1
Exhibit 10.16(h)
________________, 1999
Xxxx X. Xxxxxx
c/o Rural/Metro Corporation
0000 Xxxx Xxxxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
CHANGE OF CONTROL AGREEMENT
Dear Xxxx:
Our Board of Directors (the "Board") previously concluded that
it is in the best interests of Rural/Metro Corporation ("Rural/Metro") and its
shareholders to take appropriate steps to allay any concerns you may have about
your future employment opportunities with Rural/Metro and its subsidiaries
(Rural/Metro and its subsidiaries are collectively referred to as the
"Company"). As a result, the Board previously offered to you the special package
of benefits described in your September 17, 1998 Change of Control Agreement.
The Board has now decided to modify our September 17, 1998
Change of Control Agreement to provide you with the enhanced benefits described
below. Effective upon your execution of this Change of Control Agreement (the
"Agreement"), this Agreement will replace the September 17, 1998 Change of
Control Agreement.
Please bear in mind that the enhanced benefits described below
are being offered to you alone and we accordingly ask that you refrain from
discussing this special program with others. Also, please note that the special
benefits package described below will only be effective if you sign the extra
copy of this Agreement which is enclosed, and return it to me on or
before , 1999.
1. TERM OF AGREEMENT.
This Agreement is effective immediately and will continue in
effect as long as you are actively employed by Rural/Metro, unless you and
Rural/Metro agree in writing to its termination.
2. ELIGIBILITY FOR SEVERANCE PAYMENT.
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You will receive the "Severance Payment," as defined in
Section 3, if:
(a) Your employment with the Company is terminated
without "Cause" (as defined in Section 9) within two years following a Change of
Control; or
(b) You terminate your employment with the Company
for "Good Reason" (as defined in Section 8) within two years following a Change
of Control.
Notwithstanding the foregoing, no Severance Payment will be
payable if your employment is terminated for Cause, if you terminate your
employment without Good Reason (other than during the 30-day period referred to
above), or if your employment is terminated by reason of your "Disability" (as
defined in Section 12(d)) or your death. In addition, the Severance Payment will
not be payable if your employment is terminated by you or the Company for any or
no reason before a Change of Control occurs or if your employment is terminated
by you or the Company for any or no reason more than two years after a Change of
Control has occurred.
In order to receive the Severance Payment, you must execute
any release reasonably requested by Rural/Metro of claims that you may have
pursuant to this Agreement (but not any other claims).
The Severance Payment will be payable without regard to
whether you look for or obtain alternative employment following your termination
of employment with the Company.
3. COMPUTATION OF SEVERANCE PAYMENT.
The "Severance Payment" is a lump sum payment equal to the sum
of: (a) the greater of 200% of your annualized base salary as of the day on
which the Change of Control occurs or $700,000; plus (b) 200% of an amount equal
to the incentive compensation paid or payable to you pursuant to our Management
Incentive Program on account of performance during the calendar year immediately
preceding the calendar year in which the Change of Control occurs plus any other
bonuses or incentive compensation paid or payable to you for such year; less (c)
the full amount of any payments to which you may be entitled due to your
termination pursuant to the terms of your "Employment Agreement" (as defined in
Section 22), any applicable law, or otherwise.
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The Severance Payment will be paid in one lump sum within five
days following your termination of employment.
4. ACCELERATION OF OR PAYMENT FOR OPTIONS.
Except as otherwise noted below, if an agreement is entered
into that will result in a Change of Control, before the Change of Control
occurs the Board will accelerate the vesting and exercisability of any options
you hold to acquire Company stock that, pursuant to their terms, are not yet
vested and exercisable (the "Existing Options"). In addition, the Existing
Options and any other options that you hold will remain exercisable following
the Change of Control until the options lapse in accordance with their terms.
The Board will not be obligated to accelerate the
exercisability of Existing Options (although it may if it so chooses) if any
party to the agreement expressly indicates, in a writing addressed to the Board,
that it intends to use pooling of interest accounting for all or any part of the
transaction and the Board, based on the advice of its advisors, concludes (a)
that pooling of interests accounting is available to such party for all or any
portion of the transaction, and (b) that the availability of pooling of
interests accounting will be jeopardized if the Committee accelerates the
exercisability of the Existing Options.
