Supplemental Retirement Benefit Agreement - Pittston Co. and Robert D. Duke
As of September 16, 1994
Robert D. Duke, Esq.
67 Ridgefield Road
Wilton, CT 06897
Dear Bob:
With reference to the letter agreement with you dated
as of November 1, 1993 (the "Agreement"), providing, among
other things, for pension and related payments under the
Company's Pension Equalization Plan and under your agreement
with the Company dated as of October 1, 1989, this confirms
that the Company has agreed with you to provide additional
assurance that such payments will be made in the event of a
Change in Control as hereinafter defined. Accordingly, the
Agreement is hereby amended by inserting the following Section
3A immediately before Section 4 of the Agreement:
3A. Supplemental Retirement Benefit; Change
in Control. The provisions of this Paragraph 3A shall be
controlling, anything in the other provisions of this
Agreement to the contrary notwithstanding.
(a) In the event that a Change in
Control (as hereinafter defined in subparagraph
(b) of this Paragraph 3A shall occur or the
Company's Board of Directors shall in its
discretion determine that a Change in Control is
anticipated within 90 days from the date of such
determination, the Company shall forthwith take
such action as shall be necessary or appropriate
to activate the trust agreement dated as of
September 15, 1994 between the Company and The
Chase Manhattan Bank (National Association), as
trustee, by the payment in cash to the trustee
under such trust agreement of the aggregate
amount which A. Foster Higgins & Co. Inc.
(or another nationally recognized firm of
actuaries selected by the Board) shall
determine, on the basis of mortality and
other assumptions at the time applicable
under the Pittston Pension Plan, to be
required to provide all projected benefit
obligations to you (or your beneficiary)
under Paragraph 3(c) of this Agreement, as
of the date the Change in Control occurs or
as of the date of such determination, as
the case may be. All expenses and income
and other taxes in connection with the
establishment and operation of such trust
shall be paid by the Company.
(b) For purposes of this Paragraph
3A, a Change in Control shall be deemed to occur
if either (i) any person, or any two or more
persons acting as a group, and all affiliates of
such person or persons, shall own beneficially
more than 20% of the total voting power in the
election of directors of the Company of shares
of all classes of Common Stock of the Company
outstanding (exclusive of shares held by any
corporation of which shares representing at
least 50% of the ordinary voting power are
owned, directly or indirectly by the Company)
pursuant to a tender offer, exchange offer or
series of purchases or other acquisitions, or
any combination of those transactions, or (ii)
there shall be a change in the composition of
the Company's Board of Directors at any time
within two years after any tender offer,
exchange offer, merger, consolidation, share
exchange, sale of assets or contested election,
or any combination of those transactions (a
"Transaction"), so that (i) the persons who were
directors of the Company immediately before the
first such Transaction cease to constitute a
majority of the board of directors of the
corporation which shall thereafter be in control
of the companies or other entities that were
parties to or otherwise involved in such
first Transaction, or (ii) the number of
persons who shall thereafter be directors
of such corporation shall be fewer than
two-thirds of the number of directors of
the Company immediately prior to such first
Transaction. A Change in Control shall be
deemed to take place upon the first to
occur of the events specified in the fore
going clauses (i) and (ii).
(c) In addition to all other rights
under applicable law, you shall, from and after
the date on which a Change in Control shall
occur or be anticipated as provided in sub-
paragraph (b) above, have the right to bring an
action to enforce the provisions of this Para-
graph 3A by seeking injunctive relief and/or
damages, and the Company shall be obligated to
pay or reimburse you to the extent that you
prevail, in whole or in substantial part, for
all reasonable expenses, including attorney's
fees, in connection with such action.
(d) The foregoing provisions of this
Paragraph 3A shall be construed liberally to the
end that accrued benefits under this Paragraph
3A shall be assured to the fullest extent
practicable; provided, however, that nothing in
this Paragraph 3A shall be construed in a manner
that would subject you to current taxation on
establishment of the trust.
(e) Nothing in this Paragraph 3A
shall of itself be deemed to increase the amount
of any accrued benefits to which you shall have
become entitled under Paragraph 3 of this Agree-
ment. The establishment and activation of the
trust agreement referred to in subparagraph (a)
of this Paragraph 3A shall not be deemed to
relieve the Company of its obligations to you
under such Paragraph 3 except pro tanto to the
extent that amounts in respect thereof are paid
under such trust agreement to you.
2. Except as hereinabove provided, the Agreement
shall remain in full force and effect.
Please confirm that the foregoing is in accordance
with our agreement.
Very truly yours,
THE PITTSTON COMPANY
By______________________
Chairman
I hereby confirm that the foregoing is in accordance
with our agreement.
________________________
Robert D. Duke