RETIREMENT AND CONSULTING AGREEMENT
EXHIBIT
10.1
RETIREMENT AND CONSULTING AGREEMENT
This
Retirement and Consulting Agreement (this “Agreement”), dated April 2, 2008, is
entered into by and between The Brink’s Company, a Virginia corporation (the
“Company”), and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (“Consultant”).
RECITALS
WHEREAS,
Consultant will retire from employment with the Company effective June 1,
2008 (the “Commencement Date”); and
WHEREAS,
the Company believes that Consultant’s expertise and knowledge will enhance the
Company’s business and the Company wishes to retain
Consultant to perform consulting services and fulfill certain related duties and
obligations under the terms and conditions of this Agreement, commencing on the
Commencement Date;
NOW,
THEREFORE, in consideration of (a) the mutual covenants and agreements set forth
in this Agreement, and (b) other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:
1. Employment
Period.
(a) From
the date of this Agreement through and until the Commencement Date (the
“Employment Period”), Consultant shall continue as an employee of the Company as
Vice President, Corporate Finance and Treasurer performing his prescribed
duties, and subject to the Company’s policies and requirements applicable to its
employees and to Consultant as an executive officer thereof. If
Consultant voluntarily terminates his employment with the Company upon written
notice to the Company prior to the Commencement Date, or if Consultant dies or
becomes permanently disabled, the remaining rights and obligations of the
parties under this Agreement shall terminate, including but not limited to any
and all duties and compensation applicable to the consulting services which
otherwise would have applied following the Commencement Date, but subject to the
continuing survival of certain terms as set forth in Section 11
below. Consultant hereby irrevocably designates June 1, 2008 as
his voluntary retirement date from employment with the Company.
(b) If
Consultant dies or becomes permanently disabled, the remaining rights and
obligations of the parties under this Agreement shall terminate, including but
not limited to any and all duties applicable to the consulting services which
otherwise would have applied following the Commencement Date, but subject to the
continuing survival of certain terms as set forth in Section 11
below. In this event, any unpaid payments to be provided to
Consultant pursuant to Section 5(c) below shall be accelerated and shall be
payable in full, as applicable, to Consultant within thirty days of the
determination of his permanent disability in accordance with this Agreement, or
to Consultant’s estate within thirty days of Consultant’s death. For
purpose of this Agreement, the phrase “permanently disabled” shall mean that
Consultant is physically or mentally incapacitated and is therefore unable for a
period of six (6) consecutive months, or for an aggregate of nine (9) months in
any twelve (12) consecutive month period, to perform the essential functions of
Consultant’s position. Any question as to whether
Consultant
is permanently disabled as to which Consultant and the Company cannot agree
shall be determined in writing by a qualified independent physician mutually
acceptable to Consultant and the Company. If Consultant and the
Company cannot agree as to a qualified independent physician, each shall appoint
such a physician and those two physicians shall select a third who shall make
such determination in writing. The determination of whether
Consultant is permanently disabled made in writing to the Company and Consultant
shall be final and conclusive for all purposes of the Agreement.
2. Release of
Claims.
(a) As
a material inducement to the Company to enter into this Agreement, Consultant,
on his own behalf and on behalf of his heirs, assigns, and agents, except as
otherwise provided herein, hereby irrevocably and unconditionally releases,
acquits, and forever discharges the Company, its controlled affiliates, all current
and former parent companies, subsidiaries, divisions, affiliates, related
companies, partnerships or joint ventures, and, with respect to each of them,
their predecessors and successors, and, with respect to each such entity, all of
its past and present employees, respective insurers, representatives, officers,
directors, shareholders, partners, joint ventures, independent contractors,
agents, attorneys, and their heirs, executors, administrators,
successors and assigns, and any other person acting by, through, under or in
concert with any of the persons or entities listed in this Section, and their
successors (collectively referred to herein as the “Released Parties”) from any
and all charges, complaints, claims, liabilities, obligations, promises,
agreements, controversies, damages, actions, causes of action, suits, rights,
demands, costs, losses, debts and expenses (including attorneys fees and costs
actually incurred) of any nature whatsoever known or unknown, suspected or
unsuspected, including, but not limited to, federal, state or local laws
governing payment of wages, including but not limited to the Fair Labor
Standards Act of 1938, as amended, discrimination on the basis of race, color,
sex, religion, marital status, national origin, handicap or disability, age,
veteran status, disabled veteran status, citizenship status or any other
category protected under applicable federal, state or local law, including, but
not limited to, those arising under Section 510 of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), the Age Discrimination in
Employment Act of 1967, as amended (“ADEA”), the Civil Rights Act of 1866, as
amended, Title VII of the Civil Rights Act of 1964, as amended, the Consolidated
Omnibus Budget Reconciliation Act of 1986, as amended, and the Americans with
