SEPARATION AND DISTRIBUTION AGREEMENT By and Between THE BRINK’S COMPANY and BRINK’S HOME SECURITY HOLDINGS, INC. Dated as of [ ] [ ], 2008
Exhibit
2.1
By and
Between
THE
BRINK’S COMPANY
and
BRINK’S
HOME SECURITY HOLDINGS, INC.
Dated as
of [ ] [ ],
2008
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ii
THIS SEPARATION AND DISTRIBUTION AGREEMENT dated as of
[ ] [ ], 2008, is by and 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 and not otherwise defined shall have the respective meanings assigned to
them in Article I hereof.
R E C I T A L S
WHEREAS, the board of directors of
Brink’s has determined that it is in the best interests of Brink’s and its
shareholders to separate the existing businesses of Brink’s into two independent
businesses;
WHEREAS, in furtherance of the
foregoing, it is appropriate and desirable to effect the Separation and the
Distribution, each as more fully described in this
Agreement and the Ancillary Agreements;
WHEREAS, Brink’s and BHS have prepared,
and BHS has filed with the Commission, the Form 10, which includes the
Information Statement and sets forth appropriate disclosure concerning BHS and
the Distribution;
WHEREAS, the Distribution is intended to
qualify as a tax-free spin-off under Section 355 of the Code;
and
WHEREAS, it is appropriate and desirable
to set forth the principal corporate transactions required to effect the
Separation, the Distribution and certain other agreements that will govern
certain matters relating to the Separation, the Distribution and the
relationship of Brink’s, BHS and their respective Subsidiaries following the
Distribution.
NOW, THEREFORE, in consideration of the
mutual agreements, provisions and covenants contained in this Agreement, the
Parties, intending to be legally bound,
hereby agree as follows:
Definitions
For the purpose of this
Agreement, the following terms shall have the
following meanings:
“Action” means any demand, action, suit,
countersuit, arbitration, inquiry, proceeding or investigation by or before any
Governmental Authority or any federal, state, local, foreign or international
arbitration or mediation tribunal.
“Affiliate” of any Person means a Person
that controls, is
controlled by or is under
common control with such Person. As used herein, “control”
of any entity means the possession, directly or
indirectly, of the power to direct or cause the direction of the management
or policies of such entity, whether
through ownership of voting securities or other interests, by contract or
otherwise.
“Agent” means the distribution agent to be
appointed by Brink’s to distribute to the shareholders of Brink’s, pursuant to the
Distribution, the shares of BHS Common Stock held by
Brink’s.
“Agreement” means this Separation and Distribution
Agreement, including the
Schedule
hereto.
“Ancillary
Agreements” means the Brand
Licensing Agreement, the
Employee Matters Agreement, the Non-Compete Agreement, the Transition Services Agreement, the
Tax Matters Agreement
and any instruments, assignments and other
documents and agreements executed in connection with the implementation of the
transactions contemplated by this Agreement, including
Article II.
“Assets” means assets, properties and rights
(including goodwill), wherever located (including in the possession of
vendors or other third parties or elsewhere), whether real, personal or mixed,
tangible, intangible or contingent, in each case whether or not recorded or
reflected or required to be recorded or reflected on the books and records or
financial statements of any Person, including the following:
(a) all accounting and other books, records
and files, whether in paper, microfilm,
microfiche, computer tape or disc, magnetic tape or any other
form;
(b) all apparatus, computers and other
electronic data processing equipment, fixtures, machinery, furniture, office
and other equipment, automobiles, trucks,
aircraft, rolling stock, vessels, motor vehicles and other transportation
equipment, special and general tools, test devices, prototypes and models and
other tangible personal property;
(c) all inventories of materials, parts, raw
materials, supplies, work-in-process and finished goods and
products;
(d) all interests in real property of
whatever nature, including easements, whether as owner, mortgagee or holder of a
Security Interest in real property, lessor, sublessor, lessee, sublessee or
otherwise;
(e) all interests in any capital stock or
other equity interests of any Subsidiary or any other Person; all bonds, notes,
debentures or other securities issued by any Subsidiary or any other Person; all
loans, advances or other extensions of credit or capital contributions to any
Subsidiary or any other Person; and all other investments in securities of any
Person;
(f) all license agreements, leases of
personal property, open purchase orders for raw materials, supplies, parts or
services, unfilled orders for the manufacture and sale of products and other
contracts, agreements or commitments and all rights arising
thereunder;
(g) all letters of credit, performance bonds and other surety bonds;
(h) all written technical information, data,
specifications, research and development information, engineering drawings,
operating and maintenance manuals and materials and analyses prepared by
consultants and other third parties;
(i) all domestic and foreign patents,
copyrights, trade names, trademarks, service marks and registrations and
applications for any of the foregoing, mask works, trade secrets, inventions,
other proprietary information and licenses from third parties granting the right
to use any of the foregoing;
(j) all computer applications, programs and
other software, including operating software, network software, firmware, middleware, design software,
design tools, systems documentation and instructions;
(k) all cost information, sales and pricing
data, customer prospect lists, supplier records, customer and supplier lists,
customer and vendor data, correspondence and lists, product literature, artwork,
design, development and manufacturing files, vendor and customer drawings,
formulations and specifications, quality records and reports and other books,
records, studies, surveys, reports, plans and documents;
(l) all prepaid expenses, trade accounts and
other accounts and notes receivables;
(m) all claims or rights against any Person
arising from the ownership of any Asset, all rights in connection with any bids
or offers and all claims, choses in action or similar rights, whether
accrued or contingent;
(n) all rights under insurance policies and
all rights in the nature of insurance, indemnification or
contribution;
(o) all licenses (including radio and
similar licenses), permits, approvals and authorizations that have been issued by any Governmental
Authority;
(p) cash or cash equivalents, bank accounts,
lock boxes and other deposit arrangements; and
(q) interest rate, currency, commodity or
other swap, collar, cap or other hedging or similar agreements or
arrangements.
“BHS” has the meaning set forth in the
preamble.
“BHS
Business” means the
businesses and operations of BHS, BHS Inc. and BHS Canada.
“BHS
Canada” means Brink’s Home
Security Canada, Limited, a corporation organized under the laws of British
Columbia, Canada.
“BHS Common
Stock” means the common
stock, $0.00 par value per share, of
BHS.
“BHS
Group” means
BHS, BHS Inc., BHS Canada
and any other Affiliate of BHS immediately after the Distribution.
“BHS
Inc.” means Brink’s Home Security, Inc., a Delaware
corporation.
“BHS
Indemnitees” has the
meaning set forth in Section 5.03.
“BHS Stock
Purchase Amount” has the
meaning set forth in Section 3.02(g).
“Brand Licensing
Agreement” means the Brand Licensing Agreement dated as of the Distribution Date between Network and BHS.
“Brink’s” has the meaning set forth in the preamble.
“Brink’s
Business” means
(a) the business and operations of Brink’s and its Subsidiaries (including
Guarding) and other Affiliates immediately after the Distribution and (b) except as otherwise
expressly provided herein, any terminated, divested or discontinued businesses
or operations of Brink’s and its Subsidiaries and other
Affiliates.
“Brink’s Cash Concentration
Account” has the
meaning set forth in Section 2.06.
“Brink’s
Common Stock” means the
common stock, $1.00 par value per share, of
Brink’s.
“Brink’s
Group” means
Brink’s and each of its
Subsidiaries (including Guarding) and other
Affiliates immediately
after the Distribution.
“Brink’s
Indemnitees” has the
meaning set forth in Section 5.02.
“Code” means the Internal Revenue Code of
1986, as amended.
“Commission” means the Securities and Exchange
Commission.
“Consents” means any consents, waivers or
approvals from, or notification requirements to, any Person other than a member of either
Group.
“Credit
Support Instruments” has
the meaning set forth in Section 2.05(a).
“Distribution” means the distribution, on a
pro rata basis, by Brink’s to the Record Holders of all the outstanding shares of BHS
Common Stock owned by Brink’s on the Distribution Date.
“Distribution
Date” means the date
determined in accordance with Section 3.02 on which the Distribution
occurs.
“Escalation
Notice” has the meaning set
forth in Section 8.02.
“Exchange
Act” means the Securities
Exchange Act of 1934, as amended, together with the rules and regulations
promulgated thereunder.
“Form
10” means the registration
statement on Form 10 filed by BHS with the Commission to effect the registration
of BHS Common Stock pursuant to the Exchange Act in connection with the
Distribution, as such registration statement may be amended or supplemented from
time to time.
“Governmental
Approvals” means any
notices, reports or other filings to be given to or made with, or any consents, registrations,
approvals, permits or authorizations to be obtained from, any Governmental
Authority.
“Governmental
Authority” shall mean any
federal, state, local, foreign or international court, government, department,
commission, board, bureau, agency, official or other legislative, judicial, regulatory, administrative or
governmental
authority.
“Group” means either the Brink’s Group or the
BHS Group, as the context requires.
“Guarding” means Brink’s Guarding Services, Inc.,
a Delaware corporation.
“Indemnifying
Party” has the meaning set
forth in Section 5.05(a).
“Indemnitee” has the meaning set forth in
Section 5.05(a).
“Indemnity
Payment” has the meaning
set forth in Section 5.05(a).
“Information” means information, whether or not
patentable or
copyrightable, in written, oral, electronic or other tangible or intangible
forms, stored in any medium, including studies, reports, records, books,
contracts, instruments, surveys, discoveries, ideas, concepts, know-how,
techniques, designs, specifications, drawings, blueprints, diagrams, models,
prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes,
computer programs or other software, marketing plans, customer names,
communications by or to attorneys (including attorney-client privileged
communications), memos and other materials prepared by attorneys or under their
direction (including attorney work product), and other technical, financial,
employee or business information or data.
“Information
Statement” means the
Information Statement to be sent to each holder of Brink’s Common Stock in
connection with the Distribution.
“Insurance
Policies” means the
insurance policies written by insurance carriers, including those (if any) affiliated with Brink’s, pursuant to
which BHS or one or more of its Subsidiaries after the Distribution Date (or their respective officers or
directors) will be insured or self-insured parties after the Distribution Date, including policies or
certifications related to (a) the State of Ohio Bureau of Workers’
Compensation Fund, (b) the State of Washington Department of Labor and
Industries Fund,
(c) any other monopolistic fund of, or social security or similar program
recognized in, any state in
the United States that provides workers’ compensation and employee liability
insurance for entities that elect to participate in such funds and (d) any
monopolistic fund of, or social security or similar program recognized
in, any province in Canada that provides workers’ compensation and employee
liability insurance.
