EXHIBIT 10(b)
EMPLOYMENT AGREEMENT
AGREEMENT, dated May 4, 1998, between The Pittston Company, a Virginia
corporation (the "Company"), Brink's Incorporated, a Delaware corporation
("Brink's") and Xxxxxxx X. Xxx, residing at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxx (the "Executive").
The Company and the Executive agree as follows:
1. Position; Term of Employment. The Company agrees to employ the Executive, and
the Executive agrees to serve the Company, as its President and Chief Executive
Officer. The parties intend that the Executive shall continue to so serve in the
aforesaid capacity throughout the term of this employment agreement (the
"Agreement"). The Company will cause the Executive to be nominated as a member
of the Board of Directors of the Company ("Board") so long as he shall serve in
the aforesaid capacity.
The term of this Agreement shall commence on February 6, 1998 and shall continue
through February 5, 2003 (the "Term"). This Agreement shall replace the existing
Employment Agreement dated November 1, 1996, (the "Prior Agreement") between
Brink's and the Executive, and effective upon the execution and delivery of this
Agreement, the Prior Agreement shall terminate. In the event of any conflict
between the provisions of this Agreement and the Executive Agreement of even
date herewith, the provisions of the Executive Agreement shall govern.
2. Duties. The Executive throughout the Term of this Agreement shall devote his
full time and undivided attention during normal business hours to the business
and affairs of the Company and its affiliates ("Affiliates"), except for
reasonable vacations and except for illness or incapacity, but nothing in this
Agreement shall preclude the Executive from serving as a director or a member of
an advisory committee of any organization involving no conflict of interest with
the Company (subject to prior approval of his appointment to such position in
certain cases as provided in the last sentence of this Paragraph 2), from
engaging in charitable and community activities, and from managing his personal
investments, provided that such activities do not materially interfere with the
performance of his duties and responsibilities under this Agreement. The
Executive shall not accept any proposed appointment to serve as a director,
trustee or the equivalent of any business organization of which the Executive is
not a director, trustee, or the equivalent on the date hereof, without the prior
approval of the Chairman of the Nominating Committee of the Company's Board.
3. Compensation.
(a) Salary. The Company shall pay to the
Executive a salary at the minimum rate of five hundred twenty-five thousand
($525,000) dollars per year, payable in equal installments not less frequently
than monthly. Such salary shall be reviewed at least annually, with any
increases taking into account, among other factors, corporate and individual
performance and increases, if any, in relevant cost of living indices.
(b) Benefit Plans. The Executive shall be entitled to participate on a basis
commensurate with his duties and responsibilities as Chief Executive Officer and
President in all applicable retirement and employee benefit plans of the
Company, including the Pension-Retirement Plan, the Pension Equalization Plan,
the Savings-Investment Plan, the 1988 Stock Option Plan, the Key Executives'
Deferred Compensation Program, the Employee Stock Purchase Plan, the Executive
Salary Continuation Plan, the Key Employees' Incentive Plan, The Pittston
Company Tax Planning-Tax Return Preparation and Certification Program, the
Company's charitable matching program and any new incentive plans and such other
plans as may be adopted from time to time during his employment with the
Company.
(c) Business Expenses. During the Term, the Company shall, in accordance with
policies then in effect with respect to payments 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.
4. Termination.
(a) Death. In the event of the death of the Executive during the Term of this
Agreement, his salary for the month in which his death occurs shall be paid to
his designated beneficiary, or in the absence of such designation, to the estate
or other legal representative of the Executive. Any other death benefits will be
determined in accordance with the terms of the Company's benefit programs and
plans.
(b) Disability. In the event of the Executive's Disability, as hereinafter
defined, the employment of the Executive may be terminated by the Company. In
such event the Executive shall be entitled to compensation in accordance with
the Company's disability compensation practices for senior executives, but in no
event will he receive an amount less than the following:
(i) for the first six months following termination of employment due to
Disability as herein provided, the salary provided for in Paragraph 3(a), above,
at the rate in effect at the time of the commencement of the Disability; and
(ii) following the period referred to in Subparagraph (i) of this Paragraph
4(b),
50 percent of the salary, as in effect immediately prior to commencement
of the period of Disability, for so long as such Disability continues, such
Disability benefits to be made monthly, to February 6, 2003.
