CHANGE IN CONTROL AGREEMENT dated as of February 25, 2010 between The Brink’s Company, a Virginia corporation (the “Company”), and Matthew A.P. Schumacher (the “Executive”).
EXHIBIT
10.5
dated as
of February 25, 2010
between
The Brink’s Company,
a
Virginia corporation (the “Company”),
and
Xxxxxxx X.X. Xxxxxxxxxx (the “Executive”).
SECTION 1. Definitions. As
used in this Agreement:
(a) “Affiliate”
has the meaning ascribed thereto in Rule 12b-2 pursuant to the Securities
Exchange Act of 1934, as amended (the “Act”).
(b) “Board”
means the Board of Directors of the Company.
(c) “Cause”
means (i) embezzlement, theft or misappropriation by the Executive of any
property of the Company, (ii) the Executive’s willful breach of any fiduciary
duty to the Company, (iii) the Executive’s willful failure or refusal to comply
with laws or regulations applicable to the Company and its business or the
policies of the Company governing the conduct of its employees, (iv) the
Executive’s gross incompetence in the performance of the Executive’s job duties,
(v) commission by the Executive of a felony or of any crime involving moral
turpitude, fraud or misrepresentation, (vi) the failure of the Executive to
perform duties consistent with a commercially reasonable standard of care or
(vii) any gross negligence or willful misconduct of the Executive resulting in a
loss to the Company. Notwithstanding the foregoing, the Executive
shall not be deemed to have been terminated for Cause without
(1) reasonable notice to the Executive setting forth the reasons for the
Company’s intention to terminate for Cause, (2) an opportunity for the
Executive, together with his counsel, to be heard before the Board, and
(3) delivery to the Executive of a Notice of Termination, as defined in
Section 4(d) hereof, from the Board finding that in the good faith opinion
of three-quarters (3/4) or more of the Board, the Executive acted in a manner
described in one or more of clauses (i) through (vii) above, and specifying the
particulars thereof in detail.
(d) A
“Change in Control” shall be deemed to occur (1) upon (A) any consolidation or
merger of the Company in which the Company is not the continuing or surviving
corporation or pursuant to which the shares of all classes of the Company’s
Common Stock would be converted into cash, securities or other property other
than a consolidation or merger in which holders of the total voting power in the
election of directors of the Company of all classes of Common Stock outstanding
(exclusive of shares held by the Company’s Affiliates) (the “Total Voting
Power”) immediately prior to the consolidation or merger will have the same
proportionate ownership of the total voting power in the election of directors
of the surviving corporation immediately after the consolidation or merger, or
(B) any sale, lease, exchange or other transfer (in one transaction or a series
of transactions) of all or substantially all the assets of the Company, (2) when
any “person” (as defined in Section 13(d) of the Act), other than the Company,
its Affiliates or an employee benefit plan or trust maintained by the Company or
its Affiliates, shall become the “beneficial owner” (as defined in Rule 13d-3
under the Act), directly or indirectly, of more than 20% of the Total Voting
Power or (3) if at any time during a period of two consecutive years,
individuals who at the beginning of such period constituted the Board shall
cease for any reason to constitute at least a majority thereof, unless the
election by the Company’s shareholders of each new director during
such
two-year
period was approved by a vote of at least two-thirds of the directors then still
in office who were directors at the beginning of such two-year
period.
(e) “Good
Reason” means any of the following events that is not cured by the Company
within 30 days after written notice thereof from the Executive to the Company,
which written notice must be made within 90 days of the occurrence of the
event:
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(i)
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(A)
without the Executive’s express written consent, the assignment to the
Executive of any duties materially inconsistent with the Executive’s
position (including status, offices, titles and reporting requirements),
authority, duties or responsibilities as contemplated by Section 3(a)
hereof, (B) any other action by the Company or its Affiliates which
results in a material diminution in such position, authorities, duties or
responsibilities, or (C) any material failure by the Company to comply
with any of the provisions of Section 3(b)
hereof;
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(ii)
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without
the Executive’s express written consent, the Company’s requiring a
material change to Executive’s work location as set forth in Section
3(a)(i);
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(iii)
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any
failure by the Company to comply with and satisfy Section 9(a);
or
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(iv)
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any
breach by the Company of any other material provision of this
Agreement.
