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Exhibit 10.16(g)
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made this day of September,
1998, by and between XXXX X. XXXXXX ("Executive") and RURAL/METRO CORPORATION,
its subsidiaries, affiliates, joint ventures and partnerships ("Rural/Metro"),
effective August 27, 1998 ("Effective Date").
R E C I T A L S
The Board of Directors of Rural/Metro believes it is in the best
interests of Rural/Metro to employ Executive as the acting President and Chief
Executive Officer of Rural/Metro.
Rural/Metro has decided to offer Executive an employment agreement, the
terms and provisions of which are set forth below.
NOW, THEREFORE, IT IS HEREBY MUTUALLY AGREED AS FOLLOWS:
1. POSITION AND DUTIES.
Executive will be employed as the President and acting Chief
Executive Officer of Rural/Metro and shall report only to the Board of Directors
of Rural/Metro (the "Board"). Executive shall perform the duties of his
position, as determined by the Board, in accordance with the policies, practices
and bylaws of Rural/Metro. Executive also shall serve as an ex-officio member of
the Board.
Executive shall serve Rural/Metro faithfully, loyally,
honestly and to the best of his ability. Executive will devote his best efforts
to the performance of his duties for, and in the business and affairs of,
Rural/Metro.
Rural/Metro reserves the right, in its sole discretion, to change or
modify Executive's position, title and duties during the term of this Agreement,
at which time Executive may be entitled to terminate this Agreement for Good
Reason as provided in paragraph 7.
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2. COMPENSATION.
A. BASE SALARY.
During the first year of this Agreement, Executive's
bi-weekly salary will be based upon annual compensation of Two Hundred
Ninety-Two Thousand Five Hundred and 00/100 Dollars ($292,500.00) ("Base
Salary"). Thereafter, Executive's Base Salary will be reviewed at least annually
in accordance with Rural/Metro's executive compensation review policies and
practices, all as determined by the Board, in its sole discretion. Executive's
Base Salary may be increased upon any such review, but in no event shall the
amount of Executive's Base Salary as set forth in this paragraph 2A be
decreased.
B. ADDITIONAL COMPENSATION.
During the first year of this Agreement, Executive
also shall receive additional compensation in the amount of One Hundred Thousand
and 00/100 Dollars ($100,000.00), payable as nearly as possible in twelve (12)
equal monthly installments.
3. MANAGEMENT INCENTIVE PROGRAM.
Commencing with the incentive program for the fiscal year
ending on June 30, 1999, and at all times thereafter, Executive shall be
eligible to participate in the Rural/Metro Management Incentive Program ("MIP")
(or any other plan that is designated by the Board as replacing the MIP) and to
receive such additional compensation as may be provided by the MIP from time to
time.
4. STOCK OPTIONS.
A. INITIAL GRANT.
Rural/Metro has granted to the Executive options to
purchase One Hundred Thousand (100,000) shares of Rural/Metro stock at the
closing price of Rural/Metro stock on Executive's first day of employment, which
was August 27, 1998,
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with the terms and conditions of the options to be set forth in a separate Stock
Option Agreement to be entered into by and between Executive and Rural/Metro.
The Stock Option Agreement shall provide that the options shall be fully vested
and exercisable at the time of grant and the options will remain exercisable
during the period of Executive's employment with Rural/Metro and for at least 36
months following the termination of Executive's employment with Rural/Metro. In
any event, notwithstanding the preceding sentence, the options will lapse and no
longer be exercisable on or after the tenth (10th) anniversary of the date of
grant.
B. SUBSEQUENT GRANT.
If this Agreement or Executive's employment by
Rural/Metro is renewed at the expiration of the Initial Term (as that term is
defined in paragraph 5), Rural/Metro will promptly grant Executive options to
purchase an additional One Hundred Thousand (100,000) shares of Rural/Metro
stock at the closing price of Rural/Metro stock on the date of grant with the
terms and conditions of the options to be set forth in a separate Stock Option
Agreement. The Stock Option Agreement shall provide that the options shall be
fully vested and exercisable at the time of grant and the options will remain
exercisable during the period of Executive's employment with Rural/Metro and for
at least 36 months following the termination of Executive's employment with
Rural/Metro. In any event, notwithstanding the preceding sentence, the options
will lapse and no longer be exercisable on or after the tenth (10th) anniversary
of the date of grant.
