EXHIBIT 10(a)
May 4, 1998
Xx. Xxxxx X. Xxxxxxxx
00 Xxxxxx Xxxx Xxxxxx
Xxxx, XX 00000
Retirement Agreement
Dear Xxxxx:
This letter is intended to set forth the terms and conditions of your
resignation as an employee of The Pittston Company (the "Company"). Accordingly,
the Company hereby agrees with you as follows:
1. Resignation. This will confirm your resignation, effective May 4,
1998, as an employee of the Company and from all other offices and positions
(including directorships) you may hold in, the Company and its subsidiaries and
affiliates. You agree that you will execute any formal letter of resignation
reasonably requested by the Company to further evidence your resignation
hereunder.
2. Termination Payment. In lieu of any compensation, severance and
other termination payments and benefits under your Employment Agreement with the
Company dated as of June 1, 1997, as amended as of October 1, 1997, you shall
receive $171,154 (the "Termination Payment") in a lump sum to be paid on or
before May 4, 1998.
3. Unexercised Stock Options. All unexercised stock options issued to
you under the Company's stock option plans ("Option Plan") and outstanding on
the date hereof shall continue to become vested and remain exercisable until
June 1, 2000 (unless previously expired pursuant to the terms of the original
grant) in accordance with the terms of the Option Plan and the option agreements
evidencing your outstanding grants, and the Company agrees that it shall take no
action otherwise reserved to it to prevent such
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options from becoming so vested and exercisable provided the terms of this
Retirement Agreement are not breached by you.
4. Retirement Benefits. a. Pension. Your monthly retirement benefits
of $3,612.67 under the Company's Pension-Retirement Plan and $3,654.85 under the
Pension Equalization Plan will continue and will be based upon the Plans'
present pension formulae. In addition, payments to you of $4,782.17 per month
under the Supplemental Retirement Benefit provided by Section 3(b) of your
Employment Agreement will also continue, except that effective March 15, 1998,
such amount will be increased by $40,000 per calendar year payable monthly. The
obligations of the Company (i) to pay to you the Supplemental Retirement Benefit
(excluding the $40,000 increase described in the foregoing sentence) and (ii) to
provide to you the retiree health benefits described in Section 4(b) below shall
continue in effect notwithstanding any breach or alleged breach by you of any of
your obligations under this Agreement. All retirement benefits are payable on a
50% joint and survivor basis with your present spouse, Xxxx Xxxxxxxx, as the
joint annuitant.
b. Health Benefits. You and your eligible family members shall be
entitled to participate in the Retiree Health Care Program of the Company on the
same basis presently made available to other eligible retirees of the Company
subject to the Company's right to modify such program from time to time. You
will be responsible for the normal retiree contribution to the cost of
maintaining your participation in such Program.
c. Deferred Compensation Program. Effective May 4, 1998, you shall be
entitled to receive the full value of your account balance (including Company
matching contributions) in accordance with the terms of the Key Employees'
Deferred Compensation Program of the Company.
d. Tax Preparation Services. The Company agrees to provide you with
tax preparation services through The Pittston Company Tax Planning--Tax Return
Preparation and Certification Program up to a maximum value of $5,000 for tax
years 1997 and 1998.