“Insurance
Proceeds” means those
monies:
(a) received by an insured (or its
successor-in-interest) from an insurance carrier;
(b) paid by an insurance carrier on behalf
of the insured (or its successor-in-interest); or
(c) received (including by way of set off)
from any third party in the nature of insurance, contribution or indemnification
in respect of any Liability;
in any such case net of any applicable
premium adjustments (including reserves and retrospectively rated premium
adjustments) and net of any costs or expenses incurred in the collection
thereof.
“Intercompany
Accounts” has the meaning set forth in
Section 2.02(a).
“Internal
Transactions” means the
steps set forth on Schedule I.
“Liabilities” means any and all claims, debts,
demands, actions, causes of action, suits, damages, obligations, accruals, accounts payable, reckonings, bonds, indemnities and
similar obligations, agreements, promises, guarantees, make whole agreements and
similar obligations, and other liabilities and requirements, including all
contractual obligations, whether absolute or contingent, matured or unmatured,
liquidated or unliquidated, accrued or unaccrued, known or unknown, whenever
arising, and including those arising under any law, rule, regulation, Action,
threatened or contemplated Action (including the costs and expenses of demands,
assessments, judgments, settlements and compromises relating thereto and
attorneys’ fees and any and all costs and expenses whatsoever reasonably
incurred in investigating, preparing or defending against any such Actions or
threatened or contemplated Actions), order or consent decree of any Governmental
Authority or any award of any arbitrator or mediator of any kind, and those
arising under any contract, commitment or undertaking, including those arising
under this Agreement or any Ancillary Agreement, in each case, whether or not
recorded or reflected or required to be recorded or reflected on the books and
records or financial statements of any Person.
“Network” means
Brink’s Network, Incorporated, a Delaware corporation.
“Non-Compete
Agreement” means the Non-Compete Agreement dated as of the Distribution
Date between Brink’s and BHS.
“NYSE” means The New York Stock Exchange,
Inc.
“Party” shall mean
either party hereto, and “Parties” shall mean
both parties hereto.
“Person” means an individual, a general or
limited partnership, a corporation, a trust, a joint venture, an unincorporated
organization, a limited liability entity, any other entity and any Governmental
Authority.
“Prime
Rate” means the rate
that JPMorgan Chase Bank, N.A. (or any
successor thereto or other major money center commercial bank agreed to by the Parties) announces from time to time as its
prime lending rate, as in effect from time to time.
“Record
Date” means the close of
business on the date to be determined by the Brink’s board of directors as the
record date for determining the shares of Brink’s Common Stock in
respect of which shares of BHS Common Stock will be distributed pursuant to the
Distribution.
“Record
Holders” has the meaning
set forth in Section 4.01(b).
“Revolving
Facility” means the
revolving credit facility,
in an aggregate amount to be determined by BHS, to be obtained by BHS and/or one
or more of its Subsidiaries.
“Revolving
Facility Agreement” means
the agreement governing the Revolving Facility, to be
entered into among BHS and/or one or more of its
Subsidiaries, as
the borrower or borrowers, the bank named therein as agent and
the lending banks named
therein.
“Securities
Act” means the Securities
Act of 1933, as amended, together with the rules and regulations promulgated
thereunder.
“Security
Interest” means any
mortgage, security interest, pledge, lien, charge, claim, option, right to
acquire, voting or other restriction, right-of-way, covenant, condition,
easement, encroachment, restriction on transfer or other encumbrance of any
nature whatsoever.
“Separation” means (a) the Internal Transactions,
(b) any actions to be
taken pursuant to Article II and (c) if not otherwise included in the
Internal Transactions or
addressed by Article II, any transfers of Assets and any assumptions of Liabilities, in each case, between a member of one
Group and a member of the other Group, provided for in this Agreement or any Ancillary Agreement.
“Specified
Documents” means
the Form 10, the
Information Statement and any other registration statement filed with the
Commission in connection
with the Distribution by or
on behalf of BHS or any other member of the BHS Group.
“Subsidiary” of any Person means any corporation or
other organization whether incorporated or unincorporated of which at least a
majority of the securities or interests having by the terms thereof ordinary
voting power to elect at least a majority of the board of directors or others
performing similar functions with respect to such corporation or other
organization is directly or indirectly owned or controlled by such Person or by
any one or more of its Subsidiaries, or by such Person and one or more of its
Subsidiaries; provided, however, that no Person that is not directly or
indirectly wholly owned by any other Person shall be a Subsidiary of such other
Person unless such other Person controls, or has the right, power or ability to
control, that Person.
“Tax Matters
Agreement” means the Tax Matters Agreement dated as of the Distribution
Date between Brink’s and BHS.
“Taxes” has the
meaning set forth in the Tax Matters Agreement.
“Third Party
Claim” means any assertion by a Person (including any
Governmental Authority) who is not a member of the Brink’s Group or the BHS
Group of any claim, or the commencement by any such Person of any
Action, against any member of the Brink’s Group
or the BHS Group.
“Transaction
Indemnitees” has the meaning set forth in Section 5.04.
“Transaction Third Party
Claim” has the meaning set forth in Section 5.04.
“Transition Services
Agreement” means the Transition Services Agreement dated as of the
Distribution Date between Brink’s and BHS.
The
Separation
SECTION
2.01. Transfer of Assets and
Assumption of Liabilities. (a) In the event that it is discovered after
the Distribution that there was an inadvertent omission of the transfer or conveyance by one Party (or any
other member of its Group) to the other Party (or any other member of its Group)
of any Asset that, had the
Parties given specific consideration to
such Asset prior to the
Distribution, would have
otherwise been so
transferred or conveyed pursuant to this Agreement or any Ancillary
Agreement, the
Parties agree promptly to effect such transfer or conveyance of such
Asset.
(b) Each of Brink’s and
BHS agrees on behalf of itself and its Subsidiaries that (i) the provisions
of the Tax Matters Agreement shall exclusively govern the allocation of Assets
and Liabilities related to Taxes and (ii) the provisions of the Employee
Matters Agreement shall exclusively govern the allocation of Assets and
Liabilities related to the existing U.S. and Canadian employee benefits and
pension plans of Brink’s, which plans cover employees and former employees of
members of both the Brink’s Group and the BHS Group.
SECTION
2.02. Termination
of Agreements.
(a) Except as set forth in
Section 2.02(b) or as otherwise provided by the steps
constituting the Internal Transactions, in furtherance of the releases and
other provisions of Section 5.01, BHS and each other member of the BHS Group, on the one
hand, and Brink’s and each other member of the Brink’s Group, on the
other hand, hereby terminate any and all agreements, arrangements,
commitments and understandings (including (i) all intercompany accounts payable or
accounts receivable (“Intercompany
Accounts”) accrued as of the Distribution Date and (ii) the
existing sublicenses pursuant to which BHS Inc. and BHS Canada sublicense
certain intellectual property from Guarding), whether or not in writing, between or
among BHS and/or any other
member of the BHS Group, on
the one hand, and Brink’s and/or any other member of the Brink’s Group, on the
other hand, effective as of the Distribution Date. No such terminated
Intercompany Account,
agreement, arrangement,
commitment or understanding (including any provision thereof that purports to survive termination) shall
be of any further force or effect after the Distribution Date. Each Party shall, at the reasonable request of
the other Party, take, or cause to be taken, such
other actions as may be necessary to effect the foregoing.
(b) The provisions of Section
2.02(a) shall not apply to any of the
following agreements, arrangements, commitments, understandings or Intercompany Accounts (or to any of the provisions
thereof): (i) this Agreement and the Ancillary Agreements (and
each other agreement,
arrangement, commitment, understanding or Intercompany Account expressly contemplated by this
Agreement or any Ancillary Agreement to be entered into by either Party or any other member of its Group); (ii) any existing agreements, arrangements, commitments or
understandings to provide
services between a member
of the BHS Group, on the one hand, and a member of the Brink’s Group, on the
other hand, that have been entered into
in the ordinary course of business and on an arms-length basis; (iii) any agreements, arrangements,
commitments or understandings described in Section 6.01(f); and (iv) any other agreements,
arrangements, commitments, understandings or Intercompany Accounts that this Agreement or any Ancillary
Agreement expressly contemplates will survive the Distribution Date.
SECTION
2.03. Disclaimer
of Representations and Warranties. Each of Brink’s (on behalf
of itself and each other
member of the Brink’s
Group) and BHS (on behalf of itself and each other member of the BHS Group) understands and
agrees that, except as expressly set forth herein or in any Ancillary Agreement,
no party to this Agreement, any Ancillary
Agreement or any other agreement or document contemplated by this
Agreement or any Ancillary
Agreement, is representing
or warranting in any way as to any Assets, businesses or Liabilities
transferred or assumed as contemplated hereby or thereby, as to any consents or
approvals required in connection therewith, as to the value or freedom from any
Security Interests of, or any other matter concerning, any Assets of such party,
or as to the absence of any defenses or right of setoff or freedom from
counterclaim with respect to any claim or other Asset, including any accounts
receivable, of any such
party, or as to the legal
sufficiency of any assignment, document or instrument delivered hereunder to
convey title to any Asset or thing of value upon the execution, delivery and
filing hereof or thereof. Except as may expressly be set forth herein
or in any Ancillary Agreement, any such Assets are being transferred on an
“as is,” “where is” basis and the respective transferees shall bear the economic
and legal risks that (a) any conveyance shall prove to be insufficient to
vest in the transferee good and marketable title, free and clear of any Security
Interest, and (b) any necessary Governmental Approvals or other Consents are not obtained or that any
requirements of laws or
judgments are not complied with.
SECTION
2.04. Release of
Obligations Under Existing Credit Facility. Brink’s acknowledges that
all obligations of BHS Inc. under the Credit Agreement dated as of
August 11, 2006, among Brink’s, the subsidiary borrowers referred to
therein, certain subsidiaries of Brink’s (including BHS Inc.), as guarantors,
various lenders thereto, Bank of Tokyo-Mitsubishi UFJ Trust Company, as
documentation agent, Bank of America, N.A. and JPMorgan Chase Bank N.A., as
syndication agents, Wachovia Bank, National Association, as administrative
agent, and Wachovia Capital Markets, LLC and X.X. Xxxxxx Securities Inc., as
joint lead arrangers and joint bookrunners, shall be automatically released and
discharged upon the consummation of the Distribution, pursuant to the terms of
such Credit Agreement.
