Supplemental Retirement Benefit Agreement - Pittston Co. and David L. Marshall
As of September 16, 1994
Mr. David L. Marshall
28 Glenmoor Place
Hilton Head
South Carolina 29926
Dear Dave:
With reference to the letter agreement with you dated
as of June 1, 1994 (the "Agreement"), providing among other
things, for your Supplemental Retirement Benefit and for your
continued participation in the Company's Pension Equalization
Plan, this confirms that The Pittston Company (the "Company")
has agreed with you to provide additional assurance that
benefits thereunder will be paid in the event of a Change in
Control as hereinafter defined. Accordingly, the Agreement is
hereby amended by inserting the following Paragraph 3A im-
mediately before Paragraph 4 of the Agreement:
3A. Supplemental Retirement Benefits; 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 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
amountwhich 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 assump-
tions at the time applicable under the
Pittston Pension Plan, to be required to
provide all projected benefit obligations
to you (or your beneficiary) under Para-
graph 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 Trans-
action. 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 prac-
ticable; 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 (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 you
under such Paragraph 3 (c) 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.
________________________
David L. Marshall
APPROVED:
___________________________
Robert H. Spilman
Chairman, Compensation and
Benefits Committee of the
Board of Directors