Exhibit 10(qq)
CLEVELAND-CLIFFS INC
LONG-TERM INCENTIVE PROGRAM
PARTICIPANT GRANT AND AGREEMENT
YEAR 2004
WHEREAS, on April 14, 1992, the shareholders of Cleveland-Cliffs Inc, an
Ohio corporation ("Company" and the term "Company" as used herein shall also
include the Company's consolidated Subsidiaries) approved the 1992 Incentive
Equity Plan of the Company, and
WHEREAS, on May 13, 1997, the shareholders of the Company approved the
1992 Incentive Equity Plan (as Amended and Restated as of May 13, 1997) of the
Company, a copy of which is attached hereto as Appendix A-1; and
WHEREAS, on May 11, 1999, the shareholders of the Company approved an
amendment ("Amendment") to the 1992 Incentive Equity Plan (as Amended and
Restated as of May 13, 1997) a copy of which is attached hereto as Appendix A-2;
and
WHEREAS, on May 8, 2000, the Board of Directors of the Company ("Board"),
adopted the 2000 Retention Unit Plan ("2000 Retention Plan"), a copy of which is
attached hereto as Appendix B; and
WHEREAS, the Compensation and Organization Committee ("Committee") of the
Board has been appointed to administer the 1992 Incentive Equity Plan (as
Amended and Restated as of May 13, 1997), as amended by the Amendment ("1992 ICE
Plan") and the 2000 Retention Plan pursuant to the terms thereof; and
WHEREAS, under the 1992 ICE Plan and the 2000 Retention Plan, the
Committee on May 8, 2000, adopted a Long-Term Incentive Program ("Incentive
1
Program"), a copy of which is attached hereto as Appendix C, to encourage
officers and key employees of the Company to achieve Company management
objectives established by the Committee and reported to the Board and to create
additional retention incentives; and
WHEREAS, _____________ ("Participant") is an employee of the Company or of
a Subsidiary of the Company; and
WHEREAS, on March 11, 2004 ("Date of Grant") the Committee authorized the
granting to the Participant of _____________ Performance Shares and
_____________ Retention Units covering the incentive period commencing January
1, 2004 and ending December 31, 2006 ("Incentive Period") under the Incentive
Program; and
WHEREAS, the Committee has authorized the execution of a Participant Grant
and Agreement ("Agreement") in the form hereof.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the Participant and Company agree as follows:
ARTICLE 1.
DEFINITIONS
All terms used herein with initial capital letters shall have the meanings
assigned to them in the WHEREAS clauses and the following additional terms, when
used herein with initial capital letters, shall have the following meanings:
1.1 "AVERAGE NET ASSETS" shall mean the total assets less (i) current
liabilities (excluding the current portion of interest-bearing debt) and (ii)
any minority interests, as determined as of the end of the Incentive Period
based on a monthly average, beginning on December 31, 2003, and ending on
December 31, 2006.
2
1.2 "CHANGE IN CONTROL" shall mean the date on which any of the following
is effective:
(i) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act of 1934, as amended
(the "Exchange Act")) (a "Person") of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of the combined
voting power of the then outstanding securities of the Company entitled to vote
generally in the election of directors ("Voting Stock"); provided, however, that
for purposes of this Section 1.2(i), the following acquisitions shall not
constitute a Change in Control: (A) any issuance of Voting Stock of the Company
directly from the Company that is approved by the Incumbent Board (as defined in
Section 1.2(ii), below), (B) any acquisition by the Company of Voting Stock of
the Company, (C) any acquisition of Voting Stock of the Company by any employee
benefit plan (or related trust) sponsored or maintained by the Company or any
Subsidiary, or (D) any acquisition of Voting Stock of the Company by any Person
pursuant to a Business Combination (as defined in Section 1.2(iii) below) that
complies with clauses (A), (B) and (C) of Section 1.2(iii), below; or
(ii) Individuals who, as of the date hereof, constitute the Board
(the "Incumbent Board") cease for any reason to constitute at least a majority
of the Board; provided, however, that any individual becoming a director
subsequent to the date hereof whose election, or nomination for election by the
Company's shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board (either by a specific vote or by
approval of the proxy statement of the Company in which such person is named as
a nominee for director, without objection to such
3
nomination) shall be deemed to have been a member of the Incumbent Board, but
excluding for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest (within
the meaning of Rule 14a-11 of the Exchange Act) with respect to the election or
removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board; or
(iii) Consummation of a reorganization, merger or consolidation
involving the Company, a sale or other disposition of all or substantially all
of the assets of the Company, or any other transaction involving the Company
