EXHIBIT 10.1
CHANGE IN CONTROL
AGREEMENT
dated as of July 14, 2009
between The Brink’s
Company,
a Virginia corporation (the
“Company”),
and Joseph W. Dziedzic (the
“Executive”).
SECTION 1. Definitions.
As used in this Agreement:
(a) “Affiliate” has the
meaning ascribed thereto in Rule 12b-2 pursuant to the
Securities Exchange Act of 1934, as amended (the
“Act”).
(b) “Board” means the
Board of Directors of the Company.
(c) “Cause” means (i)
embezzlement, theft or misappropriation by the Executive of any
property of the Company, (ii) the Executive’s willful breach
of any fiduciary duty to the Company, (iii) the Executive’s
willful failure or refusal to comply with laws or regulations
applicable to the Company and its business or the policies of the
Company governing the conduct of its employees, (iv) the
Executive’s gross incompetence in the performance of the
Executive’s job duties, (v) commission by the Executive of a
felony or of any crime involving moral turpitude, fraud or
misrepresentation, (vi) the failure of the Executive to perform
duties consistent with a commercially reasonable standard of care
or (vii) any gross negligence or willful misconduct of the
Executive resulting in a loss to the
Company. Notwithstanding the foregoing, the Executive
shall not be deemed to have been terminated for Cause without
(1) reasonable notice to the Executive setting forth the
reasons for the Company’s intention to terminate for Cause,
(2) an opportunity for the Executive, together with his
counsel, to be heard before the Board, and (3) delivery to the
Executive of a Notice of Termination, as defined in
Section 4(d) hereof, from the Board finding that in the good
faith opinion of three-quarters (3/4) or more of the Board, the
Executive acted in a manner described in one or more of clauses (i)
through (vii) above, and specifying the particulars thereof in
detail.
(d) A “Change in Control”
shall be deemed to occur (1) upon (A) any consolidation or merger
of the Company in which the Company is not the continuing or
surviving corporation or pursuant to which the shares of all
classes of the Company’s Common Stock would be converted into
cash, securities or other property other than a consolidation or
merger in which holders of the total voting power in the election
of directors of the Company of all classes of Common Stock
outstanding (exclusive of shares held by the Company’s
Affiliates) (the “Total Voting Power”) immediately
prior to the consolidation or merger will have the same
proportionate ownership of the total voting power in the election
of directors of the surviving corporation immediately after the
consolidation or merger, or (B) any sale, lease, exchange or other
transfer (in one transaction or a series of transactions) of all or
substantially all the assets of the Company, (2) when any
“person” (as defined in Section 13(d) of the Act),
other than the Company, its Affiliates or an employee benefit plan
or trust maintained by the Company or its Affiliates, shall become
the “beneficial owner” (as defined in Rule 13d-3 under
the Act), directly or indirectly, of more than 20% of the Total
Voting Power or (3) if at any time during a period of two
consecutive years, individuals who at the beginning of such period
constituted the Board shall cease for any reason to constitute at
least a majority thereof, unless the election by the
Company’s shareholders of each new director during
such
two-year period
was approved by a vote of at least two-thirds of the directors then
still in office who were directors at the beginning of such
two-year period.
(e) “Good Reason” means
any of the following events that is not cured by the Company within
30 days after written notice thereof from the Executive to the
Company, which written notice must be made within 90 days of the
occurrence of the event:
(i) (A) without the
Executive’s express written consent, the assignment to the
Executive of any duties materially inconsistent with the
Executive’s position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities as
contemplated by Section 3(a) hereof, (B) any other action by the
Company or its Affiliates which results in a material diminution in
such position, authorities, duties or responsibilities, or (C) any
material failure by the Company to comply with any of the
provisions of Section 3(b) hereof;
(ii) without the Executive’s
express written consent, the Company’s requiring a material
change to Executive’s work location as set forth in Section
3(a)(i);
(iii) any failure by the Company to comply
with and satisfy Section 9(a); or
(iv) any breach by the Company of any
other material provision of this Agreement.
Notwithstanding
the foregoing, “Good Reason” will cease to exist if the
Executive has not terminated employment within two years following
the initial occurrence of the event constituting Good
Reason.
(f) “Incapacity”
means any physical or mental illness or disability of the Executive
which continues for a period of six consecutive months or more and
which at any time after such six-month period the Board shall
reasonably determine renders the Executive incapable of performing
his or her duties during the remainder of the Employment
Period.
(g) “Operative Date”
means the date on which a Change in Control shall have
occurred.
SECTION 2. Employment
Period. The Company hereby agrees to continue the
Executive in its employ, and the Executive hereby agrees to remain
in the employ of the Company subject to the terms and conditions of
this Agreement, for the period commencing on the Operative Date and
ending on the second anniversary of such date (the
“Employment Period”); provided, however, that,
effective after the first anniversary of the Operative Date, the
Executive shall have the right to terminate his employment for any
reason, or for no reason at all, whereupon the Employment Period
shall terminate effective as of the date of such termination of
employment; and, provided further, that, notwithstanding the
foregoing, the Executive’s right to terminate employment for
Good Reason pursuant to Section 4 hereunder shall apply at any time
during the Employment Period.