If you are employed by the Company on the day on which a
Change of Control occurs and at that time you hold any Existing Options that are
not accelerated pursuant to the preceding paragraph, you may be entitled to
receive a special "Option Payment".
The Option Payment will only be payable if all of the
following conditions are met: (a) you are employed by the Company on the day on
which the Change of Control occurs; (b) the vesting and exercisability of the
Existing Options are not accelerated by action of the Board or otherwise on a
basis that allows you to exercise your options prior to the Change of Control;
(c) the Existing Options are not replaced by other options on the stock of the
acquirer (the "Replacement Options"), which the Board, as constituted
immediately prior to the Change of Control, in its discretion, determines to be
comparable; and (d) Rural/Metro does not continue as a publicly held corporation
required to be registered pursuant to the provisions of the Securities Exchange
Act of 1934 following the Change of Control, or if Rural/Metro does continue as
a registered publicly held corporation, the Board, as constituted immediately
prior to the Change of Control, determines, in its discretion, that Rural/Metro
has undergone a fundamental change such that the value of the Existing Options
after the Change of Control is less than 75% of the value of the Existing
Options prior to the Change of Control.
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While the Board has the discretion to determine whether
Replacement Options are "comparable" to Existing Options for purposes of clause
(c) of the preceding paragraph, it may not consider Replacement Options to be
comparable to Existing Options unless, at a minimum, the Replacement Options are
exercisable as rapidly as the Existing Options and the Replacement Options are
structured to preserve the aggregate positive spread between the aggregate
exercise price for the Existing Options and the aggregate "Deal Value" of the
Rural/Metro stock subject to the Existing Options.
For purposes of this Section, the "Deal Value" of the
Rural/Metro stock is the value placed on the Rural/Metro stock by the parties
for purposes of the transaction that results in the Change of Control. If no
single transaction results in the Change of Control, or if the parties to such
transaction do not expressly agree to a value to be assigned to the Rural/Metro
stock for purposes of such transaction, the Deal Value of the Rural/Metro stock
shall be the value that the Board determines to be the inherent value of the
Rural/Metro stock as of the date on which the Change of Control occurs.
For purposes of clause (d) of the fourth paragraph of this
Section, the Board may use any option pricing model it chooses to compare the
value of the Existing Options before and after the Change of Control.
The Option Payment for each share of stock subject to an
Existing Option will be an amount equal to the Deal Value of the Rural/Metro
stock less the option price for such share as designated in the relevant option
agreement.
The Option Payment for all shares subject to an Existing
Option shall be paid in one lump sum within 30 days following the occurrence of
the last event that entitles you to receive the Option Payment. Any option for
which an Option Payment is made will be automatically canceled upon payment of
the Option Payment.
The Option Payment will only be made for "Existing Options".
As a result, no Option Payment will be made with respect to an option that is
exercisable prior to the day on which the Change of Control occurs, since the
term "Existing Option" does not include exercisable options.
Any determinations made in good faith by the Board for
purposes of this Agreement shall be final and binding on all parties.
5. BENEFITS CONTINUATION.
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If your employment is terminated by the Company without Cause,
or if you terminate your employment for Good Reason, within two years following
a Change of Control, you will continue to receive life, disability, accident and
group health insurance benefits substantially similar to those which you were
receiving immediately prior to your termination of employment for a period of
twenty-four (24) months following your termination of employment. Such benefits
shall be provided on substantially the same terms and conditions as they were
provided prior to the Change of Control.
The Company does not intend to provide duplicative benefits.
As a result, benefits otherwise receivable pursuant to this Section shall be
reduced or eliminated if and to the extent that you receive such benefits
pursuant to your Employment Agreement.
Benefits otherwise receivable pursuant to this Section also
shall be reduced or eliminated if and to the extent that you receive comparable
benefits from any other source (for example, another employer).
6. INCENTIVE COMPENSATION.
If you are employed by the Company on the day on which a
Change of Control occurs, the incentive compensation to which you will be
entitled under the Management Incentive Program for the calendar year in which
the Change of Control occurs will equal at least the "Minimum Incentive
Compensation Amount". The "Minimum Incentive Compensation Amount" will equal the
incentive compensation to which you would have been entitled if the year were to
end on the day on which the Change of Control occurs, based upon performance up
to that date. In measuring financial performance, financial results through the
date of the Change of Control will be annualized.