(each, a "Business Combination"), unless, in each case, immediately following
such Business Combination, (A) all or substantially all of the individuals and
entities who were the beneficial owners of Voting Stock of the Company
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 55% of the combined voting power of the then outstanding
shares of Voting Stock of the entity resulting from such Business Combination
(including, without limitation, an entity which as a result of such transaction
owns the Company or all or substantially all of the Company's assets either
directly or through one or more subsidiaries) in substantially the same
proportions relative to each other as their ownership, immediately prior to such
Business Combination, of the Voting Stock of the Company, (B) no Person (other
than the Company, such entity resulting from such Business Combination, or any
employee benefit plan (or related trust) sponsored or maintained by the Company,
any Subsidiary or such entity resulting from such Business Combination)
beneficially owns, directly or indirectly, 30% or more of the combined voting
power of the then outstanding shares of Voting Stock of the entity
4
resulting from such Business Combination, and (C) at least a majority of the
members of the board of directors of the entity resulting from such Business
Combination were members of the Incumbent Board at the time of the execution of
the initial agreement or of the action of the Board providing for such Business
Combination; or
(iv) Approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company, except pursuant to a Business
Combination that complies with clauses (A), (B) and (C) of Section 1.2(iii).
1.3 "COMMON SHARE(S)" shall have the meaning assigned thereto in the 1992
ICE Plan.
1.4 "DISABILITY OR DISABLED" shall mean the disability of a Participant as
defined by the long-term disability plan of the Company in effect for such
Participant.
1.5 "MARKET VALUE PRICE" shall mean the latest available closing price per
share of a Common Share of the Company and the latest available closing price
per share of a Common Share of each of the entities in the Peer Group, as the
case may be, on the New York Stock Exchange or other recognized market if the
stock does not trade on the New York Stock Exchange at the relevant time.
1.6 "PEER GROUP" shall mean the group of companies, as more particularly
set forth on attached Exhibit A, against which the Relative Total Shareholder
Return of the Company is measured over the Incentive Period.
1.7 "PERFORMANCE OBJECTIVES" shall mean for the Incentive Period the
target objectives of the Company of the Relative Total Shareholder Return and
Return on Net Asset goals established by the Committee and reported to the
Board, as more particularly set forth on attached Exhibit B.
5
1.8 "PERFORMANCE SHARE" shall have the meaning assigned thereto in the
1992 ICE Plan.
1.9 "PERFORMANCE SHARES EARNED" shall mean the number of Common Shares of
the Company (or cash
equivalent) earned by a Participant following the conclusion of an Incentive
Period in which a required minimum of Company Performance Objectives and
Strategic Objectives were met or exceeded.
1.10 "RELATIVE TOTAL SHAREHOLDER RETURN" shall mean for the Incentive
Period the Total Shareholder Return of the Company compared to the Total
Shareholder Return of the Peer Group, as more particularly set forth on attached
Exhibit C.
1.11 "RETIREMENT OR RETIRED" shall mean retirement as defined in the
retirement plan of the Company, including without limitation any supplemental
retirement plan.
1.12 "RETURN ON NET ASSETS" shall mean the Company's Earnings Before Taxes
(excluding minority interest) divided by Average Net Assets, as more
particularly described on attached Exhibit D.
1.13 "STRATEGIC OBJECTIVES" shall mean specific business objectives as
determined by the Committee, as more fully described on attached Exhibit E.
1.14 "SUBSIDIARY" shall have the meaning assigned thereto in the 1992 ICE
Plan.
1.15 "TOTAL SHAREHOLDER RETURN" shall mean for the Incentive Period the
cumulative return to shareholders of the Company and to the shareholders of each
of the entities in the Peer Group during the Incentive Period, measured by the
change in Market Value Price per share of a Common Share of the Company and the
change in
6
the Market Value Price per share of the common share of each of the entities in
the Peer Group plus dividends (or other distributions) reinvested over the
Incentive Period, and measured by the average Market Value Price per share
(increase or decrease) of a Common Share of the Company and of a common share of
each of the entities in the Peer Group adjusted for reinvested dividends (or
other distributions) on the last business day of each quarter during the
Incentive Period compared to a base measured by the average Market Value Price
per share of a Common Share of the Company and of a common share of each of the
entities in the Peer Group on the last business day of each month in the fourth
quarter of the year immediately preceding the Incentive Period, as more
particularly set forth on attached Exhibit F.
