Exhibit 10A
SEPARATION AGREEMENT AND RELEASE OF CLAIMS
This Settlement Agreement and Release of Claims ("Agreement") is made
by and between Xxxxxxx X. Xxxxx (hereinafter referred to as "Employee") and
Cleveland-Cliffs Inc (hereinafter referred to as "Employer").
W I T N E S S E T H:
WHEREAS, Employee was employed by Employer; and
WHEREAS, Employee was a good and valuable employee of the Employer and
the Employer was a fair and generous employer in all its dealings with Employee
but that circumstances have made it appropriate for the employment relationship
to terminate; and
WHEREAS, Employee's employment with Employer was therefore terminated
effective July 29, 2003; and WHEREAS, the Employer desires to provide additional
benefits to the Employee because of the circumstances related to the termination
of Employee's employment; and
WHEREAS, in consideration of such additional benefits, Employer
desires to receive a waiver from the Employee of any claims which might have
arisen out of Employee's employment relationship or her termination of
employment.
NOW, THEREFORE, in consideration of the mutual promises, payments and
benefits hereunder contained and intending to be legally bound hereby, the
parties represent, warrant, covenant and agree as follows:
A. Employee's employment with Employer has been terminated effective July
29, 2003 ("Effective Date of Separation").
B. Within thirty (30) days after the Effective Date of this Agreement,
stated below, an
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amount equal to fifty-two (52) weeks' pay at Employee's regular base
compensation rate of Two Hundred Sixty-Five Thousand Dollars ($265,000) per year
("Base Annual Compensation") will be added to Employee's cash balance pension
account under the Pension Plan for Employees of Cleveland-Cliffs Inc and its
Associated Employers ("Pension Plan"). Moreover, Employer will "gross up" such
amount by an additional eleven percent (11%) so that the total amount credited
will be one hundred eleven percent (111%) of the foregoing formula amount (the
"Special Cash Balance Account Credit"). Under the formula set forth above, the
Special Cash Balance Account Credit for Employee shall be in the amount of Two
Hundred Ninety-Four Thousand One Hundred Fifty Dollars ($294,150). This Special
Cash Balance Account Credit will be fully vested under the Plan regardless of
whether the rest of Employee's pension benefits are vested. The Special Cash
Balance Account Credit can be taken as an annuity under the Plan, rolled over
into an XXX or Employer's 401(k) Savings Plan, or may be withdrawn, in whole or
in part, from the cash balance account in a single lump sum or in monthly
installments over a period of up to twelve months immediately following the
Effective Date of this Agreement. Employer reserves the right, in the event that
such Special Cash Balance Account Credit may cause the Pension Plan to lose its
qualified status under Internal Revenue Code section 401(a), to pay the
additional pension benefit resulting from the Special Cash Balance Account
Credit without the eleven percent (11%) gross-up amount under a non-qualified
pension arrangement.
C. On January 15, 2004, Employee shall receive a lump sum payment equal to
one year's pay, at her Base Annual Compensation minus appropriate withholdings
and deductions including, but not limited to, applicable FICA deductions and
federal, state, and city income tax deductions (the "Severance Payment").
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D. As additional consideration for Employee's covenants and obligations
hereunder, Employer shall continue to cover the Employee under Employer's
health/medical benefits plan for active employees ("Active Medical Plan") until
the Employee attains age sixty-five (65) as long as the Employee pays the same
portion of the cost of such coverage as is paid by similarly situated active
employees. Such coverage will end in at the earlier of :
1. the date the Employee fails to pay her share of the premium for
such coverage;
2. the death of the Employee; or
3. the end of the month when the Employee turns age sixty-five (65).
In the event that the Employee obtains other similar coverage from a
subsequent employer, it is understood that the Employer's Active Medical Plan
will be secondary to the coverage provided by the plan of the subsequent
employer.