Any amounts provided for in this Paragraph 4(b) shall be offset by other
long-term disability benefits provided to the Executive by the Company or under
Worker's Compensation or similar laws, during such period of Disability. During
the period of Disability hereunder or, if shorter, the period ending with the
scheduled expiration date of this Agreement, the Executive shall be entitled to
continued benefit coverage, benefit credits, and perquisites to the extent
available under the benefit programs referred to in Paragraph 3(b). Actual
benefits due under various benefit programs and plans of the Company shall be
determined in accordance with the terms and provisions of such programs and
plans.
"Disability," for purposes of this Agreement, shall mean the Executive's
incapacity due to physical or mental illness causing his absence from his
duties, as defined in Paragraph 2, on a full-time basis for a consecutive period
of more than six months. Any determination of the Executive's Disability made in
good faith by the Board shall be conclusive and binding on the Executive. During
a period in which salary continuation or Disability payments are being made
pursuant to this Paragraph 4(b), the Executive will, at the request of the
Company, undergo reasonable periodic medical examinations to confirm the
continuation of his Disability.
(c) Termination by the Company for Due Cause. Nothing herein shall prevent the
Company from terminating the Executive's employment for Due Cause. The Executive
shall continue to receive the salary provided for in this Agreement only through
the period ending with the date of such termination as provided in this
Paragraph 4(c). Any rights and benefits he may have under employee benefit plans
and programs of the Company shall be determined in accordance with the terms of
such plans and programs. The term "Due Cause," as used herein, shall mean (i) an
act or acts of dishonesty on the Executive's part which are intended to result
in the Executive's substantial personal enrichment at the expense of the Company
or (ii) repeated material violations by the Executive of the Executive's
obligations hereunder (1) which are demonstrably willful and deliberate on the
Executive's part, (2) which are not due to the Disability of the Executive
(within the meaning of Paragraph 4(c) but without regard to the requirement that
it continue for more than six months and provided that any determination of the
Executive's Disability is made in good faith by the Executive's physician) and
(3) which have not been cured by the Executive within a reasonable time after
written notice to the Executive specifying the nature of such violations.
Notwithstanding the foregoing, the Executive shall not be deemed to have been
terminated for Due Cause without (1) reasonable notice to the Executive setting
forth the reasons for the Company's intention to
terminate for Due 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 from the Board finding that in the good
faith opinion of three-quarters (3/4) of the Board the Executive was guilty of
conduct set forth above in clause (i) or (ii) hereof, and specifying the
particulars thereof in detail.
(d) Termination by the Company Other than for Due Cause. The foregoing
notwithstanding, the Company may terminate the Executive's employment for
whatever reasons it deems appropriate; provided, however, that in the event such
termination is not due to Disability as provided in Paragraph 4(b) or based on
Due Cause as provided in Paragraph 4(c), above, the Executive shall be entitled
either (x) if the Operative Date under the Executive Agreement shall have
occurred, to payments from time to time owing to him under the provisions of the
Executive Agreement, or (y) in all other cases, to a Termination Payment as
hereinafter defined. The term "Termination Payment" shall mean a lump-sum cash
payment equal to (i) his annual salary, as in effect immediately prior to such
termination, multiplied by three plus (ii) the bonus, if any, paid to him in
respect of the immediately preceding fiscal year multiplied by three, plus (iii)
a reasonable sum reflecting the economic equivalent of those employee benefit
programs referred to in Paragraph 3(b) for a three-year period commencing with
his date of termination (but excluding the 1979, 1985 and 1988 Stock Option
Plans, any successor stock option plan and any incentive plan). Actual benefits
due under the various benefit programs and plans shall be determined in
accordance with the terms and provisions of such programs and plans. Following
the Executive's termination of employment under this Paragraph 4(d) the
Executive will have no further obligation to provide services to the Company
pursuant to Paragraphs 1 and 2.