7. CHANGE OF CONTROL DEFINED.
For purposes of this Agreement, the term Change of Control
shall mean any one or more of the following transactions or situations:
(a) A sale, transfer, or other disposition by
Rural/Metro through a single transaction or a series of transactions of
securities of Rural/Metro representing 30% or more of the combined voting power
of Rural/Metro's then outstanding securities to any "Unrelated Person" or
"Unrelated Persons" acting in concert with one another. For purposes of this
Section, the term "Person" shall mean and include any individual, partnership,
joint venture,
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association, trust, corporation, or other entity (including a "group" as
referred to in Section 13(d)(3) of the Securities Exchange Act of 1934 (the
"Act")). For purposes of this Section, the term "Unrelated Person" shall mean
and include any Person other than: Rural/Metro, a wholly-owned subsidiary of
Rural/Metro, or an employee benefit plan of Rural/Metro.
(b) A sale, transfer, or other disposition through a
single transaction or a series of transactions of all or substantially all of
the assets of Rural/Metro to an Unrelated Person or Unrelated Persons acting in
concert with one another.
(c) A change in the ownership of Rural/Metro through
a single transaction or a series of transactions such that any Unrelated Person
or Unrelated Persons acting in concert with one another become the "Beneficial
Owner", directly or indirectly, of securities of Rural/Metro representing at
least 30% of the combined voting power of Rural/Metro's then outstanding
securities. For purposes of this Section, the term "Beneficial Owner" shall have
the same meaning as given to that term in Rule 13d-3 promulgated under the Act,
provided that any pledgee of voting securities shall not be deemed to be the
Beneficial Owner thereof prior to its acquisition of voting rights with respect
to such securities.
(d) Any consolidation or merger of Rural/Metro with
or into an Unrelated Person, unless immediately after the consolidation or
merger the holders of the common stock of Rural/Metro immediately prior to the
consolidation or merger are the Beneficial Owners of securities of the surviving
corporation representing at least 50% of the combined voting power of the
surviving corporation's then outstanding securities.
(e) During any period of two (2) years, individuals
who, at the beginning of such period, constituted the Board of Directors of
Rural/Metro cease, for any reason, to constitute at least a majority thereof,
unless the election or nomination for election of each new director was approved
by the vote of at least two-thirds (2/3rds) of the directors then still in
office who were directors at the beginning of such period.
(f) A change in control of Rural/Metro of a nature
that would be required to be reported in response to Item 6(e) of Schedule 14A
of Regulation 14A promulgated under the Act, or any successor regulation of
similar import, regardless of whether Rural/Metro is subject to such reporting
requirement.
Notwithstanding any provision herein to the contrary, the
filing of a proceeding for the reorganization of Rural/Metro under Chapter 11 of
the Federal Bankruptcy Code or any
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successor or other statute of similar import shall not be deemed to be a Change
of Control for purpose of this Agreement.
8. GOOD REASON DEFINED.
For purposes of this Agreement, "Good Reason" shall mean any
one or more of the following:
(a) The assignment to you of any duties which are
inconsistent with, or the reduction of powers or functions associated with, your
positions, duties, responsibilities and status with Rural/Metro, or a change in
your reporting responsibilities, or in the conditions of your employment;
provided that a single reduction by Rural/Metro of less than 10% (or aggregate
reductions totaling less than 10%) in your base salary as in effect on the date
hereof or as the same may be increased as provided in your Employment Agreement
is permissible and shall not constitute "Good Reason".
(b) The failure of Rural/Metro to cause any
successor to expressly assume and agree to perform this Agreement pursuant to
Section 13 hereof.
(c) Any purported termination by Rural/Metro of your
employment that is not effected by a Notice of Termination pursuant to
Subsection 12 below and/or for grounds not constituting Cause.
(d) Rural/Metro relieving you of your duties.
(e) Rural/Metro requiring you to relocate, without
your express written consent to an employment location which is more than 25
miles from your employment location on the date of the Change of Control.