E. As further consideration for this Agreement, if the coverage of the
Employee under the Active Medical Plan ends because of her attainment of age
sixty-five, commencing at such time, in lieu of COBRA coverage, the Employee
shall be eligible for retiree medical benefits under the Health Care Benefits
Program for Salaried Retirees and Surviving Spouses of Cleveland-Cliffs Inc and
Associated Employers ("Retiree Medical Plan") in accordance with its terms
provided that the Employee pays one hundred percent (100%) of the cost of such
coverage. Such coverage under the Retiree Medical Plan shall continue until the
earlier of:
1. the date the Employee fails to pay her share of the premium for
such coverage; or
2. the death of the Employee.
F. During the fifty-two (52) week period immediately following the
Effective Date
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of Agreement, stated below, Employee shall be entitled to outplacement services
at Employer expense provided through Spherion, up to a maximum cost of Fifteen
Thousand Dollars ($15,000.00) to the Employer. Such services shall be provided
consistent with Employee's preferences in order to facilitate her transition to
alternative employment.
G. As additional consideration for this Agreement, the laptop computer
which Employee currently uses will be transferred to her to become her own
personal property. Prior to transferring the laptop computer, the Employer's
information systems employees will delete from the computer all propriety or
confidential information of the Company. In addition, the Employer's information
systems employees will provide assistance to the Employee in setting up a system
at her home up to and not exceeding two (2) days of assistance by an information
systems employee.
H. Employee acknowledges and agrees that the Special Cash Balance Account
Credit, Severance Payment, Active Medical Plan benefits, Retiree Medical Plan
benefits, outplacement services, laptop computer, and information systems
assistance outlined above are benefits to which Employee is not otherwise
entitled pursuant to the employment relationship, the termination of the
employment relationship, retirement or otherwise, and Employee acknowledges and
agrees that said payments and benefits are intended to and do constitute
adequate consideration for Employee's covenants and obligations set forth in
this Agreement.
I. Employee's separation from employment with Employer has occurred at the
same time as an employment termination program ("Program") affecting employees
in Employer's Cleveland operations. Business exigencies, along with decisions to
eliminate and/or outsource certain functions required a restructuring of
Employer's operations. The ages and positions of all of
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those employed by Employer for both those selected for reduction and retained by
the Employer in connection with this Program are attached as Exhibit A, which is
incorporated herein by reference.
J. Employee hereby forever gives up, waives and releases any right to
recall or reinstatement by Employer, and Employee does hereby for herself and
for her heirs, executors, successors, and assigns, release and forever discharge
Employer, as well as each of its past and present successors, assigns,
divisions, parents, subsidiaries, related or affiliated companies, and the
officers, directors, shareholders, members, employees, heirs, agents and
attorneys of each of the foregoing, including without limitation any and all
management and supervisory employees, and all persons acting under or in concert
with any of them (hereinafter collectively termed the "Released Parties") of and
from any and all debts, claims, demands, charges, complaints, grievances,
promises, actions or causes of action, suits at law or equity, and/or damages of
any and every kind that Employee has or may have, whether known or unknown,
including, but not limited to, any and all claims and/or demands for back pay,
reinstatement, hire or re-hire, front pay, stock options, benefits under the
Employer's Incentive Equity Plan, Performance Share Plan, Executive Retention
Plan, Supplemental Retirement Plan, group insurance or employee benefits of
whatsoever kind (except on rights expressly provided for herein), claims for
monies and/or expenses, any claims arising out of or relating to the cessation
of Employee's employment with Employer, any claims for breach of contract or
Employee's failure to obtain employment with any other other person or employer,
claims for discrimination on any basis arising under any federal, state or local
statute, ordinance, order or law, and any and all claims for wrongful
termination of employment, misrepresentation, harassment, mental anguish,
emotional distress, breach of contract, breach of implied contract, promissory
estoppel,
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defamation, violation of public policy, attorneys' fees and costs of any legal
proceeding, if any, and any and all other claims or causes of action, however
denominated, that Employee has or may have by reason of any matter or thing
arising out of, or in any way connected with, directly or indirectly, any act
and/or omission that has occurred prior to the Effective Date of this Agreement.
Employee understands that Employer denies or will deny any and all claims and
liability which may be asserted by Employee under any of the foregoing and under
the laws and regulations described in Paragraph M below. Not withstanding the
above, Section 1, Indemnification, of Cleveland-Cliffs Inc Code of Regulations
(attached) still applies.