5. TERM AND TERMINATION.
This Agreement will continue in full force and effect until it
is terminated by the parties. This Agreement may be terminated in any of the
following ways: (a) it may be renegotiated and replaced by a written agreement
signed by both parties; (b)
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Rural/Metro may elect to terminate this Agreement with or without "Cause", as
defined below; (c) Executive may elect to terminate this Agreement with or
without "Good Reason", as defined below; or (d) either party may serve notice on
the other of its desire to terminate this Agreement at the end of the "Initial
Term" or any "Renewal Term".
The "Initial Term" of this Agreement shall expire by its terms
one year from the Effective Date of this Agreement, unless sooner terminated in
accordance with the provisions of this Agreement. This Agreement will be renewed
at the end of the Initial Term for additional one-year periods (a "Renewal
Term"), unless either party serves notice of its desire not to renew or of its
desire to modify this Agreement on the other. Such notice must be given at least
forty-five (45) days before the end of the Initial Term or the applicable
Renewal Term.
If Rural/Metro notifies Executive of its desire not to renew
this Agreement pursuant to this paragraph 5 and at the time of such notification
Rural/Metro does not have "Cause" to terminate this Agreement pursuant to
paragraph 6A, Executive shall receive the Severance Benefits pursuant to
paragraph 9.
If Executive notifies Rural/Metro of his desire not to renew
this Agreement pursuant to this paragraph 5 and at the time of such notification
Executive has Good Reason to terminate this Agreement pursuant to paragraph 7A,
Executive shall receive the Severance Benefits pursuant to paragraph 9.
Executive also shall receive the Severance Benefits pursuant to paragraph 9 if
Rural/Metro proposes to modify this Agreement in a manner that gives rise to
Good Reason pursuant to paragraph 7A for Executive's termination of employment
and Executive rejects such proposed modifications. Severance Benefits will not
be payable pursuant to the preceding sentence if Rural/Metro rescinds the
proposed modifications and offers Executive a new Agreement that does not
include any proposed modifications that give rise to Good Reason for Executive's
termination of employment.
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6. TERMINATION BY RURAL/METRO.
A. TERMINATION FOR CAUSE.
Rural/Metro may terminate this Agreement and
Executive's employment for Cause at any time upon written notice. This means
that Rural/Metro has the right to terminate the employment relationship for
Cause at any time should there be Cause to do so.
For purposes of this Agreement, "Cause" shall be
limited to discharge resulting from a determination by the Board that Executive:
(a) has been convicted of a felony involving dishonesty, fraud, theft or
embezzlement; (b) has repeatedly failed or refused, after written notice from
Rural/Metro, in a material respect to follow reasonable policies or directives
established by Rural/Metro; (c) has willfully and persistently failed, after
written notice from Rural/Metro, to attend to material duties or obligations
imposed upon him under this Agreement; (d) has performed an act or failed to
act, which, if he were prosecuted and convicted, would constitute a felony
involving One Thousand Dollars ($1,000) or more of money or property of
Rural/Metro; or (e) has misrepresented or concealed a material fact for purposes
of securing employment with Rural/Metro or this Employment Agreement. The
existence of "Cause" shall be determined by Rural/Metro's Board of Directors
acting in good faith after prior notice to Executive and after providing
Executive with an opportunity to be heard.
Because Executive is in a position which involves
great responsibilities, Rural/Metro is not required to utilize its progressive
discipline policy.
If this Agreement and Executive's employment is
terminated for Cause, Executive shall receive no Severance Benefits.
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B. TERMINATION WITHOUT CAUSE.
Rural/Metro also may terminate this Agreement and
Executive's employment without Cause at any time by giving sixty (60) days prior
written notice to Executive. In the event this Agreement and Executive's
employment are terminated by Rural/Metro without Cause, Executive shall receive
the Severance Benefits pursuant to paragraph 9. Rural/Metro may place Executive
on a paid administrative leave, and bar or restrict Executive's access to
Rural/Metro facilities, contemporaneously with or at any time following the
delivery of the written notice to Executive.