Disabilities Act of 1990, any regulations thereunder, state or federal common
law, or any other duty or obligation of any kind or description whether express
or implied; any claim based on a statutory prohibition or requirement; any claim
arising out of or related to an express or implied contract, including but not
limited to Consultant’s Severance Agreement, dated September 22, 1997 (other
than claims for the payment of Accrued Obligations and Other Benefits under
Section 4(c) of such Severance Agreement), or any other contract affecting terms
and conditions of employment, including, but not limited to, any covenant of
good faith and fair dealing; any tort claims; and any personal gain with respect
to any claim arising under the qui tam provisions of the False Claims Act, 31
U.S.C. § 3730; any claims relating to the Company’s right to terminate the
employment of its employees or any right to any payment or benefit, whether
vested or not, arising from or under any compensation or incentive plans which
Consultant now participates in, has, owns or holds, or claims to have
participated in, have, own or hold, or which Consultant at any time heretofore
has participated in, owned or held, claimed to have
participated
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in,
have, own or held, or which Consultant at any time hereinafter may participate
in, have, own or hold or claim to participate in, have, own or hold against the
Released Parties, unless the terms of any particular written compensation plan
or written incentive plan or program expressly state otherwise. If
there is a conflict between this provision and the written terms of a particular
written compensation plan or written incentive plan or program, the written
terms of the applicable written compensation plan or written incentive plan or
program shall prevail. Both parties acknowledge as a consequence of
this Agreement that any such written compensation plan or written incentive plan
or program shall be construed within the context of a voluntary termination of
employment by Consultant, effective June 1, 2008.
(b) Consultant
represents that he understands the foregoing release, that rights and claims
under the ADEA are among the rights and claims against the Released Parties he
is releasing, and that he is not releasing any rights or claims arising after
the Effective Date of this Agreement.
(c) Notwithstanding
Sections 2(a) and 2(b) herein, this Agreement does not relinquish Consultant’s
rights, if any, under any Company employee benefit plan(s) covered by ERISA,
COBRA, The Brink’s Company Pension Equalization Plan, any insurance policy or
program which would otherwise cover Consultant in the absence of this release or
any other employee benefit plan; however, this Section does not make any
representations as to what rights, if any, Consultant may have under any such
employee benefit plan(s).
(d) Consultant agrees that, absent
compulsion of court order, he will not directly or indirectly assist any
non-governmental third party or other non-governmental entity in maintaining,
proceeding upon, or litigating any claim of any kind in any forum against any of
the Released Parties, unless otherwise required by applicable
law. With respect to any charges, complaints, or investigations that
have been or may be filed and/or commenced concerning events or actions relating
to Consultant’s employment or separation from employment, Consultant waives and
releases any right he may have to recover in any lawsuit or proceeding brought
by an administrative agency or other person on his behalf or which includes him
in a class. Additionally, Consultant affirms that he has not filed
any complaints or charges with a court or administrative agency against any of
the Released Parties prior to the execution of this Agreement.
(e) Nothing
in Section 2 should be construed to waive Consultant’s right to ▇▇▇ the Company
for breach of this Agreement.
3. Release Upon
Retirement. The Company will provide to Consultant, by May 1,
2008, and Consultant will execute after the Commencement Date and return to the
Company within eight days after the Commencement Date, a Mutual Release
(“Release”) in the form set forth in Exhibit A hereto.
4. Company Obligations Upon
Retirement.
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(a) The
Company will take all necessary steps to remove, effective on the Commencement
Date, Consultant as signatory on bank accounts of the Company and its
subsidiaries. The Company will also remove, effective on the
Commencement Date, Consultant as an officer and signatory of the Company and its
subsidiaries.
(b) In
the event that Consultant is made a party to any suit or claim or threatened
with any suit or claim relating to his employment with the Company, the Company
shall hold him harmless and indemnify him from any and all costs, fees,
expenses, damages or detriments of any kind.
5. Consulting
Services.
(a) Capacity. Effective
on the Commencement Date, the Company retains Consultant with respect to the
business of the Company and its subsidiaries to be available on reasonable
notice and at a mutually agreeable time for a maximum of ninety (90) days to
provide such reasonable advisory and consulting services as are requested by the
Chief Executive Officer or the Chief Financial Officer of the Company, primarily
focusing on providing advice to the Company as respects Treasury related issues,
credit rating agency issues, and other general financial issues, as well as
assistance in transitioning the new Chief Financial Officer and Treasurer. Such
services are not to include day to day management of the Treasury function,
active leadership of any financing or other projects or active participation in
the spinoff of the Brink’s Home Security subsidiary. Consultant
hereby accepts such position upon the terms and the conditions set forth herein,
and shall perform such services.
