Exhibit 10
The Brink's Company
Richmond, Virginia
Pension Equalization Plan
as Amended and Restated Effective as of January 1, 2005
[LOGO]
THE BRINK'S COMPANY
PENSION EQUALIZATION PLAN
AS AMENDED AND RESTATED
EFFECTIVE AS OF JANUARY 1, 2005
Introduction
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In August 1985 the Board of Directors of The Pittston Company (the
"Company") adopted a Pension Equalization Plan (the "Equalization Plan") to
assure that the aggregate pension benefits provided to employees covered by the
Pension-Retirement Plan of The Pittston Company and Its Subsidiaries (which
Plan, as now in effect and as hereafter amended, is hereinafter referred to as
the "Pension Plan") would not be reduced as a result of limitations imposed
under Section 415 of the Internal Revenue Code of 1986, as amended (the "Code").
At its meeting in July 1989, the Board determined that the Equalization Plan
should be amended so as to provide, among other things, for the payment
thereunder of additional amounts equal to the benefits that would have been
payable under the Pension Plan in the absence of the then applicable annual
limit on compensation under Section 401(a)(17) of the Code. Pursuant to the
authority under the Equalization Plan, on July 7, 1994, the Pension Committee
further amended the Equalization Plan (i) to reflect the lower annual limit
imposed by the 1993 amendment of such Section 401(a)(17), and (ii) to assure
that such aggregate pension benefits will not be adversely affected by deferrals
made pursuant to the Key Employees' Deferred Compensation Program of The
Pittston Company as originally approved by the shareholders of the Company on
May 1, 1992, or as subsequently amended (the "Deferral Program"). On September
16, 1994, the Equalization Plan was further amended so as to provide additional
assurance to Participants and their beneficiaries that benefits under the
Equalization Plan will be paid to them in the event of a Change in Control (as
defined in the trust agreement dated as of December 1, 1997 between the Company
and The Chase Manhattan Bank (National Association) as trustee (the "Trust
Agreement")). On December 1, 1997, the Pension Committee further amended the
Equalization Plan to add a lump-sum benefit pa option and to reflect the fact
that benefits under such plan will be paid from the trust established and made
irrevocable pursuant to the Trust Agreement. Effective January 1, 2005, the
Equalization Plan is amended to comply with the provisions of Code Section 409A
and Treasury Regulations issued thereunder. Each provision and term of the
amendment should be interpreted accordingly, but if any provision or term of
such amendment would be prohibited by or be inconsistent with Code Section 409A
or would constitute a material modification to the Equalization Plan, then such
provision or term shall be deemed to be reformed to comply with Code Section
409A or be ineffective to the extent it results in a material modification to
the Equalization Plan, without affecting the remainder of such amendment. The
amendments apply solely to amounts accrued on and after January 1, 2005, and
amounts that are not earned and vested as of such date (the "Post-2004 Accrued
Benefit"). Amounts accrued prior to January 1, 2005, that are earned and vested
as of December 31, 2004 (the "Pre-2005 Accrued Benefit"), shall remain subject
to the terms of the Equalization Plan as in effect prior to January 1, 2005.
Benefits under the Pension Plan were frozen effective December 31, 2005,
and such action froze benefits under the Equalization Plan.
As a result of the amendments, the Equalization Plan will read in its
entirety as follows:
1. Definitions. As used herein:
"Benefit Limitations" means the limitations, if any, on benefits payable to
or in respect of an employee under the Pension Plan (i) pursuant to Section 415
or Section 401(a)(17) of the Code and any regulations promulgated with respect
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thereto or (ii) resulting from any exclusion from Basic Earnings (as defined in
the Pension Plan) attributable to the deferral, pursuant to the Deferral
Program, by such employee of Cash Incentive Payments, Salary or Compensation (as
each such term is defined in the Deferral Program) otherwise payable currently.
"Participant" means any employee referred to in Section 2 hereof.
"Participating Company" means the Company and any subsidiary of the Company
which is a "participating company" under the Pension Plan, unless the Board
shall determine that such subsidiary shall not be a Participating Company
hereunder.
Except as herein otherwise provided, terms defined in the Pension Plan are
used herein with the meanings ascribed to them in said Plan.