7. TERMINATION BY EXECUTIVE.
Executive may terminate this Agreement and his employment with
or without "Good Reason" in accordance with the provisions of this paragraph 7.
A. TERMINATION FOR GOOD REASON.
Executive may terminate this Agreement and his
employment for "Good Reason" by giving written notice to Rural/Metro within
sixty (60) days, or such longer period as may be agreed to in writing by
Rural/Metro, of Executive's receipt of notice of the occurrence of any event
constituting "Good Reason", as described below.
Executive shall have "Good Reason" to terminate this
Agreement and his employment upon the occurrence of any of the following events:
(a) Executive is demoted to a position of less stature or importance within
Rural/Metro than the position described in paragraph 1; (b) Executive is
assigned duties inconsistent with the positions, duties, responsibility and
status of the President and Chief Executive Officer of Rural/Metro; (c)
Executive is required to relocate to an employment location that is more than
twenty-five (25) miles from his current employment location (which the parties
agree is Rural/Metro's present Scottsdale headquarters); (d) Executive's Base
Salary rate (which shall include, for the first year of Executive's employment
only, any additional
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compensation to which Executive is entitled under paragraph 2B) is reduced to a
level that is at least ten percent (10%) less than the salary (and in the case
of Executive's first year of employment only, the additional compensation to
which Executive is entitled under paragraph 2B) paid to Executive during any
prior calendar year, unless Executive has agreed to said reduction; (e) the
potential incentive compensation (or bonus) to which Executive may become
entitled under the MIP at any level of performance by the Executive or
Rural/Metro is reduced by seventy-five percent (75%) or more as compared to any
prior year; or (f) Executive is placed on an administrative leave or is barred
or restricted access to Rural/Metro facilities for a period of more than sixty
(60) days provided, however, that the terms of this clause (f) shall not apply
in the event that Executive is placed on an administrative leave pursuant to
paragraphs 6B or 7C hereof or in the event that Executive is placed on an
administrative leave because Rural/Metro has "Cause" to terminate Executive's
employment with Rural/Metro.
If Executive terminates this Agreement and his
employment for Good Reason, Executive shall be entitled to receive Severance
Benefits pursuant to paragraph 9.
B. TERMINATION WITHOUT GOOD REASON.
Executive also may terminate this Agreement and his
employment without Good Reason at any time by giving thirty (30) days notice to
Rural/Metro. If Executive terminates this Agreement and his employment without
Good Reason, Executive shall not receive Severance Benefits pursuant to
paragraph 9.
C. ADMINISTRATIVE LEAVE.
Rural/Metro may place Executive on a paid
administrative leave, and bar or restrict Executive's access to Rural/Metro
facilities, contemporaneously with or at any time following the delivery of the
written notice of termination by Executive pursuant to paragraph 7A or 7B.
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8. DEATH OR DISABILITY.
This Agreement will terminate automatically on Executive's
death. Any compensation or other amounts due to Executive for services rendered
prior to his death shall be paid to Executive's surviving spouse, or if
Executive does not leave a surviving spouse, to Executive's estate. No other
benefits shall be payable to Executive's heirs pursuant to this Agreement, but
amounts may be payable pursuant to any life insurance or other benefit plans
maintained by Rural/Metro.
In the event Executive becomes "Disabled", Executive's
employment hereunder and Rural/Metro's obligation to pay Executive's Base Salary
and, in the event Executive becomes "Disabled" during the first year of his
employment with Rural/Metro any additional compensation to which Executive may
be entitled pursuant to paragraph 2B, (less any amounts payable to Executive
pursuant to any long-term disability insurance policy paid for by Rural/Metro)
shall continue for a period of twelve (12) months from the date of Executive's
initial absence due to such Disability. If at the end of said twelve (12) month
period Executive has not recovered from such Disability, Executive's employment
hereunder shall automatically cease and terminate. Executive shall be considered
"Disabled" or to be suffering from a "Disability" for purposes of this paragraph
8 if, in the judgment of a licensed physician selected by the Board of Directors
of Rural/Metro and confirmed by a licensed physician designated by Executive,
and after any reasonable accommodations required by applicable law, he is unable
to perform the essential functions of his position due to a physical or mental
impairment, and such incapacity is expected to continue for a period of at least
twelve (12) consecutive months from the date of the initial absence due to such
incapacity. The determination by said physicians shall be binding and conclusive
for all purposes. If the physician selected by the Board and the physician
selected by Executive cannot agree, the two (2) physicians
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shall select a third (3rd) physician. The decision of the third (3rd) physician
concerning Executive's Disability then shall be binding and conclusive on all
interested parties.
