EXHIBIT 10.1
TERMINATION
AGREEMENT
This Termination Agreement
(“Agreement”), dated August 22, 2008, is entered into
by and between The Brink’s Company, a Virginia corporation
(the “Company”), and Austin F. Reed
(“Executive”).
RECITALS
WHEREAS, Executive, as current Vice President,
General Counsel and Secretary of the Company, hereby provides
notice of termination from employment to the Company, characterized
by Executive as for Good Reason, as defined in Section 1(e) of a
Severance Agreement dated September 22, 1997 (“Severance
Agreement”); and
WHEREAS, the Company believes that
Executive’s expertise and knowledge will enhance the
Company’s business and the Company desires to continue to
employ Executive as Special Legal Counsel, in accordance with
Company policies, until December 23, 2008, and to fulfill certain
related duties and obligations under the terms and conditions of
this Agreement;
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:
(a)
Certain Company Obligations . As of September 15,
2008, Executive will take all actions necessary, whether in writing
or otherwise, to effectuate a resignation as an officer and
director of the Company and any affiliated entity, whether direct
or indirect, of the Company. The Company will take all
necessary steps consistent with the foregoing, including but not
limited to removing, effective September 15, 2008, Executive as
signatory on any and all corporate records or documents of the
Company and any affiliated entity, whether direct or indirect, of
the Company, unless otherwise prohibited by law. The
Company will also remove, effective on the Commencement Date,
Executive as an officer and authorized signatory of the Company,
and any affiliated entity, whether direct or indirect, of the
Company.
(b) From
September 15, 2008 (“Commencement Date”) through and
until December 23, 2008, or until the date that the Mutual Release
set forth in Exhibit A of this Agreement is executed by Executive,
whichever shall be earlier (the “Employment Period”),
Executive shall continue as an employee of the Company as Special
Legal Counsel reporting to the Company’s Chief Executive
Officer performing prescribed duties as assigned by the
Company’s Chief Executive Officer, and subject to the
Company’s policies and requirements applicable to its
employees and to Executive as an executive thereof and receiving
the base salary and benefits in effect as of the date of this
Agreement. If Executive’s employment is terminated
by the Company for Cause, or if Executive voluntarily terminates
his employment with the Company upon written notice to the Company
prior to the end of the Employment Period, or if Executive 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
payments which otherwise would have been paid following the
Commencement Date, but subject to the continuing survival of
certain terms as set forth in Section 9 below. Executive
hereby irrevocably designates December 23, 2008, or the date that
the Mutual Release set forth in Exhibit A of this Agreement is
executed by Executive, whichever shall be earlier, as his
termination date from employment with the Company.
(c) If
Executive dies or becomes permanently disabled, the remaining
rights and obligations of the parties under this Agreement shall
terminate, but subject to the continuing survival of certain terms
as set forth in Section 9 below. In this event
notwithstanding anything to the contrary in this Agreement, any
unpaid payment to be provided to Executive pursuant to Section 4(a)
below shall be accelerated and shall be unconditionally payable in
full to Executive within thirty (30) days of the determination of
his permanent disability in accordance with this Agreement, or to
Executive’s estate within thirty (30) days of
Executive’s death. For purposes of this Agreement,
the phrase “permanently disabled” shall mean that
Executive 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 the position held by
Executive during the Employment Period. Any question as
to whether Executive is permanently disabled as to which Executive
and the Company cannot agree shall be determined in writing by a
qualified independent physician mutually acceptable to Executive
and the Company. If Executive 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 Executive is permanently disabled made in
writing to the Company and Executive shall be final and conclusive
for all purposes of the Agreement.
(d) The
term “Cause,” as used in Section 1(b) of this
Agreement, means (i) an act or acts of dishonesty on
Executive’s part which are intended to result in
Executive’s substantial personal enrichment at the expense of
the Company or (ii) repeated material violations by Executive of
Executive’s obligations under this Agreement which are
demonstrably willful and deliberate on Executive’s part and
which have not been cured by Executive within a reasonable time
after written notice to Executive specifying the nature of such
violations. Notwithstanding the foregoing, Executive
shall not be deemed to have been terminated for Cause without (1)
reasonable notice to 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 an executive designated by Company, and (3) delivery
to Executive of a notice of termination specifying the particulars
of the reason for the termination for Cause in detail.
(a) Subject
to the receipt of payment set forth in Section 4(a) of this
Agreement, as a material inducement to the Company to enter into
this Agreement, Executive, on his own behalf and on behalf of his
heirs, assigns, and agents, 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, present and future employees, respective insurers,
representatives, officers, directors, shareholders, partners, joint
ventures, independent contractors, agents, employees, attorneys,
retirement benefit plans, welfare benefit plans 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 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 Executive’s
Executive Agreement Dated as of April 23, 1997, the First Amendment
to Executive Agreement, dated March 28, 2007 and the Severance
Agreement (collectively, “Executive/Severance
Agreements”), 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; or any
claims relating to the Company’s right to terminate the
employment of its employees. 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 Executive,
effective December 23, 2008.
(b) Executive
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
anything contained in this Agreement to the contrary, including
Sections 2(a) and 2(b) herein, this Agreement does not relinquish
or modify Executive’s rights, if any, under any Company
compensation, benefits or employee benefit plan(s) under ERISA or
otherwise in which Executive is a current participant; however,
this Section does not make any representations as to what rights,
if any, Executive may have under any such compensation, benefits or
employee benefit plan(s).
(d) Executive
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 Executive’s
employment or separation from employment, Executive 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, Executive 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) Notwithstanding
anything contained in this Agreement or the terms of the Mutual
Release set forth in Exhibit A hereto to the contrary, including
Section 2, nothing should be construed to waive Executive’s
right to sue the Company for breach of this Agreement.