ARTICLE 2.
GRANT AND TERMS OF PERFORMANCE SHARES
2.1 GRANT OF PERFORMANCE SHARES. Pursuant to the Incentive Program, the
Company hereby grants to the Participant the number of Performance Shares as
specified in the Eighth WHEREAS clause of this Agreement, without dividend
equivalents, effective as of the Date of Grant.
2.2 ISSUANCE OF PERFORMANCE SHARES. The Performance Shares covered by this
Agreement shall only result in the issuance of Common Shares (or cash or a
combination of Common Shares and cash, as decided by the Committee in its sole
discretion), after the completion of the Incentive Period and only if such
Performance Shares are earned as provided in Section 2.3 of this Article 2.
2.3 PERFORMANCE SHARES EARNED. Payout of Performance Shares Earned, if
any, shall be based upon the degree of achievement of the Company Performance
7
Objectives and Strategic Objectives, all as more particularly set forth in
Exhibit B, with actual payouts interpolated between the performance levels shown
on Exhibit B. The value of the number of Common Shares calculated to be earned
by a Participant as Performance Shares Earned at the end of the Incentive Period
("Calculated Value") shall not exceed a value determined by multiplying the
number of Common Shares calculated to be earned by a Participant by twice the
Market Value Price per share of a Common Share on the Date of Grant ("Maximum
Value"), and the number of actual Performance Shares Earned will be reduced to
the extent necessary to prevent the Calculated Value of the Performance Shares
Earned from exceeding the calculated Maximum Value, except as otherwise provided
for in Section 4.2. In no event, shall any Performance Shares be earned for
actual achievement by the Company in excess of the allowable maximum as
established under the Performance Objectives.
2.4 CALCULATION OF PAYOUT OF PERFORMANCE SHARES. The Performance Shares
granted shall be earned as Performance Shares Earned based on the degree of
achievement of the Performance Objectives and Strategic Objectives established
for the Incentive Period. Once the percentage level of achievement is determined
for each Performance Objective, that combined percentage may be adjusted upwards
or downwards by the Committee's assessment of the achievement of the Strategic
Objectives. That resultant percentage level of achievement of both the
Performance Objectives and Strategic Objectives shall be multiplied by the
number of Performance Shares granted to determine the actual number of
Performance Shares Earned. The calculation as to whether the Company has met or
exceeded the Company Performance Objectives shall be determined in accordance
with this Agreement.
8
2.5 PAYMENT OF PERFORMANCE SHARES.
(a). Payment of Performance Shares Earned shall be made in the form
of Common Shares (or cash or a combination of Common Shares and cash, as decided
by the Committee in its sole discretion), and shall be paid after the
determination by the Committee of the level of attainment of the Company
Performance Objectives (the calculation of which shall have been previously
reviewed by an independent accounting professional).
(b). Any payment of Performance Shares Earned to a deceased
Participant shall be paid to the beneficiary designated by the Participant on
the Designation of Death Beneficiary attached as Exhibit G and filed with the
Company. If no such beneficiary has been designated or survives the Participant,
payment shall be made to the estate of a Participant. A beneficiary designation
may be changed or revoked by a Participant at any time, provided the change or
revocation is filed with the Company.
(c). Prior to payment, the Company shall only have an unfunded and
unsecured obligation to make payment of Performance Shares Earned to the
Participant. The Performance Shares covered by this Agreement that have not yet
been earned as Performance Shares Earned are not transferable other than by will
or pursuant to the laws of descent and distribution.
2.6 DEATH, DISABILITY, RETIREMENT, OR OTHER.
(a). With respect to Performance Shares granted to a Participant
whose employment is terminated because of death, Disability, Retirement, or is
terminated by the Company without cause, the Participant shall receive as
Performance Shares
9
Earned the number of Performance Shares as is then determined under Section 2.4
at the end of such Incentive Period, prorated for the number of months the
Participant was employed in such Incentive Period.
