in the Trust to augment the principal to be
held, administered and disposed of by the Trustee as herein provided, but no
payments thereon shall be made to Cleveland-Cliffs or any other person or
entity on behalf of Cleveland-Cliffs except as herein expressly provided.
(e) This Trust is intended to be a grantor trust, within the meaning of
Section 671 of the Internal Revenue Code
5
5
of 1986, as amended (the "Code"), or any successor provision thereto and shall
be construed accordingly. 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").
2. PAYMENTS TO INDEMNITEES. (a) The Trustee shall promptly pay Expenses
to the Indemnitees from the assets of the Trust in accordance with Sections 2,
3, 4 and 7 of each Indemnification Agreement and this Section 2, provided that
(i) this Trust Agreement No. 6 has not been terminated pursuant to Section 12
hereof; (ii) the Trust has become irrevocable; (iii) with respect to the first
demand for payment of Expenses hereunder received by the Trustee, the Trustee
shall immediately give appropriate notice thereof to all Indemnitees, and shall
make no payment of Expenses until the 21st day after such notice has been
given; and (iv) the requirements of Section 2(c) and 2(d) hereof have been
satisfied. The Trustee shall promptly inform the Company as to amounts paid to
any Indemnitee pursuant to this Section.
(b) It is the intention of Cleveland-Cliffs that during the 21-day period
prescribed by Section 2(a)(iii) hereof, the Indemnitees will make reasonable
efforts to consult with each other and to take into account the interests of
all Indemnitees in deciding on how best to proceed to enforce the provisions of
the Indemnification Agreements such that the assets of the Trust are utilized
most effectively; provided, however, that this Section 2(b) is to be construed
as precatory
6
6
in nature, and in the absence of any other agreement or arrangement, this Trust
Agreement No. 6 (without regard to this Section 2(b)) shall apply to the
payment of Expenses.
(c) A demand for payment by an Indemnitee hereunder must be made prior to
the sixth anniversary after termination of such Indemnitee's services as a
director or officer of Cleveland-Cliffs. In order to demand payment hereunder,
the Indemnitee must deliver to the Trustee (i) a certificate signed by or on
behalf of such Indemnitee, certifying to the Trustee that the Company is in
default in paying the Indemnitee a specified amount which the Indemnitee states
to be owed under the Indemnification Agreement, and (ii) a notice in writing
and in reasonable detail of the Expenses that are to be paid hereunder.
(d) To the extent payments hereunder may be made only from funds held in
the form of a deposit or obligation, such payments may be postponed until such
deposit or obligation shall have matured. Payments shall be made to the
Indemnitee in the full amount noticed until the Trust is depleted; provided
that if on the date such amount is to be paid from the Trust other amounts have
been claimed but not yet paid to the same or other Indemnitees and the
aggregate amount so claimed exceeds the amount available in the Trust, the
Trustee shall only pay that portion of the amount then payable to each such
Indemnitee determined by multiplying such amount by a fraction, the numerator
of which is the amount then in the Trust and the denominator of which is the
aggregate amount noticed by the Idemnitees to be owed but not yet paid to that
date.
7
7
3. RIGHTS OF IDEMNITEES. (a) Nothing in this Trust Agreement No. 6 shall
in any way diminish any rights of any Indemnitee to pursue his rights as a
general creditor of the Company with respect to Expenses or otherwise, and (b)
the rights of each Indemnitee under the respective Indemnification Agreement,
shall in no way be affected or diminished by any provision of this Trust
Agreement No. 6 or action taken pursuant to this Trust Agreement No. 6, it
being the intent of Cleveland-Cliffs that rights of each Indemnitee hereunder
be security for obligations of Cleveland-Cliffs under the respective
Indemnification Agreement, except that any payment actually received by any
Indemnitee hereunder shall reduce dollar-per-dollar amounts otherwise due to
such Indemnitee pursuant to Sections 2, 3, 4 and 7 of the respective
Indemnification Agreement.
4. PAYMENTS TO CLEVELAND-CLIFFS. Except to the extent expressly
contemplated by Section 1(b), 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 Expenses have been made to all Indemnitees as herein provided.
5. INVESTMENT OF TRUST FUND. The Trustee shall invest the principal of
the Trust including any income accumulated and added to principal in (a)
interest-bearing deposit accounts or certificates of deposit (including any
such accounts or certificates issued or offered by the Trustee or any successor
or affiliated corporation but excluding
8
8
obligations of Cleveland-Cliffs), (b) direct obligations of the United States
of America, or obligations the payment of which is guaranteed, as to both
principal and interest, by the government or an agency of the government of the
United States of America, or (c) one or more mutual funds or comingled funds,
whether or not maintained by the Trustee, substantially all of the assets of
which is invested in obligations the income from which is not subject to
taxation; provided, however, that no such investment may mature more than 90
days after the date of purchase. Nothing in this Trust Agreement No. 6 shall
preclude the comingling of Trust assets for investment. The Trustee shall not
be required to invest nominal amounts.