SECTION
2.05. Replacement
of Credit Support. (a) Except for
the surety bonds, cash, letters of credit or other similar instruments described
in Section 6.01(f)(ii), BHS shall use reasonable efforts to arrange, at its
sole cost and expense, effective prior to or on the Distribution Date, to
replace all guarantees, covenants, indemnities, surety bonds, letters of credit
or similar assurances or credit support provided by Brink’s or any other member
of the Brink’s Group for the benefit of BHS or any other member of the BHS Group
(“Credit Support Instruments”)
with alternate arrangements that do not require any credit support from Brink’s
or any other member of the Brink’s Group, and shall use reasonable efforts to
obtain from the beneficiaries of such Credit Support Instruments written
releases indicating that Brink’s or such other member of the Brink’s Group will,
effective upon the consummation of the Distribution, have no liability with
respect to such Credit Support Instruments, in each case reasonably satisfactory
to Brink’s, provided that in the
event that BHS shall not have obtained all such releases on or prior to the date
that is 90 days following the Distribution Date, BHS shall provide Brink’s with
letters of credit or guarantees, in each case issued by a bank reasonably
acceptable to Brink’s, against losses arising from all such Credit Support
Instruments with respect to which such releases have not been
obtained.
(b) Brink’s shall provide BHS with written
notice of all Credit Support Instruments a reasonable period prior to the
Distribution.
SECTION
2.06. Replacement
of Cash Concentration Account. Prior to the Distribution, (a) BHS will establish a
bank account into which
cash collections of BHS and
any other member of the BHS Group will be automatically
directed in a manner
similar to the existing Brink’s account (the “Brink’s Cash
Concentration Account”) into which cash collections of BHS previously have been swept, by way of automatic
transfers, at the end of each business
day and from which,
on each subsequent business
day, funds required by BHS or any other member of the BHS Group
for accounts payable and
payroll automatically are
transferred to accounts
of BHS or such other member
of the BHS Group from which
BHS or such other member of
the BHS Group makes cash
disbursements and (b) Brink’s will simultaneously
terminate the automatic movement of BHS funds into and out of the Brink’s Cash Concentration
Account.
Actions
Pending the Distribution
SECTION
3.01. Actions
Prior to the Distribution. (a) Subject to the conditions specified in
Section 3.02 and subject to
Section 4.03, Brink’s
and BHS shall use reasonable best efforts to consummate the
Distribution. Such actions shall include those specified in this
Section 3.01 to the extent not taken prior to
the Distribution
Date.
(b) Prior to the Distribution Date,
Brink’s shall mail the
Information Statement to the holders of Brink’s Common Stock as of the Record
Date.
(c) BHS shall prepare and file, and shall
use reasonable best efforts to have approved prior to the Distribution
Date, an application for
the listing of the BHS Common Stock to be distributed in the Distribution on
the NYSE or another
national securities exchange, subject to official notice of
distribution.
(d) Prior to the Distribution Date, Brink’s
shall duly elect, as members of the BHS board of directors, the individuals
listed as members of the BHS board of directors in the Information Statement and such individuals shall continue to
be members of the BHS board of directors as of the Distribution
Date.
(e) Immediately prior to the Distribution
Date, the certificate of
incorporation and bylaws of BHS, each in substantially the form filed as an
exhibit to the Form 10, shall be in effect.
(f) Brink’s and BHS shall, subject to
Section 4.03, take all
reasonable steps necessary and appropriate to cause the conditions set forth in
Section 3.02 to be satisfied and to effect the Distribution on the
Distribution Date.
SECTION
3.02. Conditions
Precedent to Consummation of the Distribution. As soon as practicable after
the date of this Agreement,
subject to Section 4.03, the Parties shall use reasonable best efforts
to satisfy the following conditions prior to the consummation of the
Distribution. The obligations of the Parties to consummate the Distribution
shall be conditioned on the satisfaction, or waiver by Brink’s, of the following
conditions:
(a) Each Ancillary Agreement shall have
been executed by each party thereto.
(b) The existing license pursuant to which
Guarding licenses certain intellectual property from Network shall have been amended to exclude from
such license to Guarding the use of the Trade Symbols (as defined in the Brand
Licensing Agreement) to the
extent that the Brand License Agreement will prohibit Network from licensing
such use to parties other than BHS or its Subsidiaries.
(c) The Form 10 shall have been filed with
the Commission and declared effective by the Commission, no stop order
suspending the effectiveness of the Form 10 shall be in effect, no proceedings
for such purpose shall be pending before or threatened by the Commission and the
Information Statement shall have been mailed to holders of Brink’s Common Stock
as of the Record Date.
(d) The BHS Common Stock shall have been
accepted for listing on the NYSE or another national securities
exchange, subject to
official notice of issuance.
(e) A private letter ruling from the
Internal Revenue Service in
form and substance satisfactory to Brink’s in its sole discretion shall have been obtained, and shall
continue in effect, that,
among other things,
confirms
(i) the
Distribution’s tax-free status under Section 355 of the Code and
(ii) for U.S. federal
income tax purposes, the non-recognition of gain or loss by, and the non-inclusion in the income
of, any shareholder of Brink’s Common Stock upon the receipt by such shareholder
of shares of BHS Common Stock pursuant to the Distribution, except to the
extent such shareholder receives cash in lieu of fractional shares of BHS Common
Stock.
(f) A favorable opinion from Cravath, Swaine &
Xxxxx LLP in form and
substance satisfactory to Brink’s in its sole discretion shall have been obtained that, among other things, confirms
(i) the
Distribution’s tax-free status under Section 355 of the Code and
(ii) for U.S. federal
income tax purposes, the non-recognition of gain or loss by, and the non-inclusion in the income
of, any shareholder of Brink’s Common Stock upon the receipt by such shareholder
of shares of BHS Common Stock pursuant to the Distribution, except to the
extent such shareholder receives cash in lieu of fractional shares of BHS Common
Stock.
(g) Brink’s shall have paid to BHS $100 (the
“BHS Stock
Purchase Amount”) in cash
as consideration for the 100 shares of BHS Common Stock issued to Brink’s
pursuant to the Subscription Agreement between Brink’s and BHS dated as of
May 27, 2008.
(h) The Internal Transactions shall have
been completed.
(i) The Revolving Facility Credit
Agreement shall have become effective.
(j) Any material Governmental Approvals and
any other material
Consents necessary to
consummate the Distribution shall have been obtained and be in full force and
effect.
(k) No order, injunction or decree issued by
any Governmental Authority
of competent jurisdiction
or other legal restraint or prohibition preventing the consummation of the
Distribution shall be in effect, and no other event outside the control of
Brink’s shall have occurred or failed to occur that prevents the consummation of
the Distribution.
(l) No other events or developments shall
have occurred prior to the
Distribution Date that, in
the judgment of the board of directors of Brink’s, would result in the Distribution
having a material adverse effect on Brink’s or on the shareholders of
Brink’s.
(m) The actions set forth in Sections 3.01(b), (d) and (e) shall have been
completed.
The foregoing conditions are for the
sole benefit of Brink’s and shall not give rise to or create any duty on the
part of Brink’s or the Brink’s board of directors to waive or not waive such
conditions or in any way limit the right of Brink’s to terminate this Agreement as set
forth in Article XI or alter the consequences of any such termination from
those specified in such Article. Any determination made by the
Brink’s board of directors prior to the Distribution concerning the satisfaction
or waiver of any or all of the conditions set forth in this Section 3.02
shall be conclusive.
The
Distribution
SECTION
4.01. The
Distribution.
(a) BHS shall cooperate with Brink’s to
accomplish the Distribution and shall, at the direction of Brink’s, promptly
take any and all actions necessary or desirable to effect the
Distribution. Brink’s shall select any investment bank or manager in
connection with the Distribution, as well as any financial printer, solicitation
and/or exchange agent and financial, legal, accounting and other advisors for
Brink’s. Brink’s
and BHS, as the case may be, will provide, or cause the applicable member of its
Group to provide, to the Agent all share certificates and any information
required in order to complete the Distribution.
(b) Subject to the terms and conditions set
forth in this Agreement, (i) on or prior to the Distribution Date,
Brink’s will deliver to the Agent for the benefit of holders of record
as of the Distribution Date
of all the shares of Brink’s Common Stock that were outstanding on the Record Date, including any Person to whom any
holder of shares of Brink’s Common Stock as of the Record Date transfers, after
the Record Date but prior to the Distribution Date, such shares of Brink’s
Common Stock (all such holders of record as of the Distribution Date, the
“Record
Holders”), all the issued and outstanding shares of
BHS Common Stock then owned
by Brink’s or any other
member of the Brink’s
Group and book-entry
transfer authorizations for such shares and (ii) on the Distribution Date,
Brink’s shall instruct the Agent to distribute, by
means of a pro rata dividend, to each Record Holder (or
such Record Holder’s bank or brokerage firm on such Record Holder’s behalf)
electronically, by direct registration in book-entry form,
[ ] 1
share[s] of BHS Common Stock for [each share of] Brink’s Common Stock held by
such Record Holder. The Distribution shall be effective at 11:59 p.m.
New York city
time on the Distribution
Date. On or immediately following the Distribution Date, the
Agent will mail an account statement indicating the number of shares of BHS
Common Stock that have been registered in book-entry form in the name of each
Record Holder that holds physical share certificates representing its shares of
Brink’s Common Stock and that is the registered holder of the shares represented
by those certificates.
SECTION
4.02. Fractional
Shares. No
fractional shares of BHS Common Stock will be distributed in the Distribution
and any Record Holder that would have been entitled to receive fractional shares
of BHS Common Stock will receive a cash payment in lieu of such fractional
shares. The Agent will determine the number of fractional
shares of BHS Common Stock allocable to each Record Holder. Upon the
determination by the Agent of such number of fractional shares, as soon as
practicable after the Distribution Date, the Agent, acting on behalf of the
holders thereof, shall aggregate such fractional shares into whole shares and
sell such whole shares for cash on the open market at prevailing market
prices. As soon as practicable following such sale, the Agent shall
distribute to each such holder entitled thereto its ratable portion of the
resulting cash proceeds, after making appropriate deductions of the
amounts required to be withheld for United States federal income tax
purposes, if any, and after deducting an amount equal to all brokerage charges,
commissions and transfer taxes attributed to the sale of aggregated fractional
shares pursuant to this Section. The Agent, in its sole discretion,
without any influence by Brink’s or BHS, will determine when, how, through which
broker-dealers and at what prices to sell such aggregated fractional shares,
provided that neither the Agent
nor any broker-dealer used by the Agent to sell any such fractional shares will
be an affiliate of either Brink’s or BHS.
SECTION
4.03. Sole
Discretion of Brink’s. Brink’s shall, in its sole
and absolute discretion, determine the Distribution Date and all terms of the
Distribution, including the form, structure and terms of any transactions and/or
offerings to effect the Distribution and the timing of and conditions to the
consummation thereof. In addition and notwithstanding anything to the
contrary set forth below,
Brink’s may at any time and from time to time until the completion of the
Distribution decide to
abandon the Distribution or
modify or change the terms of the Distribution, including by accelerating or
delaying the timing of the consummation of all or part of the
Distribution.
