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EXHIBIT 10(s)
AMENDMENT NO. 1 TO TRUST AGREEMENT
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This Amendment No. 1 to Trust Agreement made on May 12, 1989
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:
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WHEREAS, on October 28, 1987, Cleveland-Cliffs and the Trustee entered
into a Trust Agreement ("Trust Agreement");
WHEREAS, the Deferred Compensation Agreements referred to in the first
WHEREAS clause of the Trust Agreement have been terminated and all accounts
thereunder have been paid to the executives or beneficiaries who are entitled
to payment thereunder;
WHEREAS, Cleveland-Cliffs has reserved the right, with the Trustee,
pursuant to Section 12 of the Trust Agreement, to amend the Trust Agreement
without the consent of any Trust Beneficiaries, as defined in the Trust
Agreement.
NOW, THEREFORE, Cleveland-Cliffs and the Trustee hereby adopt this
Amendment No. 1 to the Trust Agreement as follows:
1. The first "WHEREAS" clause of the Trust Agreement is hereby
amended to read as follows:
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WHEREAS, certain benefits are or may become payable under the
provisions of the Cleveland-Cliffs Inc Voluntary Non-Qualified
Deferred Compensation Plan, effective June 1, 1989 (the "Plan"),
and certain Participation Agreements entered into under the Plan
between Cleveland-Cliffs and certain executives ("Executives"),
to the persons (who may be Executives or beneficiaries of
Executives) listed (from time to time as provided in Section 9(b)
hereof) on Exhibit A hereto or to the beneficiaries of such
persons (Executives and Executives' beneficiaries are referred to
herein as "Trust Beneficiaries"), as the case may be;
2. The third "WHEREAS" clause of the Trust Agreement is hereby amended
to read as follows:
WHEREAS, subject to Section 9 hereof, the amounts and timing Or
Benefits to which each Trust Beneficiary is presently or may
become entitled are as provided in the Participation Agreement
applicable to him or her ("Applicable Agreement" or "Agreement");
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IN WITNESS WHEREOF, Cleveland-Cliffs and the Trustee have caused this
Amendment No. 1 to the Trust Agreement to be originally executed on May 12,
1989 and reexecuted on April 12, 1991.
CLEVELAND-CLIFFS INC
By: X. X. Xxxxx
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Its:___________________________________
Vice President - Human Resources
AMERITRUST COMPANY NATIONAL ASSOCIATION
By: J. R. Xxxxxxx
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Its: Vice President
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Vice President
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Exhibit A
Deferred Compensation Plan
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Participants Beneficiaries
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W. E. Xxxxxx AmeriTrust Company with account with Xxxxxxx
X. Xxxxxx dated 13th day of December 1976.
X. X. Xxxxxxxx 50% - Xxxxxxx X. Xxxxxxxx, Wife
16.67% - Xxxx Xxxxxxx Xxxxxxxx, Daughter
16.67% - Xxxxx Xxxxxx Xxxxxxxx, Jr., Son
16.67% - Xxxxxxxx Xxxxxx Xxxxxxxx, Son
X. X. Xxxxxxxx 100% - Xxxxx X. Xxxxxxxx, Wife
If deceased, 100% - Xxxxxxx X. Xxxxxxxx, Son
X. X. Xxxxxxx 100% - Xxxx X. Xxxxxxx, Wife
If deceased, 100% - Xxxxx X. Xxxxxxx, Son
X. X. Xxxxxxxx 100% - Xxx X. Xxxxxxxx, Wife
If deceased, 33.33% - Xxxxxxx X. Xxxxxxxx, Son
33.33% - Xxxxx X. Xxxxxxxx, Son
33.33% - Xxxxxx X. Xxxxxxxx, Son
X. X. Xxxxx The Cleveland Trust Company as Trustee under
Agreement Entered into with Xxxx X. Xxxxx February 6, 1968.
M. T. Xxxxx In accordance with the Insurance Trust
between M. T. Xxxxx and The Cleveland Trust
Company Dated August 9, 1967.
