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Exhibit 10(a)
RETIREMENT AND CONSULTING AGREEMENT
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THIS RETIREMENT AND CONSULTING AGREEMENT (this "Agreement") is made and
entered into this 2nd day of September, 1998, by and between CLEVELAND-CLIFFS
INC, an Ohio corporation (the "Company," a term which in this Agreement shall
include its predecessors, parents, subsidiaries, divisions, related or
affiliated companies, officers, directors, stockholders, members, employees,
heirs, successors, assigns, representatives, agents and counsel, unless the
context otherwise clearly requires), and M. THOMAS MOORE ("Executive"),
WITNESSETH:
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WHEREAS, Executive is an inactive employee and a director of the
Company;
WHEREAS, Executive voluntarily relinquished his position as Chairman
and Chief Executive Officer of the Company on November 9, 1997, and became an
inactive employee under the Company's disability plans on January 1, 1998, and
the Company and Executive have determined that Executive shall retire as an
employee of the Company effective July 31, 1998, discontinue participation in
the Company's disability plans, and will not stand for re-election as a director
of the Company at its annual meeting of shareholders to be held in 1999 on the
date determined in accordance with the Company's Regulations (the "1999 Annual
Meeting Date"), currently scheduled for May 11, 1999;
WHEREAS, the Company and Executive desire to provide for a consulting
arrangement whereby the Company may continue to benefit from the services of
Executive following his retirement from the Company as an employee and following
the completion of his service as a director of the Company;
WHEREAS, the Company wants to ensure that Executive will protect
Confidential Information (as hereinafter defined) and will not use his knowledge
and experience during the Consulting Period (as hereinafter defined) to assist a
competitor of the Company's business (as set forth on Exhibit B); and
WHEREAS, the Company and Executive desire to make provision for the
payments and benefits that Executive will be entitled to receive from the
Company in consideration for Executive's obligations and actions under this
Agreement and in connection with such retirement;
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NOW THEREFORE, in consideration of the premises and the promises and
agreements contained herein and other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, and intending to be
legally bound, the Company and Executive agree as follows:
1. EFFECTIVE DATE OF AGREEMENT. This Agreement is effective on July 31,
1998 (the "Effective Date") and shall continue in effect as provided herein.
2. RESIGNATION AND RETIREMENT.
(a) Executive hereby (i) effective the Effective Date (A)resigns and
retires as an employee of the Company, (B)resigns from all boards and offices of
any entity (other than The LTV Corporation, a Delaware corporation) that is a
subsidiary of or is otherwise related to or affiliated with the Company, and (C)
resigns from all administrative, fiduciary or other positions he may hold or
have held with respect to arrangements or plans for, of or relating to the
Company, and (ii) agrees to resign from any nonprofit positions related to his
services to the Company as the Company may request. The Company hereby consents
to and accepts said resignations, and the Company records shall so reflect.
(b) The Company and Executive agree that, consistent with the Company's
Board Governance Guidelines for retired chief executive officers of the Company
currently in effect but subject to the Regulations of the Company and applicable
law, Executive shall continue to serve as a member of the Company's Board of
Directors until the 1999 Annual Meeting Date but shall not stand for re-election
to such Board of Directors at the annual meeting of shareholders on the 1999
Annual Meeting Date.
3. PENSION BENEFIT. In consideration of the promises of Executive in
this Agreement, including without limitation Paragraph 7 hereof and subject to
the conditions hereof, including without limitation Paragraph 5 of this
Agreement, the Company shall:
(a) Pay Executive a total pension(the "Pension") payable commencing on
August 1, 1998 and to be paid through the Company's qualified pension plans and
its Supplemental Retirement Benefit Plan (the "Plans"). The Pension shall be
determined in accordance with the terms of the Plans and on the bases that
Executive has 32.92 years of credited service as of the Effective Date and that
his pensionable earnings for the final sixty months of such service are a total
of $4,362,500.
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(b) Permit Executive to elect to receive the Pension in such manner as
is permitted by the Plans.
4. CONSULTING SERVICES. In consideration of the promises of Executive
in this Agreement, including without limitation Paragraph 7 hereof:
(a) The Company shall retain Executive's services, and he shall serve
the Company, as a consultant for the period commencing August 1, 1998 through
July 31, 2001 ("the Consulting Period").
(b) During the Consulting Period,
(i) Executive will render to the Company such services of a
consultative nature as the Company reasonably may request in respect to
long-term planning, strategic advice, corporate governance or other
matters, so that the Company may continue to have the benefit of his
experience and knowledge of the affairs of the Company and of his
business reputation and contacts;
(ii) Executive will be an advisor to the Chief Executive
Officer and will perform such tasks as the Chief Executive shall
designate;
(iii) Executive will be available for advice and counsel to
the officers and directors of the Company at all reasonable times by
telephone, letter or in person for up to the equivalent of thirty (30)
eight hour days per calendar quarter through the end of the Consulting
Period, in each case during normal business hours; and
(iv) Executive agrees that in the event his consulting
obligations under this Agreement conflict, in terms of scheduling, with
whatever other professional obligations that he may have, Executive
shall, to the extent reasonably feasible, give first priority to such
consulting obligations.