1 The
ratio of the number of BHS shares to be distributed per each Brink’s share to be
determined.
Mutual
Releases; Indemnification
SECTION
5.01. Release of
Pre-Closing Claims.
(a) Except as provided in
Section 5.01(c) and
except for claims described in Section 6.01(f), effective as of the Distribution Date, BHS does hereby, for itself and each
other member of the BHS Group, their respective Affiliates (other than any
member of the Brink’s Group), successors and assigns, and all Persons who at any
time prior to the Distribution Date have been shareholders, directors, officers, agents or
employees of any member of the BHS Group (in each case, in their respective
capacities as such), remise, release and forever discharge Brink’s and the
other members of the Brink’s Group, their
respective Affiliates (other than any member of the BHS Group), successors and
assigns, and all Persons who at any time prior to the Distribution Date have been shareholders, directors, officers, agents or
employees of any member of the Brink’s Group (in each case, in their respective
capacities as such), and their respective heirs, executors, administrators,
successors and assigns, from any and all Liabilities whatsoever, whether at law
or in equity (including any right of contribution), whether arising under any
contract or agreement, by operation of law or otherwise, existing or arising
from any acts or events occurring or failing to occur or alleged to have
occurred or to have failed to occur or any conditions existing or alleged to
have existed on or before the Distribution Date, including in connection with the
transactions and all other activities to implement the Separation or the Distribution.
(b) Except as provided in
Section 5.01(c), effective as of the Distribution Date, Brink’s does hereby, for itself and
each other member of the Brink’s Group, their respective Affiliates (other than
any member of the BHS Group), successors and assigns, and all Persons who at any
time prior to the Distribution Date have been shareholders, directors, officers, agents or
employees of any member of the Brink’s Group (in each case, in their respective
capacities as such), remise, release and forever discharge BHS, the other members of the BHS Group, their
respective Affiliates (other than any member of the Brink’s Group), successors
and assigns, and all Persons who at any time prior to the Distribution Date have been shareholders, directors, officers, agents or
employees of any member of the BHS Group (in each case, in their respective
capacities as such), and their respective heirs, executors,
administrators, successors and assigns, from any and
all Liabilities whatsoever, whether at law or in equity (including any right of
contribution), whether arising under any contract or agreement, by operation of
law or otherwise, existing or arising from any acts or events occurring or
failing to occur or alleged to have occurred or to have failed to occur or any
conditions existing or alleged to have existed on or before the Distribution Date, including in connection with the
transactions and all other activities to implement the Separation or the Distribution.
(c) Nothing contained in
Section 5.01(a) or (b) shall impair any right of any Person to enforce this
Agreement, any Ancillary Agreement or any agreements, arrangements, commitments
or understandings that are specified in Section 2.02(b) not to terminate as of the
Distribution
Date, in each case in
accordance with its terms. Nothing contained in Section 5.01(a) or
(b) shall release any Person from:
(i) any Liability provided in or resulting
from any agreement among any members of the Brink’s Group or the BHS Group that
is specified in Section 2.02(b) as not to terminate as of the
Distribution
Date, or any other
Liability specified in such Section 2.02(b) as not to terminate as of the
Distribution
Date;
(ii) any Liability, contingent or otherwise,
assumed, transferred, assigned or allocated to the Group of which such Person is
a member in accordance with, or any other Liability of any member of any Group
under, this Agreement or any Ancillary Agreement;
(iii) any Liability that the Parties may have with respect to
indemnification or contribution pursuant to this Agreement for claims
brought against the Parties
or the members of their respective Groups or any of their respective Subsidiaries or
Affiliates or any of the
respective directors,
officers, employees or
agents of any of the foregoing by third Persons, which Liability shall
be governed by the provisions of this Article V and, if applicable, the
appropriate provisions of the Ancillary Agreements; or
(iv) any Liability the release of which would
result in the release of any Person other than a Person released pursuant to
this Section 5.01.
In addition, nothing contained in
Section 5.01(a) shall release Brink’s from honoring its existing obligations to
indemnify any director, officer or employee of BHS or any of its Subsidiaries on or prior
to the Distribution Date who was a director, officer or employee
of Brink’s or any of its
Subsidiaries on or prior to
the Distribution
Date, to the extent such
director, officer or employee becomes a named defendant in any litigation
involving Brink’s or any of
its Subsidiaries and was
entitled to such indemnification pursuant to then existing
obligations.
(d) BHS shall not make, and shall not permit
any other member of the BHS Group to make, any
claim or demand, or commence any Action asserting any claim or demand, including
any claim of contribution or any indemnification, against Brink’s or any
other member of the Brink’s Group, or any
other Person released pursuant to Section 5.01(a), with respect to any
Liabilities released pursuant to Section 5.01(a). Brink’s shall
not, and shall not permit any other member of the Brink’s Group, to make any
claim or demand, or commence any Action asserting any claim or demand, including
any claim of contribution or any indemnification against BHS or any other member of the BHS Group, or any other
Person released pursuant to Section 5.01(b), with respect to any
Liabilities released pursuant to Section 5.0l(b).
(e) It is the intent of each of Brink’s and
BHS, by virtue of the provisions of this Section 5.01, to provide for a
full and complete release and discharge of all Liabilities existing or arising
from all acts and events occurring or failing to occur or alleged to have
occurred or to have failed to occur and all conditions existing or alleged to
have existed on or before the Distribution Date, between or among BHS or any
other member of the BHS Group, on the one
hand, and Brink’s or any other member of the Brink’s Group, on the
other hand (including any contractual agreements or arrangements existing or
alleged to exist between or among any such members on or before the Distribution Date), except as expressly set forth in
Section 5.01(c). At any time, at the request of the other Party, each Party shall cause each member of its
respective Group to execute and deliver releases reflecting the provisions
hereof.
SECTION
5.02. Indemnification
by BHS. Except
as provided in Section 5.05, BHS shall indemnify, defend and hold harmless Brink’s, each
other member of the Brink’s Group and each of
their respective former and
current directors, officers
and employees, and each of the heirs, executors, successors and assigns of any
of the foregoing (collectively, the “Brink’s
Indemnitees”), from and
against any and all Liabilities of the Brink’s Indemnitees relating to, arising
out of or resulting from any of the following items (without
duplication):
(a) the BHS Business, including the failure of BHS or any other member of the BHS Group or any other
Person to pay, perform or otherwise promptly discharge any Liability relating to or arising out of or resulting from
the BHS Business
in accordance with its
terms, whether prior to or after the Distribution Date or the date hereof; and
(b) any breach by BHS or any other member of the BHS Group of this
Agreement or any of the Ancillary Agreements, including the failure of BHS or any other member
of the BHS Group to make any required payments (including premiums, fees, taxes,
assessments, losses, fines, penalties, allocated expenses, retrospective
adjustments and retrospective deductible adjustments) to third-party insurance
carriers pursuant to Section 6.01(f).
SECTION
5.03. Indemnification
by Brink’s.
Except as provided in
Section 5.05, Brink’s
shall indemnify, defend and hold harmless BHS, each other member of the BHS Group and each of
their respective former and
current directors, officers
and employees, and each of the heirs,
executors, successors and assigns of any of the foregoing (collectively, the
“BHS
Indemnitees”), from and
against any and all Liabilities of the BHS Indemnitees relating to, arising out
of or resulting from any of the following items (without
duplication):
(a) the Brink’s Business, including the failure of Brink’s or any other member of the Brink’s Group or any other Person to pay,
perform or otherwise promptly discharge any Liability relating to, arising out of or resulting from
the Brink’s Business
in accordance with its
terms, whether prior to or after the Distribution Date or the date hereof;
(b) any breach by Brink’s or any
other member of the Brink’s Group of this
Agreement or any of the
Ancillary Agreements;
and
(c) the discontinued coal operations of
Brink’s or any of its Subsidiaries (including the entities comprising the
Pittston Coal Group), including obligations of BHS or any other member of the
BHS Group in its capacity as a “related party” pursuant to the Coal Industry Retiree Health Benefit Act
of 1992, including the
obligation to pay premiums to the United Mine Workers of America Combined
Benefit Fund and the obligation to provide health care benefits for United Mine Workers of America
miners who retired between
January 1, 1976, and October 1, 1994.
SECTION
5.04. Indemnification
of Third Party Claims. Except as provided in
Section 5.05 and
subject to any contrary provision in any Ancillary Agreement, each Party shall indemnify, defend and hold harmless the other Party, each other member of such other Party’s Group and each of their respective former
and current directors, officers and employees, and each of the heirs, executors,
successors and assigns of any of the foregoing (collectively, the “Transaction
Indemnitees”), from and
against 50% of the
Liabilities of the Transaction Indemnitees relating to, arising out of or
resulting from any Third Party Claim that is directly related to the Separation and/or the Distribution,
including any Third Party
Claim relating to, arising out of or resulting from any untrue statement or
alleged untrue statement of a material fact contained in any Specified
Document or any omission or
alleged omission to state a material fact in any Specified Document required to be stated therein or necessary to make the
statements therein not misleading (any such Third Party Claim, a “Transaction
Third Party Claim”). Notwithstanding
Section 5.06(b) or (c), any costs and expenses related to the defense of
any Transaction Third Party Claims shall be shared equally between the Brink’s
Group and the BHS Group.
SECTION
5.05. Indemnification
Obligations Net of Insurance Proceeds and Other Amounts. (a) The Parties intend that any Liability subject
to indemnification or reimbursement pursuant to this Article V will be net
of Insurance Proceeds that actually reduce the amount of, or are paid to the applicable
Indemnitee in respect of, such Liability. Accordingly, the
amount that either
Party (an “Indemnifying
Party”) is required to pay
to any Person entitled to indemnification hereunder (an “Indemnitee”) will be reduced by any Insurance
Proceeds theretofore actually recovered by or on behalf of the Indemnitee in
respect of the related Liability. If an Indemnitee receives a payment
(an “Indemnity
Payment”) required by this
Agreement from an Indemnifying Party in respect of any Liability and
subsequently receives Insurance Proceeds in respect of such
Liability, then
the Indemnitee will pay to
the Indemnifying Party an amount equal to the excess of the Indemnity Payment
received over the amount of the Indemnity Payment that would have been due if
such Insurance Proceeds had been received,
realized or recovered before the Indemnity Payment was made.