(b) Term and
Operation. The consulting services will commence on the
Commencement Date and shall continue until, and shall end upon, May 30, 2009
(the “Consulting Period”). This Agreement may be terminated by
Consultant in writing upon ninety (90) days written notice to the
Company. This Agreement will terminate automatically at the end of
the Consulting Period, but subject to the continuing survival of certain terms
as set forth in Section 11 below. Company may terminate this
Agreement upon a material breach of this Agreement by Consultant which is not
cured within fifteen (15) days following written notice of such breach from
Company.
(c) Compensation. In
consideration of Consultant’s agreement to the terms of this Agreement, and his
performance of the consulting services during the Consulting Period, the Company
will make payments to Consultant in an amount equal to $22,500.00 per month, as
described herein. The first payment is to be made on June 2,
2008. The next six monthly payments thereafter are to be made on the
first business day of each of the next six months. A final payment in
the amount of $112,500.00 will be made on December 29, 2008. Payment
is to be made by direct deposit to Consultant’s bank account. Each
such payment will be a separate payment and not one of a series of payments for
purposes of Section 409A of the Internal
Revenue Code of 1986, as amended, and the rules and regulations promulgated
thereunder (“Section 409A”).
(d) Reimbursement of
Expenses. The Company shall reimburse Consultant monthly for
all reasonable expenses incurred by Consultant in the performance of
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Consultant’s
duties under this Agreement during the Consulting Period and in compliance with
and subject to the expense reimbursement policies and procedures of the
Company. Included in such reimbursement shall be Consultant’s
necessary travel and other expenses in connection with his duties as
Consultant. Consultant shall not be obligated to make any advance to
or for the account of the Company, nor shall Consultant be obligated to incur
any expense for the account of the Company without assurance that the necessary
funds for the discharge of such expense will be
provided. Notwithstanding the foregoing, all expenses over $5,000.00
to be incurred by Consultant during the Consulting Period in connection with
this Agreement shall require the prior approval of the Company’s Chief Financial
Officer. Each provision of reimbursement of expenses or in-kind
benefit pursuant to this Section 5(d) will be considered a separate payment
and not one of a series of payments for purposes of
Section 409A.
(e) Section 409A
Delay. Notwithstanding any provisions of this Agreement to the
contrary, if Consultant is a “specified employee” within the meaning of
Section 409A, and determined in accordance with procedures adopted by the
Company, at the time of Consultant’s Separation from Service and if any portion
of the payments or benefits to be received by Consultant under this
Section 5 upon Consultant’s Separation from Service would be considered
deferred compensation under Section 409A, then the following provisions
shall apply to each such portion.
(i) Each
portion of such payments and benefits that would otherwise be payable pursuant
to this Section 5 during the six-month period immediately following the
Commencement Date (the “Delayed Period”) shall instead be paid or made available
on the earlier of (i) the first business day of the seventh month following
the date Consultant incurs a Separation from Service or (ii) Consultant’s
death (the applicable date, the “Permissible Payment Date”).
(ii) With
respect to any amount of expenses eligible for reimbursement under
Section 5(d), such expenses shall be reimbursed by the Company within 60
calendar days (or, if applicable, on the Permissible Payment Date) following the
date on which the Company receives the applicable invoice from Consultant (and
approves such invoice) but in no event later than December 31 of the year
following the year in which Consultant incurs the related expenses.
(iii) In
no event shall the reimbursements or in-kind benefits to be provided by the
Company in one taxable year affect the amount of reimbursements or in-kind
benefits to be provided in any other taxable year, nor shall Consultant’s right
to reimbursement or in-kind benefits be subject to liquidation or exchange for
another benefit.
(iv) “Separation
From Service” shall be deemed to have occurred on the date on which the level of
bona fide services reasonably anticipated to be performed by Consultant is less
than fifty percent of the average level of bona fide services performed by
Consultant during the immediately preceding thirty-six-month
period.
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(f) Compliance with
Code 409A. It is intended that any amounts payable under
this Agreement and the Company’s and Consultant’s exercise of authority or
discretion hereunder will comply with the provisions of Section 409A so as
not to subject Consultant to the payment of the additional tax, interest and any
tax penalty which may be imposed under Section 409A. In
furtherance of this interest, to the extent that any provision hereof would
result in Consultant being subject to payment of the additional tax, interest
and tax penalty under Section 409A, the parties agree to amend this
Agreement in order to bring this Agreement into compliance with Code
Section 409A; and thereafter interpret its provisions in a manner that
complies with Code Section 409A. Notwithstanding the foregoing,
no particular tax result for Consultant with respect to any income recognized by
Consultant in connection with the Agreement is guaranteed, and Consultant will
be responsible for any taxes, penalties and interest imposed on Consultant under
or as a result of Section 409A in connection with the
Agreement.
6. Non-Competition and
Non-Solicitation.