(c) The Company shall pay Executive a consulting fee of THIRTY-EIGHT
THOUSAND SEVEN HUNDRED FIFTY DOLLARS ($38,750) per month during the Consulting
Period, in each case payable on the last day of the month.
(d) During the Consulting Period the Company shall reimburse Executive
monthly for travel and other expenses in connection with his services as a
consultant, such reimbursement to be in accordance with the Company's standard
reimbursement
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practices. The Company understands and agrees that Executive may relocate his
residence elsewhere.
(e) During the Consulting Period, Executive shall be an independent
contractor to, and not an employee of, the Company and accordingly shall not be
entitled to any of the benefits that the Company provides to current employees,
including without limitation, participation as a current employee in the
Company's health, welfare, retirement, pension or incentive plans.
5. RELEASES BY EXECUTIVE.
(a) In consideration of the payments made and to be made and the
benefits to be received by Executive pursuant to Paragraphs 3 and 4 of this
Agreement, Executive, for himself and his dependents, successors, assigns,
heirs, executors and administrators (and his and their legal representatives of
every kind), hereby releases, dismisses, remises and forever discharges the
Company from any and all arbitrations, claims, including claims for attorney's
fees, demands, damages, suits, proceedings, actions and/or causes of action of
any kind and every description, whether known or unknown ("claims"), which
Executive now has or may have had for, upon, or by reason of:
(i) Executive's employment by or service with the Company to
the Effective Date;
(ii) discrimination, including but not limited to claims of
discrimination on the basis of sex, race, age, national origin, marital
status, religion or handicap, including, specifically, but without
limiting the generality of the foregoing, any claims under the Age
Discrimination in Employment Act, as amended, Title VII of the Civil
Rights Act of 1964, as amended, the Americans with Disabilities Act,
Ohio Revised Code Section 4101.17 and Ohio Revised Code Chapter 4112,
including Sections 4112.02 and 4112.99 thereof; and
(iii) breach of any contract or promise, express or implied;
PROVIDED, HOWEVER, that the foregoing shall not apply to claims to enforce
vested rights that Executive may have as of the Effective Date under any of the
Company's health, welfare, retirement, pension or incentive plans, under any
indemnification agreement between Executive and the Company, under the Company's
indemnification regulations, under the directors' and officers' liability
coverage maintained by the Company or under Ohio Revised Code Section
1701.13(E).
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(b) Executive further agrees and acknowledges that:
(i) He has been advised by the Company to consult
with legal counsel prior to executing and delivering this
Agreement and the release provided for in this Paragraph 5,
has had an opportunity to consult with and to be advised by
legal counsel of his choice, fully understands the terms of
this Agreement, and enters into this Agreement freely,
voluntarily and intending to be bound;
(ii) He has been given a period of twenty-one (21)
days to review and consider the terms of this Agreement, and
the release contained herein, prior to its execution and that
he may use as much of the twenty-one (21) day period as he
desires; and
(iii) He may, within seven (7) days after execution
and delivery, revoke this Agreement. Revocation shall be made
by delivering a written notice of revocation to the Vice
President - Human Resources at the Company. For such
revocation to be effective, written notice must be received by
the Vice President - Human Resources at the Company no later
than the close of business on the seventh (7th) day after
Executive executes this Agreement. If Executive does exercise
his right to revoke this Agreement, all of the terms and
conditions of the Agreement shall be of no force and effect
and the Company shall not have any obligation to make payments
or provide benefits to Executive as set forth in Paragraphs 3
and 4 of this Agreement, except as may be required under the
Consolidated Omnibus Reconciliation Act of 1986 and except to
the extent vested in Executive immediately prior to the
Effective Date.
6. CONFIDENTIAL INFORMATION.
(a) Executive acknowledges and agrees that in the past
performance of his duties as an officer and employee of the Company, and in the
future performance of his duties as a consultant to the Company pursuant to
Paragraph 4 hereof, he was and may be brought into frequent contact with, had or
may have had access to, and/or became or may become informed of confidential and
proprietary information of the Company and/or information which is a trade
secret of the Company (collectively, "Confidential Information"), as more fully
described in subparagraph (b) of this Paragraph 6. Executive acknowledges and
agrees that the Confidential Information of the Company gained by Executive
during his association with the Company was or will be
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developed by and/or for the Company through substantial expenditure of time,
effort and money and constitutes valuable and unique property of the Company.