(f) Any other event which constitutes "Good Reason"
under paragraph 7A of your Employment Agreement with Rural/Metro. If there is no
such Agreement in effect at the time of your termination, this paragraph (f)
shall be inapplicable.
9. CAUSE DEFINED.
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For purposes of this Agreement, the term "Cause" shall be
given the meaning ascribed to such term in your Employment Agreement, as it may
be amended from time to time. If no written Employment Agreement is in effect at
the time of your termination of employment, "Cause" shall be given the meaning
ascribed to it in the last written Employment Agreement that was in effect
between you and the Company that included a definition of "Cause".
10. CEILING ON BENEFITS.
The Internal Revenue Code (the "Code") places significant tax
burdens on you and the Company if the total payments made to you due to a Change
of Control exceed prescribed limits. For example, if your limit is $300,000 and
the total payments exceed the limit by even $1.00, you are subject to an excise
tax under Section 4999 of the Code of 20% of all amounts paid to you in excess
of $100,000. If your limit is $300,000, you will not be subject to an excise tax
if you receive exactly $300,000. If you receive $300,001, you will be subject to
an excise tax of $40,000 (20% of $200,001).
In order to avoid this excise tax and the related adverse tax
consequences for the Company, by signing this Agreement, you will be agreeing
that, subject to the exception noted below in the last paragraph of this Section
10, the present value of your "Total Payments" (as defined below) will not
exceed an amount equal to two and ninety-nine hundredths (2.99) times your "Base
Period Income" (as defined below). This is the maximum amount which you may
receive without becoming subject to the excise tax imposed by Section 4999 of
the Code or which the Company may pay without loss of deduction under Section
280G of the Code.
"Base Period Income" is an amount equal to your "annualized
includable compensation" for the "base period" as defined in Sections 280G(d)(1)
and (2) of the Code and the regulations adopted thereunder. Generally, your
"annualized includable compensation" is the average of your annual taxable
income from the Company for the "base period", which is the five calendar years
prior to the year in which the Change of Control occurs. These concepts are
complicated and technical and all of the rules set forth in the applicable
regulations apply for purposes of this Agreement.
Your "Total Payments" include the sum of the Severance Payment
and any other "payments in the nature of compensation" (as defined in Section
280G of the Code and the regulations adopted thereunder), including the Option
Payment, to or for your benefit, the receipt of which is contingent on a Change
of Control and to which Section 280G of the Code applies.
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If Rural/Metro believes that these rules will result in a
reduction of the payments to which you are entitled under this Agreement, it
will so notify you within 60 days following delivery of the "Notice of
Termination" described in Section 12. You and Rural/Metro will then, at
Rural/Metro's expense, retain legal counsel, certified public accountants,
and/or a firm of recognized executive compensation consultants to provide an
opinion or opinions concerning whether your Total Payments exceed the limit
discussed above.
Rural/Metro will select the legal counsel, certified public
accountants and executive compensation consultants. If you do not accept one or
more of the parties selected by Rural/Metro, you may provide Rural/Metro with
the names of legal counsel, certified public accountants and/or executive
compensation consultants acceptable to you. If Rural/Metro does not accept the
party or parties selected by you, the legal counsel, certified public
accountants and/or executive compensation consultants selected by you and
Rural/Metro, respectively, will select the legal counsel, certified public
accountants and/or executive compensation consultants to provide the opinions
required.
At a minimum, the opinions required by this Section must set
forth (a) the amount of your Base Period Income, (b) the present value of the
Total Payments and (c) the amount and present value of any excess parachute
payments.
If the opinions state that there would be an excess parachute
payment, your payments under this Agreement will be reduced to the extent
necessary to eliminate the excess. You will be allowed to choose the payment
(i.e., the Severance Payment or the Option Payment) that should be reduced or
eliminated, but the payment you choose to reduce or eliminate must be a payment
determined by such counsel to be includable in Total Payments. You will make
your decision in writing and deliver it to Rural/Metro within 30 days of your
receipt of such opinions. If you fail to so notify Rural/Metro, it will decide
which payments to reduce or eliminate.