(b). In the event a Participant voluntarily terminated employment or
is terminated by the Company with cause, the Participant shall forfeit all right
to any Performance Shares that would have been earned under this Agreement.
ARTICLE 3.
GRANT AND TERMS OF RETENTION UNITS
3.1 GRANT OF RETENTION UNITS. Pursuant to the Incentive Program, the
Company hereby grants to the Participant the number of Retention Units as
specified in the Eighth WHEREAS clause of this Agreement, without dividend
equivalents, effective as of the Date of Grant.
3.2 CONDITION OF PAYMENT. The Retention Units covered by this Agreement
shall only result in the payment in cash of the value of the Retention Units if
the Participant remains in the employ of the Company or a Subsidiary throughout
the Incentive Period.
3.3 CALCULATION OF CASH PAYOUT. To determine the amount of the cash payout
of the Retention Units, the number of Retention Units granted under this
Agreement shall be multiplied by the Market Value Price of a Common Share of the
Company on the last day of the Incentive Period.
3.4 PAYMENT OF RETENTION UNITS.
(a). Payment of Retention Units shall be made in cash and shall be
paid at the same time as the payment of Performance Shares Earned pursuant to
Section
10
2.5(a), provided, however, in the event no Performance Shares are earned, then
the Retention Units shall be paid in cash at the time the Performance Shares
would normally have been paid.
(b). Any payment of Retention Units to a deceased Participant shall
be paid to the beneficiary designated by the Participant on the Designation of
Death Beneficiary attached as Exhibit H and filed with the Company. If no such
beneficiary has been designated or survives the Participant, payment shall be
made to the estate of a Participant. A beneficiary designation may be changed or
revoked by a Participant at any time, provided the change or revocation is filed
with the Company.
(c). Prior to payment, the Company shall only have an unfunded
and unsecured obligation to make payment of Retention Units to the Participant.
The Retention Units covered by this Agreement are not transferable other than by
will or pursuant to the laws of descent and distribution.
3.5 DEATH, DISABILITY, RETIREMENT OR OTHER. With respect to Retention
Units granted to a Participant whose employment is terminated because of death,
Disability, Retirement, or is terminated by the Company without cause during the
Incentive Period, the Participant shall receive the number of Retention Units as
calculated in Section 2.4, prorated for the number of months the Participant was
employed in such Incentive Period.
11
ARTICLE 4.
OTHER TERMS COMMON TO RETENTION UNITS AND PERFORMANCE SHARES
4.1 FORFEITURE.
(a). A Participant shall not render services for any organization or
engage directly or indirectly in any business which is a competitor of the
Company or any affiliate of the Company, or which organization or business is or
plans to become prejudicial to or in conflict with the business interests of the
Company or any affiliate of the Company.
(b). Failure to comply with subsection (a) above will cause a
Participant to forfeit the right to Performance Shares and Retention Units and
require the Participant to reimburse the Company for the taxable income received
or deferred on Performance Shares that become payable to the Participant and on
Retention Units that have been paid out in cash within the 90-day period
preceding the Participant's voluntary termination of employment.
(c). Failure of the Participant to repay to the Company the amount
to be reimbursed in subsection (b) above within three days of termination of
employment will result in the offset of said amount from the Participant's
account balance in the Company's Voluntary Non-Qualified Deferred Compensation
Plan (if applicable) and/or from any accrued salary or vacation pay owed at the
date of termination of employment or from future earnings payable by the
Participant's next employer.
4.2 CHANGE IN CONTROL. In the event a Change in Control occurs before
completion of an Incentive Period(s), all Performance Shares granted to a
Participant shall immediately become Performance Shares Earned, the value of
which shall be paid
12
in cash and all Retention Units shall become nonforfeitable and paid out in
cash, both within 10 days of the Change in Control. In the event of a Change in
Control, the number of Common Shares to be earned as Performance Shares Earned
will not be reduced as provided for in Section 2.3.
ARTICLE 5.
GENERAL PROVISIONS
5.1 COMPLIANCE WITH LAW. The Company shall make reasonable efforts to
comply with all applicable federal and state securities laws; provided, however,
notwithstanding any other provision of this Agreement, the Company shall not be
obligated to issue any Common Shares or pay the value of any Retention Units
pursuant to this Agreement if the issuance or payment thereof would result in a
violation of any such law.