(b) An insurer that would otherwise be obligated to pay any
claim shall not be relieved of the responsibility with respect thereto
or have any subrogation
rights with respect thereto by virtue of the indemnification
provisions hereof, it being expressly understood and agreed that no insurer or
any other third party shall be entitled to a “wind-fall” (i.e., a benefit they
would not be entitled to receive in the absence of the indemnification
provisions) by virtue of the indemnification provisions
hereof. Nothing contained in this Agreement or any Ancillary
Agreement shall obligate any member of any Group to seek to collect or recover
any Insurance Proceeds.
SECTION
5.06. Procedures
for Indemnification of Third Party Claims. (a) If an Indemnitee shall receive notice or
otherwise learn of a
Third Party
Claim with respect to which
an Indemnifying Party may be obligated to provide indemnification to such
Indemnitee pursuant to Section 5.02, 5.03 or 5.04 or any other Section of this Agreement
or any Ancillary Agreement, such Indemnitee shall give such Indemnifying Party
written notice thereof within 10 days after becoming aware of such
Third Party Claim. Any such notice shall describe the Third Party
Claim in reasonable detail. Notwithstanding the foregoing, the
failure of any Indemnitee or other Person to give notice as provided in this
Section 5.06(a) shall not relieve the related
Indemnifying Party of its obligations under this Article V, except to the
extent that such Indemnifying Party is actually prejudiced by such failure to
give notice.
(b) An Indemnifying Party may elect to
defend, at such Indemnifying Party’s own expense (subject to the requirement to share
expenses related to the defense of Transaction Third Party Claims pursuant to
Section 5.04) and by
such Indemnifying Party’s own counsel, any Third Party Claim. Within
20 days after the receipt of notice from
an Indemnitee in accordance with Section 5.06(a) (or sooner, if the nature of such
Third Party Claim so requires), the Indemnifying Party shall notify the
Indemnitee of its election as to whether the Indemnifying Party will
assume responsibility for defending such Third Party Claim. After
notice from an Indemnifying Party to an Indemnitee of its election to assume the
defense of a Third Party Claim, such Indemnitee shall have the right to employ
separate counsel and to participate in (but not control) the defense,
compromise, or settlement thereof, but (subject to Section 5.04)
the fees and expenses of
such counsel shall be the expense of such Indemnitee, except that the Indemnifying Party shall
be liable for the fees and expenses of counsel employed by the Indemnitee for
any period during which the Indemnifying Party has not assumed the defense of
such Third Party Claim (other than during any period in which the Indemnitee
shall have failed to give notice of the Third Party Claim in accordance with
Section 5.06(a)).
(c) If an Indemnifying Party elects not to
assume responsibility for defending a Third Party Claim, or fails to notify an
Indemnitee of its election as provided in Section 5.06(b), such Indemnitee may defend such Third
Party Claim at the cost and expense of the Indemnifying Party (subject to the requirement to share
expenses related to the defense of Transaction Third Party Claims pursuant to
Section 5.04).
(d) If an Indemnifying Party elects to assume the defense of
a Third Party Claim in accordance with the terms of
this Agreement, the Indemnitee shall agree to any settlement, compromise or
discharge of such Third Party Claim that the Indemnifying Party may recommend
and that by its terms obligates the Indemnifying Party to pay the full amount of
the liability in connection with such Third Party Claim and that releases the
Indemnified Party completely in connection with such Third Party
Claim.
(e) No Indemnifying Party shall consent to
entry of any judgment or enter into any settlement of any Third Party Claim without the consent
of the applicable
Indemnitee or Indemnitees if the effect thereof is to permit any
injunction, declaratory judgment, other order or other nonmonetary relief to be
entered, directly or
indirectly, against any
Indemnitee.
(f) Whether
or not the Indemnifying Party assumes the defense of a Third Party Claim, no
Indemnitee shall admit any liability with respect to, or settle, compromise or
discharge, such Third Party Claim without the Indemnifying Party’s prior written
consent.
(g) The provisions of
Section 5.06 (other than this
Section 5.06(g)) and Section 5.07 shall not apply to Taxes (which are
covered by the Tax Matters Agreement).
(h) Notwithstanding the foregoing clauses
(b) through (e), with respect to a Third Party Claim made prior to the
Distribution Date that is related to the insurance arrangements set forth in
Section 6.01(f), (i) Brink’s shall assume the defense of such Third
Party Claim, at the cost of BHS, and (ii) Brink’s shall not consent to
entry of any judgment in respect of, or enter into any settlement of, such Third
Party Claim without the consent of BHS, such consent not to be unreasonably
withheld.
SECTION
5.07. Additional
Matters. (a) Any claim on account of a Liability
that does not result from a Third Party
Claim shall be asserted by written notice given by the Indemnitee to the related
Indemnifying Party. Such Indemnifying Party shall have a period of 30
days after the receipt of such notice within which to respond
thereto. If such Indemnifying Party does not respond within such
30-day period, such Indemnifying Party shall be deemed to have refused to accept
responsibility to make payment. If such Indemnifying Party does not
respond within such 30-day period or rejects such claim in whole or in part,
such Indemnitee shall be free to pursue such remedies as may be available to
such party as contemplated by this Agreement and the Ancillary
Agreements.
(b) In the event of payment by or on behalf
of any Indemnifying Party to any Indemnitee in connection with any Third Party
Claim, such Indemnifying Party shall be subrogated to and shall stand in the
place of such Indemnitee as to any events or circumstances in respect of which
such Indemnitee may have any right, defense or claim relating to such Third
Party Claim against any claimant or plaintiff asserting such Third Party Claim
or against any other Person. Such Indemnitee shall cooperate with
such Indemnifying Party in a reasonable manner, and at the cost and expense of
such Indemnifying Party, in prosecuting any subrogated right, defense or
claim.
(c) In the event of an Action in which the
Indemnifying Party is not a named defendant, if either the Indemnitee or Indemnifying Party shall so request,
the Parties shall endeavor to substitute the
Indemnifying Party for the,
or add the Indemnifying Party as an additional, named defendant, if at all
practicable. If such substitution or addition cannot be achieved for
any reason or is not requested, the named defendant shall allow the Indemnifying
Party to manage the Action as set forth in this Section, the Indemnifying Party shall
fully indemnify the named defendant against all costs of defending the Action
(including court costs, sanctions imposed by a court, attorneys’ fees,
experts’ fees
and all other external expenses), the costs of any judgment or settlement and
the cost of any interest or penalties relating to any judgment or
settlement.
SECTION
5.08. Remedies
Cumulative. The
remedies provided in this Article V shall be cumulative and, subject to the
provisions of Article IX, shall not preclude assertion by any Indemnitee of
any other rights or the seeking of any and all other remedies against any
Indemnifying Party.
SECTION
5.09. Survival of
Indemnities. The
rights and obligations of each of Brink’s and BHS and their respective
Indemnitees under this Article V shall survive the sale or other transfer
by any party of any Assets or businesses or the assignment by it of any
Liabilities.
SECTION
5.10. Limitation
on Liability. Except as may expressly be
set forth in this Agreement or any Ancillary Agreement, none of Brink’s,
BHS or any other member of either Group shall in any event have any Liability to
the other or to any other member of the other’s Group, or to any other Brink’s
Indemnitee or BHS Indemnitee, as applicable, for any incidental, indirect,
special, punitive or consequential damages, whether or not caused by or
resulting from negligence or breach of obligations hereunder or under any
Ancillary Agreement and whether or not informed of the possibility of the
existence of such damages, provided, however, that the
provisions of this Section shall not limit an Indemnifying Party’s
indemnification obligations hereunder or in any Ancillary Agreement with respect
to any Liability any Indemnitee may have to any third party not affiliated with
any member of the Brink’s Group or the BHS Group for any incidental, indirect,
special, punitive or consequential damages.
Insurance
Matters
SECTION
6.01. Insurance
Matters. (a) Brink’s and BHS agree to cooperate in
good faith to provide for an orderly transition of insurance coverage from the
date hereof through the Distribution Date and for the treatment of any Insurance
Policies that will remain in effect following the Distribution Date on a mutually agreeable
basis. In no event shall Brink’s, any other member of the Brink’s
Group or any Brink’s Indemnitee have liability or obligation whatsoever to any
member of the BHS Group or
any BHS Indemnitee in the
event that any Insurance Policy or other contract or policy of insurance shall
be terminated or otherwise cease to be in effect for any reason, shall be
unavailable or inadequate to cover any Liability of any member of the BHS Group
or any BHS Indemnitee
for any reason whatsoever
or shall not be renewed or extended beyond the current expiration
date.
(b) (i) Except as otherwise provided
in any Ancillary Agreement,
the Parties intend by this
Agreement that BHS and each other member of the BHS Group be
successors-in-interest to all rights that any member of the BHS Group may have
as of the Distribution
Date as a subsidiary,
affiliate, division or department of Brink’s prior to the Distribution Date under any policy of insurance issued to
Brink’s or any other member
of the Brink’s Group by any
insurance carrier or under any agreements related to such policies executed and
delivered prior to the Distribution Date, including any rights such member of
the BHS Group may have, as an insured or additional named insured, subsidiary,
affiliate, division or department, to avail itself of any such policy of
insurance or any such agreements related to such policies as in effect prior to
the Distribution
Date. At the
request of BHS, Brink’s shall take all reasonable steps, including the execution
and delivery of any instruments, to effect the foregoing; provided, however, that Brink’s shall not be required to
pay any amounts, waive any rights or incur any Liabilities in connection
therewith.
(ii) Except as otherwise contemplated by any
Ancillary Agreement, after the Distribution Date, Brink’s (and each other member of the Brink’s Group) and BHS
(and each other
member of the BHS Group)
shall not, without the consent of BHS or Brink’s, respectively, provide any such
insurance carrier with a release or amend, modify or waive any rights under any
such policy or agreement, if such release, amendment, modification or waiver
thereunder would adversely affect any rights or potential rights of any member
of the Group of the other Party; provided, however, that the foregoing shall not
(A) preclude any member of any Group from presenting any claim or from
exhausting any policy limit, (B) require any member of any Group to pay any
premium or other amount or to incur any Liability or (C) require any member
of any Group to renew, extend or continue any policy in force. Each
of Brink’s and BHS will share such information as is reasonably necessary in
order to permit the other to manage and conduct its insurance matters in an
orderly fashion.
(c) This Agreement shall not be considered
as an attempted assignment of any policy of insurance or as a contract of
insurance and shall not be construed to waive any right or remedy of any member
of the Brink’s Group in respect of any Insurance Policy or any other contract or
policy of insurance.
