Pirate Capital Sends New Letter to Brinks (BCO), Wants Two Representatives on The Board
A Copy of the Letter:
In accordance with Article IV, Section 12 of the Bylaws (the "Bylaws") of The Brink's Company (the "Company") and the proxy statement of the Company released to shareholders on or about March 24, 2006, Jolly Roger Fund LP, aDelaware limited partnership (the "Fund"), hereby submits this written notice(this "Notice") to the Company c/o the Corporate Governance and NominatingCommittee, the Executive Session Chairman and the Corporate Secretary of itsintent to nominate Thomas R. Hudson Jr. and Christopher Kelly to the Board ofDirectors of the Company at the Company's 2007 annual meeting of shareholders (including any adjournments or postponements thereof or any special meeting thatmay be called in lieu thereof) (the "Annual Meeting"). Enclosed with this letterare the following exhibits: Exhibit A, Consents of the Nominees, Exhibit B,biographies of Mr. Hudson and Mr. Kelly, and Exhibit C, a list of the securitiestransactions of the members of the Pirate Capital Group (as defined below) for the last two years.
1. Name and Address; Class and Number of Shares of Stock Owned
The name and address of the Fund as it appears in the Company's stocktransfer books is Jolly Roger Fund LP, 200 Connecticut Avenue, 4th Floor,Norwalk, Connecticut 06854. The Fund is the record and beneficial owner of 100shares of common stock, $1 par value per share ("Common Stock"), of the Company and the beneficial owner ofan additional 412,282 shares of Common Stock (such 412,382 shares representingapproximately .85% of the outstanding shares of Common Stock). Pirate CapitalLLC ("Pirate Capital"), whose principal business is providing investmentmanagement services, is the general partner of the Fund. Mr. Hudson is theManager of Pirate Capital. Pirate Capital is also the investment adviser toJolly Roger Offshore Fund LTD and Jolly Roger Activist Portfolio Company LTD,each an investment fund (collectively, with the Fund, the "Funds", and togetherwith Pirate Capital and Mr. Hudson, the "Pirate Capital Group"), which are thebeneficial owners, respectively, of 3,542,112 shares of Common Stock(approximately 7.30% of the outstanding shares), and 163,836 shares of CommonStock (approximately .34% of the outstanding shares). Mr. Hudson is also adirector of Jolly Roger Offshore Fund LTD and Jolly Roger Activist PortfolioCompany LTD. Pirate Capital and Mr. Hudson, as the Manager of Pirate Capital,may be deemed to be the beneficial owners of the 4,118,330 shares of CommonStock (approximately 8.49% of the outstanding shares) that are collectivelyowned by the Funds. Mr. Kelly beneficially owns 650 shares of Common Stock.
2. Representation
The Fund is a holder of record of capital stock of the Company entitledto vote at the Annual Meeting and a representative of the Fund intends to appearin person or by proxy at the Annual Meeting to nominate Mr. Hudson and Mr.Kelly. The undersigned represents that the Fund intends to deliver a proxystatement or form of proxy to the holders of at least the percentage of theCompany's outstanding capital stock required to elect Mr. Hudson and Mr. Kellyor otherwise to solicit proxies from shareholders in support of the nominations.
3. Nominations
The Fund hereby gives notice of its intent to nominate Mr. Hudson andMr. Kelly for election to the Board of Directors at the Annual Meeting.
The Fund reserves the right to nominate additional nominees for anyreason, including if the Company, by the appropriate corporate action, hasincreased or increases the number of directors to be elected at the AnnualMeeting or if the composition of the Board of Directors has changed prior to theAnnual Meeting. The Company is cautioned not to take any action that wouldadversely impact the Company's shareholders' right to support the Fund'snominations, including by appointing any new directors.
4. Interests Which the Fund May Have In Such BusinessThe Fund has no interest in the nominations to be brought before the Annual Meeting other than the interest which it shares in common with all otherowners of Common Stock, namely, an interest in seeing the Company achievefinancial prosperity and its participation through its shares of Common Stock inthe creation of shareholder value.
5. Consent of Nominees
Each of Mr. Hudson and Mr. Kelly has executed a consent indicating hisagreement to be nominated for election as a director of the Company and to serveas a director of the Company if elected at the Annual Meeting. A copy of each ofthe consents respectively executed by Mr. Hudson and Mr. Kelly are attached asExhibit A to this Notice.