9. SEVERANCE BENEFITS.
If during the Initial Term or any Renewal Term, this Agreement
and Executive's employment are terminated without Cause by Rural/Metro pursuant
to paragraph 6B prior to the last day of the Initial Term or any Renewal Term,
or if Executive elects to terminate this Agreement for Good Reason pursuant to
paragraph 7A, Executive shall receive the "Severance Benefits" provided by this
paragraph. To the extent provided in paragraph 5, Executive also shall receive
the Severance Benefits if this Agreement is not renewed. In addition, Executive
also shall receive the Severance Benefits if his employment is terminated due to
Disability pursuant to paragraph 8.
The Severance Benefits shall begin immediately following the
effective date of termination of employment and will continue to be payable for
the balance, if any, of the Initial Term or the then current Renewal Term and
for a period of twelve (12) months thereafter.
The Executive's Severance Benefits shall consist of the
continuation of the Executive's then Base Salary and any applicable additional
compensation as set forth in paragraph 2B for the balance, if any, of the
Initial Term or the then current Renewal Term and for a period of twelve (12)
months thereafter; provided, however, that for the twelve (12) month period
following the end of the Initial Term or the then current Renewal Term in lieu
of receiving the Base Salary and any applicable additional compensation called
for by paragraph 2B, Executive shall receive Three Hundred Fifty Thousand and
00/100 Dollars ($350,000.00), payable in equal bi-weekly installments. The
Severance Benefits also shall consist of the continuation of any health, life,
disability, or other insurance benefits that Executive was receiving as of his
last day of active employment for the balance, if any, of the Initial Term or
the then current Renewal Term and for a period of
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twelve (12) months thereafter. If a particular insurance benefit may not be
continued for any reason, Rural/Metro shall pay the cash equivalent to the
Executive on a monthly basis or in a single lump sum. The amount of the cash
equivalent of the benefit and whether the cash equivalent will be paid in
monthly installments or in a lump sum will be determined by Rural/Metro in the
exercise of its discretion.
If Executive voluntarily terminates this Agreement and his
employment without Good Reason prior to the end of the Initial Term or any
Renewal Term, or if Rural/Metro terminates the Agreement and Executive's
employment for Cause, no Severance Benefits shall be paid to Executive. No
Severance Benefits are payable in the event of Executive's death while in the
active employ of Rural/Metro.
Severance Benefits shall immediately cease if Executive
commits a material violation of any of the terms of this Agreement relating to
confidentiality and non-disclosure, as set forth in paragraph 11, or the
Covenant-Not-To-Compete, as set forth in paragraph 12. Only material violations
will result in the loss of Severance Benefits. In addition, if a violation, even
if material, is one that may be cured, the violation will not be considered to
be material unless Executive fails to cure said violation within thirty (30)
days after receiving written notice of said violation from Rural/Metro or unless
Executive repeats said violation at any time after receiving said notice.
In the event that Rural/Metro ceases payment of Severance
Benefits to Executive in accordance with the preceding paragraph due to
Rural/Metro's good faith belief that Executive has committed a material
violation of any of the terms of this Agreement relating to confidentiality and
non-disclosure, as set forth in paragraph 11, or the Covenant-Not-To-Compete, as
set forth in paragraph 12, the confidentiality and non-disclosure requirements
set forth in paragraph 11 and the Covenant-Not-To-Compete set forth in paragraph
12 shall remain in full force and effect. In the event that Rural/Metro ceases
payment of Severance Benefits to Executive without a good faith
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belief the Executive has committed a material violation of such provisions, in
addition to such other remedies as may be available to Executive in law or in
equity, the confidentiality and non-disclosure requirements set forth in
paragraph 11 and the Covenant-Not-To-Compete set forth in paragraph 12 shall
lapse and be without force and effect unless Rural/Metro resumes the payments
within sixty (60) days of its receipt of a demand to do so from Executive.
