Employment Agreement - Pittston Co. and David L. Marshall
As of June 1, 1994
Mr. David L. Marshall
11 Old Parish Road
Darien, CT 06820
Dear Dave:
This will set forth the terms and conditions of
your employment by The Pittston Company (the "Company") from
and after the date of this agreement.
1. Employment. The Company agrees to employ you,
and you agree to serve in the Company's employ, on and
subject to the terms and conditions hereinafter set forth,
for the period commencing on the date of this agreement and
ending on May 31, 1995 (the "Employment Period"). This
agreement shall replace all prior and/or existing employment
agreements between the Company and you, including, without
limitation, the Agreement dated as of September 1, 1992, and
the Supplemental Agreement dated February 27, 1984, includ-
ing any amendments or modifications to such agreements
(together, the "Prior or Existing Agreements"). As of the
effective date of the Employment Period, all such Prior or
Existing Agreements shall terminate.
2. Duties. Subject to the further provisions of
this Section 2, during the Employment Period you will, as
and to the extent hereinafter provided, render services to
the Company and, at its request, to one or more of its
affiliates ("Affiliates"). All such services will be
rendered at the request of and subject to the direction and
control of the Chairman of the Board of the Company. Such
services may include, among other things, representation of
the Company and its Affiliates in the negotiation and com-
pletion of mergers and acquisitions and the provision of
advice to and consultation with members of management of the
Company and its Affiliates with respect to various matters.
During the Employment Period you will use your
best efforts to perform faithfully and efficiently the
responsibilities assigned to you hereunder, except for
temporary periods of illness or incapacity.
It is understood and agreed, with respect to the
services to the Company which you shall render pursuant to
this Section 2, that
(i) the Chairman of the Board will,
insofar as reasonably practicable, consider your
convenience in the timing of requests, and your
failure or inability, by reason of temporary
illness or other cause beyond your control, to
respond to such requests during any such temporary
period shall not be deemed to constitute a default
on your part in the performance hereunder of such
services; and
(ii) except as and to the extent that the
Chairman of the Board or his designee may other-
wise prescribe in writing, you shall not have any
authority to negotiate or conclude any contracts
on behalf of, or otherwise to bind, the Company or
any of its Affiliates.
3. Compensation. (a) During the Employment
Period you will receive a salary of $200,000 per year for
all of such services, payable in equal installments no less
frequently than monthly.
(b) Eligibility for Certain Benefit Plans. In
addition to your salary, during the Employment Period you
will be entitled to participate in the Company's Pension-
Retirement Plan, Savings-Investment Plan and all other
employee benefit plans in which you participate as of the
day prior to the Employment Period, in accordance with the
terms and conditions of each such plan.
(c) Supplement Retirement Benefit. You have been
provided with a Supplemental Retirement Plan pursuant to
which you shall be entitled to receive a pension calculated
in accordance with the provisions of the Pension-Retirement
Plan of The Pittston Company and Its Subsidiaries (the
"Pittston Pension Plan") (except that the limitations set
forth in Section 13.01(a) thereof and in the second
paragraph of Section 13.07 thereof shall be disregarded)
with full credit for determining your benefit accrual for
the period of your employment with Freeport-McMoRan Inc.,
the Company or any of their respective Affiliates (as
hereinafter defined) or predecessor companies. The amount
of such Supplemental Retirement Benefit will be offset by
the following:
-- the amount of any benefit payable to you in
respect to the Freeport-McMoRan Retirement Plan;
-- the amount of any benefit payable to you under the
Pittston Pension Plan and any other pension plan
of the Company; and
-- the amount of any general offset specifically set
forth in the Pittston Pension Plan (it being
understood and agreed that any such offset shall
be applied without duplication of any offset
(whether in respect of the Social Security taxable
wage base or otherwise) taken into account in
calculating benefits under such Plan).
For purposes of determining the net Supplemental Retirement
Benefit under this Paragraph 3(c), the Supplemental Retire-
ment Benefit before offset and the amount of the benefits
which offset the Supplemental Retirement Benefit shall be
calculated on an actuarially equivalent basis (i.e., assum-
ing the same frequency of payments (e.g., monthly), the same
commencement date for payments, and to the extent feasible
the same form of annuity (e.g., single life annuity)).
It is the intention of the parties that payments
under this Paragraph 3(c) shall be made to you (or your
beneficiary) at such time and in such manner as provided for
under the Pittston Pension Plan and that the procedures,
terms and provisions of that Plan, generally, shall be
applicable hereunder. The obligation of the Company under
this Paragraph 3(c) to provide a pension shall continue in
effect notwithstanding the termination of your employment
with the Company and its Affiliates.
Anything contained in this Agreement to the
contrary notwithstanding, the Company shall not have any
obligations under this Paragraph 3(c), if your employment
shall be terminated for Cause (as hereinafter defined).