(e) Constructive Termination of Employment by the Company Without Due Cause.
Termination by the Company without Due Cause under Paragraph 4(d) shall be
deemed to have occurred upon the occurrence of any of the following events if
the Executive elects to terminate his employment as a result thereof: (i)
material breach by the Company of this Agreement, including without limitation,
reduction of the Executive's salary below that level provided in Paragraph 3
(a); (ii) a material diminution in the nature or scope of the authorities,
powers, duties, or responsibilities attached to the Executive's position as
described in Paragraphs 1 and 2 as in effect immediately prior to such change in
the nature or scope of the Executive's authorities, powers, duties or
responsibilities or (iii) a requirement by the Company that the Executive,
without his consent, be assigned in such a manner as to require him to move from
the residence he maintains in Richmond, Virginia, on the date hereof.
(f) Voluntary Termination. In the event that the Executive terminates his
employment at his own volition prior to the expiration of the Term (except as
provided in Paragraph 4(e) above), such termination shall constitute a
"Voluntary Termination" and in such event the Executive shall be limited to the
same rights and benefits as provided in connection with a termination for Due
Cause under Paragraph 4(c), above; provided, however, that in the event of such
Voluntary Termination the Executive shall remain liable to the Company for
damages suffered by the Company as a result of the Executive's breach of his
obligations under this Agreement.
(g) Notice of Termination; Resignation. Any termination by the Company for Due
Cause or for Disability or by the Executive or pursuant to a constructive
termination shall be communicated by Notice of Termination to the other party
hereto given in accordance with Paragraph 12. 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) 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 and
(iii) if the termination date is other than the date of receipt of such Notice,
specifies the termination date (which date shall not be prior to the date of
such notice or more than 15 days after the giving of such Notice).
Notwithstanding anything in this Agreement to the contrary, in order to be
eligible to receive any payments or benefits hereunder as a result of the
termination of the Executive's employment for any reason, in addition to
fulfilling all other conditions precedent to such receipt, the Executive (if he
has the legal capacity to do so) must resign as a member of the Board and as an
officer and employee of the Company and all Affiliates.
5. Covenant Not to Compete. The Executive agrees that during the Term while he
is employed by the Company, and during the period ending one year after a
Voluntary Termination or a termination by the Company for Due Cause or any other
reason (the "Non-Compete Period"), he shall not compete with any business then
conducted by the Company or any of its Affiliates. For purposes of this
Agreement, the term "compete" shall mean engaging in a business as a more than
ten (10) percent stockholder, an officer, a director, an employee, a partner, an
agent, a consultant, or any other individual or representative capacity if it
involves:
(i) engaging in the minerals, security, air, ocean or ground freight
transportation or logistics businesses in competition with the Company in any
State or Territory of the United States or in any other country or jurisdiction
in which the Company or any of its Affiliates (which shall mean for purposes of
this Paragraph 5 any entity in which the Company owns, directly or indirectly,
an equity interest of twenty percent (20%) or more) operates at any time during
the Non-Compete Period; or
(ii) rendering services or advice pertaining to the minerals, security, air,
ocean or ground freight transportation or logistics industries to
or on behalf of any person, firm or corporation which is in competition
with the Company at any time during the Non-Compete Period in any State or
Territory of the United States or in any other country or jurisdiction in which
the Company or any of its Affiliates operates during the Non-Compete Period.