The payment of Severance Benefits shall not be affected by
whether Executive seeks or obtains other employment. Executive shall have no
obligation to seek or obtain other employment and Executive's Severance Benefits
shall not be impacted by Executive's failure to mitigate.
10. BENEFITS.
Executive will be entitled to participate in any benefit
plans, including, but not limited to, retirement plans, stock option plans,
disability plans, life insurance plans and health and dental plans available to
other Rural/Metro executive employees, subject to any restrictions (including
waiting periods) specified in said plans.
Executive is entitled to four (4) weeks of paid vacation per
calendar year, with such vacation to be scheduled and taken by Executive in his
discretion, provided that such vacation shall not interfere with the performance
of Executive's duties hereunder.
11. CONFIDENTIALITY AND NON-DISCLOSURE.
During the course of his employment, Executive will become
exposed to a substantial amount of confidential and proprietary information,
including, but not limited to financial information, annual reports, audited and
unaudited financial reports, operational budgets and strategies, methods of
operation, customer lists, strategic plans, business plans, marketing plans and
strategies, new business strategies, merger and acquisition strategies,
management systems programs, computer systems, personnel and compensation
information and payroll data, and other such reports, documents or
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information (collectively the "Confidential and Proprietary Information"). In
the event his employment is terminated by either party for any reason, Executive
promises that he will not take with him any copies of such Confidential and
Proprietary Information in any form, format, or manner whatsoever (including
computer print-outs, computer tapes, floppy disks, CD roms, etc.) nor will he
disclose the same in whole or in part to any person or entity, in any manner
either directly or indirectly. Excluded from this Agreement is information that
is already disclosed to third parties and is in the public domain or that
Rural/Metro consents to be disclosed, with such consent to be in writing. The
provisions of this paragraph shall survive the termination of this Agreement.
12. COVENANT-NOT-TO-COMPETE.
A. INTERESTS TO BE PROTECTED.
The parties acknowledge that during the term of his
employment, Executive will perform essential services for Rural/Metro, its
employees and shareholders, and for clients of Rural/Metro. Therefore, Executive
will be given an opportunity to meet, work with and develop close working
relationships with Rural/Metro's clients on a first-hand basis and will gain
valuable insight as to the clients' operations, personnel and need for services.
In addition, Executive will be exposed to, have access to, and be required to
work with, a considerable amount of Rural/Metro's Confidential and Proprietary
Information.
The parties also expressly recognize and acknowledge
that the personnel of Rural/Metro have been trained by, and are valuable to
Rural/Metro, and that if Rural/Metro must hire new personnel or retrain existing
personnel to fill vacancies it will incur substantial expense in recruiting and
training such personnel. The parties expressly recognize that should Executive
compete with Rural/Metro in any manner whatsoever, it could seriously impair the
goodwill and diminish the value of Rural/Metro's business.
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The parties acknowledge that this covenant has an
extended duration; however, they agree that this covenant is reasonable and it
is necessary for the protection of Rural/Metro, its shareholders and employees.
For these and other reasons, and the fact that there
are many other employment opportunities available to Executive if he should
terminate, the parties are in full and complete agreement that the following
restrictive covenants (which together are referred to as the
"Covenant-Not-To-Compete") are fair and reasonable and are freely, voluntarily
and knowingly entered into. Further, each party has been given the opportunity
to consult with independent legal counsel before entering into this Agreement.
B. DEVOTION TO EMPLOYMENT.
Executive shall devote substantially all his business
time and efforts to the performance of his duties on behalf of Rural/Metro.