(b) Executive agrees that commencing on the Effective Date he will keep
in strict confidence, and will not, directly or indirectly, at any time,
disclose, furnish, disseminate, make available, use or suffer to be used in any
manner any Confidential Information of the Company (except as may be necessary
in connection with the discharge of Executive's obligations pursuant to
Paragraph 4 of this Agreement) without limitation as to when or how Executive
may have acquired such Confidential Information. Executive specifically
acknowledges that Confidential Information includes any and all information,
whether reduced to writing (or in a form from which information can be obtained,
translated, or derived into reasonably usable form), or maintained in the mind
or memory of Executive and whether compiled or created by the Company, which
derives independent economic value from not being readily known to or
ascertainable by proper means by others who can obtain economic value from the
disclosure or use of such information, that reasonable efforts have been put
forth by the Company to maintain the secrecy of Confidential Information, that
such Confidential Information is and will remain the sole property of the
Company, and that any retention or use by Executive of Confidential Information
after the termination of Executive's services for the Company shall constitute a
misappropriation of the Company's Confidential Information.
(c) Executive further acknowledges and agrees that his obligation of
confidentiality shall survive, regardless of any other breach of this Agreement
or any other agreement, by any party hereto, until and unless such Confidential
Information of the Company shall have become, through no fault of Executive,
generally known to the public or Executive is required by law (after providing
the Company with notice and opportunity to contest such requirement) to make
disclosure. Executive's obligations under this Paragraph 6 are in addition to,
and not in limitation or preemption of, all other obligations of confidentiality
which Executive may have to the Company under the Company's policies, general
legal or equitable principles or statutes and which shall remain in full force
and effect following the Effective Date.
7. NON-COMPETITION; CERTAIN ACTIONS.
(a) Executive agrees that for a period commencing on the Effective Date
through July 31, 2003, within the Territory (as described in subparagraph (b)(i)
of this Paragraph 7) (and, as to subparagraph (a)(iii) of this Paragraph 7, any
place), he
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shall not, directly or indirectly, do or suffer any of the following:
(i) Own, manage, control or participate in the
ownership, management, or control of, or be employed or
engaged by or otherwise affiliated or associated as a
consultant, independent contractor or otherwise with, any
other corporation, partnership, proprietorship, firm,
association, or other business entity (collectively, an
"Enterprise"), or otherwise engage in any business, which is
in competition with the Company's business (as described in
subparagraph (b)(ii) of this Paragraph 7); PROVIDED, HOWEVER,
that neither (A) the ownership of not more than five percent
(5%) of any class of publicly-traded securities of any
Enterprise nor (B) Executive's service as a member of the
board of directors or other comparable governing body of any
Enterprise as of the Effective Date (all of which memberships
Executive has heretofore given notice of to the Company) shall
be deemed a violation of this Agreement; and PROVIDED,
FURTHER, HOWEVER, in the case of clause (B) of this
subparagraph (i) that such service shall be deemed a violation
if the Company subsequently determines in its sole discretion
that the business of any such Enterprise has become more in
competition with the Company's business than is the case on
the Effective Date.
(ii) Employ, assist in employing, or otherwise
associate in business with any person who presently or at the
1999 Annual Meeting Date is an employee, officer or agent of
the Company, or any of its affiliated, related or subsidiary
entities.
(iii) Induce any person who is an employee, officer
or agent of the Company, or any of its affiliated, related, or
subsidiary entities to terminate such relationship.
(b) For purposes of this Agreement:
(i) "Territory" shall have the meaning set forth on
Exhibit A hereto.
(ii) The Company's business shall have the meaning
set forth on Exhibit B hereto.
(c) Executive agrees that for a period commencing on the 1999
Annual Meeting Date through the end of the Consulting Period, except within the
terms of a specific request from the
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Company, Executive shall not as a principal, or agent of another person, propose
or publicly announce or otherwise disclose an intent to propose, or enter into
or agree to enter into, singly or with any other person or directly or
indirectly, (i) any form of business combination, acquisition, or other
transaction relating to the Company or any majority-owned affiliate thereof,
(ii) any form of restructuring, recapitalization or similar transaction with
respect to the Company or any such affiliate, or (iii) any demand, request or
proposal to amend, waive or terminate any provision of this subparagraph 7(c) of
this Agreement, nor except as aforesaid during such period will Executive, as a
principal, or agent of another person, (1) make, or in any way participate in,
any solicitation of proxies with respect to any securities entitled to vote
generally in the election of directors of the Company (together with direct or
indirect options or other rights to acquire any such securities, "Voting
Securities"), (including by the execution of action by written consent), become
a participant in any election contest with respect to the Company, seek to
influence any person with respect to any Voting Securities or demand a copy of
the Company's list of its shareholders or other books and records, (2)
participate in or encourage the formation of any partnership, syndicate, or
other group which owns or seeks or offers to acquire beneficial ownership of any
Voting Securities or which seeks to affect control of the Company or for the
purpose of circumventing any provision of this Agreement, or (3) otherwise act,
alone or in concert with others (including by providing financing for another
person), to seek or to offer to control or influence, in any manner, the
management, Board of Directors, or policies of the Company.