(d) BHS does hereby, for itself and each
other member of the BHS Group, agree that no member of the Brink’s Group or any
Brink’s Indemnitee shall have any Liability whatsoever as a result of the
insurance policies and practices of Brink’s and its Affiliates as in effect at
any time prior to the Distribution Date, including as a result of the level or
scope of any such insurance, the creditworthiness of any insurance carrier, the
terms and conditions of any policy, the adequacy or timeliness of any notice to
any insurance carrier with respect to any claim or potential claim or
otherwise.
(e) Nothing in this Agreement shall be
deemed to restrict any member of the BHS Group from acquiring at its own expense
any other insurance policy in respect of any
Liabilities or covering any period.
(f) After the Distribution Date, BHS shall
(i) at the election of Brink’s, reimburse Brink’s for, or pay directly to
the applicable third party insurance carrier, the portion of any
(A) workers’ compensation premium, retrospectively rated premium adjustment, payroll audit adjustments, taxes, surcharges and payroll-driven assessment adjustments; provided that with respect to payroll audit
adjustments, taxes,
surcharges and payroll-driven assessment adjustments, BHS shall
reimburse Brink’s only for claims related to payroll paid during
the calendar year 2008,
(B) claims and claims allocated expenses in respect of self-insured
automobile liability and general liability (including errors and omissions coverage) fronting programs, but only for such
claims and claims administrative expenses that are billed to Brink’s on, after
or 30 days prior to the Distribution Date, and (C) claims, claims
allocated expenses and any taxes, surcharges and
assessments related to any claim in respect of workers’ compensation programs
that are self-insured or that require the insured party to pay a deductible, in
each case allocable to BHS or any other member of the BHS Group for claims made
on or prior to the Distribution Date under insurance policies or self-insurance
authorizations covering BHS or any other member of the BHS Group, but only for
such claims, claims allocated expenses and any taxes, surcharges and
assessments related to workers’ compensation claims that are billed to Brink’s
on, after or 30 days prior to the Distribution Date, and (ii) reimburse
Brink’s for the portion of any costs associated with surety bonds, letters of
credit or other similar instruments provided by Brink’s that guarantee
deductibles,
reserves or other amounts related to workers’
compensation, automobile liability and general liability claims of BHS or any
other member of the BHS Group. Such reimbursement shall be made in
immediately available funds within 15 business days of receipt of an invoice
from Brink’s setting forth such premium, claim, administrative or allocated expenses, tax, surcharge or assessment in
reasonable detail. Brink’s shall not settle, arbitrate or litigate
any insurance claim or related lawsuit against BHS or any member of the BHS
Group without the prior consent of BHS (such consent not to be unreasonably
withheld). After
the Distribution Date, to the extent Brink’s or BHS reasonably requires any
information from the other regarding claims data, payroll or other insurance or
insurance policy information in order to make filings with insurance carriers or
self-insurance regulators, Brink’s and/or BHS will use commercially reasonable
efforts to promptly supply such information to each other. Nothing in
this Section shall obligate Brink’s or any other member of the Brink’s Group to
maintain any insurance policy for claims made or events occurring after the
Distribution Date.
Exchange of
Information; Confidentiality
SECTION
7.01. Agreement
for Exchange of Information; Archives. (a) Each of Brink’s and BHS, on behalf of
its Group, agrees to provide, or cause to be provided, to the other Group, at
any time before or after the Distribution Date, as soon as reasonably
practicable after written request therefor, any Information in the possession or
under the control of such Group that the requesting Party reasonably needs (i) to comply
with reporting, disclosure, filing or other requirements imposed on the
requesting Party or any member of its Group (including under applicable securities
or tax laws) by a Governmental Authority having jurisdiction over the requesting
Party or such member, (ii) for use in any other
judicial, regulatory, administrative, tax or other proceeding or in order to
satisfy audit, accounting, claims, regulatory, litigation, tax or other similar
requirements, in each case other than claims or allegations that one
Party to this Agreement has against the
other, or (iii) to comply with its obligations under this Agreement or any
Ancillary Agreement; provided, however, that in the event that either Party determines that any such provision
of Information could be commercially detrimental, violate any law or agreement
or waive any attorney-client privilege, the Parties shall take all reasonable
measures to permit the compliance with such obligations in a manner that avoids
any such harm or consequence.
(b) After the Distribution Date, BHS shall have access during regular
business hours (as in effect from time to time) to the documents and objects of
historic significance that relate to the BHS Business that are located in
archives retained or maintained by Brink’s. BHS may obtain copies
(but not originals) of documents for bona fide business purposes and may obtain
objects for exhibition purposes for commercially reasonable periods of time if
required for bona fide business purposes, provided that BHS shall cause any such objects
to be returned promptly in the same condition in which they were delivered to
BHS and BHS shall comply with any rules, procedures or other requirements, and
shall be subject to any restrictions (including prohibitions on removal of
specified objects), that are then applicable to Brink’s. Nothing
herein shall be deemed to restrict the access of any member of the Brink’s Group
to any such documents or objects or to impose any liability on any member of the
Brink’s Group if any such documents or objects are not maintained or preserved
by Brink’s.
(c) After the date hereof, each of Brink’s
and BHS (i) shall maintain in effect at its own cost and expense adequate
systems and controls to the extent necessary to enable the members of the other
Group to satisfy their respective reporting, accounting, audit and other
obligations and (ii) shall provide, or cause to be provided, to the other
Party in such form as such other
Party shall reasonably request, at no charge to the requesting
Party, all financial and other data and
information as such requesting Party reasonably determines necessary or advisable in
order to prepare its financial statements and reports or filings with any
Governmental Authority.
SECTION
7.02. Ownership of
Information. Any
Information owned by one Group that is provided to a requesting Party pursuant to
Section 7.01 shall be deemed to remain the
property of the providing Party. Unless specifically set
forth herein, nothing contained in this Agreement shall be construed as granting
or conferring rights of license or otherwise in any such
Information.
SECTION
7.03. Compensation
for Providing Information. Except as set forth in
Section 7.01(c)(ii), the Party requesting Information agrees to
reimburse the other Party for the reasonable costs, if any,
of creating, gathering and copying such Information, to the extent that such
costs are incurred for the benefit of the requesting Party. Except as may be
otherwise specifically provided elsewhere in this Agreement or in any other
agreement between the Parties, such costs shall be computed in
accordance with the providing Party’s standard methodology and
procedures.
SECTION
7.04. Limitations
on Liability.
Neither Party shall have any liability to
the other Party in the event that any Information
exchanged or provided pursuant to this Agreement that is an estimate or forecast, or
that is based on an estimate or forecast, is
found to be inaccurate in the absence of willful misconduct by the Party providing such
Information. Neither Party shall have any liability to
the other Party if any Information is destroyed
after reasonable best efforts by such Party to comply with the provisions of
Section 7.01.
SECTION
7.05. Other
Agreements Providing for Exchange of Information. The rights and obligations
granted under this Article VII are subject to any specific
limitations, qualifications or additional provisions on the sharing, exchange,
retention or confidential treatment of Information set forth in any Ancillary
Agreement.
SECTION
7.06. Production
of Witnesses; Records; Cooperation. (a) After the Distribution Date, except in the case of an adversarial
Action by one Party against the other Party, each Party shall use reasonable best efforts
to make available to the
other Party, upon written request, the former,
current and future directors, officers, employees, other personnel and agents of
the members of its Group as witnesses and any books, records or other documents
within its control or that
it otherwise has the
ability to make available, to the extent that any such person (giving
consideration to business demands of such directors, officers, employees, other
personnel and agents) or books, records or other documents may reasonably be
required in connection with any Action in which the requesting Party may from time to time be involved,
regardless of whether such Action is a matter with respect to which
indemnification may be sought hereunder. The requesting Party shall, except as otherwise required by
Article V, bear all
costs and expenses in connection therewith.
(b) If an Indemnifying Party chooses to
defend or to seek to compromise or settle any Third Party Claim, the other
Party shall make available to such
Indemnifying Party, upon written request, the former, current and future
directors, officers, employees, other personnel and agents of the members of its
Group as witnesses and any books, records or other documents within its control
or that it otherwise has the ability to make
available, to the extent that any such person (giving consideration to business
demands of such directors, officers, employees, other personnel and agents) or
books, records or other documents may reasonably be required in connection with
such defense, compromise or settlement, and shall otherwise cooperate in such
defense, compromise or settlement.
(c) Without limiting any provision of this
Section, each of the Parties agrees to cooperate, and to cause
each member of its Group to cooperate, with the other Party in the defense of any infringement or
similar claim with respect to Trade Symbols (as defined in the Brand
Licensing Agreement) or any other xxxx using the word “Brink’s” or any derivation thereof and shall not acknowledge, or permit any
member of its Group to acknowledge, the validity or infringing use of any
intellectual property of a third Person in a manner that would hamper or
undermine the defense of such infringement or similar claim.
(d) The obligation of the Parties to provide witnesses pursuant to
this Section 7.06 is intended to be interpreted in a
manner so as to facilitate cooperation and shall include the obligation to
provide as witnesses inventors and other officers without regard to whether the
witness or the employer of the witness could assert a possible business conflict
(subject to the exception set forth in the first sentence of
Section 7.06(a)).
(e) In connection with any matter
contemplated by this Section 7.06, the Parties will enter into a mutually
acceptable joint defense agreement so as to maintain to the extent practicable
any applicable attorney-client privilege or work product immunity of any member
of either Group.
SECTION
7.07. Confidentiality. (a) Subject to Section 7.08, each of Brink’s and BHS, on behalf of
itself and each other
member of its Group, agrees
to hold, and to cause its directors, officers, employees, agents, accountants,
counsel and other advisors and representatives to hold, in strict confidence,
with at least the same degree of care that applies to confidential and
proprietary information of Brink’s pursuant to policies in effect as of the
Distribution
Date, all Information
concerning the other Group that is either in its
possession (including Information in its possession prior to the Distribution
Date) or furnished by the
other Group or its
directors, officers, employees, agents, accountants, counsel and other advisors
and representatives at any time pursuant to this Agreement, any Ancillary
Agreement or otherwise, and shall not use any such Information other than for
such purposes as shall be expressly permitted hereunder or thereunder, except,
in each case, to the extent that such Information has been (i) in the
public domain through no fault of such Party or any other member of such Group or any of their
respective directors, officers, employees, agents, accountants, counsel and
other advisors and representatives, (ii) later lawfully acquired from other
sources by such Party (or any other member of such Party’s Group), which sources are not
known by such Party to be
themselves bound by a
confidentiality obligation, or (iii) independently generated without
reference to any proprietary or confidential Information of any member of the other
Group.