(a) Consultant
agrees that during the Employment Period and for a period of one year following
the Commencement Date, he shall not directly or indirectly:
(i) enter
into, or attempt to enter into, remain within, or otherwise participate within a
Restricted Business (as defined below) in the United States or other
jurisdictions in which the Company or any of its subsidiaries conduct business
or have developed plans to conduct business within one year thereafter as a
principal, partner, joint venturer, employee, consultant, agent, broker,
intermediary, representative, shareholder, investor, officer or director or have
any direct or indirect financial interest, including without limitation, the
interest of a creditor in any form in any business which is in any way directly
or indirectly competitive with or similar to the business or businesses of the
Company as it now exists or may then exist; provided, however, the ownership by
Consultant of stock listed on a national securities exchange of any corporation
conducting such directly or indirectly competing business shall not be deemed a
violation of this Agreement if the Consultant and his associates (as such term
is defined in Regulation 14A of the Securities Exchange Act of 1934 as in effect
on the date hereof) collectively do not own more than an aggregate of one
percent (1%) of the stock of such corporation; or
(ii) receive
any remuneration in any form from any business described in (i) above;
or
(iii) induce
or attempt to persuade any then-current employee, agent, manager, consultant or
director of the Company or any of its subsidiaries to terminate such employment
or other relationship in order to enter into any business
relationship or business combination with the Consultant or any other person,
whether or not in competition with the Company or any of its subsidiaries;
or
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(iv) use
contracts, proprietary information, trade secrets, confidential information,
customer lists, mailing lists, goodwill, or other intangible property used or
useful in connection with the business of the Company or any of its
subsidiaries; or
(v) solicit,
divert, or take away from the Company or any of its subsidiaries, or otherwise
attempt to establish for Consultant or for any other person, corporation or
other business entity, any business relationship with any person which is, or
during the one year period preceding the Commencement Date was, a customer,
client or distributor of the Company or any of its subsidiaries.
(b) For
the purposes of this Section 6, a "Restricted Business" shall mean a person,
company, corporation, or other entity, whether existing or to be formed, engaged
or has developed plans to engage in the business of Brink’s, Incorporated or
Brink’s Home Security, including but not limited to armored transportation of
valuables, business and residential security services, cash logistics, and the
secured destruction of documents.
(c) It
is the desire and intent of the Company and Consultant that the provisions of
this Section 6 shall be enforced to the fullest extent permissible under the
laws and public policies applied in each jurisdiction in which enforcement is
sought. Accordingly, if any particular portion of this Section 6
shall be adjudicated to be invalid or unenforceable, this Section 6 shall be
deemed amended to delete therefrom the portion thus adjudicated to be invalid or
unenforceable, such deletion to apply only with respect to the operation of this
Section 6 in the particular jurisdiction in which such adjudication is
made. The Consultant acknowledges that he has received good and
valuable consideration for the restrictive covenants contained in this Section
6.
(d) Any
breach by Consultant of his obligations under Section 6 shall be considered
a material breach of this Agreement which shall not be considered curable but
shall result in immediate termination of this Agreement and the Consulting
Period, notwithstanding Section 5(b) above.
7. Confidentiality.
(a) Consultant
will keep in strict confidence, and will not, directly or indirectly, at any
time, disclose, furnish, disseminate, make available or, except in the course of
Consultant’s performance of services for the Company, use any trade secrets or
confidential business and technical information of the Company or its customers
or vendors, without limitation as to when or how Consultant may have acquired
such information. As used in this Agreement, “Confidential
Information” shall mean and include, without limitation, technical or business
information not readily available to the public or generally known in the trade,
including but not limited to the Company’s selling, manufacturing, marketing,
pricing, distribution and business plans, methods, strategies and techniques;
training, service, security and business policies and procedures; inventions;
ideas; improvements; discoveries; developments; formulations; specifications;
designs; standards; financial data; customer and
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supplier
information; vendor and product information; security information; customer and
prospective customer lists; other customer and prospective customer information;
equipment; mechanisms; processing and packaging techniques; trade secrets and
other confidential or business information, knowledge, data and know-how of the
Company, whether or not they originated with Consultant or information which the
Company received from third parties under an obligation of
confidentiality. Consultant specifically acknowledges that all such
confidential information, whether reduced to writing, maintained on any form of
electronic media, or maintained in the mind or memory of Consultant and whether
compiled by the Company, and/or Consultant, derives independent economic value
from not being readily known to or ascertainable by proper means by others who
can obtain economic value from its disclosure or use, that reasonable efforts
have been made by the Company to maintain the secrecy of such information, that
such information is the sole property of the Company and that any retention,
disclosure or use of such information by Consultant during the term of this
Agreement (except in the course of performing services for the Company) or after
the termination of this Agreement shall constitute a misappropriation of the
Company’s trade secrets.
(b) Consultant
agrees that upon the termination of this Agreement or the termination of
Consultant’s performance of services, for any reason, Consultant shall return to
the Company, in good condition, all property of the Company, including without
limitation, the originals and all copies of any materials which contain,
reflect, summarize, describe, analyze or refer or relate to any items of
information listed in Section 7(a) of this Agreement. In the
event that such items are not so returned, the Company will have the right to
charge Consultant for all reasonable damages, costs, attorneys’ fees and other
expenses incurred in searching for, taking, removing and/or recovering such
property.