(d) In the event Executive shall violate any provision of this
Paragraph 7 as to which there is a specific time period during which he is
prohibited from taking certain actions or from engaging in certain activities,
as set forth in such provision, then, in such event, such violation shall toll
the running of such time period from the date of such violation until such
violation shall cease.
(e) In order to assist the Company in enforcing subparagraph 7(a)(i) of
this Agreement after the Effective Date, Executive shall give the Company notice
at least thirty days in advance of becoming a member of, or renewing his
membership on, the board of directors or other comparable governing body of any
Enterprise.
(f) Executive has carefully considered the nature and extent of the
restrictions upon him and the rights and remedies conferred upon the Company
under this Paragraph 7 and this
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Agreement, and hereby acknowledges and agrees that the same are reasonable in
time and territory, are designed to eliminate competition which otherwise would
be unfair to the Company, do not stifle the inherent skill and experience of
Executive, would not operate as a bar to Executive's sole means of support, are
fully required to protect the legitimate interests of the Company and do not
confer a benefit upon the Company disproportionate to the detriment to
Executive.
8. DISCLOSURE. Executive, for a period commencing on the date of this
Agreement through the end of the Consulting Period, agrees to communicate, using
the form of notice set forth on Exhibit C, the contents of Paragraphs 6, 7, 9(b)
and 11 of this Agreement to any Enterprise which he intends to be employed by,
associated in business with, or represent.
9. BREACH.
(a) The Company shall give Executive notice within 30 days following
the date that it concludes that Executive is in breach of this Agreement. If
Executive is in breach of this Agreement, then the Company may, at its sole
option, (i) in the case of a breach of any provision of this Agreement,
immediately terminate all remaining payments and benefits described in Paragraph
4 of this Agreement, and (ii) in the case of a breach of either Paragraph 6 or
Paragraph 7 of this Agreement, obtain reimbursement from Executive of all
payments and benefits of the Company already provided pursuant to Paragraph 4 of
this Agreement. In addition, in the case of either subclause (i) or (ii) of this
subparagraph 9(a), the Company shall be entitled to obtain reimbursement from
Executive of any expenses, fees and damages incurred as a result of the breach
up to two times the amount of any profit realized by Executive from the breach,
with the remainder of this Agreement, and all promises and covenants herein,
remaining in full force and effect.
(b) Executive acknowledges and agrees that the remedy at law available
to the Company for breach by Executive of any of his obligations under
Paragraphs 6 and 7 of this Agreement would be inadequate and that damages
flowing from such a breach would not readily be susceptible to being measured in
monetary terms. Accordingly, Executive acknowledges, consents and agrees that,
in addition to any other rights or remedies which the Company may have at law,
in equity or under this Agreement, upon adequate proof of Executive's violation
of any provision of Paragraph 6 or 7 of this Agreement, the Company shall be
entitled to immediate injunctive relief and may obtain a temporary order
restraining any threatened or further breach, without the necessity of proof of
actual damage.
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(c) Notwithstanding subparagraph (a) of this Paragraph 9, (i) the
Company shall have no right of set-off against any amounts payable to Executive
under Paragraphs 3 and 4 of this Agreement, (ii) if Executive breaches this
Agreement and if such breach by Executive was unintentional or inadvertent and
is curable, the Company shall provide to Executive a reasonable time in which to
cure such breach before exercising its other rights under this Agreement, (iii)
if any breach of this Agreement by Executive is unintentional or inadvertent,
whether or not curable, the amount of damages recoverable by the Company shall
not exceed the payments paid and payable by the Company under Paragraph 4, and
(iv) if Executive's service as a member on the board of directors or other
comparable governing body of any Enterprise is the sole and exclusive cause of a
breach of subparagraph 7(a)(i), Executive shall be deemed to have cured such
breach if Executive resigns such membership promptly upon notice of such breach
from the Company.
10. CONTINUED AVAILABILITY AND COOPERATION.
(a) Executive shall cooperate fully with the Company and with the
Company's counsel in connection with any present and future actual or threatened
litigation or administrative proceeding involving the Company that relates to
events, occurrences or conduct occurring (or claimed to have occurred) during
the period of Executive's employment by the Company. This cooperation by
Executive shall include, but not be limited to:
(i) making himself reasonably available for interviews and
discussions with the Company's counsel as well as for depositions and
trial testimony;
(ii) if depositions or trial testimony are to occur, making
himself reasonably available and cooperating in the preparation
therefor as and to the extent that the Company or the Company's counsel
reasonably requests;
(iii) refraining from impeding in any way the Company's
prosecution or defense of such litigation or administrative proceeding;
and
(iv) cooperating fully in the development and presentation of
the Company's prosecution or defense of such litigation or
administrative proceeding.
