CONSULTING AGREEMENT
EXHIBIT
10.5
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT
(this "Agreement") is made effective for all purposes and in all respects as of
the date referenced below, by and between The Brink’s
Company (hereinafter referred to as "Brink’s") and Xxxxxx X. Xxxxxx
(hereinafter referred to as "Consultant").
WHEREAS, Brink’s desires to
engage Consultant to perform certain tasks, duties and/or services as shall be
assigned to Consultant by Brink’s from time to time;
WHEREAS, Consultant desires to
be so engaged by Brink’s; and
WHEREAS, Brink’s and
Consultant desire to set forth in writing the terms and conditions of their
agreements and understandings.
NOW, THEREFORE, in
consideration of the foregoing, of the mutual promises herein contained, and of
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending legally to be bound, hereby
agree as follows:
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1.
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Duties of
Consultant. Consultant shall perform such tasks, duties and/or
services for Brink’s as described in Schedule A
attached hereto and made a part hereof, as it may be amended from time to
time. Consultant agrees to perform work in a prompt, efficient and
professional manner. Nothing contained herein shall require Brink’s to
engage Consultant for, or Consultant to provide, a minimum number of days
or be deemed to be a guarantee to or by Consultant of a minimum number of
days of engagement under this
Agreement.
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2.
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Term of
Engagement. The term of Consultant’s engagement hereunder (the
"Term") shall commence as of July 1, 2008 and shall continue until June
30, 2009 or until either party shall provide written notice to the other
of its desire to terminate such engagement, whichever occurs
first. Any notice of intent to terminate the engagement must be
made thirty (30) days in advance of any contemplated termination of the
Agreement. Notwithstanding the foregoing, the termination of
this Agreement for any reason shall not terminate or in any way affect
Consultant’s covenants and obligations set forth in sections 5, 6, and 10
hereof.
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3.
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Compensation.
Subject to compliance by Consultant with this Agreement, Brink’s shall pay
Consultant the compensation specified in Schedule
A. During the Term, Brink’s shall not be obligated,
under any circumstances, to pay for, or keep in effect, any
hospitalization, health, or life insurance for the benefit of Consultant,
to pay any employment or similar taxes, to make any tax withholdings or to
provide any benefits that Brink’s provides to its
employees.
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4.
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Expenses
Incurred. During the Term, Brink’s shall pay or promptly reimburse
Consultant for all reasonable travel, long-distance telephone and other
business expenses paid or incurred by Consultant in connection with the
performance of Consultant’s duties
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hereunder,
upon presentation of expense statements, vouchers or other evidence of
expenses as required by Brink’s business expense reimbursement policy and
all expense reimbursements shall be in accordance with such
policy.
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5.
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Treatment of
Information. Consultant acknowledges that Consultant shall or may
be making use of, viewing and adding to confidential information of a
special and unique nature and value relating to such matters as Brink’s
business practices, trade secrets, systems, designs, methods, computer
software programs, documentation, manuals, white papers, other
confidential reports and communications and lists of and information
relating to suppliers, customers and prospects ("Confidential
Information"). Consultant further acknowledges that any information and
materials received by Brink’s from third parties in confidence shall be
included in the definition of Confidential Information. Consultant agrees
that Consultant shall not directly or indirectly, disclose, divulge,
reveal, report, publish, transfer or use, for any purpose whatsoever, any
Confidential Information to any third party. Consultant acknowledges that
Brink’s holds all right, title, and interest in and to all tangible and
intangible incidents of the Confidential Information and that this
agreement conveys to Consultant only a limited right to use the
Confidential Information in the course of performing this Agreement. Such
right is fully revocable in accordance with the provisions of this
Agreement. Consultant further agrees that, except for such right of use,
Consultant shall not assert any right, title, or interest in or to the
Confidential Information and shall hold all Confidential Information in
strict confidence.
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6.
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Ownership of
Information. Consultant covenants and agrees that all right, title
and interest in any findings, reports, inventions, writings, disclosures,
discoveries, computer code, developments and improvements written,
invented, made or conceived by Consultant in the course of or arising out
of this Agreement (hereinafter referred to as "Work Product") shall remain
the sole and exclusive property of Brink’s and shall be a work made for
hire. Consultant agrees to disclose all Work Product to Brink’s and agrees
to execute any instruments and to do all other things reasonably requested
by Brink’s (both during and after Consultant’s engagement by Brink’s) in
order to vest more fully in Brink’s all ownership rights in Work
Product.
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7.
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Indemnification.
Brink’s agrees to indemnify and defend Consultant against any and all
claims, suits and actions brought against Consultant arising out of or
related to the performance by Consultant of services under this
Agreement.
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8.
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No Prior
Agreements. Consultant represents that Consultant’s performance
under this Agreement does not and shall not breach any duty or any
agreement or understanding to which Consultant is a party or may be bound.
Consultant covenants and agrees that Consultant shall not disclose to
Brink’s, or induce Brink’s to use, any proprietary information, knowledge
or data belonging to any previous employer or client or
others.