6. INCOME OF THE TRUST. During the continuance of this Trust all net
income of the Trust shall be retained in the Trust.
7. ACCOUNTING BY TRUSTEE. The Trustee shall keep records in reasonable
detail of all investments, receipts, disbursements and all other transactions
required to be done, including such specific records as shall be agreed upon in
writing by Cleveland-Cliffs and the Trustee. All such accounts books and
records shall be open to inspection and audit at all reasonable times by
Cleveland-Cliffs, by any Indemnitee or by any agent or representative of any
of the foregoing. Within 60 calendar days following the end of each calendar
year and within 60 calendar days after the removal or resignation of the
Trustee, the Trustee shall deliver to Cleveland-Cliffs and, if such year end,
removal or resignation
9
9
occurs on or after the date on which a Change of Control has occurred, to each
Indemnitee a written account of its administration of the Trust during such
year or during the period from the end of the last preceding year to the date
of such removal or resignation, setting forth all investments, receipts,
disbursements and other transactions affected by it, including a description of
all securities and investments purchased and sold with the cost or net proceeds
of such purchases or sales (accrued interest paid or receivable being shown
separately), and showing all cash, securities, rights and other property held
in the Trust at the end of such year or as of the date of such 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.
Unless Cleveland-Cliffs or any Indemnitee shall have filed with the Trustee
written exception or objection to any such statement and account within 90 days
after receipt thereof, Cleveland-Cliffs or the Indemnitee 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
Cleveland-Cliffs and the Indemnitees were parties.
10
10
8. RESPONSIBILITY OF TRUSTEE. (a) The Trustee shall act with the care,
skill, prudence and diligence under the circumstances then prevailing that a
prudent corporate trustee, acting in like capacity and familiar with such
matters, would use in the conduct of an enterprise of a like character and with
like aims; provided, however, that the Trustee shall incur no liability to any
person for any action taken pursuant to a direction, request or approval which
is contemplated by and in conformity and compliance with the terms of this
Trust Agreement No. 6 and the Indemnification Agreements, and is given in
writing by Cleveland-Cliffs or by an Indemnitee with respect to his beneficial
interest herein; and provided, further, that the Trustee shall have no duty to
seek additional deposits of principal from Cleveland-Cliffs, and the Trustee
shall not be responsible for the adequacy of this Trust.
(b) The Trustee shall defend any litigation arising in connection with
this Trust Agreement No. 6 and Cleveland-Cliffs shall indemnify the Trustee and
be primarily liable for such costs, expenses and liabilities (including without
limitation attorneys' fees and expenses) incurred by reason of such litigation.
(c) The Trustee may consult with legal counsel (which, after a Change of
Control, shall be independent with respect to Cleveland-Cliffs) with respect to
any of its duties or obligations hereunder, and shall be fully protected in
acting or refraining from acting in accordance with the advice of such counsel.
11
11
(d) The Trustee may rely and shall be protected in acting or refraining
from acting within the authority granted by the terms of this Trust Agreement
No. 6 upon any written notice, instruction or request furnished to it hereunder
and believed by it to be genuine and to have been signed or presented by the
proper party or parties, including, without limiting the scope of this Section
8(d), (i) the notice of a Change of Control required by Section 1(b) hereof,
and (ii) the certification and notice required by Section 2(c) hereof.
(e) The Trustee may hire agents accountants and financial consultants, who
may be agent, accountant, or financial consultant, as the case may be, for
Cleveland-Cliffs, and shall not be answerable for the conduct of same if
appointed with due care.
(f) The Trustee shall have, without exclusion, all powers conferred on
trustees by applicable law unless expressly provided otherwise herein.
(g) The Trustee is empowered to take all actions necessary or advisable in
order to collect any benefits or payment of which the Trustee is the designated
beneficiary.
9. AMENDMENTS, ETC. TO INDEMNIFICATION AGREEMENTS: COOPERATION OF
CLEVELAND-CLIFFS. (a) Cleveland-Cliffs shall, and any Indemnitee may, promptly
furnish the Trustee with true and correct copies of any amendment, restatement
or successor to Exhibits A and/or B, whereupon such amendment, restatement or
successor shall be incorporated herein by reference; provided, however, that
such amendment, restatement or
12
12
successor shall not affect the Trustee's duties and responsibilities hereunder
without the consent of the Trustee, and provided, further, that the failure of
Cleveland-Cliffs to furnish any such amendment, restatement, or successor shall
in no way diminish the rights of any Indemnitee under this Trust Agreement No.