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Notwithstanding
the foregoing, “Good Reason” will cease to exist if the Executive has not
terminated employment within two years following the initial occurrence of the
event constituting Good Reason.
(f) “Incapacity”
means any physical or mental illness or disability of the Executive which
continues for a period of six consecutive months or more and which at any time
after such six-month period the Board shall reasonably determine renders the
Executive incapable of performing his or her duties during the remainder of the
Employment Period.
(g) “Operative
Date” means the date on which a Change in Control shall have
occurred.
SECTION 2. Employment
Period. The Company hereby agrees to continue the Executive in
its employ, and the Executive hereby agrees to remain in the employ of the
Company subject to the terms and conditions of this Agreement, for the period
commencing on the Operative Date and ending on the second anniversary of such
date (the “Employment Period”); provided, however, that, effective after the
first anniversary of the Operative Date, the Executive shall have the right to
terminate his employment for any reason, or for no reason at all, whereupon the
Employment Period shall terminate effective as of the date of such termination
of employment; and, provided further, that, notwithstanding the foregoing, the
Executive’s right to terminate employment for Good Reason pursuant to Section 4
hereunder shall apply at any time during the Employment Period.
SECTION 3. Terms of
Employment. (a) Position and
Duties. (i) During the Employment
Period: (A) the Executive’s position (including status, offices,
titles, reporting
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requirements),
authority, duties and responsibilities shall be at least commensurate in all
material respects with the most significant of those held, exercised and
assigned immediately prior to the Operative Date, and (B) the Executive’s
services shall be performed at a location that is within 25 miles of the
location at which the Executive was based on the Operative Date and the Company
shall not require the Executive to travel on Company business to a substantially
greater extent than required immediately before the Operative Date, except for
travel and temporary assignments which are reasonably required for the full
discharge of the Executive’s responsibilities and which are consistent with the
Executive’s being so based.
(ii) During
the Employment Period, and excluding any periods of vacation and sick leave to
which the Executive is entitled, the Executive agrees to devote reasonable
attention and time during normal business hours to the business and affairs of
the Company and, to the extent necessary to discharge the responsibilities
assigned to the Executive hereunder, to use the Executive’s reasonable best
efforts to perform faithfully and efficiently such
responsibilities. All such services as an employee or officer
will be subject to the direction and control of the Chief Executive Officer of
the Company or of an appropriate senior official designated by such Chief
Executive Officer (or, in the event of the Chief Executive Officer’s incapacity
without such a designation, the Board).
(b) Compensation. (i) Salary and
Bonus. During the Employment Period the Executive will receive
compensation at an annual rate equal to the sum of (A) a salary (“Annual
Base Salary”) not less than the Executive’s annualized salary in effect
immediately prior to the Operative Date, plus (B) an annual bonus not less
than the amount of the Executive’s Average Annual Bonus (as defined
below).
For
purposes of this Agreement, “Average Annual Bonus” shall mean the average amount
of the annual bonus earned by, and paid to, the Executive under the Key
Employees Incentive Plan (or any substitute or successor plan) for the last
three full calendar years preceding the Operative Date, for purposes of Section
3(b)(i), and the Date of Termination, for purposes of Section 5;
provided that, if the Executive has not been employed for the entirety of the
last three full calendar years, so that the Average Annual Bonus cannot be
determined based on the actual amount of annual bonuses earned and paid for such
full calendar years, then to the extent necessary to attain an average of three
years for purposes of determining the Average Annual Bonus, the Executive’s
target annual bonus amount for the year in which the Operative Date, for
purposes of Section 3(b)(i), and the Date of Termination, for purposes
of Section 5, occurs shall be used for any (i) partial calendar
year(s) of employment and (ii) calendar year(s) that has not yet
commenced.