X. X. XxXxxxx 100% - June X. XxXxxxx
If deceased, 33.33% - Xxxxxx X. XxXxxxx
33.33% - Xxxxxxx X. XxXxxxx
33.33% - Xxxxxx X. XxXxxxx
X. X. Xxxxxxx 100% - Rose Xxxxx Xxxxxxx, Wife
If deceased, 33.33% - Xxxx Xxxxx Xxxxxxx, Daughter
33.33% - Xxxx Xxxxxxx Xxxxxxx, Son
33.33% - Xxxxx Xx Xxxxxxx, Daughter
X. X. Xxxxxx 100% - Xxxxxxx X. Xxxxxx, Wife
If deceased, Central National Bank of
Cleveland Ohio as Trustee under an Insurance
Trust Agreement with Xxxxxx X. Xxxxxx, dated
July 2, 1965.
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X. X. Xxxxxxx 100% - Xxxx X. Xxxxxxx, Wife
If deceased, 25% - Xxxxxx Xxx Xxxxxxx, Daughter
25% - Xxxxx Xxx Xxxxxxx, Daughter
25% - Xxxxx Xxx Xxxxxxx, Daughter
25% - Xxxxxx Xxxx Xxxxxxx, Daughter
X. X. Xxxxxx The Miners' First National Bank and Trust
Company of Ishpeming, Michigan, Trustee under
the Xxxxx X. Xxxxxx Life Insurance Trust
Indenture dated December 22, 1972.
X. X. Xxxxxxxxx 100% - Xxxxx X. Xxxxxxxxx, Wife
If deceased, equal portions to living
children. If none of said children are living,
to Xxxx X. Xxxxxxxx, Sister.
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SECOND AMENDMENT TO TRUST AGREEMENT NO. 5
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This Second Amendment to Trust Agreement made on April 9, 1991, by and
between Cleveland-Cliffs Inc, an Ohio corporation ("Cleveland-Cliffs") and
Ameritrust Company National Association, a national banking association, as
trustee (the "Trustee");
W I T N E S S T H:
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WHEREAS, on October 28, 1987, Cleveland-Cliffs and the Trustee entered
into a Trust Agreement ("Trust Agreement");
WHEREAS, on May 12, 1989, Cleveland-Cliffs and the Trustee entered into
Amendment No. 1 to Trust Agreement;
WHEREAS, the Trust Agreement, as so amended, is for the purpose of
providing benefits under the Cleveland-Cliffs Inc Voluntary Non-Qualified
Deferred Compensation Plan; and
WHEREAS, Cleveland-Cliffs has reserved the right, with the Trustee,
pursuant to Section 12 of the Trust Agreement, to amend the Trust Agreement
without the consent of any Trust Beneficiaries, as defined in the Trust
Agreement.
NOW, THEREFORE, Cleveland-Cliffs and the Trustee hereby agree that the
Trust Agreement shall be amended as follows:
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1. The Trust Agreement is hereby renamed "Trust Agreement No. 5, and
each reference in such Trust Agreement No. 5 to "Trust Agreement" shall be
amended to read "Trust Agreement No. 5."
2. The second WHEREAS clause is amended by deleting the words "in
the event of a 'Change of Control' (as defined herein)" from the end thereof.
3. Section 1(a) is amended to read as follows:
1. Trust Fund: (a) Subject to the claims of its creditors to
the extent set forth in Section 3 hereof, Cleveland-Cliffs (i)
hereby deposits with the Trustee in trust Ten Dollars ($10.00)
which shall become the principal of this Trust, and (ii)
Cleveland-Cliffs may from time to time make additional deposits
of cash or other property in the Trust to augment such principal.
The principal and income of the Trust shall be held, administered
and disposed of by the Trustee as herein provided, but no
payments of all or any portion of the principal of the Trust or
earnings thereon shall be made to Cleveland-Cliffs or any other
person or entity on behalf of Cleveland-Cliffs except as herein
expressly provided.
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4. The first sentence of Section l(b) is amended to read as follows:
(b) The Trust hereby established shall be irrevocable.