5.2 WITHHOLDING TAXES. To the extent that the Company is required to
withhold federal, state, local or foreign taxes in connection with any payment
of Performance Shares Earned or Retention Units to a Participant under the
Incentive Program, and the amounts available to the Company for such withholding
are insufficient, it shall be a condition to the receipt of such payment of
Performance Shares Earned or Retention Units or the realization of such benefit
that the Participant make arrangements satisfactory to the Company for payment
of the balance of such taxes required to be withheld. If necessary, the
Committee may require relinquishment of a portion of such Performance Shares
Earned or such Retention Units. In the case of Performance Shares Earned, the
Participant may elect to satisfy all or any part of any such withholding
obligation by surrendering to the Company a portion of the Common
13
Shares that are issued or transferred or that become nontransferable by the
Participant hereunder, and the Common Shares so surrendered by the Participant
shall be credited against any such withholding obligation at the Market Value
Price per share of such Common Shares on the date of such surrender. In no
event, however, shall the Company accept Common Shares for payment of taxes in
excess of required tax withholding rates, except that, in the discretion of the
Committee, a Participant or such other person may surrender Common Shares owned
for more than six months to satisfy any tax obligation resulting from such
transaction.
5.3 CONTINUOUS EMPLOYMENT. For purposes of this Agreement, the continuous
employment of the Participant with the Company shall not be deemed to have been
interrupted, and the Participant shall not be deemed to have ceased to be an
employee of the Company, by reason of the transfer of his employment among the
Company and its Subsidiaries or an approved leave of absence.
5.4 CLAIM TO AWARDS AND EMPLOYMENT RIGHTS. No Participant shall have any
claim or right to be granted another award under the Incentive Program. The
Incentive Program shall not confer upon any Participant any right with respect
to the continuance of employment or other service with the Company and shall not
interfere in any way with any right that the Company would otherwise have to
terminate any employment or other service of the Participant at any time.
5.5 RELATION TO OTHER BENEFITS. Any economic or other benefit to the
Participant under this Agreement or the Incentive Program shall not be taken
into account in determining any benefits to which the Participant may be
entitled under any profit-sharing, retirement or other benefit or compensation
plan maintained by the
14
Company or a Subsidiary and shall not affect the amount of any life insurance
coverage available to any beneficiary under any life insurance plan covering
employees of the Company or a Subsidiary.
5.6 AGREEMENT SUBJECT TO INCENTIVE PROGRAM. The Retention Units and
Performance Shares granted under this Agreement and all of the terms and
conditions hereof are subject to all of the terms and conditions of the 1992 ICE
Plan, the 2000 Retention Plan and the Incentive Program.
5.7 AMENDMENTS. Any amendment to the Incentive Program shall be deemed to
be an amendment to this Agreement to the extent that the amendment is applicable
hereto; provided, however, that no amendment shall adversely affect the rights
of the Participant under this Agreement without the Participant's consent.
5.8 SEVERABILITY. In the event that one or more of the provisions of this
Agreement shall be invalidated for any reason by a court of competent
jurisdiction, any provision so invalidated shall be deemed to be separable from
the other provisions hereof, and the remaining provisions hereof shall continue
to be valid and fully enforceable.
5.9 TERM. This Agreement shall be effective as of the Date of Grant and
shall remain in effect upon completion of the Incentive Period.
5.10 GOVERNING LAW. This Agreement shall be construed and governed in
accordance with the laws of the State of Ohio.
15
This Agreement is executed as of the Date of Grant.
CLEVELAND-CLIFFS INC
_____________________________________
Senior Vice President-Human Resources
16
The undersigned hereby acknowledges receipt of an executed original of
this Participant Grant and Agreement and accepts the Performance Shares and
Retention Units granted hereunder on the terms and conditions set forth herein
and in the Incentive Program.
Participant
__________________________________
17
APPENDICES
Appendix A-1 1992 ICE Plan (as Amended and Restated as of May 13, 1997)
Appendix A-2 The 1999 Amendment to 1992 ICE Plan
Appendix B 2000 Retention Unit Plan
Appendix C Long-Term Incentive Program
EXHIBITS
Exhibit A Peer Group
Exhibit B Performance Objectives
Exhibit C Relative Total Shareholder Return
Exhibit D Return on Net Assets
Exhibit E Strategic Objectives
Exhibit F Total Shareholder Return
Exhibit G Beneficiary Designation
18