(b) Each Party agrees not to release or disclose,
or permit to be released or disclosed, any such Information (excluding Information described in
clauses (i), (ii) and (iii) of Section 7.07(a)) to any other Person, except its
directors, officers, employees, agents, accountants, counsel and other advisors
and representatives who need to know such Information (who shall be advised of
their obligations hereunder with respect to such Information), except in
compliance with Section 7.08. Without limiting the
foregoing, when any Information is no longer needed for the purposes
contemplated by this Agreement or any Ancillary Agreement, each Party will promptly, after request of the
other Party, either return the Information to the other Party in a tangible form (including all
copies thereof and all notes, extracts or summaries based thereon) or certify to
the other Party that any Information not returned in a
tangible form (including any such Information that exists in an electronic form)
has been destroyed (and such copies thereof and
such notes, extracts or summaries based thereon).
SECTION
7.08. Protective
Arrangements. In
the event that either
Party or any other member of its Group either determines on
the advice of its counsel that it is required to disclose any Information
pursuant to applicable law or receives any demand under lawful process or from
any Governmental Authority to disclose or provide Information of the other Party (or any other member of the other Party’s Group) that is subject to the
confidentiality provisions hereof, such Party shall, to the extent permitted by
law, notify the other
Party prior to disclosing or providing
such Information and shall cooperate, at the expense of the requesting
Party, in seeking any reasonable
protective arrangements requested by such other Party. Subject to the
foregoing, the Person that received such request may thereafter disclose or
provide Information to the extent required by such law (as so advised by
counsel) or by lawful process or such Governmental
Authority.
Dispute
Resolution
SECTION
8.01. Disputes. Subject to Section 11.13 and
except as otherwise
specifically provided in any Ancillary Agreement, the procedures for discussion,
negotiation and mediation set forth in this Article VIII shall apply to all disputes,
controversies or claims (whether arising in contract, tort or otherwise) that
may arise out of or relate to, or arise under or in connection with, this Agreement or any Ancillary
Agreement, or the transactions contemplated hereby or thereby (including all
actions taken in furtherance of the transactions contemplated hereby or thereby
on or prior to the date hereof), or the commercial or economic relationship of
the parties relating hereto or thereto,
between or among any members of the Brink’s Group, on the one hand, and any members of the BHS Group, on the other hand.
SECTION
8.02. Escalation;
Mediation.
(a) It is the intent of the Parties to use reasonable best efforts to
resolve expeditiously any dispute, controversy or claim between or among them
with respect to the matters covered hereby that may arise from time to time on a
mutually acceptable negotiated basis. In furtherance of the foregoing, a
Party involved in a
dispute, controversy or claim may deliver a notice (an “Escalation
Notice”) demanding an
in-person meeting involving representatives
of the Parties at a senior level of management
(or if the Parties agree, of the appropriate
strategic business unit or division within such entity). A copy of
any such Escalation Notice shall be given to the General Counsel, or like
officer or official, of the
Party involved in the
dispute, controversy or claim (which copy shall state that it is an Escalation
Notice pursuant to this Agreement). Any agenda, location or
procedures for such discussions or negotiations between the Parties may be established by the
Parties from time to time; provided, however, that the Parties shall use reasonable best efforts
to meet within 30 days of the Escalation Notice.
(b) If the Parties are not able to resolve the
dispute, controversy or claim through the escalation process referred to above,
then the matter shall be referred to mediation. The Parties shall retain a mediator to aid
the Parties in their discussions and
negotiations by informally providing advice to the Parties. Any opinion expressed
by the mediator shall be strictly advisory and shall not be binding on the
Parties or be admissible in any other
proceeding. The mediator may be chosen from a list of mediators
previously selected by the Parties or by other agreement of the
Parties. Costs of the
mediation shall be borne equally by the Parties involved in the matter, except
that each Party shall be responsible for its own
expenses. Mediation shall be a prerequisite to the commencement of
any Action by either Party against the other Party.
(c) In the event that any resolution of any
dispute, controversy or claim pursuant to the procedures set forth in Section
8.02(a) or (b) in any way affects an agreement or arrangement between either of
the Parties and a third party insurance carrier, the consent of such third party
insurance carrier to such resolution, to the extent such consent is required,
shall be obtained before such resolution can take effect.
SECTION
8.03. Court
Actions. (a) In the event that either Party, after complying with the
provisions set forth in Section 8.02, desires to commence an Action, such
Party may submit the dispute, controversy
or claim (or such series of related disputes, controversies or claims) to any
court of competent jurisdiction.
(b) Unless otherwise agreed in writing, the
Parties will continue to provide service
and honor all other commitments under this Agreement and each Ancillary
Agreement during the course of dispute resolution pursuant to the provisions of
this Article VIII with respect to all matters not subject
to such dispute, controversy or claim.
Further
Assurances and Additional Covenants
SECTION
9.01. Further
Assurances.
(a) In addition to the actions specifically
provided for elsewhere in this Agreement, each of the Parties shall, subject to
Section 4.03, use
reasonable best efforts, prior to, on and after the Distribution Date, to take, or cause to be taken, all
actions, and to do, or cause to be done, all things, reasonably necessary,
proper or advisable under applicable laws, regulations and agreements to
consummate and make effective the transactions contemplated by this Agreement
and the Ancillary Agreements.
(b) Without limiting the foregoing, prior
to, on and after the Distribution Date, each Party shall cooperate with the other
Party, without any further consideration, but
at the expense of the requesting Party, (i) to execute and deliver, or use
reasonable best efforts to execute and deliver, or cause to be executed and delivered, all
instruments, including any
bills of sale, stock powers, certificates of title, assignments of contracts and
other instruments of
conveyance, assignment and transfer as such Party may reasonably be requested to
execute and
deliver by the other Party, (ii) to make, or cause to be made, all filings with, and to
obtain, or cause to be
obtained, all consents,
approvals or authorizations of, any Governmental Authority or any other
Person under any permit, license, agreement,
indenture or other
instrument, (iii) to obtain, or cause to be obtained, any Governmental
Approvals or other Consents required to effect the Separation or the
Distribution and (iv) to take, or cause to be taken, all such other actions
as such Party may reasonably be requested to take by the other Party from time to time, consistent with
the terms of this Agreement and the Ancillary Agreements, in order to effectuate
the provisions and purposes of this Agreement and the Ancillary Agreements and
any transfers of Assets or assignments and assumptions of Liabilities hereunder or thereunder and the other transactions contemplated
hereby and thereby.
(c) On or prior to the Distribution Date, Brink’s and BHS, in their respective
capacities as direct and indirect shareholders of their respective
Subsidiaries, shall each ratify any actions that are reasonably necessary or desirable to
be taken by BHS or any other Subsidiary of Brink’s, as the case may be, to
effectuate the transactions contemplated by this Agreement.
(d) The Parties agree to take any reasonable
actions necessary in order for the Distribution, each step in the Internal Transactions
and any other transaction contemplated by this Agreement or any Ancillary
Agreement that is intended by the Parties to be tax-free to qualify as a tax-free transaction pursuant to Sections 355, 361(a) and 368(a)(1)(D) of the Code.
(e) Prior to the Distribution Date, if either Party identifies any commercial or other
service that is needed to assure a smooth and orderly transition of its business in connection with the consummation of
the transactions contemplated hereby, and that is not otherwise governed by the
provisions of this Agreement or any Ancillary Agreement, the Parties will cooperate in determining
whether there is a mutually acceptable arm’s-length basis on which the other
Party will provide such
service.
Termination
SECTION
10.01. Termination. This Agreement may be
terminated by Brink’s at any time, in its sole discretion, prior to the
Distribution
Date.
SECTION
10.02. Effect of
Termination. In
the event of any termination of this Agreement prior to the Distribution Date,
neither Party (or any of its directors or
officers) shall have any Liability or further obligation to the other Party.
Miscellaneous
SECTION
11.01. Counterparts;
Entire Agreement; Corporate Power. (a) This Agreement and each Ancillary
Agreement may be executed in one or more counterparts, all of which shall be
considered one and the same agreement, and shall become effective when one or
more counterparts have been signed by each party hereto or thereto and delivered to the other parties hereto or thereto.
(b) This Agreement, the Ancillary
Agreements and the exhibits, schedules and appendices hereto and thereto contain the
entire agreement between the Parties with respect to the subject
matter hereof, supersede all previous agreements, negotiations, discussions,
writings, understandings, commitments and conversations with respect to such
subject matter and there are no agreements or understandings between the
Parties with respect to the subject matter
hereof other than those set
forth or referred to herein or therein.
(c) Brink’s represents on behalf of itself
and each other member of the Brink’s Group, and BHS represents on behalf of
itself and each other member of the BHS Group, as follows:
(i) each such Person has the requisite
corporate or other power and authority and has taken all corporate or other
action necessary in order to execute, deliver and perform each of this Agreement
and each Ancillary
Agreement to which it is a
party and to consummate the transactions contemplated hereby and thereby;
and
(ii) this Agreement and each Ancillary
Agreement to which it is a party has been (or, in the case of any Ancillary
Agreement, will be on or prior to the Distribution Date) duly executed and delivered by it and
constitutes, or will constitute, a valid and binding agreement of it
enforceable in accordance with the terms thereof.
(d) Each Party acknowledges that it and
the other Party may execute this Agreement or any Ancillary
Agreement by facsimile,
stamp or mechanical signature. Each Party expressly adopts and confirms each
such facsimile, stamp or mechanical signature made in its respective name as if
it were a manual signature, agrees that it will not assert that any such
signature is not adequate to bind such Party to the same extent as if it were
signed manually and agrees that at the reasonable request of the other Party at any time it will as promptly as
reasonably practicable cause this Agreement or any such Ancillary Agreement to be manually
executed (any such execution to be as of the date of the initial date
hereof or thereof). Furthermore, delivery
of an executed signature page (whether executed manually or with a facsimile,
stamp or mechanical signature) of this Agreement or any Ancillary Agreement by
facsimile or electronic transmission shall be effective as delivery of a
manually executed counterpart hereof or thereof.
(e) Notwithstanding any provision of this
Agreement or any Ancillary Agreement, neither Brink’s nor BHS shall be required
to take or omit to take any act that would violate its fiduciary duties to any
minority shareholders of any non-wholly owned Subsidiary of Brink’s or BHS, as
the case may be (it being understood that directors’ qualifying shares or
similar interests will be disregarded for purposes of determining whether a
Subsidiary is wholly owned).
SECTION
11.02. Governing
Law. This
Agreement and, unless expressly provided therein, each Ancillary Agreement,
shall be governed by and construed and interpreted in accordance with the
law of the State of New
York irrespective of the
choice of law principles of
the State of New York, as to all matters, including matters of validity,
construction, effect, enforceability, performance and
remedies.