As used in this Agreement, the term "affiliate"
shall have the meaning ascribed thereto in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange
Act of 1934 as in effect on the date of this Agreement.
(d) Eligibility for Retiree Medical Benefits. In
the event that your employment shall terminate for any
reason, or if you shall, at any time, elect to retire on an
Early Retirement Date under the Pittston Pension Plan, you
shall be deemed to be eligible for early retiree medical
coverage under the Company's Comprehensive Medical Expense
Benefits Plan (the "Medical Plan"), anything in this
Agreement or the Medical Plan to the contrary notwithstand-
ing. The obligation of the Company under this Paragraph
3(d) to provide such coverage shall continue in effect
notwithstanding the termination of your employment with the
Company and its Affiliates; provided, however, that nothing
herein shall affect in any way the Company's right to make
future changes in the Medical Plan or to terminate the Plan
entirely; and provided, further, that any such change which
relates to your eligibility for such coverage under the Plan
(including the so-called "rule of 75") or which has the
purpose or effect of discriminating against you or your
beneficiaries as to benefits under such Plan shall not
adversely affect such eligibility or benefits as applicable
immediately prior to such change.
(e) Business Expenses. During the Employment
Period the Company shall, in accordance with policies then
in effect with respect to payments of expenses, pay or
reimburse you for all reasonable out-of-pocket travel and
other expenses (other than ordinary commuting expenses)
incurred by you in performing services hereunder. All such
expenses shall be accounted for in such reasonable detail as
the Company may require.
(f) Stock Option Exercise Dates. The Company
shall amend the terms of all stock option grants awarded to
you prior to 1993 to permit all such grants to be exercis-
able by April 15, 1994.
4. Termination. (a) Death. This agreement
shall terminate automatically upon your death.
(b) Cause. The Company may terminate your
employment for Cause. For purposes of this agreement,
"Cause" means (i) an act or acts of dishonesty or disloyalty
on your part which are intended to result in your
substantial personal enrichment at the expense of the
Company or any of its Affiliates or to adversely affect the
business of any of them or (ii) a violation or violations by
you of your obligations under Section 2, Section 7 or
Section 8 other than any insubstantial and inadvertent
violation remedied by you promptly after receipt of notice
thereof given by the Company.
5. Obligations of the Company upon Termination.
(a) Death. If your employment is terminated by
reason of your death, this agreement shall terminate without
further obligations to your legal representatives under this
agreement other than those obligations accrued hereunder at
the date of your death.
(b) Cause. If your employment is terminated for
Cause, the Company shall pay you your full salary through
the date of such termination at the rate in effect at such
date, and the Company shall have no further obligations to
you under this agreement, anything contained in this
agreement to the contrary notwithstanding.
6. Full Settlement. Subject to full compliance
by the Company with all of its obligations under this agree-
ment, this agreement shall be deemed to constitute the
settlement of such claims as you might otherwise be entitled
to assert against the Company by reason of the termination
of your employment for any reason during or after the
Employment Period, including, without limitation, all claims
for discrimination on the basis of age, sex or race or for
any other alleged violation of public policy arising out of
such termination. The Company agrees to pay, to the fullest
extent permitted by law, all expenses (including, without
limitation, counsel fees) which you may reasonably incur as
a result of your successful contest, by judicial proceedings
or otherwise, of the validity or enforceability of, or
liability under, any provision of this agreement. The
parties acknowledge and agree that the foregoing constitutes
a complete release of all such claims.
7. Covenant Not to Compete. You agree that
during the Employment Period and during the period ending
three years thereafter (the "Non-Compete Period"), you shall
not compete with any business then conducted by the Company
or any Affiliate within the Pittston Services Group (the
"Business"). For purposes of this Agreement, the term
"compete" shall mean engaging in a business as a more than
ten percent (10%) stockholder, an officer, a director, an
employee, a partner, an agent, a consultant, or any other
individual or representative capacity if it involves:
(i) engaging in the Business in
competition with the Company or an Affiliate
within the Pittston Services Group in any state of
the United States in which the Company or any of
such Affiliates (which shall mean for purposes of
this Paragraph 7 any such Affiliate in which the
Company owns, directly or indirectly, an equity
interest of twenty percent (20%) or more) operates
at anytime during the Non-Compete Period; or
(ii) rendering services or advice
pertaining to the Business to or on behalf of any
person, firm or corporation which is in competi-
tion with the Company or any Affiliate within the
Pittston Services Group at any time during the
Non-Compete Period in any state of the United
States.