If the legal counsel or certified public accountants selected
to provide the opinions referred to above so requests in connection with the
opinion required by this Section, a firm of recognized executive compensation
consultants, selected by you and Rural/Metro pursuant to the procedures set
forth above, shall provide an opinion, upon which such legal counsel or
certified public accountants may rely, as to the reasonableness of any item of
compensation as reasonable compensation for services rendered before or after
the Change of Control.
If Rural/Metro believes that your Total Payments will exceed
the limitations of this Section, it will nonetheless make payments to you, at
the times stated above, in the
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maximum amount that it believes may be paid without exceeding such limitations.
The balance, if any, will then be paid after the opinions called for above have
been received.
If the amount paid to you by Rural/Metro is ultimately
determined, pursuant to the opinion referred to above or by the Internal Revenue
Service, to have exceeded the limitation of this Section, the excess will be
treated as a loan to you by Rural/Metro and shall be repayable on the 90th day
following demand by Rural/Metro, together with interest at the "applicable
federal rate" provided in Section 1274(d) of the Code.
In the event that the provisions of Sections 280G and 4999 of
the Code are repealed without succession, this Section shall be of no further
force or effect.
The limitations of this Section 10 will not apply to you if
your "Uncapped Benefit" is at least 120% of your "Capped Benefit." For this
purpose, your "Uncapped Benefit" is the amount to which you will be entitled
pursuant to Sections 2 and 5, as applicable, without regard to the limitations
of this Section 10. Your "Capped Benefit" is the amount to which you will be
entitled pursuant to Sections 2 and 5, as applicable, after the application of
the limitations of this Section 10. The certified public accountant and/or
executive compensation consultants selected pursuant to this Section 10 will
calculate your Uncapped Benefit and your Capped Benefit.
11. TAX GROSS-UP.
If the ceiling imposed by Section 10 does not apply to you
because of the exception provided in the last paragraph of Section 10,
Rural/Metro will provide you with a "Gross-Up Payment" if an excise tax is
imposed on you pursuant to Section 4999 of the Code. Except as otherwise noted
below, this Gross-Up Payment will consist of a single lump sum payment in an
amount such that after payment by you of the "total presumed federal and state
taxes" and the excise taxes imposed by Section 4999 of the Code on the Gross-Up
Payment (and any interest or penalties actually imposed), you retain an amount
of the Gross-Up Payment equal to the remaining excise taxes imposed by Section
4999 of the Code on your Total Payments (calculated before the Gross-Up
Payment). For purposes of calculating your Gross-Up Payment, your actual federal
and state income taxes will not be used. Instead, we will use your "total
presumed federal and state taxes." For purposes of this Agreement, your "total
presumed federal and state taxes" shall be conclusively calculated using a
combined tax rate equal to the sum of the maximum marginal federal and
applicable state income tax rates and the hospital insurance (or "HI") portion
of F.I.C.A. Based on the rates in effect for 1996 for an Arizona resident, the
"total presumed federal and state tax rate" is 46.65% (39.6% federal income tax
rate plus 5.6%
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Arizona state income tax rate plus 1.45% HI tax rate). The state tax rate for
your principal place of residence will be used and no adjustments will be made
for the deduction of state taxes on the federal return, any deduction of federal
taxes on a state return, the loss of itemized deductions or exemptions, or for
any other purpose.
All determinations concerning whether a Gross-Up Payment is
required pursuant to this Section and the amount of any Gross-Up Payment (as
well as any assumptions to be used in making such determinations) shall be made
by the legal counsel, certified public accountants, and/or a firm of recognized
executive compensation consultants (sometimes referred to collectively as
"Consultant") selected pursuant to Section 10. The Consultant shall provide you
and Rural/Metro with a written notice of the amount of the excise taxes that you
are required to pay and the amount of the Gross-Up Payment. The notice from the
Consultant shall include any necessary calculations in support of its
conclusions. All fees and expenses of the Consultant shall be borne by
Rural/Metro. Any Gross-Up Payment shall be made by Rural/Metro within 15 days
after the mailing of such notice.