(b) Executive shall be reimbursed by the Company for reasonable
travel, lodging, telephone and similar expenses, as well as reasonable
attorneys' fees (if independent legal counsel is necessary), incurred in
connection with such cooperation.
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Executive shall not unreasonably withhold his availability for such cooperation.
11. SUCCESSORS AND BINDING AGREEMENT.
(a) This Agreement shall be binding upon and inure to the benefit of
the Company and any successor of or to the Company, including, without
limitation, any persons acquiring directly or indirectly all or substantially
all of the business and/or assets of the Company whether by purchase, merger,
consolidation, reorganization or otherwise (and such successor shall thereafter
be deemed included in the definition of "the Company" for purposes of this
Agreement), but shall not otherwise be assignable or delegable by the Company.
(b) This Agreement shall inure to the benefit of and be enforceable by
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributes and/or legatees. The death or disability
(temporary or permanent) of Executive following the execution and delivery of
this Agreement shall not affect or revoke this Agreement or excuse any of the
obligations of the parties hereto, other than the obligations of Executive to
provide consulting services in accordance with Paragraph 4 hereof. If Executive
shall die during the Consulting Period and is not in breach of this Agreement at
the time of death, the Company shall pay to a beneficiary to be designated by
Executive in accordance with the terms of this Agreement in a lump sum the
remaining amounts otherwise payable to Executive under Paragraph 3 of this
Agreement had Executive survived to the end of the Consulting Period and not
been in breach of this Agreement.
(c) This Agreement is personal in nature and none of the parties hereto
shall, without the consent of the other parties, assign, transfer or delegate
this Agreement or any rights or obligations hereunder except as expressly
provided in subparagraphs (a) and (b) of this Paragraph 11.
(d) This Agreement is intended to be for the exclusive benefit of the
parties hereto, and except as provided in subparagraphs (a) and (b) of this
Paragraph 11, no third party shall have any rights hereunder.
(e) The Company will require any successor (whether direct or indirect,
by purchase, merger, consolidation, operation of law or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform this Agreement.
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12. NON-DISCLOSURE. Except to the extent that this Agreement or the
terms hereof become publicly known or available because of legally mandated
disclosure and filing requirements of the Securities and Exchange Commission, or
because of any other legal requirement that this Agreement or the terms hereof
be disclosed, all provisions of this Agreement and the circumstances giving rise
hereto are and shall remain confidential and shall not be disclosed to any
person not a party hereto (other than (i) Executive's spouse, (ii) each party's
attorney, financial advisor and/or tax advisor to the extent necessary for such
advisor to render appropriate legal, financial and tax advice, and (iii) persons
or entities that fall within the scope of Paragraph 8 of this Agreement, but
only to the extent required thereby).
13. NOTICES. For all purposes of this Agreement, all communications
provided for herein shall be in writing and shall be deemed to have been duly
given when delivered, addressed to the Company (to the attention of the Vice
President - Human Resources) at its principal executive offices and to Executive
at his principal residence, 4767 West 211th Street, Fairview Park, Ohio 44126,
or to such other address as any party may have furnished to the other in writing
and in accordance herewith. Notices of change of address shall be effective only
upon receipt.
14. PROFESSIONAL FEES. The Company and Executive acknowledge and agree
that each shall be responsible for the payment of their respective professional
fees and costs (and related disbursements) incurred in connection with
Executive's termination and resignation and all matters relating to the
negotiation and execution of this Agreement.
15. TAXES, PAYMENTS, ETC..
(a) Executive acknowledges and agrees that he shall be responsible for
his share of any and all Federal, State and/or local taxes applicable to the
payments made, and benefits provided or made available, to Executive pursuant to
this Agreement and further agrees to indemnify the Company against any liability
as a result of those taxes.
(b) The payments to Executive pursuant to Paragraphs 3 and 4 of this
Agreement shall be made by check or direct deposit to an account designated by
Executive, and shall be reduced by any applicable Federal, State and local tax
or other required withholding.
16. AMENDMENT AND WAIVER. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed
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by Executive and the Company. No waiver by either party hereto at any time of
any breach by the other party hereto or compliance with any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time.
17. ENTIRE AGREEMENT; CONTINUING INDEMNIFICATION RIGHTS. This Agreement
shall constitute the entire agreement among the parties hereto with respect to
the subject matters covered by this Agreement and shall supersede all prior
verbal or written agreements, covenants, communications, understandings,
commitments, representations or warranties, whether oral or written, by any
party hereto or any of its representatives pertaining to such subject matter.