In the event the restrictions against engaging in
a competitive activity contained in this Paragraph 7 shall
be determined by any court of competent jurisdiction to be
unenforceable by reason of its extending for too great a
period of time or over too great a geographic area or by
reason of its being too extensive in any other respect, it
shall be interpreted to extend only over the maximum period
of time for which it may be enforceable, and over the maxi-
mum geographic area as to which it may be enforceable and to
the maximum extent in all other respects as to which it may
be enforceable, all as determined by such court in such
action.
Clauses (i) and (ii), above, are intended by the
Company as separate and divisible provisions, and if for any
reason any one is held to be invalid or unenforceable,
neither the validity nor the enforceability of the other
shall thereby be affected.
8. Confidential Information. (a) You acknowledge
that in the course of your employment you may receive, have
access to, or develop confidential or proprietary informa-
tion or trade secrets relating to the business of the
Company or its Affiliates. You will hold in a fiduciary
capacity for the benefit of the Company and such Affiliates
all such confidential or proprietary information, secrets,
knowledge or data relating to their respective businesses,
including, without limitation, information relating to
strategic plans, public and shareholder relations, market-
ing, pricing, purchasing of transportation (ground or air)
arrangements, plans or programs, computer programs, communi-
cation systems, cost data, or customer lists, obtained by
you prior to, during or after the Employment Period, and you
will not, during the Employment Period or thereafter, commu-
nicate or divulge any such information, secrets, knowledge
or data to any other person, firm or corporation without the
prior written consent of the Chairman of the Board of the
Company. All records, files, drawings, documents, notes,
equipment and the like relating to the business or activi-
ties of the Company or any of such Affiliates which you
shall prepare or use or come into contact with shall be and
remain the sole property of the Company or such Affiliates,
as the case may be, and upon termination of your employment
with the Company all of such property shall be returned to
the Company in accordance with the directions given by it.
(b) Equitable Relief. You acknowledge that the
foregoing provisions of Sections 7 and 8 are essential to
the Company and are reasonable and necessary to protect the
legitimate interests of the Company and its Affiliates and
that damages sustained by the breach of such provisions
would cause irreparable harm to the Company because of the
special services that have been performed by you and that
recovery of damages at law would not be an adequate remedy.
You further agree that the Company and its Affiliates, in
addition to any other remedy which any of them may have
under this agreement or at law, shall be entitled to injunc-
tive and other equitable relief to prevent to curtail any
breach of any such provision. If any provision of Sections
7 or 8 shall be deemed to be invalid, illegal or unenforce-
able as written by reason of the extent or duration thereof,
or otherwise, the determining body or authority making such
determination shall be empowered to reduce such provision so
as to be enforceable to the greatest extent possible and, as
so reduced, such provision shall then be deemed to be
rewritten and enforced as reduced.
(c) The provisions of this Section 8 shall
survive the termination of this agreement.
9. Successors. (a) This agreement is personal
to you and without the prior written consent of the Company
shall not be assignable by you or otherwise than by will or
the laws of descent and distribution. This agreement shall
inure to the benefit of and be enforceable by your legal
representatives.
(b) This agreement shall inure to the benefit of
and be binding upon the Company and its successors.
10. Governing Law. This agreement shall be
governed by and construed in accordance with the substantive
and procedural law of New York without reference to princi-
ples of conflict of laws. The parties hereto agree that any
dispute hereunder may be submitted to any court of competent
jurisdiction in New York and for purposes thereof each party
hereto submits to such jurisdiction.
11. Miscellaneous. (a) This agreement contains
the entire understanding with you with respect to the
subject matter hereof and supersedes any and all prior
agreements or understandings, written or oral, relating to
such subject matter. This agreement may not be amended or
modified otherwise than by a written agreement executed by
the parties hereto or their respective successors and legal
representatives. The captions of this agreement are not
part of the provisions hereof and shall have no force or
effect.
(b) All notices and other communications
hereunder shall be in writing and shall be given by hand
delivery to the other party or by registered or certified
mail, return receipt requested, postage prepared, addressed
as follows:
If to you:
11 Old Parish Road
Darien, CT 06820
If to the Company:
100 First Stamford Place
P. O. Box 120070
Stamford, CT 06912-0070
or to such other address as either party shall have
furnished to the other in writing in accordance herewith.
Notices and communications shall be deemed to be given when
mailed by certified or registered mail, return receipt
requested.
(c) The invalidity or unenforceability of any
provision of this agreement shall not affect the validity or
enforceability of any other provision of this agreement.
(d) The Company may withhold from any amounts
payable under this agreement such federal, state or local
taxes for which withholding is provided pursuant to any
applicable law or regulation.
Please confirm that the foregoing is in accordance
with our agreement.
Very truly yours,
THE PITTSTON COMPANY
By___________________________
Chairman of the Board
I hereby confirm that the foregoing is in
accordance with our agreement.
_________________________
David L. Marshall
Dated as of June 1, 1994