(ii) Incentive and Savings
Plans. During the Employment Period, the Executive will be
entitled to (A) continue to participate in all incentive and savings plans
and programs generally applicable to executive officers of the Company or
(B) participate in incentive and savings plans and programs of a successor
to the Company which have benefits that are not less favorable to the
Executive.
(iii) Welfare Benefit
Plans. During the Employment Period, the Executive and/or the
Executive’s family or beneficiary, as the case may be, shall be eligible to
(A) participate in and shall receive all benefits under welfare benefit
plans and programs generally applicable to full-time
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officers
or employees of the Company or (B) participate in welfare benefit plans and
programs of a successor to the Company which have benefits that are not less
favorable to the Executive.
(iv) Business
Expenses. During the Employment Period the Company shall, in
accordance with policies then in effect with respect to the payment of expenses,
pay or reimburse the Executive for all reasonable out-of-pocket travel and other
expenses (other than ordinary commuting expenses) incurred by the Executive in
performing services hereunder. All such expenses shall be accounted
for in such reasonable detail as the Company may require.
(v) Vacations. The
Executive shall be entitled to periods of vacation not less than those to which
the Executive was entitled immediately prior to the Operative Date.
SECTION 4. Termination of
Employment.
(a) Death or
Incapacity. The Executive’s employment shall terminate
automatically upon the Executive’s death during the Employment
Period. The Executive’s employment shall cease and terminate on the
date of determination by the Board that the Incapacity of the Executive has
occurred during the Employment Period (“Incapacity Effective
Date”).
(b) Cause. The
Company may terminate the Executive’s employment for Cause, as defined herein,
pursuant to the Board passing a resolution that such Cause exists.
(c) Good
Reason. The Executive may terminate his or her employment for
Good Reason, as defined herein.
(d) Notice of
Termination. Any termination by the Company for Cause or
Incapacity, or by the Executive for Good Reason, shall be communicated by Notice
of Termination to the other party hereto given in accordance with
Section 11 of this Agreement. For purposes of this Agreement, a
“Notice of Termination” means a written notice which (i) indicates the
specific termination provision in this Agreement relied upon, (ii) to the
extent applicable, sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive’s employment under
the provision so indicated, (iii) in the case of termination by the Company
for Cause or for Incapacity, confirms that such termination is pursuant to a
resolution of the Board, and (iv) if the Date of Termination (as defined
below) is other than the date of receipt of such notice, specifies the
termination date (which date shall be not more than 30 days after the
giving of such notice). The failure by the Executive or the Company
to set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason, Incapacity or Cause shall not serve to
waive any right of the Executive or the Company, respectively, hereunder or
preclude the Executive or the Company, respectively, from asserting such fact or
circumstance in enforcing the Executive’s or the Company’s rights
hereunder.
(e) Date of
Termination. “Date of Termination” means (i) if the
Executive’s employment is terminated by the Company for Cause or by the
Executive for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein, as the case may be, (ii) if the
Executive’s employment is terminated by the Company other than for Cause or
Incapacity, the Date of Termination shall be the date on which the Company
notifies the Executive of such
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termination,
and (iii) if the Executive’s employment is terminated by reason of death or
Incapacity, the Date of Termination shall be the date of death of the Executive
or the Incapacity Effective Date, as the case may be.