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9.
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Independent
Contractor. Consultant shall at all times be an independent
contractor hereunder, and not an agent, employee or representative of
Brink’s, and no act, action or omission to act of Consultant shall in any
way be binding upon or obligate Brink’s. Consultant shall not be treated
as an employee for Federal tax purposes. Consultant
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hereby
represents and warrants to Brink’s that Consultant is an independent
contractor for Federal, state and local tax purposes. Further, Consultant
hereby covenants and agrees to pay any and all Federal, state and local
taxes required by law to be paid by an independent contractor, including,
without limitation, any taxes imposed by the Self Employment Contribution
Act. Consultant further understands that, as an independent
contractor, Consultant will not receive overtime premium
pay.
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10.
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Governing Law and
Venue. In view of the fact that the headquarters office of Brink’s
is located in Virginia, the construction and interpretation of this
Agreement shall at all times and in all respects be governed by the
substantive laws of Virginia without regard to its rules regarding
conflicts of law. Any legal action taken by either party shall
take place in the Federal District Court, Eastern District of Virginia,
and the parties hereby submit to the jurisdiction of such court for the
adjudication of any dispute
hereunder.
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11.
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Notices. Any
notice required to be given hereunder shall be sufficient if in writing,
and received by overnight courier service (with proof of service) or
certified or registered mail (return receipt requested, first-class
postage prepaid), in the case of Consultant, to Consultant’s address on
record with Brink’s or such other address as Consultant may advise in
writing, in the case of Brink’s, to its Headquarters address, 0000
Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, XX 00000, attention “Corporate
Secretary.”
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12.
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General. This
Agreement contains the entire agreement and understanding by and between
the parties with respect to the subject matter hereof, and no
representations, promises, agreements or understandings, written or oral,
not herein contained shall be of any force or effect. No change or
modification hereof shall be valid or binding unless the same is in
writing and signed by the party intended to be bound. This Agreement shall
be binding upon, and shall inure to the benefit of, Brink’s and
Consultant, and their respective successors. However, Consultant may not
assign this agreement or any duties hereunder without the express written
authorization of Brink’s. The provisions of this Agreement shall be deemed
severable, and the invalidity or unenforceability of any one or more of
the provisions hereof shall not affect the validity and enforceability of
the other provisions hereof. The headings and other captions in this
Agreement are for convenience and reference only and shall not be used in
interpreting, construing or enforcing any of the provisions of this
Agreement. Neither party shall be liable for the failure to perform its
obligations under this Agreement due to events beyond such party’s
reasonable control including, but not limited to, strikes, riots, wars,
fire, acts of God or acts in compliance with any applicable law,
regulation or order (whether valid or invalid) of any court or
governmental body. No waiver of any provision of this Agreement shall be
valid unless the same is in writing and signed by the party against whom
such waiver is sought to be enforced; moreover, no valid waiver of any
provision of this Agreement at any time shall be deemed a waiver of any
other provision of this Agreement at such time or shall be deemed a valid
waiver of such provision at any other
time.
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IN WITNESS WHEREOF, Brink’s
and Consultant have duly executed this Agreement intending to be bound
thereby.
THE
BRINK’S COMPANY
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CONSULTANT
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By: /s/
Xxxxx Xxxxxx
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/s/ Xxxxxx X.
Xxxxxx
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Xxxxx Xxxxxx
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Xxxxxx X.
Xxxxxx
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Title: Vice
President
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DATED:
April 30, 2008
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SCHEDULE
A
Duties: Consultant
shall perform such tasks, duties and/or services as are mutually agreed by the
parties. Unless otherwise directed by Brink’s, Consultant will report
to Xxxxxxx Xxx, or his designee(s), in connection with the performance of such
tasks, duties and/or services.
Compensation: During
the Term, Consultant shall receive compensation in the form of a monthly fee, in
the amount of $12,500.00 (“Monthly Fee”), plus an hourly fee of $500.00 for each
hour in which Consultant performs the consulting duties and/or services required
under the Agreement, including any time required to be spent traveling under the
Agreement (the “Hourly Fee”). With respect to the Hourly Fee,
Consultant shall be guaranteed a minimum of four hours on any day in which he is
requested to perform, and does perform, services under this
Agreement. Consultant will advise Brink’s on a monthly basis of the
days worked for which Consultant is entitled to compensation under this
provision. This monthly report will be made in writing and
delivered to Xxxxx Xxxxxx or such other individual as designated by Brink’s, and
will include a summary of each reported day of
work. Nothing contained herein shall require Brink’s to engage
Consultant for, or Consultant to provide, a minimum number of days or be deemed
to be a guarantee to or by Consultant of a minimum number of days of engagement
under the Agreement. The Monthly Fee shall be paid to Consultant on a
monthly basis in arrears on the last day of the month. The Hourly Fee
shall be paid in arrears within 15 days of receipt by Brink’s of Consultant’s
monthly report as described above.
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