In the event the restrictions against engaging in a competitive activity
contained in this Paragraph 5 shall be determined by any court of competent
jurisdiction to be unenforceable by reason of extending for too great a period
of time or over too great a geographic area or by reason of being too extensive
in any other respect, such restrictions shall be interpreted to extend only over
the maximum period of time for which they may be enforceable, and over the
maximum geographic area as to which they may be enforceable and to the maximum
extent in all other respects as to which they may be enforceable, all as
determined by such court in such action. Clauses (i) and (ii), above, are
intended by the Company as separate and divisible provisions, and if for any
reason any one is held to be invalid or unenforceable, neither the validity nor
the enforceability of the other shall thereby be affected.
6. Protection of Confidential Information, Etc. The Executive acknowledges that
his employment by the Company will, throughout the Term of this Agreement, bring
him into close contact with many confidential affairs of the Company, including
information about costs, profits, markets, sales, products, key personnel,
pricing policies, operational methods, technical processes and know-how and
other business affairs and methods and other information not readily available
to the public, and plans for future developments. The Executive further
acknowledges that the services to be performed under this Agreement are of a
special and unique character. In recognition of the foregoing, the Executive
covenants and agrees that except as required in connection with enforcing or
defending any rights or claims related to his employment by the Company, this
Agreement or any other agreement between the Executive and the Company:
(i) during the Term while the Executive is employed by the Company, and for a
period of one year following any Voluntary Termination or a termination by the
Company for Due Cause or any other reason, the Executive shall not, without the
prior written consent of the Board or a person authorized thereby, disclose to
any person other than as required by law or court order, or other than to an
employee of the Company or its Affiliates, or to a person to whom disclosure is
appropriate in connection with the performance by the Executive of his duties as
an executive of the Company (e.g., disclosure to the Company's outside lawyers,
accountants or bankers of financial data properly requested by such persons) any
confidential information obtained by him while in the employ of the Company with
respect to any of
the Company's products, services, customers, suppliers,
marketing techniques, methods, or future plans, the disclosure of which will be
damaging to the Company; provided, however, that confidential information shall
not include any information known generally to the public (other than as a
result of unauthorized disclosure by the Executive);
(ii) he will deliver promptly to the Company on termination of his employment,
or at any other time the Company may reasonably so request, at its expense, all
memoranda, notes, records, reports, and other documents (and all copies thereof)
relating to the Company's business, which he obtained while employed by, or
otherwise serving or acting on behalf of, the Company and which he may then
possess or have under his control other than any agreements or plans related to
the Executive's employment by the Company; and
(iii) he will transfer and assign to the Company, all rights of every kind and
character, in perpetuity, in and to any material and/or ideas written, suggested
or submitted by the Executive which relate to the business of the Company and
all other results and proceeds of the Executive's service hereunder. The
Executive agrees to execute and deliver to the Company such assignments or other
instruments as the Company may require from time to time to evidence its
ownership of the results and proceeds of the Executive's service.
7. Injunctive Relief. The Executive acknowledges that a breach of the
restrictions against engaging in a competitive activity contained in Paragraph 5
and the disclosure of confidential information contained in Paragraph 6 will
cause irreparable damage to the Company, the exact amount of which will be
difficult to ascertain, and that the remedies at law for any such breach will be
inadequate. Accordingly, the Executive and the Company agree that if the
Executive breaches the restrictions on engaging in a competitive activity or on
the disclosure of confidential information contained in Paragraphs 5 and 6, then
the Company shall be entitled to injunctive relief, without posting bond or
other security.
8. Successors and Assigns.
(a) Assignment by the Company. This Agreement shall be binding upon and inure
to the benefit of the Company or any corporation or other entity to which the
Company may transfer all or substantially all of its assets and business and to
which the Company may assign this Agreement, in which case the term "Company,"
as used herein, shall mean such corporation or other entity, provided that no
such assignment shall relieve the Company from any obligations hereunder,
whether arising prior to or after such assignment.