6 or under any Indemnification Agreement.
(b) Cleveland-Cliffs shall provide the Trustee with all information
requested by the Trustee for purposes of determining payments to the
Indemnitees as provided in Section 2. Upon the failure of Cleveland-Cliffs or
any Indemnitee to provide any such information requested by the trustee for
purposes of determining payments to the Indemnitees as provided in Section 2,
the Trustee shall, to the extent necessary in the sole judgment of the Trustee,
(i) compute the amount payable hereunder to any Indemnitee; and (ii) notify
Cleveland-Cliffs and the Indemnitee in writing of its computations. Thereafter
this Trust Agreement No. 6 shall be construed as to the Trustee's duties and
obligation hereunder in accordance with such Trustee determinations without
further action; provided, however, that no such determinations shall in any way
diminish the rights of the Indemnitees hereunder or under the Indemnification
Agreement, and provided, further, that no such determination shall be deemed to
modify this Trust Agreement No. 6 or any Indemnification Agreement.
(c) Amendments to Exhibit C may be made by Cleveland-Cliffs at any time
prior to the date of a Change of Control. On or after such date, no amendment
to Exhibit C may
13
13
be made, other than to designate a different address pursuant to Section 14
hereof.
10.COMPENSATION AND EXPENSES OF TRUSTEE. The Trustee shall be entitled to
receive such reasonable compensation for its services as shall be agreed upon
by Cleveland-Cliffs and the Trustee. The Trustee shall also be entitled to
reimbursement of its reasonable expenses incurred with respect to the
administration of the Trust including fees and expenses incurred pursuant to
Sections 8(c) and 8(e) hereof. Such compensation and expenses shall in all
events be payable either directly by Cleveland-Cliffs or, in the event that
Cleveland-Cliffs shall refuse, from the assets of the Trust. The Trust shall
have a claim against Cleveland-Cliffs for any such compensation or expenses so
paid.
11.REPLACEMENT OF THE TRUSTEE. (a) The Trustee may resign after providing
not less than 90 days' notice to Cleveland-Cliffs and, on or after the date on
which a Change of Control has occurred, to the Indemnitees. Prior to the date
on which a Change of Control has occurred, the Trustee may be removed at any
time by Cleveland-Cliffs. On or after such date, such removal shall also
require the agreement of a majority of the Indemnitees. Prior to the date on
which a Change of Control has occurred, a replacement or successor trustee
shall be appointed by Cleveland-Cliffs. On or after such date, such
appointment shall also require the agreement of a majority of the Indemnitees.
No such removal or resignation shall become effective until the acceptance of
the trust by a
14
14
successor trustee designated in accordance with this Section 11. If the
Trustee should resign, and within 45 days of the notice of such resignation
Cleveland-Cliffs and a majority of the Indemnitees (if required) shall not have
notified the Trustee of an agreement as to a replacement trustee, the Trustee
shall appoint a successor trustee, which shall be a bank or trust company,
wherever located, having a capital and surplus of at least $500,000,000 in the
aggregate. Notwithstanding the foregoing, a new trustee shall be independent
and not subject to control of either Cleveland-Cliffs or the Indemnitees. Upon
the acceptance of the trust by a successor trustee, the Trustee shall release
all of the monies and other property in the Trust to its successor, who shall
thereafter for all purposes of this Trust Agreement No. 6 be considered to be
the "Trustee."
(b) For purposes of the removal or appointment of a trustee under this
Section 11, if any Indemnitee shall be deceased or adjudged incompetent, such
Indemnitee's personal representative (including his or her guardian, executor
or administrator) shall participate in such Indemnitee's stead.
12.AMENDMENT OR TERMINATION. (a) This Trust Agreement No. 6 may be
amended at any time and to any extent by a written instrument executed by the
Trustee, Cleveland-Cliffs and, on or after the date on, which a Change of
Control has occurred, a majority of the Indemnitees, except to make the Trust
revocable after it has become irrevocable in accordance with Section 1(b)
hereof, or to alter Section 12(b) hereof,
15
15
except that amendments contemplated by Section 9 hereof shall be made as
therein provided.
(b) The Trust shall terminate upon the earliest of (i) the tenth
anniversary of the date on which a Change of Control has occurred; (ii) the
sixth anniversary of the date on which a Change of Control has occurred,
provided that the Trustee has received no demand for payment of Expenses prior
to such anniversary; (iii) such time as the Trust no longer contains any
assets; (iv) such time as the Trustee shall have received consents from all
Indemnitees to the termination of this Trust Agreement No. 6; or (v) there is
no longer any living Indemnitee under this Trust Agreement No. 6 and there is
no pending demand by the estate of any Indemnitee against the Trust.