As a general rule, the Consultant's determination shall be
binding on you and Rural/Metro. The application of the excise tax rules of
Section 4999, however, is complex and uncertain and, as a result, the Internal
Revenue Service may disagree with the Consultant concerning the amount, if any,
of the excise taxes that are due. If the Internal Revenue Service determines
that excise taxes are due, or that the amount of the excise taxes that are due
is greater than the amount determined by the Consultant, the Gross-Up Payment
will be recalculated by the Consultant to reflect the actual excise taxes that
you are required to pay (and any related interest and penalties). Any deficiency
will then be paid to you by Rural/Metro within 15 days of the receipt of the
revised calculations from the Consultant. If the Internal Revenue Service
determines that the amount of excise taxes that you paid exceeds the amount due,
you shall return the excess to Rural/Metro (along with any interest paid to you
on the overpayment) immediately upon receipt from the Internal Revenue Service
or other taxing authority.
Rural/Metro has the right to challenge any excise tax
determinations made by the Internal Revenue Service. If Rural/Metro agrees to
indemnify you from any taxes, interest and penalties that may be imposed upon
you (including any taxes, interest and penalties on the amounts paid pursuant to
Rural/Metro's indemnification agreement), you must cooperate fully with
Rural/Metro in connection with any such challenge. Rural/Metro shall bear all
costs associated with the challenge of any determination made by the Internal
Revenue Service and Rural/Metro shall control all such challenges. The
additional Gross-Up Payments called for by the preceding paragraph shall not be
made until Rural/Metro has either exhausted its (or your)
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rights to challenge the determination or indicated that it intends to concede or
settle the excise tax determination.
You must notify Rural/Metro in writing of any claim or
determination by the Internal Revenue Service that, if upheld, would result in
the payment of excise taxes in amounts different from the amount initially
specified by the Consultant. Such notice shall be given as soon as possible but
in no event later than 15 days following your receipt of notice of the Internal
Revenue Service's position.
12. TERMINATION NOTICE AND PROCEDURE.
Any termination by the Company or you of your employment shall
be communicated by written Notice of Termination to you if such Notice of
Termination is delivered by the Company and to the Company if such Notice of
Termination is delivered by you, all in accordance with the following
procedures:
(a) The Notice of Termination shall indicate the
specific termination provision in this Agreement relied upon and shall set forth
in reasonable detail the facts and circumstances alleged to provide a basis for
termination.
(b) Any Notice of Termination by the Company shall
be in writing signed by the Chairman of the Board of Rural/Metro, specifying in
detail the basis for such termination.
(c) If the Company shall furnish a Notice of
Termination for Cause and you in good faith notify the Company that a dispute
exists concerning such termination within the 15 day period following your
receipt of such notice, you may elect to continue your employment during such
dispute. If it is thereafter determined that (i) Cause did exist, your
"Termination Date" shall be the earlier of (A) the date on which the dispute is
finally determined, either by mutual written agreement of the parties or
pursuant to the alternative dispute resolution provisions of Section 19 or (B)
the date of your death, or (ii) Cause did not exist, your employment shall
continue as if the Company had not delivered its Notice of Termination and there
shall be no Termination Date arising out of such notice.
(d) If the Company shall furnish a Notice of
Termination by reason of Disability and you in good faith notify the Company
that a dispute exists concerning such termination within the 15-day period
following your receipt of such notice, you may elect to continue your employment
during such dispute. The dispute relating to the existence of a
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Disability shall be resolved by the opinion of the licensed physician selected
by Rural/Metro; provided, however, that if you do not accept the opinion of the
licensed physician selected by Rural/Metro, the dispute shall be resolved by the
opinion of a licensed physician who shall be selected by you; provided further,
however, that if Rural/Metro does not accept the opinion of the licensed
physician selected by you, the dispute shall be finally resolved by the opinion
of a licensed physician selected by the licensed physicians selected by
Rural/Metro and you, respectively. If it is thereafter determined that (i) a
Disability did exist, your Termination Date shall be the earlier of (A) the date
on which the dispute is resolved or (B) the date of your death, or (ii) a
Disability did not exist, your employment shall continue as if the Company had
not delivered its Notice of Termination and there shall be no Termination Date
arising out of such notice. For purposes of this Agreement, "Disability" shall
be given the meaning ascribed to such term in your Employment Agreement at the
time the Disability determination is being made. If there is no Employment
Agreement that defines "Disability", "Disability" shall mean your inability to
perform your customary duties for the Company due to a physical or mental
condition that is considered to be of long-lasting or indefinite duration.