(c) Any
breach by Consultant of his obligations under Section 7 shall be considered a
material breach of this Agreement which shall not be considered curable but
shall result in immediate termination of this Agreement and the Consulting
Period, notwithstanding Section 5(b) above.
8. Discoveries and
Inventions: Work Made for Hire.
(a) Consultant
agrees that upon conception and/or development of any idea, discovery,
invention, improvement, software, writing or other material or design
that: (A) relates to the business of the Company, or
(B) relates to the Company’s actual or demonstrably anticipated research or
development, or (C) results from any services performed by Consultant for
the Company, Consultant will assign to the Company the entire right, title and
interest in and to any such idea, discovery, invention, improvement, software,
writing or other material or design. Consultant has no obligation to
assign any idea, discovery, invention, improvement, software, writing or other
material or design that Consultant conceives and/or develops entirely on
Consultant’s own time without using the Company’s equipment, supplies,
facilities, or trade secret information unless the idea, discovery, invention,
improvement, software,
writing or other material or design either: (i) relates to the
business of the Company, or (ii) relates to the Company’s actual or
demonstrably anticipated research or development, or (iii) results from any
work performed by Consultant for the Company.
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(b) Consultant
acknowledges that, to the extent permitted by law, all work papers, reports,
documentation, drawings, photographs, negatives, tapes and masters therefore,
prototypes and other materials (hereinafter, “Items”), including without
limitation, any and all such Items generated and maintained on any form of
electronic media, generated by Consultant during the term of this Agreement
shall be considered a “work made for hire” and that ownership of any and all
copyrights in any and all such items shall belong to the Company.
(c) All
elements of this Section 8 shall apply to and be in full force and effect
during the Employment Period and the one-year period following the Commencement
Date.
9. Specific
Performance. Consultant acknowledges and agrees that the
Company’s remedies at law for a breach or threatened breach of any of the
provisions of Sections 6 and 7 would be inadequate and the Company would suffer
irreparable damages as a result of such breach or threatened
breach. In recognition of this fact, Consultant agrees that, in the
event of such a breach or threatened breach, as determined in good faith by the
Company, in addition to any remedies at law, the Company, without posting any
bond, shall be entitled to cease making any payments or providing any benefit
otherwise required by this Agreement.
10. Independent
Contractor. During the Consulting Period, Consultant will at
all times be and remain an independent contractor. Consultant shall
exercise Consultant’s own judgment as to the manner and method of providing the
consulting services to the Company, subject to applicable laws and requirements
reasonably imposed by the Company. Consultant acknowledges and agrees
that, during the term of this Agreement commencing with the Commencement Date,
Consultant will not be an employee of the Company or any of its affiliates for
purposes of federal, state, local or foreign income tax withholding, nor unless
otherwise specifically provided by law, for purposes of the Federal Insurance
Contributions Act, the Social Security Act, the Federal Unemployment Tax Act or
any Worker’s Compensation law of any state or country and for purposes of any
benefits provided to employees of the Company or any of its affiliates under any
employee benefit plan currently in effect or which becomes effective during the
term of this Agreement commencing with the Commencement Date. Consultant
acknowledges and agrees that as an independent contractor, Consultant will be
required, during the term of this Agreement, to pay any applicable taxes on the
fees paid to Consultant. Consultant shall indemnify, hold harmless
and defend the Company for all tax and other liabilities (including, without
limitation, reasonable fees and expenses of attorneys and other professionals)
arising out of or relating to Consultant’s failure to report and pay all
employment income taxes or other taxes due on taxable amounts paid to or on
behalf of Consultant by the Company during the Consulting Period.
11. Survival. Subject
to any limits on applicability contained therein, Sections 2, 4, 6, 7, 8,
9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, and 21 hereof shall survive and continue
in full force in accordance with its terms notwithstanding any termination of
this Agreement.
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12. Representations.
(a) Consultant
hereby represents and acknowledges that he has read and fully agrees with the
contents of this Agreement. Consultant further acknowledges and
agrees that the employment relationship has been terminated in a particular
manner in reliance upon the covenants and assurances contained herein and that
such reliance, covenants and assurances are adequate and sufficient
consideration to be received by Consultant as a result of his voluntary
agreement to execute and to abide by the terms of this Agreement.
(b) Consultant
represents and acknowledges that he has retained or has had the opportunity to
retain counsel concerning this matter, that Consultant has read and fully
understands the terms of this Agreement, or has had it analyzed by counsel of
his choosing, with sufficient time, and that he is aware of its contents and of
its legal effects.