SECTION
11.03. Assignability. Except as set forth in any
Ancillary Agreement, this Agreement and each Ancillary Agreement shall be
binding upon and inure to the benefit of the parties hereto and thereto and their respective successors and
permitted assigns; provided, however, that no party hereto or thereto may assign its rights or delegate its
obligations under this Agreement or any Ancillary Agreement without the express
prior written consent of the other parties hereto or thereto.
SECTION
11.04. Third Party
Beneficiaries. Except for the
indemnification rights under this Agreement of any Brink’s Indemnitee or BHS
Indemnitee in their respective capacities as such, (a) the provisions of
this Agreement and each Ancillary Agreement are solely for the benefit of the
parties hereto or thereto and are not intended to confer upon any
Person except the parties hereto or thereto any rights or remedies hereunder
or thereunder and (b) there are no third party
beneficiaries of this Agreement or any Ancillary Agreement and neither this
Agreement nor any Ancillary Agreement shall provide any third person with any
remedy, claim, liability, reimbursement, cause of action or other right in excess of
those existing without reference to this Agreement or any Ancillary
Agreement.
SECTION
11.05. Notices. All notices or other communications
under this Agreement or any Ancillary Agreement shall be in writing and shall be
deemed to be duly given when (a) delivered in person or (b) deposited
in the United States mail or private express mail, postage prepaid, addressed as
follows:
If to Brink’s,
to:
The Brink’s Company
X.X. Xxx 00000
0000 Xxxxxxxx Xxxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attn: Secretary
If to BHS to:
Brink's Home Security Holdings,
Inc.
0000 Xxxxxx
Xxxxxxxxx
Xxxxxx,
Xxxxx 00000
Attn: Secretary
Either Party may, by notice to the other
Party, change the address to which such
notices are to be given.
SECTION
11.06. Severability. If any provision of this
Agreement or any Ancillary Agreement or the application thereof to any Person or
circumstance is determined by a court of competent jurisdiction to be invalid,
void or unenforceable, the remaining provisions hereof or thereof, or the
application of such provision to Persons or circumstances or in jurisdictions
other than those as to which it has been held invalid or unenforceable, shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated thereby, so long as the economic or legal substance of the
transactions contemplated hereby or thereby, as the case may be, is not affected
in any manner materially
adverse to either Party. Upon any such determination, the Parties shall negotiate in good faith in
an effort to agree upon a suitable and equitable provision to effect the
original intent of the Parties.
SECTION
11.07. Force
Majeure. Neither Party shall be deemed in default of this
Agreement or any Ancillary Agreement to the extent that any delay or failure in
the performance of its obligations under this Agreement or any Ancillary
Agreement results from any cause beyond its reasonable control and without its
fault or negligence, such as acts of God, acts of civil or military authority,
embargoes, epidemics, war, riots, insurrections, fires, explosions, earthquakes,
floods, unusually severe weather conditions, labor problems or unavailability of
parts, or, in the case of computer systems, any failure in electrical or air
conditioning equipment. In the event of any such excused delay, the
time for performance shall be extended for a period equal to the time lost by
reason of the delay.
SECTION
11.08. Publicity. Prior to the Distribution,
each of BHS and Brink’s shall consult with each other prior to issuing any press
releases or otherwise making public statements with respect to the Distribution
or any of the other transactions contemplated hereby and prior to making any
filings with any Governmental Authority with respect
thereto.
SECTION
11.09. Expenses. Except as expressly set
forth in this Agreement or in any Ancillary Agreement, all third party fees,
costs and expenses paid or incurred in connection with the Separation and the
Distribution will be paid by Brink’s.
SECTION
11.10. Headings. The article, section and
paragraph headings contained in this Agreement and in the Ancillary Agreements
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement or any Ancillary Agreement.
SECTION
11.11. Survival of
Covenants.
Except as expressly set forth in
this Agreement or any
Ancillary Agreement,
(a) the covenants in this Agreement and the liabilities for the breach of any obligations
in this Agreement and
(b) any covenants,
representations or
warranties contained in any Ancillary Agreement and any liabilities for the
breach of any obligations contained in any Ancillary Agreement, in each case, shall survive each of the Separation and
the Distribution and shall remain in full force and effect.
SECTION
11.12. Waivers of
Default. Waiver
by any party hereto or to any Ancillary Agreement
of any default by
any other party hereto or thereto of any provision of this Agreement or
such Ancillary Agreement shall not be deemed
a waiver by the waiving party of any subsequent or other
default.
SECTION
11.13. Specific
Performance.
Subject to
Section 4.03 and notwithstanding the procedures set forth in
Article VIII, in the
event of any actual or threatened default in, or breach of, any of the terms,
conditions and provisions of this Agreement or any Ancillary Agreement, the
party or parties who are to be hereby or thereby aggrieved shall have the right
to specific performance and injunctive or other equitable relief of its rights
under this Agreement or such Ancillary Agreement, in addition to any and all
other rights and remedies at law or in equity, and all such rights and remedies
shall be cumulative. The parties to this Agreement and any Ancillary
Agreement agree that the
remedies at law for any breach or threatened breach hereof or thereof, including monetary damages, are
inadequate compensation for any loss and that any defense in any action for
specific performance that a remedy at law would be adequate is
waived. Any requirements for the securing or posting of any bond with
such remedy are waived.
SECTION
11.14. Amendments. No provisions of this
Agreement or any Ancillary Agreement shall be deemed waived, amended,
supplemented or modified by any party hereto or thereto, unless such waiver, amendment,
supplement or modification is in writing and signed by the authorized
representative of the party against whom it is sought to
enforce such waiver, amendment, supplement or modification.
SECTION
11.15. Interpretation. Words in the singular shall
be held to include the plural and vice versa and words of one gender shall be
held to include the other genders as the context requires. The terms
“hereof, “ “herein, “ and “herewith” and words of similar import, unless otherwise stated, shall be construed to refer to this Agreement
or the applicable Ancillary
Agreement as a whole
(including all of the schedules, exhibits and appendices hereto or thereto) and not to any particular
provision of this Agreement
or such Ancillary Agreement. Article, Section, Exhibit,
Schedule and Appendix references are to the articles, sections, exhibits,
schedules and appendices of
or to this Agreement or
the applicable Ancillary
Agreement unless otherwise
specified. Any
reference herein to this Agreement or any Ancillary Agreement, unless otherwise
stated, shall be construed to refer to this Agreement or such Ancillary
Agreement as amended, supplemented or otherwise modified from time to time, as
permitted by Section 11.14 and the terms of any applicable provision in any
Ancillary Agreement. The word “including” and words of
similar import when used in this Agreement (or the applicable Ancillary
Agreement) shall mean “including, without limitation,” unless the context
otherwise requires or unless otherwise specified. The word “or” shall
not be exclusive.
SECTION
11.16. Jurisdiction;
Service of Process. Any action or proceeding arising out of
or relating to this Agreement or any Ancillary Agreement shall be brought in the
courts of the State of Virginia located in the County of Henrico or in the
United States District Court for the Eastern District of Virginia (if any party
to such action or proceeding has or can acquire jurisdiction), and each of the
parties hereto or thereto irrevocably submits to the exclusive jurisdiction of
each such court in any such action or proceeding, waives any objection it may
now or hereafter have to venue or to convenience of forum, agrees that all
claims in respect of the action or proceeding shall be heard and determined only
in any such court and agrees not to bring any action or proceeding arising out
of or relating to this Agreement or any Ancillary Agreement in any other
court. The parties to this Agreement or any Ancillary Agreement agree
that any of them may file a copy of this paragraph with any court as written
evidence of the knowing, voluntary and bargained agreement between the parties
hereto and thereto irrevocably to waive any objections to venue or to
convenience of forum. Process in any action or proceeding referred to
in the first sentence of this Section may be served on any party the this
Agreement or any Ancillary Agreement anywhere in the world.
SECTION
11.17. Currency. Unless otherwise specified, all
references to currency, monetary values and dollars in this Agreement and any
Ancillary Agreement shall mean United States (U.S.) dollars and all payments
shall be made in U.S. dollars.
SECTION
11.18. Late
Payments.
Except as expressly
provided to the contrary in this Agreement or in any Ancillary Agreement, any
amount not paid when due pursuant to this Agreement or any Ancillary Agreement
shall accrue interest at a rate per annum equal to the Prime Rate plus
2%.
IN WITNESS WHEREOF, the Parties have caused this Separation and
Distribution Agreement to be executed by their duly authorized
representatives.
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BRINK’S
HOME SECURITY HOLDINGS, INC.,
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by
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Name:
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Title:
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Internal
Transactions
The Internal Transactions will take
place in the following steps, all of which will occur prior to the Distribution
Date in the following order.
Step 1: First
Internal Share Distribution. Brink’s Holding Company will
dividend 100% of the stock of Brink’s Home Security, Inc. to Brink’s Holding
Company’s sole shareholder, Pittston Services Group, Inc.
Step 2: Second
Internal Share Distribution. Pittston Services Group,
Inc. will distribute 100% of the stock of Brink’s Home Security, Inc. to its
sole shareholder, Brink’s.
Step 3: Payables
Transactions.2 Immediately prior to the Payables
Transactions, the following intercompany payables will be
outstanding:
• a payable from Brink’s to BHS Inc., in the form of an intercompany loan,
in an amount equal to approximately $[ ] million (the “Distributing
Payable”);
• a payable from BHS Inc. to Guarding, in
connection with BHS Inc.’s sublicense of intellectual property from
Guarding, in an amount
equal to approximately $[ ] million (the “BHS Inc.
Payable”);
and
• a payable from BHS Canada to Guarding, in connection with BHS
Canada’s sublicense of
intellectual property from Guarding, in an amount equal to approximately
$[ ] million (together with BHS Inc. Payable, the “BHS
Payables”).
The Payables Transactions will consist
of the following transactions: Brink’s will assume the BHS Inc.
Payables and, in exchange for such assumption, BHS Inc. (a) will transfer
100% of the outstanding capital stock of Guarding to Brink’s and (b) will
forgive the Distributing Payable. The amount by which the BHS
Payables exceed the sum of (i) the fair market value of Guarding and
(ii) the Distributing Payable will be deemed a contribution by Brink’s to
BHS.
Step 4: Third
Internal Share Distribution. Brink’s (a) will
transfer to BHS 100% of the outstanding capital stock of BHS Inc. and
(b) will contribute to
BHS an amount of cash equal
to $50 million,
as contemplated by the pro
forma balance sheet included in the Form 10.
Step 5: BHS Share
Recapitalization. Whether before, after or
simultaneously with Step 5 above, Brink’s will cause the recapitalization
of BHS so that the number of outstanding shares of BHS capital stock will be
equal to the number of shares that will be distributed in the
Distribution.