This Agreement shall not affect any indemnification or other rights under any
indemnification agreement between Executive and the Company or the Company's
regulations. The Company shall continue Executive's coverage under the
directors' and officers' liability coverage maintained by Company, as in effect
from time to time, to the same extent as other current and former senior
executive officers and directors of the Company.
18. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the substantive laws of the
State of Ohio, without giving effect to the principles of conflict of laws of
such State.
19. ARBITRATION PROCEDURE.
(a) Any claim or dispute arising under this Agreement that is not
otherwise resolved by negotiation and agreement between the parties shall be
subject to arbitration under this Paragraph 19. Except as otherwise expressly
provided herein, all arbitration proceedings commenced hereunder shall be
subject to the Uniform Arbitration Act as in effect in the State of Ohio and the
Commercial Arbitration Rules of the American Arbitration Association, as amended
from time to time. A request for arbitration shall be in writing, setting forth
in detail the claim or claims to be arbitrated, the amount involved, if any, and
the remedy sought. It shall be delivered to the other party within ninety (90)
days of the date of the first knowledge of the claiming party of the occurrence
or conditions giving rise to the dispute. Any failure to request arbitration
within such ninety (90) day period shall be deemed a waiver of the right to
arbitrate the dispute. Within fifteen (15) days after the delivery of the
request, the parties shall agree upon an arbitrator. If the parties are unable
to agree upon the arbitrator within such fifteen (15) days, either party or the
parties jointly shall request the American Arbitration
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Association to submit to each party an identical panel of seven (7) persons,
each of whom (i) shall be a member of a state bar engaged in the practice of law
in the United States or a retired member of a state or the federal judiciary in
the United States, (ii) shall be impartial, disinterested and independent of the
parties and their Affiliates, with a reputation for fairness, and (iii) shall
have expertise in the process of deciding disputes. Alternate strikes shall be
made to the panel, commencing with the party requesting arbitration, until the
name of one person remains. The person thus remaining shall be the arbitrator
for such arbitration. The decision of the arbitrator shall be limited to
selecting either the position and remedy stated by the party in its request or
the position and remedy stated by the other party in its response to such
request. The arbitrator shall have no power to mediate or compromise any
dispute, but shall have only the limited authority herein provided to review the
information presented by the parties and to select the position and remedy
proposed by one of the parties. The award of the arbitrator shall be final and
binding upon the parties, subject to subparagraph 19(b).
(b) Application to a court may be made by a party in accordance
with the Uniform Arbitration Act as in effect in the State of Ohio (i) to
confirm an award entered by the arbitrator, and (ii) to modify, correct or
vacate an award on the grounds of fraud or manifest disregard of the law.
(c) Notwithstanding Paragraph 14, if any legal action or other
proceedings is brought for the enforcement or appeal of an arbitration award
rendered pursuant to the terms of subparagraph 19(a), the successful or
prevailing party in such appellate or enforcement proceeding shall be entitled
to recover reasonable attorneys' fees, court costs and all other reasonable
expenses incurred in any appellate or enforcement proceedings in addition to any
other relief to which such party may be entitled. Attorneys' fees shall include,
without limitation, paralegal fees, investigative fees, administrative costs,
and all other reasonable charges billed by the attorney to the prevailing party.
20. SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement which shall nevertheless remain in full
force and effect.
21. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same Agreement.
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22. CAPTIONS AND PARAGRAPH HEADINGS. Captions and paragraph
headings used herein are for convenience and are not part of this Agreement and
shall not be used in construing it.
23. FURTHER ASSURANCES. Each party hereto shall execute such
additional documents, and do such additional things, as may reasonably be
requested by the other party to effectuate the purposes and provisions of this
Agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement on the date set forth above.
CLEVELAND-CLIFFS INC
Witness: /s/ Richard F. Novak By: /s/ John S. Brinzo
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Richard F. Novak John S. Brinzo
Its: President and Chief
Executive Officer
/s/ M. Thomas Moore
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M. Thomas Moore
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EXHIBIT A
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All countries, possessions and territories within North America, Central
America, the Caribbean Sea, Europe, the countries that formerly comprised the
Soviet Union, Australia and the Pacific Rim.
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EXHIBIT B
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Mining, production, sale and supply, purchase or acquisition of iron units or
other ferrous metallics for the production of steel.
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EXHIBIT C
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[LETTERHEAD OF M. THOMAS MOORE]
_________________ ___,_____
____________________
____________________
____________________
Re: Retirement and Consulting Agreement with Cleveland-Cliffs Inc
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Dear __________________:
I am a party to a Retirement and Consulting Agreement, dated
September 2, 1998 (the "Agreement"), with Cleveland-Cliffs Inc, an Ohio
corporation ("Cliffs). Paragraph 8 of the Agreement requires that I communicate
to you the contents of Paragraphs 6, 7, 9(b) and 11 of such Agreement.