SECTION 5. Obligations of the Company
Upon Termination. (a) Termination for Good Reason
or for Reasons Other Than for Cause, Death or Incapacity. If,
during the Employment Period, the Company shall terminate the Executive’s
employment other than for Cause or Incapacity or the Executive shall terminate
his or her employment for Good Reason:
(i) the
Company shall pay to the Executive in a lump sum in cash within 30 days
after the Date of Termination the aggregate of the following
amounts:
(A) the
sum of (1) the Executive’s currently effective Annual Base Salary through
the Date of Termination to the extent not theretofore paid, (2) the product
of (x) the Average Annual Bonus and (y) a fraction, the numerator of
which is the number of days in the current fiscal year through the Date of
Termination, and the denominator of which is 365 and (3) any accrued vacation
pay, in each case to the extent not theretofore paid (the sum of the amounts
described in clauses (1), (2), and (3) shall be hereinafter referred
to as the “Accrued Obligations”); and
(B) the
amount equal to the product of (1) two and (2) the sum of (x) the
Executive’s currently effective Annual Base Salary and (y) his or her
Average Annual Bonus;
(ii) In
the event the Executive elects continued medical benefit coverage pursuant to
Section 4980B(f) of the Internal Revenue Code of 1986, as amended (the
“Code”), then until the earlier of (A) the eighteen-month anniversary of the
Date of Termination or (ii) such time as the Executive becomes eligible to
receive medical benefits under another employer-provided plan, the Company shall
reimburse the Executive for premiums associated with such coverage in an amount
equal to the premiums that the Company would have paid in respect of such
coverage had the Executive’s employment continued during such period; provided, however, that except
as specifically permitted by Section 409A of the Code and the Treasury
Regulations promulgated thereunder (“Section 409A”), the benefits provided to
the Executive under this Section 5(a)(ii) during any calendar year shall not
affect the benefits to be provided to the Executive under this Section 5(a)(ii)
in any other calendar year and the right to such benefits cannot be liquidated
or exchanged for any other benefit, in accordance with Treas. Reg. Section
1.409A-3(i)(1)(iv) or any successor thereto.
(iii) the
Company shall, at its sole expense as incurred, provide the Executive with
reasonable outplacement services for a period of up to one year from the Date of
Termination, the provider of which shall be selected by the Executive in his or
her sole discretion; and
(iv) to
the extent not theretofore paid or provided, the Company shall timely pay or
provide to the Executive any other amounts or benefits required to be paid or
provided or which the Executive is eligible to receive under any plan, program,
policy or practice or
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contract
or agreement of the Company and its Affiliates (such other amounts and benefits
shall be hereinafter referred to as the “Other Benefits”).
(b) Death or
Incapacity. If the Executive’s employment is terminated by
reason of the Executive’s death or Incapacity during the Employment Period, this
Agreement shall terminate without further obligations to the Executive’s legal
representatives under this Agreement, other than for (i) timely payment of
Accrued Obligations in a lump sum in cash within 30 days after the
Date of Termination and (ii) provision by the Company of death
benefits or disability benefits for termination due to death or Incapacity,
respectively, in accordance with Section 3(b)(iii) as in effect at the
Operative Date or, if more favorable to the Executive, at the Executive’s Date
of Termination.
(c) Cause; Other than for Good
Reason. If the Executive’s employment shall be terminated for
Cause during the Employment Period, this Agreement shall terminate without
further obligations to the Executive other than timely payment to the Executive
of (x) the Executive’s currently effective Annual Base Salary through the
Date of Termination in a lump sum in cash within 30 days after the Date of
Termination and (y) Other Benefits, in each case to the extent theretofore
unpaid. If the Executive voluntarily terminates employment during the
Employment Period, excluding a termination for Good Reason, this Agreement shall
terminate without further obligations to the Executive, other than for the
timely payment of Accrued Obligations in a lump sum in cash within 30 days after
the Date of Termination and Other Benefits.
SECTION 6. Non-exclusivity of
Rights. Nothing in this Agreement shall prevent or limit the
Executive’s continuing or future participation in any plan, program, policy or
practice provided by the Company or any of its Affiliates and for which the
Executive may qualify, nor, subject to Section 15(c), shall anything herein
limit or otherwise affect such rights as the Executive may have under any
contract or agreement with the Company or any of its
Affiliates. Amounts which are vested benefits or which the Executive
is otherwise entitled to receive under any plan, policy, practice or program of
or any contract or agreement with the Company or any of its Affiliates at or
subsequent to the Date of Termination shall be payable in accordance with such
plan, policy, practice or program or contract or agreement except as explicitly
modified by this Agreement.
SECTION 7. No
Mitigation. The Company agrees that, if the Executive’s
employment is terminated during the term of this Agreement for any reason, the
Executive is not required to seek other employment or to attempt in any way to
reduce any amounts payable to the Executive hereunder. Furthermore,
the amount of any payment or benefit provided hereunder shall not be reduced by
any compensation earned by the Executive as the result of employment by another
employer, by retirement benefits, by offset against any amount claimed to be
owed by the Executive to the Company, or otherwise.