(c) Consultant
represents and acknowledges that he has been afforded the opportunity to take
twenty-one (21) days to consider the waiver of his rights under the ADEA, prior
to signing this Agreement.
(d) Consultant
represents and acknowledges that he has disclosed to the Company any information
in his possession concerning any conduct involving the Company or its affiliates
that he has any reason to believe involves any false claims to the United States
or is or may be unlawful or violates or is inconsistent with Company policy in
any respect.
(e) Consultant
acknowledges and agrees that the consideration provided him as set forth in
Sections 1 and 5 of this Agreement is sufficient to support the releases
provided by him herein.
(f) In
the event it shall be determined that there is any ambiguity contained in this
Agreement, said ambiguities shall not be construed against any party hereto as a
result of such party’s preparation of this Agreement, but shall be construed in
favor or against either of the parties in light of all of the facts,
circumstances and intentions of the parties at the time of the Effective Date,
as defined in this Agreement.
(g) In
the event that any party breaches this Agreement, then the prevailing party
shall be entitled to payment from the breaching party of all costs and expenses
relating to the breach.
(h) As
part of the consideration for the payments as described in this Agreement, as
well as the acceptance of the obligations set forth in the Agreement, Consultant
expressly guarantees and has represented and does hereby expressly warrant and
represent to the Company that:
(i) he
is legally competent and duly authorized to execute this Agreement and it has
been read or explained to him in a language and manner fully understandable to
him; and
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(ii) he
has not assigned, pledged, or otherwise in any manner whatsoever sold,
hypothecated, or otherwise transferred or pledged, either by instrument in
writing or otherwise, any right, title, interest, or claim which he has or may
have by reason of any claims, damages or otherwise be sustained as of the
execution of this Agreement.
13. Return of Company
Property. Consultant agrees that as of the Commencement Date,
he will return to the Company all Company documents, property or equipment
(including, but not limited to, computers and computer-related items, facsimile
machines, mobile telephone, and credit card), relating to his employment or
obtained throughout the course of his employment with the Company, that he has
not returned to the Company prior to the Commencement Date.
14. Effective Date of the
Agreement. Consultant must sign this Agreement and return it
to the Company within twenty-two (22) days after receipt of the Agreement and
shall have seven (7) days from the date he signs it to revoke his consent to the
waiver of his rights under the ADEA in writing addressed and delivered to the
Company official executing this Agreement on behalf of the Company, which action
shall revoke this Agreement in its entirety, rendering the entire agreement void
and unenforceable. The Agreement will take effect on the eighth day
after Consultant has signed the Agreement, without revocation (“Effective
Date”).
15. Severability. Whenever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid or unenforceable in any respect under any
applicable law, such invalidity or unenforceability shall not affect any other
provision, but this Agreement shall be reformed, construed and enforced as if
such invalid or unenforceable provision had never been contained
herein.
16. Complete
Agreement. This Agreement embodies the complete agreement and
understanding between the parties with respect to the subject matter hereof and
effective as of the Effective Date, as defined in Section 14, and the date
preempts any prior understandings, agreements or representations by or between
the parties, written or oral, which may have related to the subject matter
hereof in any way, including but not limited to Consultant’s Severance
Agreement, dated September 22, 1997, which prior understandings, agreements or
representations are hereby terminated, abrogated and rendered null and void in
their entirety.
17. Counterparts. This
Agreement may be executed in separate counterparts, each of which shall be
deemed to be an original and both of which taken together shall constitute one
and the same agreement.
18. Successors and
Assigns. This Agreement shall bind and inure to the benefit of
and be enforceable by Consultant, the Company and their respective successors
and assigns, except that neither party may assign any rights or delegate any
obligations hereunder without the prior written consent of the other
party. Consultant hereby consents to the assignment by the Company of
all of its rights and obligations hereunder to any successor to the
11
Company
by merger or consolidation or purchase of all or substantially all of the
Company’s assets, provided such transferee or successor assumes the liabilities
of the Company hereunder.
19. Notice. Where
notice is required pursuant to this Agreement, it shall be made by regular mail
to Consultant at ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
and to Company, attention General Counsel, The Brink’s Company, ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇. Consultant and
the Company agree to provide notice of change of address immediately, but in no
event later than five days after such change of address is
effective.
20. Choice of
Law. The Agreement shall be governed by and construed and
implemented under the laws of the Commonwealth of Virginia, without regard to
principles of conflicts of law or decisional authority in this
regard. The parties agree that the state courts located in the County
of Henrico, Virginia or the federal court located in the City of Richmond,
Virginia shall have exclusive jurisdiction in any action, suit or proceeding by
or against Consultant based on or arising out of this Agreement and the parties
hereby: (a) submit to the personal jurisdiction of such courts;
(b) consent to service of process in connection with any action, suit or
proceeding against Consultant; and (c) waive any other requirement (whether
imposed by statute, rule of court or otherwise) with respect to personal
jurisdiction, venue or service of process.