(f) Notwithstanding
anything to the contrary in the Agreement or the Mutual Release set
forth in Exhibit A hereto, Executive retains and reserves, and does
not waive or otherwise release or modify in any way, all of his
indemnification rights and protections pursuant to the
Company’s Amended and Restated Articles of Incorporation and
By-laws (as in effect as of the Effective Date hereof), the
Indemnification Agreement, dated September 17, 1993, under any
applicable insurance policy (subject to the terms of such policy)
and/or by operation of law, which indemnification obligations of
the Company shall remain in full force and effect subsequent to the
termination of Executive’s employment with respect to the
Executive’s actions or inactions through the date of the
termination of his employment.
3.
Release Upon Termination of Employment . The
Company will provide to Executive, by December 1, 2008, and
Executive will execute and return to the Company, by but not before
December 23, 2008, a Mutual Release in the form set forth in
Exhibit A hereto. If Executive does not execute and
return the Mutual Release to the Company, absent Executive’s
death or permanent disability as defined in Section 1(c) of this
Agreement, by December 23, 2008, the remaining rights and
obligations of the parties under this Agreement shall terminate,
including but not limited to any and all payments which otherwise
would have been paid following the Commencement Date, but subject
to the continuing survival of certain terms as set forth in Section
9 below.
(a) In
consideration of Executive’s agreement to the terms of this
Agreement, the Company will make a payment to Executive, of one
million, six hundred and nine thousand and fifty-two dollars and
seventy-five cents ($1,609,052.75), less applicable deductions,
such payment to be made on December 31, 2008, following the
Company’s receipt of the Mutual Release in the form set forth
in Exhibit A hereto on December 23, 2008, signed by Executive,
without revocation by Executive; provided , however, that in
no event will any amounts payable pursuant to this Section 4(a) be
paid later than the 15th day of the third calendar
month following
the end of the Executive’s taxable year in which the earliest
of the following events occurs: (i) Executive dies, (ii) Executive
becomes permanently disabled within the meaning of Section 1(c) of
this Agreement, or (iii) Executive terminates his employment with
the Company on December 23, 2008 pursuant to Section 1(b) of this
Agreement.
(b) In
consideration of Executive’s agreement to the terms of this
Agreement, Executive and the Company agree that Executive will
continue to participate for thirty-six (36) months from the date of
his termination of employment in the following plans and
programs: (i) BCO Matching Gift Program; and
(ii) Tax & Financial Planning Program; provided, however, that
payments to Executive under the Tax & Financial Planning
Program in a particular year (1) will not exceed (A) $10,000 or (B)
amounts actually expended by Executive for reimbursable tax and
financial planning costs, as defined in the Tax & Financial
Planning Program, for that year, whichever is lower and (2) will be
made on December 1, 2009; December 1, 2010; and December 1, 2011,
and cannot be accelerated or deferred from such dates; provided,
further, that the maximum amount available for reimbursement in any
calendar year will not be increased or decreased to reflect the
amount expended or reimbursed in a prior or subsequent calendar
year, and the right to reimbursement is not subject to liquidation
or exchange for another benefit. This Tax &
Financial Planning Program benefit is intended to comply with
Treasury Regulations Section 1.409A-3(i)(1) and shall be so
interpreted and applied. During the thirty-six (36)
month period from the date of the termination of his employment,
Executive will also participate in the Company’s retiree
medical plan and will pay the same employee contribution rates as
the Company’s active employees, such employee contributions
to be paid quarterly in advance. The Company, if
requested within thirty (30) months of Executive’s date of
employment termination, agrees to provide the relocation benefit
described in Section 4 (iv) of Severance Agreement; provided,
however, that Executive will be entitled to payments under such
relocation benefit only to the extent (1) such payments are
reimbursement for reasonable moving expenses actually incurred by
Executive and directly related to the termination of services for
the Company within the meaning of Treasury Regulations Section
1.409A-1(b)(9)(v)(A); (2) such payments are reimbursement for
expenses incurred by Executive during the Executive’s first
two taxable years after the year in which the Executive’s
termination of employment from the Company occurs; (3) such
payments are made by the end of the Executive’s third taxable
year after the year in which the Executive’s termination of
employment from the Company occurs; and (4) such relocation
benefits are only payable to the extent Executive has had a
separation from service from the Company within the meaning of
Treasury Regulations Section 1.409A-1(h). The Company
agrees to sell to Executive a certain whole life insurance policy
the Company currently owns on the life of Executive at the fair
market value of the whole life insurance policy.
(c) In
consideration of Executive’s agreement to the terms of this
Agreement, and consistent with the terms of the Severance
Agreement, the Company agrees that the vesting of all outstanding
stock options that have been awarded to Executive as of the date of
this Agreement shall vest on December 31, 2008, which shall be the
effective date of the expiration of the revocation period contained
in the Mutual Release set forth in Exhibit A of this Agreement,
other than stock options granted on July 10, 2008 which shall vest
on July 11, 2009.
(d)
Compliance with Code 409A . It is intended
that any amounts payable under this Agreement and the
Company’s and Executive’s exercise of authority or
discretion hereunder will comply with the provisions of
Section 409A so as not to subject Executive 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
Executive being subject to payment of the additional tax, interest
and tax penalty under Section 409A, the parties agree to amend
this Agreement, to the extent permissible under IRS rulings,
regulations or other guidance, in order to bring this Agreement
into compliance with Code Section 409A, provided there is no
financial impact to the Company with respect to the terms of this
Agreement; and thereafter interpret its provisions in a manner that
complies with Code Section 409A. Notwithstanding
the foregoing, no particular tax result for Executive with respect
to any income recognized by Executive in connection with
the
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