|
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 James B. Hartough
(“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
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 sue 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 .
(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
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.
(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) &
|