(e) If you in good faith furnish a Notice of
Termination for Good Reason and the Company notifies you that a dispute exists
concerning the termination within the 15 day period following the Company's
receipt of such notice, you may elect to continue your employment during such
dispute. If it is thereafter determined that (i) Good Reason did exist, your
Termination Date shall be the earlier of (A) the date on which the dispute is
finally determined, either by mutual written agreement of the parties or
pursuant to the alternative dispute resolution provisions of Section 19, (B) the
date of your death or (C) one day prior to the second anniversary of a Change of
Control, and your payments hereunder shall reflect events occurring after you
delivered Notice of Termination; or (ii) Good Reason did not exist, your
employment shall continue after such determination as if you had not delivered
the Notice of Termination asserting Good Reason.
(f) If you do not elect to continue employment
pending resolution of a dispute regarding a Notice of Termination, and it is
finally determined that the reason for termination set forth in such Notice of
Termination did not exist, if such notice was delivered by you, you shall be
deemed to have voluntarily terminated your employment other than for Good Reason
and if delivered by the Company, the Company will be deemed to have terminated
you other than by reason of Disability or Cause.
(g) For purposes of this Agreement, a transfer from
Rural/Metro to one of its subsidiaries or a transfer from a subsidiary to
Rural/Metro or another subsidiary shall not be treated as a termination of
employment.
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13. SUCCESSORS.
Rural/Metro will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of Rural/Metro or any of its
subsidiaries to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that Rural/Metro or any subsidiary would be
required to perform it if no such succession had taken place. Failure of
Rural/Metro to obtain such assumption and agreement prior to the effectiveness
of any such succession shall be a breach of this Agreement and shall entitle you
to compensation in the same amount and on the same terms to which you would be
entitled hereunder if you terminate your employment for Good Reason following a
Change of Control, except that for purposes of implementing the foregoing, the
date on which any such succession becomes effective shall be deemed the
Termination Date. As used in this Agreement, "Rural/Metro" shall mean
Rural/Metro as hereinbefore defined and any successor to its business and/or
assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law or otherwise.
14. BINDING AGREEMENT.
This Agreement shall inure to the benefit of and be
enforceable by you and your personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If you
should die while any amount would still be payable to you hereunder had you
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to your devisee, legatee or
other designee or, if there is no such designee, to your estate.
15. NOTICE.
For purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified or registered mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth on the first page of this
Agreement, provided that all notices to Rural/Metro shall be directed to the
attention of the Chairman of the Board of Rural/Metro with a copy to the
Secretary of Rural/Metro, or to such other address as either party may have
furnished to the other in writing in accordance herewith, except that notice of
change of address shall be effective only upon receipt.
16. MISCELLANEOUS.
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No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
and signed by you and the Chairman of the Board of Rural/Metro. No waiver by
either party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not expressly set
forth in this Agreement. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Arizona without regard to its conflicts of law principles. All references to
sections of the Securities Exchange Act of 1934 or the Code shall be deemed also
to refer to any successor provisions to such sections. Any payments provided for
hereunder shall be paid net of any applicable withholding required under
federal, state or local law. The obligations of the Company that arise prior to
the expiration of this Agreement shall survive the expiration of the term of
this Agreement.
17. VALIDITY.
The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
18. COUNTERPARTS.
This Agreement may be executed in several counterparts, each
of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
19. ALTERNATIVE DISPUTE RESOLUTION.
All claims, disputes and other matters in question between the
parties arising under this Agreement shall, unless otherwise provided herein
(such as in Sections 10 and 12(d)), be resolved in accordance with the
arbitration or alternative dispute resolution provisions included in your
Employment Agreement. If no written Employment Agreement is in effect at the
time of your termination of employment, or, if the Employment Agreement in
effect at the time of your termination of employment does not include
arbitration or alternative dispute resolution provisions, all claims, disputes
and other matters in question between the parties arising under this Agreement
shall be decided by arbitration in Phoenix, Arizona, in accordance
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with the National Rules for the Resolution of Employment Disputes of the
American Arbitration Association (including such procedures governing selection
of the specific arbitrator or arbitrators), unless the parties mutually agree
otherwise. The Company shall pay the costs of any such arbitration. The award by
the arbitrator or arbitrators shall be final, and judgment may be entered upon
it in accordance with applicable law in any state or Federal court having
jurisdiction thereof.