SECTION 8. Full
Settlement. Subject to full compliance by the Company with all
of its obligations under this Agreement, this Agreement shall be deemed to
constitute the settlement of such claims as the Executive might otherwise be
entitled to assert against the Company by reason of the termination of the
Executive’s employment for any reason during the Employment
Period. The Company’s obligation to make the payments provided for in
this Agreement and otherwise to perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which the Company may have against the Executive or
others.
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In no
event shall the Executive be obligated to seek other employment or take any
other action by way of mitigation of the amounts payable to the Executive under
any of the provisions of this Agreement and such amounts shall not be reduced
whether or not the Executive obtains other employment. The Company
agrees to pay as incurred, to the full extent permitted by law, all legal fees
and expenses which the Executive may reasonably incur prior to the tenth
anniversary of the end of the Employment Period as a result of any contest
(regardless of the outcome thereof) by the Company, the Executive or others of
the validity or enforceability of, or liability under, any provision of this
Agreement or any guarantee of performance thereof. Except as
specifically permitted by Section 409A, the legal fees provided to the Executive
under this Section 8 during any calendar year shall not affect the legal fees to
be provided to the Executive under this Section 8 in any other calendar year and
the right to such legal fees cannot be liquidated or exchanged for any other
benefit, in accordance with Treas. Reg. Section 1.409A-3(i)(1)(iv) or any
successor thereto. Furthermore, reimbursement payments for legal fees
shall be made to the Executive as promptly as practicable following the date
that the applicable expense is incurred, but in any event not later than the
last day of the calendar year following the calendar year in which the
underlying fee is incurred, in accordance with Treas. Reg. Section
1.409A-3(i)(1)(iv) or any successor thereto.
SECTION 9. Successors; Binding
Agreement.
(a) The
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
or assets of the Company, by agreement, in form and substance satisfactory to
the Executive, expressly to assume and agree to perform this Agreement in the
same manner and to the same extent that the Company would be required to perform
if no such succession had taken place. Failure of the Company to
obtain such assumption and agreement prior to the effectiveness of any such
succession will be a breach of this Agreement and entitle the Executive to
compensation from the Company in the same amount and on the same terms as the
Executive would be entitled to hereunder had the Company terminated the
Executive for reason other than Cause or Incapacity on the succession
date. As used in this Agreement, the “Company” means the Company as
defined in the preamble to this Agreement and any successor to its business or
assets which executes and delivers the agreement provided for in this
Section 9 or which otherwise becomes bound by all the terms and provisions
of this Agreement by operation of law or otherwise.
(b) This
Agreement shall be enforceable by the Executive’s personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees.
SECTION 10. Non-assignability. This
Agreement is personal in nature and neither of the parties hereto shall, without
the consent of the other, assign or transfer this Agreement or any rights or
obligations hereunder, except as provided in Section 9
hereof. Without limiting the foregoing, the Executive’s right to
receive payments hereunder shall not be assignable or transferable, whether by
pledge, creation of a security interest or otherwise, other than a transfer by
his or her will or by the laws of descent or distribution, and, in the event of
any attempted assignment or transfer by the Executive contrary to this Section
10, the Company shall have no liability to pay any amount so attempted to be
assigned or transferred.
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SECTION 11. Notices. For
the purpose of this Agreement, notices and all other communications provided for
herein shall be in writing and shall be deemed to have been duly given when
delivered or mailed by United States registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
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If
to the Executive:
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Xxxxxxx
X.X. Xxxxxxxxxx
Address
on file with the Company
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If
to the Company:
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The
Brink’s Company
0000
Xxxxxxxx Xxxxx, Xxxxx 000
P.O.
Box 18100
Xxxxxxxx,
XX 00000
Attention
of Corporate Secretary
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or to
such other address as either party may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
SECTION 12. Operation of
Agreement. (a) This Agreement shall be effective immediately
upon its execution and continue to be effective so long as the Executive is
employed by the Company or any of its Affiliates. The provisions of
this Agreement do not take effect until the Operative Date.