6. Description of Arrangements or Understandings between Shareholders and Nominees
Neither Mr. Hudson nor Mr. Kelly will receive any compensation fromPirate Capital or the Funds for his service as a director of the Company ifelected. If elected, Mr. Hudson and Mr. Kelly will each be entitled to suchcompensation from the Company as is provided to other non-employee directors,which compensation is expected to be described in the Company's proxy statementfurnished to shareholders in connection with the Annual Meeting.
7. Other Information Regarding Nominees Required by Proxy Rules
Certain additional information regarding Mr. Hudson and Mr. Kelly isset forth in Exhibit B to this Notice.
Exhibit C sets forth for the Funds, Mr. Hudson and Mr. Kelly theirpurchases and sales of Common Stock (and common stock derivatives) within theprevious two years, the dates of the transactions and the amounts purchased or sold.
Except as disclosed herein or in any of the exhibits attached hereto,none of the Funds, Pirate Capital, Mr. Hudson or Mr. Kelly: (i) owns anysecurities of the Company of record but not beneficially; (ii) owns, nor do anyof their associates own, beneficially any securities of the Company; (iii) ownsany securities of any parent or subsidiary of the Company; (iv) has, nor do anyof their associates have, any arrangement or understanding with any person withrespect to any future employment by the Company or its affiliates; (v) has, nordo any of their associates have, any arrangement or understanding with anyperson with respect to any future transactions to which the Company or any ofits affiliates will or may be a party; (vi) had or will have, nor do any oftheir associates have or will have, a direct or indirect material interest inany transaction, arrangement or relationship, or series of similar transactions,arrangements or relationships since the beginning of the Company's last fiscalyear, or any currently proposed transaction, or series of similar transactions,arrangements or relationships to which the Company or any of its subsidiarieswas or is to be a party, in which the amount involved exceeds $120,000 (therepresentation in this subclause (vi) shall include any "related person" of Mr.Hudson or Mr. Kelly as defined in Instruction 1 to Item 404(a) of Regulation S-Kunder the Securities Act of 1933, as amended ("Regulation S-K")); (vii) has anysubstantial interest, direct or indirect, by security holdings or otherwise, inany matter to be acted upon at the Annual Meeting proposed in this Notice aside from their respectiveinterests as shareholders of the Company; (viii) has borrowed any funds for thepurpose of acquiring or holding any securities of the Company (except for marginborrowings for that purpose); (ix) is presently, or has been within the pastyear, a party to any contract, arrangement or understanding with any person withrespect to securities of the Company, including, but not limited to, jointventures, loan or option arrangements, puts or calls, guarantees against loss orguarantees of profit, division of losses or profits, or the giving orwithholding of proxies; (x) has, during the past ten years, been convicted in acriminal proceeding (excluding traffic violations or similar misdemeanors); (xi)has pledged or otherwise deposited as collateral any securities of the Company(except for pledges of securities in connection with margin borrowings) orcaused or agreed to permit such securities to be subject to any voting trust orother similar agreement or of any contract providing for the sale or otherdisposition of such securities; (xii) is aware of any arrangement (including anypledge, voting trust, or contract for sale) which may at a subsequent dateresult in a change in control of the Company; (xiii) is aware of anyarrangement, or has reason to believe that any arrangement exists, under which5% or more of any class of the Company's voting securities is held or is to beheld subject to any voting agreement, voting trust or other similar agreement;(xiv) is aware of any person or group that holds beneficial ownership of morethan 5% of the outstanding shares of the Company or has the right to acquirebeneficial ownership of more than 5% of such outstanding voting securities,except for persons or groups who may be identified through a review of publiclyavailable information regarding the beneficial ownership of the Company; (xv) isaware of any circumstance in which Mr. Hudson's or Mr. Kelly's election to theBoard of Directors of the Company would create a compensation committeeinterlock or other insider relationship as described in Item 407(e)(4) ofRegulation S-K; or (xvi) has, during the past five years, been involved in anyof the legal proceedings described in Item 401(f) of Regulation S-K. The term"associates" shall have the meaning as that term is defined in Rule 14a-1 ofRegulation 14A under the Securities Exchange Act of 1934, as amended.
Except as otherwise set forth in this Notice, there are no materialproceedings (as described in Instruction 5 to Item 103 of Regulation S-K) inwhich Mr. Hudson or Mr. Kelly or any of their associates is a party adverse tothe Company or any of its subsidiaries, or in which Mr. Hudson or Mr. Kelly ortheir associates have a material interest adverse to the Company or any of itssubsidiaries.