5. Confidentiality. You shall not use for your own or any other
person's benefit, or disclose, divulge or communicate to any other person, any
trade or business secret or other information disclosed to or known by you as a
consequence of or through your employment with the Company
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(including information conceived, originated or developed by you), which is of a
confidential or proprietary nature and not generally known to the public, about
the Company's business, prospects, patents or other intellectual property,
personnel, shareholders, operations, processes, budgets, plans and development
programs (collectively the "Confidential Information") without the prior written
consent of the Company, except (a) in connection with (i) the implementation or
enforcement of this Agreement, (ii) any claim for indemnification as a director,
officer, employee or agent of the Company or (iii) your defense of any civil or
criminal action or proceeding, or (b) as appropriate for the performance of your
obligations under this Agreement, or (c) if such use or disclosure is required
by law. Such Confidential Information includes, but is not limited to, (a)
business methods and information of the Company, including prices charged,
discounts given to customers or obtained from suppliers, transport rates,
marketing and advertising programs, costings, budgets, turnover, sales targets
or other unpublished financial information; and (b) lists and particulars of the
Company's suppliers, customers and potential customers and the individual
contacts or negotiations with such suppliers and customers; and (c)
manufacturing or production processes and know-how developed or employed by the
Company or its suppliers; and (d) details as to the design or specifications of
the Company's or their suppliers' products and inventions or developments
relating to future products. You will, upon termination of your employment,
return all documents or other carriers of information in your possession,
custody or control which contain records of such information and all property in
your possession, custody or control belonging to the Company or its customers or
suppliers or relating to the Company's business and business relationships. This
restriction shall apply without limit in point of time but shall cease to apply
to information or knowledge which shall come (otherwise than by breach of this
clause) into the public domain or which is generally disclosed to third parties
by the Company without restriction on such third parties or which is disclosed
to you by a third party not in breach of any obligation of confidentiality to
the Company. For purposes solely of this Section 5, the term "Company" shall be
deemed to include the Company's subsidiaries and affiliates.
6. Release by You. In consideration of the fulfillment of the payments
and benefits described above, you release, remise and forever discharge the
Company from and against any and all claims, cross-claims, third-party
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claims, counterclaims, contribution claims, debts, demands, actions, promises,
judgments, trespasses, executions, causes of action, suits, accounts, covenants,
sums of money, dues, reckonings, bonds, bills, liens, attachments, trustee
process, specialties, contracts, controversies, agreements, promises, damages,
and all other claims of every kind and nature in law, equity, arbitration, or
other forum which you now have or ever had up to and including the date hereof,
whether absolute or contingent, direct or indirect, known or unknown.
Additionally, you hereby waive and release the Company from any and all claims
which you have, your successors or assigns have or may have against the Company
for, upon or by reason of any matter, cause or thing whatsoever, including, but
not limited to (a) those that might arise in your capacity as a shareholder of
the Company (both individually and derivatively), or (b) in any way related to
your employment or termination of your employment by the Company, whether or not
you know them to exist at the present time, including, but not limited to,
rights under federal, state or local laws prohibiting age or other forms of
discrimination, including Title VII of the Civil Rights Act of 1964, as amended;
Section 1981 through 1988 of Title 42 of the United States Code; the Age
Discrimination in Employment Act of 1967, as amended; the Employee Retirement
Income Security Act of 1974, as amended; the Fair Labor Standards Act, the
Americans with Disabilities Act, as amended; the Family and Medical Leave Act;
the National Labor Relations Act, as amended; the Immigration Reform Control
Act, as amended; the Occupational Safety and Health Act, as amended; any public
policy, contract or common law; and any alleged entitlement to costs, fees or
expenses, including attorneys' fees, claims for compensation or benefits earned
by your past service, claims involving willful misconduct, and claims arising
after the date of this Agreement. Notwithstanding the foregoing, nothing herein
shall be deemed to release, remise or discharge the Company from any claims
arising out of, relating to or asserted (x) under this Agreement or (y) with
respect to any right of indemnification as a director, officer or employee of
the Company, whether arising under the Company's charter or by-laws, by
operation of law, or otherwise. For purposes solely of this Section 6, the term
"Company" shall be deemed to include the Company's subsidiaries and affiliates
and the respective legal representatives, successors and assigns, past, present
and future directors, officers, employees, trustees and shareholders of the
Company and the Company's subsidiaries and affiliates.
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7. Non-Competition. You are released from all obligations included in
the covenant not to compete set forth in Section 8 of the Employment Agreement;
provided, however, that you shall in all respects remain subject to the
restrictions of Section 5 of this Agreement.
8. Non-Solicitation. Except with the prior written consent of the
Company, you shall not, during the period covered by the covenant not to compete
referenced in Section 8 of the Employment Agreement, solicit or entice away or
endeavor to employ, solicit or entice away any person who is at the date of this
Agreement or was at any time during the period of twelve (12) months prior to
the date of this Agreement an employee of the Company or any of its subsidiaries
or affiliates.