Accordingly, attached hereto as Annex A is the text of such paragraphs. The term
"Executive" in such text refers to me, and the term "Company" refers to Cliffs.
Sincerely yours,
M. Thomas Moore
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ANNEX A
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6. CONFIDENTIAL INFORMATION.
(a) Executive acknowledges and agrees that in the past
performance of his duties as an officer and employee of the Company, and in the
future performance of his duties as a consultant to the Company pursuant to
Paragraph 4 hereof, he was and may be brought into frequent contact with, had or
may have had access to, and/or became or may become informed of confidential and
proprietary information of the Company and/or information which is a trade
secret of the Company (collectively, "Confidential Information"), as more fully
described in subparagraph (b) of this Paragraph 6. Executive acknowledges and
agrees that the Confidential Information of the Company gained by Executive
during his association with the Company was or will be developed by and/or for
the Company through substantial expenditure of time, effort and money and
constitutes valuable and unique property of the Company.
(b) Executive agrees that commencing on the Effective Date he
will keep in strict confidence, and will not, directly or indirectly, at any
time, disclose, furnish, disseminate, make available, use or suffer to be used
in any manner any Confidential Information of the Company (except as may be
necessary in connection with the discharge of Executive's obligations pursuant
to Paragraph 4 of this Agreement) without limitation as to when or how Executive
may have acquired such Confidential Information. Executive specifically
acknowledges that Confidential Information includes any and all information,
whether reduced to writing (or in a form from which information can be obtained,
translated, or derived into reasonably usable form), or maintained in the mind
or memory of Executive and whether compiled or created by the Company, which
derives independent economic value from not being readily known to or
ascertainable by proper means by others who can obtain economic value from the
disclosure or use of such information, that reasonable efforts have been put
forth by the Company to maintain the secrecy of Confidential Information, that
such Confidential Information is and will remain the sole property of the
Company, and that any retention or use by Executive of Confidential Information
after the termination of Executive's services for the Company shall constitute a
misappropriation of the Company's Confidential Information.
(c) Executive further acknowledges and agrees that his
obligation of confidentiality shall survive, regardless of any other breach of
this Agreement or any other agreement, by any party hereto, until and unless
such Confidential Information of
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the Company shall have become, through no fault of Executive, generally known to
the public or Executive is required by law (after providing the Company with
notice and opportunity to contest such requirement) to make disclosure.
Executive's obligations under this Paragraph 6 are in addition to, and not in
limitation or preemption of, all other obligations of confidentiality which
Executive may have to the Company under the Company's policies, general legal or
equitable principles or statutes and which shall remain in full force and effect
following the Effective Date.
7. NON-COMPETITION; CERTAIN ACTIONS.
(a) Executive agrees that for a period commencing on the
Effective Date through July 31, 2003, within the Territory (as described in
subparagraph (b)(i) of this Paragraph 7) (and, as to subparagraph (a)(iii) of
this Paragraph 7, any place), he shall not, directly or indirectly, do or suffer
any of the following:
(i) Own, manage, control or participate in the
ownership, management, or control of, or be employed or
engaged by or otherwise affiliated or associated as a
consultant, independent contractor or otherwise with, any
other corporation, partnership, proprietorship, firm,
association, or other business entity (collectively, an
"Enterprise"), or otherwise engage in any business, which is
in competition with the Company's business (as described in
subparagraph (b)(ii) of this Paragraph 7); PROVIDED, HOWEVER,
that neither (A) the ownership of not more than five percent
(5%) of any class of publicly-traded securities of any
Enterprise nor (B) Executive's service as a member of the
board of directors or other comparable governing body of any
Enterprise as of the Effective Date (all of which memberships
Executive has heretofore given notice of to the Company) shall
be deemed a violation of this Agreement; and PROVIDED,
FURTHER, HOWEVER, in the case of clause (B) of this
subparagraph (i) that such service shall be deemed a violation
if the Company subsequently determines in its sole discretion
that the business of any such Enterprise has become more in
competition with the Company's business than is the case on
the Effective Date.
(ii) Employ, assist in employing, or otherwise
associate in business with any person who presently or at the
1999 Annual Meeting Date is an employee, officer or agent of
the Company, or any of its affiliated, related or subsidiary
entities.
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(iii) Induce any person who is an employee, officer
or agent of the Company, or any of its affiliated, related, or
subsidiary entities to terminate such relationship.
(b) For purposes of this Agreement:
(i) "Territory" shall have the meaning set forth on
Exhibit A hereto.
(ii) The Company's business shall have the meaning
set forth on Exhibit B hereto.