(b) Notwithstanding
anything in Section 12(a) to the contrary, this Agreement shall, unless extended
by written agreement of the parties hereto, terminate, without further action by
the parties hereto, on the third anniversary of the date of this Agreement if a
Change in Control shall not have occurred prior to such third anniversary
date.
SECTION 13. Governing
Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the Commonwealth
of Virginia without reference to principles of conflict of laws.
SECTION 14. Section 409A of the
Code. The provisions of this Section 14 shall apply
notwithstanding any provision in this Agreement to the contrary.
(a) Intent to Comply with
Section 409A of the Code. It is intended that the provisions
of this Agreement comply with Section 409A, and all provisions of this Agreement
shall be construed and interpreted in a manner consistent with the requirements
for avoiding taxes or penalties under Section 409A. For the purpose
of compliance with Section 409A, the Date of Termination as defined above shall
be the date that qualifies as a “separation from service” of the Executive
within the meaning of Section 409A.
(b) No alienation, set-offs,
etc. Neither the Executive nor any creditor or beneficiary of
the Executive shall have the right to subject any deferred compensation (within
the meaning of Section 409A) payable under this Agreement or under any other
plan, policy, arrangement or agreement of or with the Company or any affiliate
thereof (this Agreement and such other plans, policies, arrangements and
agreements, the “Company Plans”) to any anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance, attachment or
garnishment. Except as
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permitted
under Section 409A, any deferred compensation (within the meaning of Section
409A) payable to or for the benefit of the Executive under any Company Plan may
not be reduced by, or offset against, any amount owing by the Executive to the
Company (or an affiliate, as applicable).
(c) Six-Month Delay of Certain
Payments. If, at the time of the Executive’s separation from
service (within the meaning of Section 409A), (i) the Executive shall be a
specified employee (within the meaning of Section 409A and using the
identification methodology selected by the Company from time to time) and (ii)
the Company shall make a good faith determination that an amount payable under
any Company Plan constitutes deferred compensation (within the meaning of
Section 409A) the payment of which is required to be delayed pursuant to the
six-month delay rule set forth in Section 409A in order to avoid taxes or
penalties under Section 409A, then the Company (or an affiliate, as applicable)
shall not pay any such amount on the otherwise scheduled payment date but shall
instead accumulate such amount and pay it, without interest, on the first day of
the seventh month following such separation from service.
(d) Amendment of Deferred
Compensation Plans. Notwithstanding any provision of any
Company Plan to the contrary, in light of the uncertainty with respect to the
proper application of Section 409A, the Company reserves the right to make
amendments to any Company Plan as the Company deems necessary or desirable to
avoid the imposition of taxes or penalties under Section 409A.
SECTION
15. Miscellaneous.
(a) This
Agreement contains the entire understanding with the Executive with respect to
the subject matter hereof and supersedes any and all prior agreements or
understandings, written or oral, relating to such subject matter. No
provisions of this Agreement may be modified, waived or discharged unless such
modification, waiver or discharge is agreed to in writing signed by the
Executive and the Company.
(b) The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this
Agreement.
(c) Except
as provided herein, this Agreement shall not be construed to affect in any way
any rights or obligations in relation to the Executive’s employment by the
Company or any of its Affiliates prior to the Operative Date or subsequent to
the end of the Employment Period.
(d) This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original but all of which together will constitute one and the
same Agreement.
(e) The
Company may withhold from any benefits payable under this Agreement all Federal,
state, city or other taxes as shall be required pursuant to any law or
governmental regulation or ruling.
(f) The
captions of this Agreement are not part of the provisions hereof and shall have
no force or effect.
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IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered as of the day and year first above set forth.
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THE
BRINK’S COMPANY,
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by
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/s/
Xxxxxxx X. Xxx
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Xxxxxxx
X. Xxx
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Chairman
of the Board,
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President
and Chief Executive Officer
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/s/
Xxxxxxx A.P. Xxxxxxxxxx
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Xxxxxxx
X.X. Xxxxxxxxxx
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