SECTION 3. Terms of
Employment. (a) Position and
Duties. (i) During the Employment
Period: (A) the Executive’s position
(including status, offices, titles, reporting
requirements), authority, duties and
responsibilities shall be at least commensurate in all material
respects with the most significant of those held, exercised and
assigned immediately prior to the Operative Date, and (B) the
Executive’s services shall be performed at a location that is
within 25 miles of the location at which the Executive was based on
the Operative Date and the Company shall not require the Executive
to travel on Company business to a substantially greater extent
than required immediately before the Operative Date, except for
travel and temporary assignments which are reasonably required for
the full discharge of the Executive’s responsibilities and
which are consistent with the Executive’s being so
based.
(ii) During the Employment Period,
and excluding any periods of vacation and sick leave to which the
Executive is entitled, the Executive agrees to devote reasonable
attention and time during normal business hours to the business and
affairs of the Company and, to the extent necessary to discharge
the responsibilities assigned to the Executive hereunder, to use
the Executive’s reasonable best efforts to perform faithfully
and efficiently such responsibilities. All such
services as an employee or officer will be subject to the direction
and control of the Chief Executive Officer of the Company or of an
appropriate senior official designated by such Chief Executive
Officer (or, in the event of the Chief Executive Officer’s
incapacity without such a designation, the Board).
(b) Compensation.
(i) Salary and Bonus.
During the Employment Period the Executive will receive
compensation at an annual rate equal to the sum of (A) a
salary (“Annual Base Salary”) not less than the
Executive’s annualized salary in effect immediately prior to
the Operative Date, plus (B) an annual bonus not less than the
amount of the Executive’s Average Annual Bonus (as defined
below).
For purposes of
this Agreement, “Average Annual Bonus” shall mean the
average amount of the annual bonus earned by, and paid to, the
Executive under the Key Employees Incentive Plan (or any substitute
or successor plan) for the last three full calendar years preceding
the Operative Date, for purposes of Section 3(b)(i), and the Date
of Termination, for purposes of Section 5; provided
that, if the Executive has not been employed for the entirety of
the last three full calendar years, so that the Average Annual
Bonus cannot be determined based on the actual amount of annual
bonuses earned and paid for such full calendar years, then to the
extent necessary to attain an average of three years for purposes
of determining the Average Annual Bonus, the Executive’s
target annual bonus amount for the year in which the Operative
Date, for purposes of Section 3(b)(i), and the Date of Termination,
for purposes of Section 5, occurs shall be used for any
(i) partial calendar year(s) of employment and (ii) calendar
year(s) that has not yet commenced.
(ii) Incentive and Savings
Plans. During the Employment Period, the Executive
will be entitled to (A) continue to participate in all
incentive and savings plans and programs generally applicable to
full-time officers or employees of the Company or
(B) participate in incentive and savings plans and programs of
a successor to the Company which have benefits that are not less
favorable to the Executive.
(iii) Welfare Benefit Plans.
During the Employment Period, the Executive and/or the
Executive’s family or beneficiary, as the case may be, shall
be eligible to (A) participate in and shall receive all
benefits under welfare benefit plans and programs generally
applicable to full-time
officers or
employees of the Company or (B) participate in welfare benefit
plans and programs of a successor to the Company which have
benefits that are not less favorable to the Executive.
(iv) Business Expenses.
During the Employment Period the Company shall, in
accordance with policies then in effect with respect to the payment
of expenses, pay or reimburse the Executive for all reasonable
out-of-pocket travel and other expenses (other than ordinary
commuting expenses) incurred by the Executive in performing
services hereunder. All such expenses shall be accounted
for in such reasonable detail as the Company may
require.
(v) Vacations.
The Executive shall be entitled to periods of vacation
not less than those to which the Executive was entitled immediately
prior to the Operative Date.
SECTION 4. Termination
of Employment.
(a) Death or Incapacity.
The Executive’s employment shall terminate
automatically upon the Executive’s death during the
Employment Period. The Executive’s employment
shall cease and terminate on the date of determination by the Board
that the Incapacity of the Executive has occurred during the
Employment Period (“Incapacity Effective
Date”).
(b) Cause. The
Company may terminate the Executive’s employment for Cause,
as defined herein, pursuant to the Board passing a resolution that
such Cause exists.
(c) Good Reason.
The Executive may terminate his or her employment for
Good Reason, as defined herein.
(d) Notice of Termination.
Any termination by the Company for Cause or Incapacity,
or by the Executive for Good Reason, shall be communicated by
Notice of Termination to the other party hereto given in accordance
with Section 11 of this Agreement. For purposes of
this Agreement, a “Notice of Termination” means a
written notice which (i) indicates the specific termination
provision