This release does not apply to Employee's entitlements under this
Agreement, the Pension Plan, the Cliffs and Associated Employers Salaried
Employees Supplemental Retirement Savings Plan (the "Savings Plan"), the
Company's Voluntary Non-Qualified Deferred Compensation Plan, and the Company's
vacation policy.
K. Employee neither waives nor surrenders any right to file a claim for
unemployment compensation benefits under appropriate state law nor any right to
claim retirement benefits, if any, for which Employee may be eligible under the
terms of the applicable pension or insurance plans.
L. Employee covenants and agrees that Employee will not bring, commence,
institute, maintain, prosecute, or voluntarily aid any action or proceeding or
otherwise prosecute or xxx Employer either affirmatively or by way of cross
complaint, defense or counterclaims, or in any other manner with respect to the
claims herein released. The foregoing sentence shall be construed as a covenant
not to xxx. This Agreement may be introduced as evidence at any legal
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proceeding as a complete defense to any claims ever asserted by Employee against
the Released Parties.
M. Employee represents that Employee has not filed any complaints or
charges against the Employer with any local, state or federal government agency
or with any local, state or federal court, that Employee will not do so at any
time hereinafter, and that if any such agency or court assumes jurisdiction of
any complaint or charge against the Employer on behalf of Employee, Employee
will request such agency or court to withdraw from the matter, or refuse any
benefits derived therefrom; provided, however, that this Agreement will not
affect the Employee's right to file a charge with or otherwise participate in an
investigation or proceeding conducted by the Equal Employment Opportunity
Commission regarding a claim under the ADEA or under the Ohio Civil Rights Act
relating to matters which arise after the Effective Date of this Agreement,
stated below, and which are not the subject of this Agreement.
N. Employee represents and agrees that, prior to Effective Date of
Agreement, stated below, Employee has not assigned or transferred any of the
released claims or any portion thereof or interest therein to any other person
or entity.
O. Employee agrees to promptly return to Employer all originals and copies
of Employer's documents and information, regardless of the form on which such
information has been maintained or stored, including without limitation,
computer disks, tapes or other forms of computer storage.
P. Employee recognizes and understands that, by executing this Agreement,
he/she shall be releasing the Released Parties, defined above, from any claims
that he/she now has, may have, or subsequently may have under the Age
Discrimination in Employment Act of 1967, 29
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U.S.C. section 621, et seq., as amended, by reason of any matter or thing
arising out of, or in any way connected with, directly or indirectly, any acts
or omissions which have occurred prior to and including the Effective Date of
Agreement. In other words, Employee will have none of the legal rights against
the aforementioned that he/she would otherwise have under the Age Discrimination
in Employment Act of 1967, 29 U.S.C. section 621, et seq., as amended, by her
signing this Agreement.
Q. The Employer hereby notifies Employee of her right to consult with her
chosen legal counsel before signing this Agreement. The Employer shall afford,
and Employee acknowledges receiving, not less than forty-five (45) calendar days
in which to consider this Agreement to insure that Employee's execution of this
Agreement is knowing and voluntary. In signing below, Employee expressly
acknowledges that he/she has had at least forty-five (45) days to consider this
Agreement and that her execution of same is with full knowledge of the
consequences thereof and is of her own free will.
Furthermore, notwithstanding the fact that the Employer has allowed
Employee forty-five (45) days to consider this Agreement, in the event Employee
elects to execute this Agreement prior to the end of such 45-day period, by her
signature below, Employee represents, acknowledges and agrees that her decision
to accept this shortening of the time was knowing and voluntary and was not
induced by fraud, misrepresentation, or any threat to withdraw or alter the
benefits provided by the Employer herein, or by the Employer providing different
terms to any similarly-situated employee executing this Agreement prior to end
of such 45-day consideration period. In signing below, Employee expressly
acknowledges that her execution of same is with full knowledge of the
consequences thereof and is of her own free will.
