Employment Agreement - Pittston Co. and David L. Marshall
As of June 1, 1995
Mr. David L. Marshall
28 Glenmoor Place
Hilton Head Island
South Carolina 29926
Dear David:
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, 1998 (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, the
Supplemental Agreement dated February 27, 1984, including
any amendments or modifications to such agreements, the
Agreement dated as of June 1, 1994 and the Amendment to the
June 1, 1994 Agreement dated as of September 16, 1994
(together, the "Prior or Existing Agreements"). As of the
effective date of the Employment Period, all such Prior or
Existing Agreements shall terminate to the extent they have
not already been terminated. It is understood that your
employment pursuant to the terms and conditions of this
Agreement shall continue notwithstanding your election as of
June 1, 1996 to retire, an Early Retirement Date under the
Pittston Pension Plan, which election you hereby confirm.
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
completion 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.
In addition, you agree, if nominated and elected, to serve
as a director of the Company.
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; provided, however, that after June 1,
1996, the number of hours that you will be
required to devote to fulfilling your obligations
under this Agreement will be fewer than forty
hours per calendar month; and
(ii) except as and to the extent that the
Chairman of the Board or his designee may
otherwise 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 for all services to be rendered by
you pursuant to Section 2 above (i) for the period ending
May 31, 1996, a salary at the rate of $150,000 per year and
(ii) thereafter a salary at the rate of $40,000 per year,
payable in equal installments no less frequently than
monthly.
(b) Eligibility for Certain Benefit Plans. In
addition to your salary, during the period ending May 31,
1996 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. On and after
June 1, 1996, you will participate in all employee benefit
plans in which you will be eligible, but only in accordance
with the terms and conditions of each such plan, subject to
the provisions of Section 3(d) below. On and after June 1,
1996, the Company will provide you with $300,000 of group
term life insurance.
(c) Supplemental Retirement Benefit. You have
been provided with a Supplemental Retirement Benefit
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 Section 3(c), the Supplemental Retirement
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.,
assuming 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 Section 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 Section 3(c) to provide a pension and the obligations
of the Company under Section 4 below shall continue in
effect notwithstanding the termination (for any reason) of
your employment with the Company and its Affiliates.
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
notwithstanding. The obligation of the Company under this
Section 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.
4. Supplemental Retirement Benefits; Change in
Control. The provisions of this Section 4 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 Section 4
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 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 obligations to you (or your beneficiary)
under Section 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 Section 4, 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
foregoing 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 subparagraph (b) above, have the right to bring
an action to enforce the provisions of this Section 4 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 Section 4
shall be construed liberally to the end that accrued
benefits under this Section 4 shall be assured to the
fullest extent practicable; provided, however, that nothing
in this Section 4 shall be construed in a manner that would
subject you to current taxation on establishment of the
trust.
(e) Nothing in this Section 4 shall of itself be
deemed to increase the amount of any accrued benefits to
which you shall have become entitled under Section 3(c) of
this Agreement. The establishment and activation of the
trust agreement referred to in subparagraph (a) of this
Section 4 shall not be deemed to relieve the Company of its
obligations to you under such Section 3(c) except pro tanto
to the extent that amounts in respect thereof are paid under
such trust agreement to you.
5. 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 8 or Section 9 other
than any insubstantial and inadvertent violation remedied by
you promptly after receipt of notice thereof given by the
Company.
6. 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 Sections 3(a), (b) or (e) of this agreement;
provided, however, that the Company's obligations under
Sections 3(c) and (d) shall continue notwithstanding
termination under either Section 6(a) or (b).
7. Full Settlement. Subject to full compliance
by the Company with all of its obligations under this
agreement, 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.
8. Covenant Not to Compete. You agree that
during the Employment Period and during the period ending
two 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 Section 8 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
competition 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 Section 8 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
maximum 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.
9. Confidential Information. (a) You acknowledge
that in the course of your employment you may receive, have
access to, or develop confidential or proprietary
information 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,
marketing, pricing, purchasing of transportation (ground or
air) arrangements, plans or programs, computer programs,
communication 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, communicate 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 activities 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 8 and 9 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
injunctive and other equitable relief to prevent to curtail
any breach of any such provision. If any provision of
Sections 8 or 9 shall be deemed to be invalid, illegal or
unenforceable 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 9 shall
survive the termination of this agreement.
10. 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.
11. Governing Law. This agreement shall be
governed by and construed in accordance with the substantive
and procedural law of New York without reference to
principles 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.
12. 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:
28 Glenmoor Place
Hilton Head Island
South Carolina 29926
If to the Company:
100 First Stamford Place
P. O. Box 120070
Stamford, CT 06912-0070
Attention: Chairman of the Board
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, 1995