During his term of employment, Executive shall not at any time or place or to
any extent whatsoever, either directly or indirectly, without the express
written consent of Rural/Metro, engage in any outside employment, or in any
activity competitive with or adverse to Rural/Metro's business, practice or
affairs, whether alone or as partner, officer, director, employee, shareholder
of any corporation or as a trustee, fiduciary, consultant or other
representative. This is not intended to prohibit Executive from engaging in
nonprofessional activities such as personal investments or conducting to a
reasonable extent private business affairs which may include other boards of
directors' activity, as long as they do not conflict with Rural/Metro.
Participation to a reasonable extent in civic, social or community activities is
encouraged.
C. NON-SOLICITATION OF CLIENTS.
During the term of Executive's employment with
Rural/Metro and for a period of twelve (12) months after the termination of
employment with Rural/Metro,
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regardless of who initiates the termination and for whatever reason, Executive
shall not directly or indirectly, for himself, or on behalf of, or in
conjunction with, any other person(s), company, partnership, corporation, or
governmental entity, in any manner whatsoever, call upon, contact, encourage,
handle or solicit client(s) of Rural/Metro with whom he has worked as an
employee of Rural/Metro at any time prior to termination, or at the time of
termination, for the purpose of soliciting or selling such customer the same,
similar, or related services that he provided on behalf of Rural/Metro.
D. NON-SOLICITATION OF EMPLOYEES.
During the term of Executive's employment with
Rural/Metro and for a period of twelve (12) months after the termination of
employment with Rural/Metro, regardless of who initiates the termination and for
any reason, Executive shall not directly or indirectly, for himself, or on
behalf of, or in conjunction with, any other person(s), company, partnership,
corporation, or governmental entity, seek to hire, and/or hire any of
Rural/Metro's personnel or employees for the purpose of having such employee
engage in services that are the same, similar or related to the services that
such employee provided for Rural/Metro.
E. COMPETING BUSINESS.
During the term of this Agreement and for a period of
twelve (12) months after the termination of employment with Rural/Metro,
regardless of who initiates the termination and for any reason, Executive shall
not, directly or indirectly, for himself, or on behalf of, or in conjunction
with, any other person(s), company, partnership, corporation, or governmental
entity, in any manner whatsoever, engage in the same or similar business as
Rural/Metro, which would be in direct competition with any Rural/Metro line of
business, in any geographical service area where Rural/Metro is engaged in
business, or was considering engaging in business at any time prior to the
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termination or at time of termination. For the purposes of this provision, the
term "competition" shall mean directly or indirectly engaging in or having a
substantial interest in a business or operation which has been, is, or will be,
performing the same services provided by Rural/Metro.
F. JUDICIAL AMENDMENT.
If the scope of any provision of this Agreement is
found by the Court to be too broad to permit enforcement to its full extent,
then such provision shall be enforced to the maximum extent permitted by law.
The parties agree that the scope of any provision of this Agreement may be
modified by a judge in any proceeding to enforce this Agreement, so that such
provision can be enforced to the maximum extent permitted by law. If any
provision of this Agreement is found to be invalid or unenforceable for any
reason, it shall not affect the validity of the remaining provisions of this
Agreement.
G. INJUNCTIVE RELIEF, DAMAGES AND FORFEITURE.
Due to the nature of Executive's position with
Rural/Metro, and with full realization that a violation of this Agreement will
cause immediate and irreparable injury and damage, which is not readily
measurable, and to protect Rural/Metro's interests, Executive understands and
agrees that in addition to instituting legal proceedings to recover damages
resulting from a breach of this Agreement, Rural/Metro may seek to enforce this
Agreement with an action for injunctive relief, to cease or prevent any actual
or threatened violation of this Agreement on the part of Executive.
H. SURVIVAL.
The provisions of this paragraph shall survive the
termination of this Agreement.
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13. DEFERRAL OF AMOUNTS PAYABLE UNDER THIS AGREEMENT.
A payment due pursuant to this Agreement or the MIP may be deferred if
and to the extent that the payment does not satisfy the requirements to be
"qualified performance-based compensation" (as such term is defined by the
regulations issued under Section 162(m) of the Internal Revenue Code of 1986
(the "Code")) and 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, the payment exceeds the limitations on deductibility under Section 162(m)
of the Code. The deferral of payments shall be in the discretion of the
Compensation Committee of Rural/Metro, and shall be made pursuant to a Deferred
Compensation Agreement or Plan acceptable to Rural/Metro and Executive. Such
deferred amounts shall be paid no later than the sixtieth (60th) day after the
end of the 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. If the payments in such succeeding calendar year
exceed the limitations on deductibility under Section 162(m) of the Code, such
payments shall continue to be deferred to the next succeeding year. The above
procedure shall be repeated until such payments can be paid without exceeding
the limitation on deductibility under Section 162(m) of the Code.