21. Amendment and
Waiver. The provisions of this Agreement may be amended or
waived only with the prior written consent of the Company and Consultant, and no
course of conduct or failure or delay in enforcing the provisions of this
Agreement shall affect the validity, binding effect or enforceability of this
Agreement.
IN WITNESS WHEREOF, the parties have
executed this Agreement as of the date and year first above
written.
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | THE BRINK'S COMPANY | |||
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By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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By: /s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
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| Dated: 4/2/08 | Dated: 4/2/08 |
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COMMONWEALTH
OF VIRGINIA
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)
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)
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ss.:
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COUNTY
OF HENRICO
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)
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12
On
this 2nd day of
April, 2008 before me personally came ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, to me known and
known to me to be the individual described in and who executed the foregoing
Agreement, and he duly acknowledged to me that he executed the
same.
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/s/ ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
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Notary
Public
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COMMONWEALTH
OF VIRGINIA
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)
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)
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ss.:
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COUNTY
OF HENRICO
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)
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On
this 2nd day of
April, 2008 before me personally came F. T. Lennon, to me known and known to me
to be the officer who executed the foregoing Agreement on behalf of THE BRINK’S
COMPANY, and he duly acknowledged to me that he executed the same.
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/s/ ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
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Notary
Public
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|||
13
EXHIBIT
A
MUTUAL
RELEASE
MUTUAL
RELEASE (“RELEASE”) dated as of _______ between The Brink’s Company (“COMPANY”)
and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (“CONSULTANT”):
For
and in consideration of the promises set forth in the Retirement and Consulting
Agreement, dated as of April 2, 2008,
between CONSULTANT and the COMPANY, (“AGREEMENT”), the COMPANY hereby releases
and forever discharges CONSULTANT, his heirs, assigns and agents from any
claims, acts, damages, demands, benefits, accounts, liabilities, obligations,
liens, costs, rights of action, claims for relief, and causes of action, in law
and in equity, both known and unknown, which the Company ever had, now has, or
might in the future have against the CONSULTANT for any conduct, action, or
failure to act as of the date of this RELEASE.
The
COMPANY has offered CONSULTANT the opportunity to provide services to, and
receive payments from, the COMPANY as a Consultant, under the terms and
conditions set forth in the AGREEMENT. Such opportunity offered to
CONSULTANT by the COMPANY, which CONSULTANT acknowledges constitutes good and
valuable consideration, will be provided to CONSULTANT in consideration of his
voluntarily signing this RELEASE after the Commencement Date described in the
AGREEMENT and returning the signed RELEASE to the COMPANY’S General Counsel,
without revocation, within eight days after such Commencement
Date. CONSULTANT is encouraged to consult with an attorney before
signing this RELEASE and has twenty-one (21) days from the date of CONSULTANT’S
receipt of the RELEASE to sign and return it to the COMPANY. If
CONSULTANT does sign this RELEASE, he will have seven (7) days from the date he
signs it to revoke his consent to the waiver of his rights under the Age
Discrimination in Employment Act of 1967, as amended (“ADEA”), as set forth
herein, such revocation to be in writing addressed and delivered to the
COMPANY’S General Counsel, which action shall revoke this RELEASE in its
entirety, rendering the entire RELEASE void and unenforceable. The
RELEASE will take effect on the eighth day after Consultant has signed the
RELEASE, without revocation (the “RELEASE EFFECTIVE DATE”).