9. Designs and Inventions. All designs, inventions, programs,
discoveries or improvements conceived, apprehended or learned by you during the
course of or arising out of your employment with the Company and which concern
or are applicable to products or articles manufactured or sold by or to services
provided by the Company shall be the exclusive property of the Company.
10. Revocation. You acknowledge that you have been offered at least
twenty-one (21) days to consider the meaning of this Agreement, that you have
had the opportunity to seek the advice of an attorney and that you have
voluntarily elected to sign this Agreement prior to the expiration of such
twenty-one (21)-day period. Furthermore, once you have signed this Agreement,
you may revoke this Agreement during the period of seven (7) business days
immediately following the signing (the "Revocation Period"). This Agreement will
not be effective or enforceable until the Revocation Period has expired without
any revocation from you. Any revocation within this period must be submitted in
writing to the Company and signed by you.
11. Attorney Consultation. You agree that you have entered into this
Agreement after having had the opportunity to consult with the advisors of your
choice, including an attorney, with such consultation as deemed appropriate and
have a full understanding of your rights and of the effect of executing this
Agreement, namely, that you waive any and all non-excluded claims or causes of
action against the Company regarding your employment or termination of
employment, including the waiver of claims set forth above. You further
acknowledge that your execution of the
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Agreement is made voluntarily and with full understanding of its consequences
and has not been coerced in any way.
12. Withholding. All amounts and benefits to be paid or provided
hereunder shall be reduced by all applicable taxes required by law to be
withheld by the Company, including without limitation Medicare taxes (in an
amount equal to $5,933.56) on the increase in your Supplemental Retirement
Benefit as described in Section 4(a) above.
13. Full Integration. This Agreement constitutes the entire
understanding between you and the Company with respect to the subject matter
hereof. There are no representations, understandings or agreements of any nature
or kind whatsoever, oral or written, regarding the subject matter hereof which
is not included herein. This Agreement supersedes the Employment Agreement
between you and the Company which except as otherwise specifically provided
herein, shall be null and void upon the execution of this Agreement.
14. Modification and Waiver. No supplement, modification, change or
waiver of this Agreement or any provision hereof shall be binding unless
executed in writing by you and the Company evidencing the parties' respective
intent to be bound thereby. No waiver of any of the provisions of this Agreement
shall constitute a waiver of any other provision (whether or not similar), nor
shall such waiver constitute a continuing waiver unless otherwise expressly
provided.
15. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns.
16. Virginia Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the Commonwealth of Virginia, without regard to
its principles of conflicts of laws. Any litigation arising out of this
Agreement shall be conducted in a forum located within the Commonwealth of
Virginia.
17. Notice. For the purposes of this Agreement, notices and all other
communications provided in this Agreement shall be in writing and shall be
deemed to have
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been duly given when delivered or mailed by United States registered mail,
return receipt requested, postage prepaid, addressed as follows:
If to You: Xxxxx X. Xxxxxxxx
00 Xxxxxx Xxxx Xxxxxx
Xxxx, XX 00000
If to the Company: The Pittston Company
0000 Xxxxxxxx Xxxxxx Xxxxxxx
Xxxx Xxxxx, Xxxxxxxx 00000-0000
Attention: Vice President-Human
Resources and
Administration
or to such other address as any of the parties hereto may have furnished to the
other in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
18. Validity. Any provision of this Agreement which is prohibited or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
19. Captions. The section captions herein are for convenience or
reference only, do not constitute part of the Agreement and shall not be deemed
to limit or otherwise affect any of the provisions hereof.
20. Further Assurances. Each of the parties hereto shall execute such
documents and other papers and take such further actions as may be reasonably
required to carry out the provisions hereof and the transactions contemplated
hereby.
21. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal personally or through their duly authorized representative on the
dates written by each of their signatures.
THE PITTSTON COMPANY,
by /s/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx,
Vice President-Human Resources
and Administration
/s/ Xxxxx X. Xxxxxxxx
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XXXXX X. XXXXXXXX