2. Coverage. The Equalization Plan shall apply to or in respect of each
employee of any Participating Company whose benefits under the Pension Plan are
limited by the Benefit Limitations.
3. Benefits. Supplementing the benefits provided by the Pension Plan and
subject to all terms and conditions thereof not inconsistent herewith, each
Participant and his beneficiary or beneficiaries shall be paid under the
Equalization Plan such additional amounts as are equal to the benefits that
would have been payable under the Pension Plan in the absence of the Benefit
Limitations applicable to such Participant.
A Participant's Pre-2005 Accrued Benefit payable under this Section 3 shall
be payable at the same time and in the same manner as the benefits payable to
such person under the Pension Plan; provided, however that, in accordance with
the following sentence, any Participant (employed by the Company on either a
full-time or part-time basis as of December 1, 1997) or, in the event of the
Participant's death, his or her beneficiary, entitled to benefits hereunder may
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elect to receive the Actuarial Equivalent of the benefits due under this
Equalization Plan in a lump sum. In order to be effective, such election must be
filed with the Administrative Committee at least one year prior to the later of
(i) the effective date of retirement under the Pension Plan or (ii) September 1,
1999. In determining the amount of the lump-sum benefit to be paid, Actuarial
Equivalent shall have the same meaning as under the Pension Plan; provided,
however the interest rate used shall be the annual rate on 30-year Treasury
Securities as published by the Commissioner of the Treasury for the month prior
to the month in which the distribution is made and the mortality table shall be
the 1983 Group Annuity Mortality Table with a 50% blending of male and female
rates.
A Participant shall be entitled to make a special election with respect to
the form of his Post-2004 Accrued Benefit payable under the Equalization Plan
provided that such election is made no later than December 31, 2005. A
Participant may elect to have such benefit paid in the form of a lump sum, a
single life annuity, a joint and 50% survivor annuity or a joint and 100%
survivor annuity. Any such election made in calendar year 2005 may not apply to
payments made in calendar year 2005. In addition, to the extent that a
Participant has in place an election to receive his benefit in the form of a
lump sum in accordance with the provisions of the Equalization Plan as in effect
on December 31, 2004, and no election is made under this paragraph, then such
prior election shall be deemed to be an election to receive the Participant's
Post-2004 Accrued Benefit in a lump sum.
The following provisions shall apply with respect to a Participant's
Post-2004 Accrued Benefit to the extent a Participant (i) does not have a valid
election in effect in accordance with the preceding paragraph or (ii) chooses to
change a previous election. A Participant may elect to have his Post-2004
Accrued Benefit under the Equalization Plan paid in the form of a lump sum, a
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single life annuity, a joint and 50% survivor annuity or a joint and 100%
survivor annuity, all of which shall be Actuarially Equivalent and determined
using the actuarial assumptions and methods described in and used for
calculations by the Pension Plan. A Participant may make a subsequent election
to change the form in which his Post-2004 Accrued Benefit shall be paid by
submitting a new election in writing to the Administrative Committee. Such
election may not take effect until at least twelve (12) months after the date on
which the election is made and the payment with respect to which such election
is made must be deferred for a period not less than five (5) years from the date
the payment would otherwise be made. For purposes of this election, the payments
under the annuity forms of payment are deemed to be a single payment.
Payment of a Participant's Post-2004 Accrued Benefit may commence no
earlier than the first day of the month following the six-month anniversary of
his termination of employment from the Company. If benefits are scheduled to be
paid in the form of an annuity, then the monthly payments that would otherwise
be paid prior to such date shall be accumulated and paid in a single payment on
such date.
Unless the Administrative Committee otherwise determines upon request of a
Participant, the beneficiary or beneficiaries of such Participant under the
Pension Plan shall also be his beneficiary or beneficiaries under the
Equalization Plan.
4. Administration. The Equalization Plan shall be administered by the
Administrative Committee (subject to such directions as the Pension Committee
may determine to be appropriate) substantially in accordance with the comparable
procedures and rules applicable to the Administrative Committee which
administers the Pension Plan, including establishing and maintaining a claims
procedure (similar to the claims procedure under the Pension Plan) pursuant to
which any Participant or beneficiary under the Equalization Plan whose claim for
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benefits under the Equalization Plan has been denied shall be given (i) notice
in writing of such denial, including the reasons therefor, and (ii) a reasonable
opportunity to have a full review of such denial. Notwithstanding any other
provision of the Equalization Plan the Administrative Committee shall have full
authority (i) in its sole discretion to determine the amounts payable under the
Equalization Plan and the time of any such payments so as to conform with the
intent as well as the terms of the Equalization Plan, (ii) to construe any of
the provisions of the Equalization Plan and (iii) to adopt rules and regulations
for the implementation of such provisions.