(c) Upon termination of the Trust as provided in Section 12(b) hereof, any
assets remaining in the Trust shall be returned to Cleveland-Cliffs unless a
determination is made by legal counsel experienced in such matters that the
assets of the Trust may not be returned to Cleveland-Cliffs without violating
Section 403(d)(2) of ERISA, or any successor provision thereto. If such a
determination is made, any assets remaining in the Trust, after satisfaction of
liabilities hereunder, pursuant to the written direction of Cleveland-Cliffs,
shall be (i) distributed to any welfare benefit plan (within the meaning of
ERISA) maintained by Cleveland-Cliffs at the time of distribution so
established at such time in order to receive such assets from this Trust, or
16
16
(ii) otherwise applied to provide benefits which may be provided by a welfare
benefit plan (within the meaning of ERISA), directly or through the purchase of
insurance.
13.SEVERABILITY, ALIENATION, ETC. (a) Any provision of this Trust
Agreement No. 6 prohibited by law shall be ineffective to the extent of any
such prohibition without invalidating the remaining provisions hereof.
(b) To the extent permitted by law, benefits to Indemnitees under this
Trust Agreement No. 6 may not be anticipated (except as herein expressly
provided), assigned, (either at law or in equity) alienated or subject to
attachment, garnishment, levy, execution or other legal or equitable process.
No benefit actually paid to any Indemnitee by the Trustee shall be subject to
any claim for repayment by Cleveland-Cliffs or Trustee, except in the event of
(i) a false claim, or (ii) a payment is made to an incorrect Indemnitee.
(c) This Trust Agreement No. 6 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.
(d) This Trust Agreement No. 6 may be executed in two or more
counterparts, each of which shall be considered an original agreement. This
Trust Agreement No. 6 shall become effective immediately upon the execution by
Cleveland-Cliffs of at least one counterpart, it being understood that all
parties need not sign the same counterpart, but shall not bind any Trustee
until such Trustee has executed at least one counterpart.
17
17
14.NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly given when
received:
IF TO THE TRUSTEE, TO:
Ameritrust Company National Association
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Trust Department
Employee Benefit Administration
IF TO CLEVELAND-CLIFFS, TO:
Cleveland-Cliffs Inc
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Secretary
IF TO AN INDEMNITEE, TO:
His or her last address shown on
the records of Cleveland-Cliffs
provided, however, that if any party or his or its successors shall have
designated a different address by notice to the other parties, then to the last
address so designated.
18
18
IN WITNESS WHEREOF, each of Cleveland-Cliffs and the Trustee have caused
counterparts of this Amended and Restated Trust Agreement No. 6 to be executed
on their behalf on March 9, 1992, each of which shall be an original agreement.
CLEVELAND-CLIFFS INC
By: X. X. Xxxxx
-----------
Its: Vice President
--------------
AMERITRUST COMPANY NATIONAL
ASSOCIATION, as Trustee
By: J. R. Xxxxxxx
-------------
Its: Vice President
--------------
19
EXHIBIT A
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made as 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.
1
20
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
nolo 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 "Board") 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.
2
21
(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,
nonapplicable 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(b) 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,
3
22
the Indemnitee shall (i) submit to the Board a sworn statement of request for
indemnification substantially in the form of Exhibit 1 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
or 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 so 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 or 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 or both Part A and Part B of the Undertaking. Upon receipt
of the Undertaking the Company
4
23
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 is 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 profited, 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
5
24
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 e 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]
6
25
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
Indemnification 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 _______ day of _______________, 19___.
[Seal]
My commission expires the _________ day of _____________, 19____.
7
26
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 all 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___.
8
27
Exhibit B
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made as of the day of
, 1987, by and between Cleveland-Cliffs Inc, an Ohio corporation
(the "Company"), and (the "Indemnitee"), an Officer of the
Company.
RECITALS
A. The Indemnitee is presently serving as an Officer 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 Officer of the Company 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.
1
28
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
nolo 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 an
Officer 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.
(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 "Board") 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.
2
29
(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 in elude 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 Officer 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, nonapplicable 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(b) 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,
3
30
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 or 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")(i), 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; and (ii) 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. Upon receipt of the
Undertaking, the Company 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
4
31
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 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.
5
32
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]
6
33
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
Indemnification 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 _______ day of _______________, 19___.
[Seal]
My commission expires the _________ day of _____________, 19____.
7
34
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. 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___.
8