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R. Both Employer and Employee agree and recognize that, for a period of
seven (7) calendar days following Employee's execution of this Agreement,
Employee may revoke this Agreement by providing written notice revoking the
same, within this seven (7) day period, to Xxxxx Xxxxxx, Cleveland-Cliffs Inc,
0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000. Such revocation of this Agreement
by Employee will also automatically revoke the acceptance of the offer set forth
herein and Employee will not be entitled to any amounts and/or benefits
described herein. Should Employee revoke this Agreement within this seven-day
(7) period, Employee agrees immediately to return all monies and other benefits
that he/she has received from Employer pursuant to this Agreement prior to the
date of such revocation.
S. The Employee agrees never to apply for employment of any kind with
Employer unless otherwise requested by the Employer.
T. The Employee acknowledges that she understands that the payments and
benefits under this Agreement may be deemed to be subject to federal, state and
local income taxes. The Employee agrees that she is solely responsible for the
payment of all such income taxes and that the Employer shall have no
responsibility with respect to the payment of such taxes.
U. Each of the parties has read and fully understands this Agreement.
Employee understands and acknowledges that the circumstances leading up to and
surrounding the Program and this Agreement and the terms and conditions of the
Program and this Agreement are confidential. Employee agrees not to disclose the
circumstances leading up to and surrounding the Program and/or the fact and/or
terms of this Agreement to any person without the written consent of Employer,
except to Employee's present attorney, tax advisors or immediate family.
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V. This Agreement has been drafted by the Parties. It should be construed
according to the fair intent of the language as a whole and not for or against
either party.
W. This Agreement constitutes the entire agreement between the parties
hereto in connection with the subject matter of this Agreement. This Agreement
supersedes any and all other agreements, either oral or written, between the
parties in connection with the subject matter of this Agreement. No modification
to this Agreement shall be effective, unless in writing and signed by the
President of Employer and Employee.
X. This Agreement has been made in Ohio, and Ohio law shall apply to it. If
any part is found to be invalid, the remaining parts of this Agreement will
remain in effect as if no invalid part existed.
Y. This Agreement is binding on the parties hereto and upon their
respective successors, heirs, legal representatives and assigns.
Z. This Agreement and all documents executed pursuant to it may be executed
in counterparts and, upon signing by all parties, each of such counterparts will
be deemed an original.
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EMPLOYEE REPRESENTS THAT HE/SHE HAS CAREFULLY READ THIS SETTLEMENT AGREEMENT AND
HAS HAD A FULL OPPORTUNITY TO HAVE THIS SETTLEMENT AGREEMENT REVIEWED BY LEGAL
COUNSEL SELECTED BY EMPLOYEE. EMPLOYEE FURTHER REPRESENTS THAT HE/SHE
UNDERSTANDS THE CONTENT AND CONSEQUENCES OF SIGNING THE SETTLEMENT AGREEMENT AND
THAT EMPLOYEE EXECUTES IT AS HER OWN FREE ACT AND DEED INTENDING TO BE LEGALLY
BOUND BY IT. EMPLOYEE ALSO REPRESENTS THAT EMPLOYEE UNDERSTANDS THAT HE/SHE IS
WAIVING AMONG OTHER THINGS, ANY RIGHTS OR CLAIMS ARISING UNDER FEDERAL OR STATE
LAW.
IN WITNESS WHEREOF, Employee and Employer have executed this Agreement
effective and binding as of the Effective Date of this Agreement.
DATE OF EXECUTION BY EMPLOYEE
("Effective Date of Agreement" is the AGREED TO AND ACCEPTED BY:
eighth day after this date)
August 5, 2003 /s/ Xxxxxxx X. Xxxxx
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EMPLOYEE
EXECUTION WITNESSED BY:
/s/ Xxxxxxx X. Xxxxxxx
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DATE OF EXECUTION BY THE AGREED TO AND ACCEPTED BY
EMPLOYER CLEVELAND-CLIFFS INC
August 5, 2003 By: /s/ X. X. Xxxxxxxxxx
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Title:Director - Learning & OD
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EXECUTION WITNESSED BY:
/s/ Xxxxxxx X. Xxxxxxx
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