5. Section 1(c) is amended to read as follows:
(c) Upon the earlier to occur of (i) a Change of
Control or (ii) a declaration by the Board of Directors of
Cleveland-Cliffs that a Change of Control is imminent,
Cleveland-Cliffs shall promptly, and in any event within five (5)
business days, transfer to the Trustee to be added to the
principal of the Trust under this Trust Agreement No. 5 property
or cash equal to the then value of the separate accounts of the
Executives under the Agreements, less the balances in the
Executives' accounts provided in Section 7(b) hereof as of the
most recent completed valuation thereof, as certified by the
Trustee; provided, however, if the Trustee does not so certify by
the end of the fourth (4th) business day after the earlier of (i)
or (ii) above, then the balances of such accounts shall be deemed
to be zero. Any payments by the Trustee pursuant to this Trust
Agreement No. 5 shall, to the extent thereof, discharge the
obligation of Cleveland-Cliffs to pay benefits under the
Agreements.
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6. Section 1(g) is amended by adding at the end thereof the
following:
The Trust is not designed to qualify under section 401(a) of the
Code or to be subject to the provisions of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA").
The Trust established under this Trust Agreement No. 5 does not
fund and is not intended to fund the Plan or any other employee
benefit plan or program of Cleveland-Cliffs. Such Trust is and
is intended to be a depository arrangement with the Trustee for
the setting aside of cash and other assets of Cleveland-Cliffs as
and when it so determines in its sole discretion for the meeting
of part or all of its future obligations with respect to Benefits
to some or all of the Trust Beneficiaries under the Plan.
7. Section 2(a) is amended to read as follows:
(a) Provided that the Trustee has not received notice
as provided in Section 3 hereof that Cleveland-Cliffs is
Insolvent, the Trustee shall make payments of Benefits to each
Trust Beneficiary from the assets of the Trust in accordance with
the terms of the Agreements and subject to Section 9 hereof. The
Trustee shall make provision for withholding of any federal,
state, or local taxes that may be required to be
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withheld by the Trustee in connection with the payment of any
Benefits hereunder.
8. Section 4 is amended to read as follows:
4. Payments to Cleveland-Cliffs: Cleveland-Cliffs shall have no
right or power to direct the Trustee to return any of the Trust assets
to Cleveland-Cliffs before all payments of Benefits have been made to
all Trust Beneficiaries as herein provided.
9. Section 5 is amended by adding the following at the end of the
second sentence thereof:
, and including investments in common or collective funds or trusts, and
mutual funds or investment companies, including affiliated investment
companies and 12 X-x funds. Cleveland-Cliffs acknowledges and agrees
that the Trust may receive fees as a participating depository
institution for services relating to the investment of funds in an
eligible mutual fund.
10. Section 7 is amended to read as follows:
7. Accounting by Trustee: (a) The Trustee shall maintain
such books, records and accounts as may be necessary for the proper
administration of the Trust assets, including such specific records as
shall be agreed upon in writing by Cleveland-Cliffs and the Trustee,
and shall render to Cleveland-Cliffs within
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60 days following the close of each calendar year following the
date of this Trust until the termination of this Trust or the
removal or resignation of the Trustee (and within 60 days after
the date of such termination, removal or resignation), an
accounting with respect to the Trust assets as of the end of the
then most recent calendar year (and as of the date of such
termination, removal or resignation, as the case may be). The
Trustee shall furnish to Cleveland-Cliffs on a quarterly basis
(or as Cleveland-Cliffs shall direct from time to time) and in a
timely manner such information regarding the Trust as
Cleveland-Cliffs shall require for purposes of preparing its
statements of financial condition. The Trustee shall at all
times maintain separate bookkeeping accounts for each Trust
Beneficiary as prescribed by Section 7(b) hereof, and shall
provide each Trust Beneficiary with an annual statement of his
account. Upon the written request of Cleveland-Cliffs or, on or
after the date on which a Change of Control has occurred, a Trust
Beneficiary, the Trustee shall deliver to such Trust Beneficiary
or Cleveland-Cliffs, as the case may be, a written report setting
forth the amount held in the Trust and a record of the deposits
made with respect thereto by Cleveland-Cliffs. Unless
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Cleveland-Cliffs or any Trust Beneficiary shall have filed with
the Trustee written exception or objection to any such statement
and account within 90 days after receipt thereof,
Cleveland-Cliffs and the Trust Beneficiaries shall be deemed to
have approved such statement and account, and in such case the
Trustee shall be forever released and discharged with respect to
all matters and things reported in such statement and account as
though it had been settled by a decree of a court of competent
jurisdiction in an action or proceeding to which the Company and
the Trust Beneficiaries were parties.