(c) Executive agrees that for a period commencing on the 1999
Annual Meeting Date through the end of the Consulting Period, except within the
terms of a specific request from the Company, Executive shall not as a
principal, or agent of another person, propose or publicly announce or otherwise
disclose an intent to propose, or enter into or agree to enter into, singly or
with any other person or directly or indirectly, (i) any form of business
combination, acquisition, or other transaction relating to the Company or any
majority-owned affiliate thereof, (ii) any form of restructuring,
recapitalization or similar transaction with respect to the Company or any such
affiliate, or (iii) any demand, request or proposal to amend, waive or terminate
any provision of this subparagraph 7(c) of this Agreement, nor except as
aforesaid during such period will Executive, as a principal, or agent of another
person, (1) make, or in any way participate in, any solicitation of proxies with
respect to any securities entitled to vote generally in the election of
directors of the Company (together with direct or indirect options or other
rights to acquire any such securities, "Voting Securities"), (including by the
execution of action by written consent), become a participant in any election
contest with respect to the Company, seek to influence any person with respect
to any Voting Securities or demand a copy of the Company's list of its
shareholders or other books and records, (2) participate in or encourage the
formation of any partnership, syndicate, or other group which owns or seeks or
offers to acquire beneficial ownership of any Voting Securities or which seeks
to affect control of the Company or for the purpose of circumventing any
provision of this Agreement, or (3) otherwise act, alone or in concert with
others (including by providing financing for another person), to seek or to
offer to control or influence, in any manner, the management, Board of
Directors, or policies of the Company.
(d) In the event Executive shall violate any provision of this
Paragraph 7 as to which there is a specific time period during which he is
prohibited from taking certain actions or from
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engaging in certain activities, as set forth in such provision, then, in such
event, such violation shall toll the running of such time period from the date
of such violation until such violation shall cease.
(e) In order to assist the Company in enforcing subparagraph
7(a)(i) of this Agreement after the Effective Date, Executive shall give the
Company notice at least thirty days in advance of becoming a member of, or
renewing his membership on, the board of directors or other comparable governing
body of any Enterprise.
(f) Executive has carefully considered the nature and extent
of the restrictions upon him and the rights and remedies conferred upon the
Company under this Paragraph 7 and this Agreement, and hereby acknowledges and
agrees that the same are reasonable in time and territory, are designed to
eliminate competition which otherwise would be unfair to the Company, do not
stifle the inherent skill and experience of Executive, would not operate as a
bar to Executive's sole means of support, are fully required to protect the
legitimate interests of the Company and do not confer a benefit upon the Company
disproportionate to the detriment to Executive.
9. BREACH.
(b) Executive acknowledges and agrees that the remedy at law
available to the Company for breach by Executive of any of his obligations under
Paragraphs 6 and 7 of this Agreement would be inadequate and that damages
flowing from such a breach would not readily be susceptible to being measured in
monetary terms. Accordingly, Executive acknowledges, consents and agrees that,
in addition to any other rights or remedies which the Company may have at law,
in equity or under this Agreement, upon adequate proof of Executive's violation
of any provision of Paragraph 6 or 7 of this Agreement, the Company shall be
entitled to immediate injunctive relief and may obtain a temporary order
restraining any threatened or further breach, without the necessity of proof of
actual damage.
11. SUCCESSORS AND BINDING AGREEMENT.
(a) This Agreement shall be binding upon and inure to the
benefit of the Company and any successor of or to the Company, including,
without limitation, any persons acquiring directly or indirectly all or
substantially all of the business and/or assets of the Company whether by
purchase, merger, consolidation, reorganization or otherwise (and such successor
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shall thereafter be deemed included in the definition of "the Company" for
purposes of this Agreement), but shall not otherwise be assignable or delegable
by the Company.
(b) This Agreement shall inure to the benefit of and be
enforceable by Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributes and/or legatees. The death or
disability (temporary or permanent) of Executive following the execution and
delivery of this Agreement shall not affect or revoke this Agreement or excuse
any of the obligations of the parties hereto, other than the obligations of
Executive to provide consulting services in accordance with Paragraph 4 hereof.
If Executive shall die during the Consulting Period and is not in breach of this
Agreement at the time of death, the Company shall pay to a beneficiary to be
designated by Executive in accordance with the terms of this Agreement in a
lump sum the remaining amounts otherwise payable to Executive under Paragraph 3
of this Agreement had Executive survived to the end of the Consulting Period and
not been in breach of this Agreement.
(c) This Agreement is personal in nature and none of the
parties hereto shall, without the consent of the other parties, assign, transfer
or delegate this Agreement or any rights or obligations hereunder except as
expressly provided in subparagraphs (a) and (b) of this Paragraph 11.
(d) This Agreement is intended to be for the exclusive benefit
of the parties hereto, and except as provided in subparagraphs (a) and (b) of
this Paragraph 11, no third party shall have any rights hereunder.
(e) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation, operation of law or otherwise) to
all or substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform this Agreement.
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