Neither Mr. Hudson nor Mr. Kelly has ever served on the Board ofDirectors or otherwise been employed by the Company. Except as otherwise setforth in this Notice, neither Mr. Hudson, Mr. Kelly nor any of their associateshas received any cash compensation, cash bonuses, deferred compensation,compensation pursuant to other plans or other compensation from, or related to,services rendered on behalf of the Company, or is subject to any arrangementdescribed in Item 402 of Regulation S-K. There are no family relationships (asdefined in Section 401(d) of Regulation S-K) between Mr. Hudson, Mr. Kelly andany director or officer of the Company or, to Mr. Hudson's or Mr. Kelly'sknowledge, any other person nominated by the Company to become a director orexecutive officer. Neither Mr. Hudson nor Mr. Kelly is aware of any facts orcircumstances that would prevent him from being deemed an "independent" directoras defined in Attachment A to the Corporate Governance Policies of the Company(as in effect on the date hereof).
It is anticipated that the Funds and Pirate Capital, as well as certainemployees of Pirate Capital, will solicit proxies in connection with the mattersto be brought before the Annual Meeting and that Pirate Capital Group willengage a proxy solicitation agent whose fees and number of employees to beemployed for such solicitation would be agreed upon at the time of suchengagement. To the extent that any employee of Pirate Capital or the Fundsengages in solicitation activities, no such employee will receive any additionalcompensation for its efforts. The business address of each employee of PirateCapital or the Funds would be the same as that of its employer.
Pirate Capital, on behalf of the Funds, would bear the cost of suchproxy solicitation, but would intend to seek reimbursement for the cost of suchsolicitation from the Company if Mr. Hudson and/or Mr. Kelly are elected as adirector. Pirate Capital does not intend to seek shareholder approval for suchreimbursement. While no precise estimate of this cost can be made at the presenttime, Pirate Capital currently estimates that it would spend a total ofapproximately $750,000 for such solicitation of proxies, including expendituresfor attorneys, proxy solicitation agents, and advertising, public relations,printing, transportation and related expenses. As of the date hereof, PirateCapital has not incurred any solicitation expenses. In addition to solicitingproxies by mail, proxies may be solicited in person, by telephone, facsimile orother electronic means, through advertisements or otherwise.
8. Other Matters
Pursuant to Section 12(b)(B) of the Bylaws, please be advised that, bya letter addressed to the Company's Corporate Secretary, dated November 21,2006, the Fund has requested that its shareholder proposal be included in theCompany's proxy materials for the Annual Meeting. The proposal recommends thatthe Board of Directors of the Company hire an investment bank to considerstrategic alternatives aimed at maximizing shareholder value. A copy of thatletter, which was filed with the Securities and Exchange Commission (the"Commission") as an attachment to Form 13D (filed on November 21, 2006), ishereby incorporated by reference and is available at the Commission's website atwww.sec.gov.
The information included in this Notice and in the exhibits attachedhereto represents the Fund's best knowledge as of the date hereof. The Fundreserves the right, in the event such information shall be or become inaccurate,to provide corrective information to the Company as soon as reasonablypracticable, although the Fund does not commit to update any information whichmay change from and after the date hereof. If this Notice shall be deemed forany reason by a court of competent jurisdiction to be ineffective with respectto the nomination of Mr. Hudson and/or Mr. Kelly at the Annual Meeting, or ifeither or both of them shall be unable to serve for any reason, this Noticeshall continue to be effective with respect to any replacement nominee ornominees selected by the Fund.
Please be advised that neither the delivery of this Notice nor thedelivery of additional information, if any, provided by or on behalf of the Fundor any of its affiliates to the Company from and after the date hereof shall bedeemed to constitute an admission by the Fund or any of its affiliates that thisNotice or any such information is required or is in any way defective or as tothe legality or enforceability of any matter or a waiver by the Fund or any ofits affiliates of its right to, in any way, contest or challenge any suchmatter.
Please direct any questions regarding the information contained in thisNotice to Theodore Altman, Esq., DLA Piper US LLP, 1251 Avenue of the Americas,New York, New York 10020-1104, (212) 335-4560, and Robert G. Marks, Esq.,McGuireWoods LLP, 1750 Tysons Boulevard, Suite 1800, McLean, Virginia22102-4215, (703) 712-5061. In the event that the Company requires anyadditional information to determine the eligibility of Mr. Hudson and/or Mr.Kelly (or the eligibility of any additional or substitute nominee of the PirateCapital Group) to serve as a member of the Board of Directors of the Company,please advise Mr. Altman and Mr. Marks immediately.
Very truly yours,
JOLLY ROGER FUND LP
By: Pirate Capital LLC, its General Partner
Thomas R. Hudson Jr.
Manager
Labels: BCO, Pirate Capital, The Brink's Company
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