(b) The Trustee shall maintain a separate account for
each Trust Beneficiary. The Trustee shall credit or debit each
Trust Beneficiary's account as appropriate to reflect such Trust
Beneficiary's allocable portion of the Trust assets, as such
Trust assets be adjusted from time to time pursuant to the terms
of this Trust Agreement No. 5. Prior to the date of Change of
Control, all deposits of principal pursuant to Section l(a)
hereof shall be allocated as directed by Cleveland-Cliffs; on or
after such date deposits of principal, once allocated, may not be
reallocated by Cleveland-Cliffs. Income, expense, gain or loss
on assets allocated to the separate accounts of the Trust
Beneficiaries shall be allocated separately to such accounts by
the Trustee in
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proportion to the balances of the separate accounts of the
Executives.
IN WITNESS WHEREOF, Cleveland-Cliffs and the Trustee have caused
this Second Amendment to Trust Agreement No. 5 to be executed on April 9, 1991.
CLEVELAND-CLIFFS INC
By: Xxxxxxx X. Xxxxx
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Its: V.P. of Human Resources
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AMERITRUST COMPANY NATIONAL
ASSOCIATION
By: J. R. Xxxxxxx
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Its: Vice President
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2282D
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THIRD AMENDMENT TO TRUST AGREEMENT NO. 5
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This Third Amendment to Trust Agreement No. 5 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:
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WHEREAS, on October 28, 1987, Cleveland-Cliffs and the Trustee entered
into a trust agreement ("Trust Agreement No. 5");
WHEREAS, on May 12, 1989, Cleveland-Cliffs and the Trustee entered into
Amendment No. 1 to Trust Agreement No. 5;
WHEREAS, on April 9, 1991, Cleveland-Cliffs and the Trustee entered into
a Second Amendment to Trust Agreement No. 5;
WHEREAS, Trust Agreement No. 5, as amended, is for the purpose of
providing benefits under the Cleveland-Cliffs Inc Voluntary Non-Qualified
Deferred Compensation Plan; and
WHEREAS, Cleveland-Cliffs has reserved the right, with the Trustee,
pursuant to Section 12 of Trust Agreement No. 5, to amend Trust Agreement No. 5
without the consent of any Trust Beneficiaries, as defined in Trust Agreement
No. 5.
NOW, THEREFORE, Cleveland-Cliffs and the Trustee hereby agree that Trust
Agreement No. 5 shall be amended as follows:
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1. The third sentence of Section l(b) of Trust Agreement No. 5 is
hereby amended to read as follows:
"The term "Change of Control" shall mean the occurrence of any of the
following:
(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
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hereof) of the Securities Exchange Act of 1934, shall become the
beneficial owner (as defined in Rule 13d-3 of the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934) of
30% or more of the outstanding voting securities of Cleveland-Cliffs
(whether directly or indirectly); or
(iv) during any period of three consecutive years, including,
without limitation, the year 1991, individuals who at the beginning of
any such period constitute the Board of Directors of Cleveland-Cliffs
cease, for any reason, to constitute at least a majority thereof, unless
the election, or the nomination for election by the shareholders of
Cleveland-Cliffs, of each Director first elected during any such period
was approved by a vote of at least one-third of the Directors of
Cleveland-Cliffs who are Directors of Cleveland-Cliffs on the date of
the beginning of any such period."
IN WITNESS WHEREOF, Cleveland-Cliffs and the Trustee have caused
counterparts of this Third Amendment to Trust Agreement No. 5 to be executed
on March 9, 1992.
CLEVELAND-CLIFFS INC
By: X. X. Xxxxx
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Its: Vice President
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AMERITRUST COMPANY NATIONAL
ASSOCIATION
By: J. R. Xxxxxxx
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Its: Vice President
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2996F