As
a material inducement to the COMPANY to enter into this RELEASE, CONSULTANT, on
his own behalf and on behalf of his heirs, assigns, and agents, except as
otherwise provided herein, hereby irrevocably and unconditionally releases,
acquits and forever discharges the COMPANY, its controlled affiliates, all
current and former parent companies, subsidiaries, divisions, affiliates,
related companies, partnerships or joint ventures, and, with respect to each of
them, their predecessors and successors, and, with respect to each such entity,
all of its past and present employees, respective insurers, representatives,
officers, directors, shareholders, partners, joint ventures, independent
contractors, agents, attorneys, executors, administrators, successors and
assigns, and any other person acting by, through, under or in concert with any
of the persons or entities listed in this paragraph, and their successors
(collectively referred to herein as “RELEASED PARTIES”) from any and all
charges, complaints, claims, liabilities,
obligations,
promises, agreements, controversies, damages, actions, causes of action, suits,
rights, demands, costs, losses, debts and expenses (including attorneys fees and
costs actually incurred) of any nature whatsoever known or unknown, suspected or
unsuspected, including, but not limited to, federal, state or local laws
governing payment of wages, including, but not limited to, the Fair Labor
Standards Act of 1938, as amended, discrimination on the basis of race, color,
sex, religion, marital status, national origin, handicap or disability, age,
veteran status, disabled veteran status, citizenship status or any other
category protected under applicable federal, state or local law, including, but
not limited to, those arising under Section 510 of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), the ADEA, the Civil Rights
Act of 1866, as amended, Title VII of the Civil Rights Act of 1964, as amended,
the Consolidated Omnibus Budget Reconciliation Act of 1986, as amended, and the
Americans with Disabilities Act of 1990, any regulations thereunder, state or
federal common law, or any other duty or obligation of any kind or description
whether express or implied; any claim based on a statutory prohibition or
requirement; any claim arising out of or related to an express or implied
contract, including but not limited to Consultant’s Severance Agreement, dated
September 22, 1997, or any other contract affecting terms and conditions of
employment, including, but not limited to, any covenant of good faith and fair
dealing; any tort claims; and any personal gain with respect to any claim
arising under the qui tam provisions of the False Claims Act, 31 U.S.C. § 3730;
any claims relating to the COMPANY’s right to terminate the employment of its
employees or any right to any payment or benefit, whether vested or not, arising
from or under any compensation or incentive plans which CONSULTANT now
participates in, has, owns or holds, or claims to have participated in, have,
own or hold, or which CONSULTANT at any time heretofore has participated in,
owned or held, claimed to have participated in, have, own or held, or which
CONSULTANT at any time hereinafter may have, participate in, own or hold or
claim to have, participate in, own or hold against the RELEASED PARTIES unless
the terms of any particular written compensation plan or written incentive plan
or program expressly state otherwise. If there is a conflict between
this provision and the written terms of a particular written compensation plan
or written incentive plan or program, the written terms of the applicable
written compensation plan or written incentive plan or program shall
prevail. Both parties acknowledge as a consequence of this Agreement
that any such written compensation plan or written incentive plan or program
shall be construed within the context of a voluntary termination of employment
by CONSULTANT, effective June 1, 2008.
Notwithstanding
the paragraphs of this RELEASE set forth above, this RELEASE does not relinquish
CONSULTANT’S rights, if any, under any COMPANY employee benefit plan(s) covered
by ERISA, COBRA, The Brink’s Company Pension Equalization Plan, any insurance
policy or program which would otherwise cover Consultant in the absence of this
release or any other employee benefit plan; however, this RELEASE does not make
any representations as to what rights, if any, CONSULTANT may have under any
such employee benefit plan(s).
CONSULTANT
expressly acknowledges that the foregoing RELEASE is intended to include and
does include in its effect without limitation all claims which CONSULTANT does
not know or suspect to exist in his favor against the RELEASED PARTIES at the
time of
2
execution
of the RELEASE and that this RELEASE contemplates the extinguishment of any such
claims.
CONSULTANT
represents that he understands the foregoing RELEASE, that rights and claims
under the ADEA are among the rights and claims against the COMPANY he is
releasing, and that he is not releasing any rights or claims arising after the
RELEASE EFFECTIVE DATE.
CONSULTANT agrees that, absent
compulsion of court order, he will not directly or indirectly assist any
non-governmental third party or other non-governmental entity in maintaining,
proceeding upon, or litigating any claim of any kind in any forum against any of
the RELEASED PARTIES, unless otherwise required by applicable
law. With respect to any charges, complaints or investigation that
have been or may be filed and/or commenced concerning events or actions relating
to CONSULTANT’S employment or separation from employment, CONSULTANT waives and
releases any right he may have to recover in any lawsuit or proceeding brought
by an administrative agency or other person on his behalf or which includes him
in a class. Additionally, CONSULTANT affirms that he has not filed
any complaints or charges with a court or administrative agency against any of
the RELEASED PARTIES prior to the execution of this RELEASE.
IN
WITNESS WHEREOF, the parties have executed this MUTUAL RELEASE as of the date
and year first above written.
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | THE BRINK'S COMPANY | |||
|
By:
|
By:
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|||
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▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
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| Dated: | Dated: |
WAIVER
BY
SIGNING BELOW, THE UNDERSIGNED CONSULTANT HEREBY IRREVOCABLY ELECTS TO WAIVE THE
21-DAY PERIOD REFERRED TO IN THE SECOND PARAGRAPH OF THE ABOVE MUTUAL
RELEASE.
________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Dated:___________________________
3
|
COMMONWEALTH
OF VIRGINIA
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF HENRICO
|
)
|
|
On
this _______day of ____________________, 2008 before me personally came
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, to me known and known to me to be the individual
described in and who executed the foregoing Agreement, and he duly acknowledged
to me that he executed the same.
|
|
|
|
|
|
Notary
Public
|
|||
|
COMMONWEALTH
OF VIRGINIA
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF HENRICO
|
)
|
|
On
this _______ day of ____________________, 2008 before me personally came
____________________, to me known and known to me to be the officer who executed
the foregoing Agreement on behalf of THE BRINK'S COMPANY, and he duly
acknowledged to me that he executed the same.
|
|
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Notary
Public
|
|||
4