(b) Assignment by the Executive. The Executive may not assign this Agreement or
any part hereof without the prior written consent of the Company; provided,
however, that nothing herein shall preclude the Executive from designating one
or more beneficiaries to receive any amount that may be payable following
occurrence of his legal incompetency or his death and shall not preclude the
legal representative of his estate from assigning any right hereunder to the
person or persons entitled thereto under his will or, in the case of intestacy,
to the person or persons entitled thereto under the laws of intestacy applicable
to his estate. The term "beneficiaries," as used in this Agreement, shall mean a
beneficiary or beneficiaries so designated to receive any such amount or, if no
beneficiary has been so designated, the legal representative of the Executive
(in the event of his incompetency) or the Executive's estate.
9. Governing Law. This Agreement shall be governed by the laws of the
Commonwealth of Virginia.
10. Entire Agreement. This Agreement and the Executive Agreement contain all of
the understandings and representations between the parties hereto pertaining to
the matters referred to herein, and supersede all undertakings and agreements,
whether oral or in writing, previously entered into by them with respect
thereto, including, without limitation, the Prior Agreement. This Agreement and
the Executive Agreement may only be modified by an instrument in writing.
11. Waiver of Breach. The waiver by any party of a breach of any condition or
provision of this Agreement to be performed by such other party shall not
operate or be construed to be a waiver of a similar or dissimilar provision or
condition at the same or any prior or subsequent time.
12. Notices. Any notice to be given hereunder shall be in writing and delivered
personally, or sent by certified mail, postage prepaid, return receipt
requested, addressed to the party concerned at the address indicated below or to
such other address as such party may subsequently give notice of hereunder in
writing:
If to the Company:
The Pittston Company
0000 Xxxxxxxx Xxxxxx Xxxxxxx
X.0. Xxx 0000
Xxxx Xxxxx, XX 00000-0000
Attention: Corporate Secretary
If to the Executive:
Xxxxxxx X. Xxx
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxxxx 00000
13. Arbitration. Any controversy or claim arising out of or relating to this
Agreement, or any breach thereof, shall be settled by arbitration in accordance
with the rules of the American Arbitration Association then in effect in the
Commonwealth of Virginia and judgment upon such award rendered by the
arbitrators may be entered in any court having jurisdiction thereof. The board
of arbitrators shall consist of one arbitrator to be appointed by the Company,
one by the Executive, and one by the two arbitrators so chosen. The arbitration
shall be held at such place as may be agreed upon at the time by the parties to
the arbitration. The cost of arbitration shall be borne among the parties to the
arbitration as determined by the arbitrators. It is the intention of the parties
that to the extent the Executive's position is upheld, his expenses (including
cost of witnesses, evidence, and attorneys), as determined by the arbitrators,
shall be reimbursed to him by the Company.
14. Employment at Will. This Agreement does not affect the at will status of the
Executive's employment with the Company and either the Executive or the Company
may terminate the Executive's employment with the Company at any time subject to
the terms of this Agreement.
15. Withholding. Anything to the contrary notwithstanding, all payments required
to be made by the Company hereunder to the Executive or his estate or
beneficiaries shall be subject to the withholding of such amounts relating to
taxes as the Company may reasonably determine it should withhold pursuant to any
applicable law or regulation. In lieu of withholding such amounts, in whole or
in part, the Company may, in its sole discretion, accept other provisions for
payment of taxes and withhold- ings as required by law, provided it is satisfied
that all requirements of law affecting its responsibilities to withhold have
been satisfied.
16. Severability. In the event that any provision or portion of this Agreement
shall be determined to be invalid or unenforceable for any reason, the remaining
provisions or portions of this Agreement shall be unaffected thereby and shall
remain in full force and effect to the fullest extent permitted by law.
17. Titles. Titles to the paragraphs in this Agreement are intended solely for
convenience and no provision of this Agreement is to be construed by reference
to the title of any paragraph.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and
year first above written.
THE PITTSTON COMPANY
By /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Vice President - Human
Resources and
Administration
BRINK'S, INCORPORATED
By /s/ Mari Xx Xxxxxxxx
Mari Xx Xxxxxxxx
Vice President
XXXXXXX X. XXX
/s/ Xxxxxxx X. Xxx