5. Amendment and Termination. The Equalization Plan may at any time be
amended or terminated by the Board or the Pension Committee, provided that no
such amendment or termination of the Equalization Plan shall adversely affect
the benefits accrued or payable hereunder or under the Trust Agreement on
account of any Participant (or any beneficiary) in respect of service rendered
prior to such amendment or termination. The Company's Administrative Committee
may take any and all actions necessary to ensure that the applicable portions of
the Equalization Plan and the benefits accrued thereunder after December 31,
2004, satisfy the American Jobs Creation Act of 2004 and the regulatory guidance
promulgated thereunder, and may take all such actions retroactively,
notwithstanding any Equalization Plan provisions to the contrary, provided,
however, that no such actions may be effective before November 18, 2004.
6. Assignability. No right to payment or any other interest under the
Equalization Plan shall be assignable or subject to attachment, execution or
levy of any kind; provided that a portion of the benefits of a Participant who
is in pay status (or a portion of the Equalization Plan's death benefit) may be
paid to a Participant's former spouse pursuant to the provisions of a domestic
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relations order governing the division of marital assets, entered by a court of
competent jurisdiction. Such order may not provide for a distribution of
benefits not otherwise provided for under the Equalization Plan.
7. No Employment Rights. Nothing in the Equalization Plan shall be
construed as giving any Participant the right to be retained in-the service of
any Participating Company or as interfering with the right of any such Company
to discharge any Participant at any time without regard to the effect which such
discharge shall have upon his rights or potential rights, if any, under the
Equalization Plan.
8. Funding. The obligations of any Participating Company under the
Equalization Plan shall not be funded in any manner for purposes of the Code or
ERISA. However, it is intended that benefits will be paid from the trust
established pursuant to the Trust Agreement. The establishment and funding of
the trust established under the Trust Agreement shall not be deemed to relieve
the Company of its obligations under the Equalization Plan to Participants and
beneficiaries except pro tanto to the extent that amounts in respect thereof are
paid under such Trust Agreement to such Participants and beneficiaries. The
establishment and funding of such trust shall not of itself be deemed to
increase the amount of benefits to which any Participant or beneficiary shall
have become entitled under the Equalization Plan.
9. Enforceability. In addition to all other rights under applicable law,
any individual who shall be a Participant or beneficiary or the trustee under
the Trust Agreement shall have the right to bring an action, either individually
or on behalf of all Participants and beneficiaries, to enforce the provisions of
this Equalization Plan and/or the Trust Agreement (including, but not limited
to, enforcement of the funding required under the Trust Agreement) by seeking
injunctive relief and/or damages, and the Company shall be obligated to pay or
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reimburse each such Participant or beneficiary who shall prevail, or the Trustee
under the Trust Agreement, whether or not it prevails, in whole or in
substantial part, for all reasonable expenses, including attorney's fees, in
connection with such action.
10. Agreements with Participants. The Company shall enter into an agreement
with each Participant incorporating the provisions of the Equalization Plan and
containing such other provisions, consistent with the Equalization Plan, as may
be mutually acceptable.
11. Successors. The Equalization Plan shall inure to the benefit of and be
binding upon the Company and its successors (including, without limitation, each
person or group referred to in the definition of Change in Control (in the Trust
Agreement) and each affiliate of such person or group). Each such successor
shall be obligated to enter into an agreement with each Participant, in form and
substance satisfactory to such Participant, by which such successor shall
expressly assume and agree to perform its obligations under the Equalization
Plan in the same manner and to the same extent as the Company would be required
to perform if no succession had taken place. The Company shall cause each such
successor to comply with its obligations to enter into such agreement.
12. Governing Law. This Equalization Plan and all actions taken hereunder
shall be governed by and construed in accordance with the laws of the
Commonwealth of Virginia.
As amended as of January 1, 2005
Effective as of May 1, 1992
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