20. EXPENSES AND INTEREST.
If a good faith dispute shall arise with respect to the
enforcement of your rights under this Agreement or if any arbitration or legal
proceeding shall be brought in good faith to enforce or interpret any provision
contained herein, or to recover damages for breach hereof, and you are the
prevailing party, you shall recover from the Company any reasonable attorneys'
fees and necessary costs and disbursements incurred as a result of such dispute
or legal proceeding, and prejudgment interest on any money judgment obtained by
you calculated at the rate of interest announced by Bank One, Arizona, NA from
time to time as its prime rate from the date that payments to you should have
been made under this Agreement. It is expressly provided that the Company shall
in no event recover from you any attorneys' fees, costs, disbursements or
interest as a result of any dispute or legal proceeding involving the Company
and you.
21. PAYMENT OBLIGATIONS ABSOLUTE.
Rural/Metro's obligation to pay you the compensation and to make the
arrangements in accordance with the provisions herein shall be absolute and
unconditional and shall not be affected by any circumstances; provided, however,
that Rural/Metro may apply amounts payable under this Agreement to any debts
owed to the Rural/Metro by you on your Termination Date. All amounts payable by
Rural/Metro in accordance with this Agreement shall be paid without notice or
demand. If Rural/Metro has paid you more than the amount to which you are
entitled under this Agreement, Rural/Metro shall have the right to recover all
or any part of such overpayment from you or from whomsoever has received such
amount.
22. EFFECT ON EMPLOYMENT AGREEMENT.
This Agreement supplements, and does not replace, your
Employment Agreement, as it may be amended or replaced from time to time (the
"Employment Agreement"). You will be entitled to receive all amounts due to you
pursuant to your Employment Agreement, but some payments under your Employment
Agreement may reduce your Severance Payments as provided in Section 3, and
benefits due pursuant to your Employment Agreement may reduce the
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benefits due pursuant to Section 5. In addition, payments under your Employment
Agreement may, in some limited circumstances, be considered as part of your
Total Payment and result in a reduction in payments as provided in Section 10.
If there is any conflict between the provisions of this Agreement and your
Employment Agreement, the provisions of this Agreement shall control.
23. ENTIRE AGREEMENT.
This Agreement and your Employment Agreement set forth the
entire agreement between you and the Company concerning the subject matter
discussed in this Agreement and supersede all prior agreements, promises,
covenants, arrangements, communications, representations or warranties, whether
written or oral, by any officer, employee or representative of the Company. Any
prior agreements or understandings with respect to the subject matter set forth
in this Agreement are hereby terminated and canceled.
24. DEFERRAL OF PAYMENTS.
To the extent that any payment under this Agreement, when
combined with all other payments received during the year that are subject to
the limitations on deductibility under Section 162(m) of the Code, exceeds the
limitations on deductibility under Section 162(m) of the Code, such payment
shall, in the discretion of Rural/Metro, be deferred to the next succeeding
calendar year. Such deferred amounts shall be paid no later than the 60th day
after the end of such next succeeding calendar year, provided that such payment,
when combined with any other payments subject to the Section 162(m) limitations
received during the year, does not exceed the limitations on deductibility under
Section 162(m) of the Code.
25. PARTIES.
This Agreement is an agreement between you and Rural/Metro. In
certain cases, though, obligations imposed upon Rural/Metro may be satisfied by
a Rural/Metro subsidiary. Any payment made or action taken by a Rural/Metro
subsidiary shall be considered to be a payment made or action taken by
Rural/Metro for purposes of determining whether Rural/Metro has satisfied its
obligations under this Agreement.
If you would like to participate in this special benefits
program, please sign and return the extra copy of this letter which is enclosed.
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Sincerely,
--------------------------------
Xxx Xxxxxxx
Chairman, Board of Directors
Enclosure
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ACCEPTANCE
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I hereby accept the offer to participate in this special
benefit program and I agree to be bound by all of the provisions noted above.
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Xxxx X. Xxxxxx
