NON-COMPETITION AND NON-SOLICITATION AGREEMENT
(this “ Agreement ”) dated as of
October 31, 2008, between THE BRINK’S COMPANY, a
Virginia corporation (“ Brink’s ”), and
BRINK’S HOME SECURITY HOLDINGS, INC., a Virginia corporation
(“ BHS ”). Capitalized terms used
herein but not otherwise defined herein shall have the meanings set
forth in the Separation and Distribution Agreement (as defined
below).
WHEREAS, pursuant to a Separation and
Distribution Agreement (the “ Separation and Distribution
Agreement ”) dated as of October 31, 2008,
Brink’s has agreed to distribute, on a pro
rata basis, to the Record Holders all the outstanding shares
of BHS Common Stock owned by Brink’s on the Distribution Date
(the “ Distribution ”); and
WHEREAS, on and after the Distribution Date, BHS
is to continue to engage in the BHS Business, including the
Restricted Activities (as defined herein), and Brink’s is to
continue the Brink’s Business;
NOW, THEREFORE, in consideration of the
foregoing and the mutual agreements contained herein, in the
Separation and Distribution Agreement and in the other Ancillary
Documents entered into pursuant to or related to the Separation and
Distribution Agreement, the parties hereto agree as
follows:
SECTION 1.
Definitions. For purposes of this Agreement, the
following terms shall have the following meanings:
(a) “ Agreement ”
has the meaning set forth in the preamble hereto.
(b) “ BHS ” has
the meaning set forth in the preamble hereto.
(c) “ Brink’s
” has the meaning set forth in the preamble
hereto.
(d) “ Competing Business
” means any business that is engaged, directly or indirectly,
in Restricted Activities.
(e) “ Hampton Agreement
” means the Trademark License Agreement dated January 1,
2005, between Hampton Products International, Corp. and
Brink’s Guarding Services, Inc.
(f) “ Non-Compete Period
” means the period commencing on the Distribution Date and
automatically terminating without further documentation on the
fifth anniversary of the Distribution Date.
(g) “ Non-Solicitation
Period ” means the period commencing on the Distribution
Date and automatically terminating without further documentation on
the second anniversary of the Distribution Date.
(h) “ Restricted
Activities ” means (i) the provision, rental,
installation, servicing, repair, distribution, storage, monitoring
and maintenance of (A) security alarm systems for business and
residential premises located within the Territory, including any
video surveillance and any fire, carbon dioxide, water,
temperature, intrusion and/or medical emergency alarm components of
such security alarm systems, and (B) personal emergency
response systems for senior citizens residing within the Territory;
(ii) the provision of personal identity protection services
for persons residing within the Territory; and (iii) the
marketing, packaging, advertising and promotion of any of the
services listed in this definition; in each case, during the
Non-Compete Period.
(i) “ Separation and
Distribution Agreement ” has the meaning set forth in the
preamble hereto.
(j) “ Subsidiary ”
has the meaning set forth in the Separation and Distribution
Agreement. For the avoidance of doubt, for purposes of
this Agreement, the term “Subsidiary” does not include
the VEBA or any other trust maintained for the benefit of current
or former employees of Brink’s or its
Subsidiaries.
(k) “ Territory ”
means the United States of America, Puerto Rico and
Canada.
(l) “ Trade Symbols
” has the meaning set forth in the Brand Licensing
Agreement.
(m) “ VEBA ” means
the voluntary employees’ beneficiary association employee
welfare benefits trust established by the Parent Employee Welfare
Benefit Trust (f/k/a The Pittston Company Employee Welfare Benefit
Trust) entered into by and between The Pittston Company, a Virginia
corporation, and The Chase Manhattan Bank, as the trustee, as of
July 28, 1999, as amended by the First Amendment of The Pittston
Company Employee Welfare Benefit Trust dated as of November 1,
2001, entered into among The Pittston Company, The Chase Manhattan
Bank, as the trustee, and Fleetboston Bank, as the successor
trustee, and the Second Amendment of The Pittston Company Employee
Welfare Benefit Trust, dated as of September 30, 2003, entered
into by Parent, as sponsor, formerly The Pittston Company, as
further amended from time to time.
SECTION 2.
Effectiveness. This Agreement shall be effective
as of the Distribution Date and (a) shall be null and void and
of no further force and effect if the Separation and Distribution
Agreement is terminated in accordance with its terms prior to the
Distribution and (b) shall terminate at the end of the
Non-Compete Period.
SECTION 3.
Agreement Not to Compete. (a) Except as
provided in Sections 3(b) and (c), Brink’s shall not,
and shall cause each of its Subsidiaries not to, (i) directly
or indirectly, participate in, engage in or carry on any Restricted
Activities or own, operate, control, share any revenues of or have
any profit or other debt or equity interest in any Competing
Business or (ii) actively assist any Person (other than BHS or
its Subsidiaries) in any way (including by means of providing
financing to such Person), directly or indirectly, to participate
in, engage in or carry on any Restricted Activities or own,
operate, control, share any revenues of or have any profit or other
debt or equity interest in any Competing Business.
(b) Notwithstanding anything herein
to the contrary, Section 3(a) shall not prohibit Brink’s
or its Subsidiaries from the following activities:
(i) the participation or engagement
in any type of
