Employment Agreement [Amendment No. 2] - Pittston Co. and Josephh C. Farrell
AMENDMENT No. 2 dated as of September 16,
1994 to Employment Agreement dated as of May 1, 1993 as
amended by Amendment No. 1 thereto dated March 18, 1994
(said Employment Agreement as so amended being herein-
after called the "Employment Agreement"), between The
Pittston Company, a Virginia corporation (the
"Company"), and Joseph C. Farrell, residing at 53
Londonderry Drive, Greenwich, Connecticut 06830 (the
"Employee").
The Company and the Employee desire to further
amend the Employment Agreement so as to provide additional
assurance that the Supplemental Retirement Benefit under
Paragraph 3(c) thereof will be paid in the event of a Change
in Control as hereinafter defined.
Accordingly, the Company and the Employee agree as
follows:
1. The Employment Agreement is hereby amended by
inserting the following Paragraph 3A immediately before
Paragraph 4 of the Employment 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 dis-
cretion 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 16, 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 obliga-
tions to the Employee (or his 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, con-
solidation, 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 there-
after 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 Trans-
action. A Change in Control shall be deemed to
take place upon the first to occur of the events
specified in the foregoing clauses (i) and (ii).
(c) In addition to all other rights
under applicable law, the Employee shall, from and
after the date on which a Change in Control shall
occur or be anticipated as provided in subpara-
graph (b) above, have the right to bring an action
to enforce the provisions of this Paragraph 3A by
seeking injunctive relief and/or damages, and the
Company shall be obligated to pay or reimburse the
Employee to the extent that he prevails, 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 prac-
ticable; provided, however, that nothing in this
Paragraph 3A shall be construed in a manner that
would subject the Employee 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 the Employee shall have
become entitled under Paragraph 3(c) of this
Agreement. 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 the
Employee under such Paragraph 3(c) except pro
tanto to the extent that amounts in respect
thereof are paid under such trust agreement to the
Employee.
2. Except as hereinabove provided, the Employment
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this
Amendment as of September 16, 1994.
THE PITTSTON COMPANY
By_______________________
Vice President, General
Counsel and Secretary
APPROVED:
__________________________
Robert H. Spilman
Chairman, Compensation and
Benefits Committee of the
Board of Directors ________________________
Joseph C. Farrell