14. OTHER AGREEMENTS.
Rural/Metro and Executive will enter into one or more Stock Option
Agreements and a Change of Control Agreement, which will provide the Executive
with
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certain additional protections if his employment is terminated in certain
instances following a "change of control." Nothing in this Agreement is intended
to alter or modify the Stock Option Agreements or the Change of Control
Agreement, which, once executed, shall continue in full force and effect.
15. BUSINESS EXPENSES.
Rural/Metro will reimburse Executive for any and all
necessary, customary, and usual expenses, properly receipted in accordance with
Rural/Metro's policies, incurred by Executive on behalf of Rural/Metro.
16. AMENDMENTS.
This Agreement, the Executive's Stock Option Agreement and the
Executive's Change of Control Agreement constitute the entire agreement between
the parties as to the subject mater hereof. Accordingly, there are no side
agreements or verbal agreements other than those which are stated above. Any
amendment, modification or change in this Agreement must be done so in writing
and signed by both parties.
17. SEVERABILITY.
In the event a court or arbitrator declares that any provision
of this Agreement is invalid or unenforceable, it shall not affect or invalidate
any of the remaining provisions. Further, the court shall have the authority to
re-write that portion of the Agreement it deems unenforceable, to make it
enforceable.
18. GOVERNING LAW.
The law of the Sate of Arizona shall govern the interpretation
and application of all of the provisions of this Agreement.
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19. INDEMNITY.
Rural/Metro shall indemnify Executive to the fullest extent
permitted or required by the laws of the State of Delaware of and from any
"Expenses" incurred by Executive in any "Proceeding."
For purposes of this paragraph 19, "Expenses" shall mean and
include all expense, liability and loss including expenses of investigations,
judicial or administrative proceedings or appeals, attorney, accountant and
other professional fees and disbursements, judgments, fines, and amounts paid in
settlement.
For purposes of this paragraph 19, "Proceeding" shall mean and
include any threatened, pending or completed action, suit or proceeding, whether
brought in the right of the Corporation or otherwise and whether of a civil,
criminal, administrative or investigative nature, in which the Executive may be
or may have been involved as a party, witness or otherwise, by reason of the
fact that the Executive is or was an officer of Rural/Metro or is or was serving
at the request of Rural/Metro as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
whether or not serving in such capacity at the time any liability or expense is
incurred for which indemnification may be provided under this Agreement.
Rural/Metro shall pay the Expenses incurred by Executive in
any Proceeding in advance of the final disposition of the Proceeding at the
written request of Executive, if Executive (a) furnishes Rural/Metro with a
written affirmation of Executive's good faith belief that he is entitled to
indemnification by Rural/Metro; and (b) furnishes Rural/Metro with a written
undertaking to repay the advance to the extent that it is ultimately determined
that Executive is not entitled to be indemnified by Rural/Metro. Such
undertaking shall be an unlimited general obligation of Executive, but need not
be secured. Advances pursuant to this paragraph 19 shall be made no later than
twenty (20) days after Rural/Metro's receipt of the affirmation and undertakings
set forth above and shall be made without regard to the Executive's ability to
repay the amount
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advanced and without regard to Executive's ultimate entitlement to
indemnification under this Agreement.
20. DISPUTE RESOLUTION.
A. MEDIATION.
Any and all disputes arising under, pertaining to or
touching upon this Agreement or the statutory rights or obligations of either
party hereto, shall, if not settled by negotiation, be subject to non-binding
mediation under the National Rules for the Resolution of Employment Disputes of
the American Arbitration Association ("AAA") in effect on the date of the first
notice of demand for mediation, before an independent mediator selected by the
parties pursuant to paragraph 20D. Notwithstanding the foregoing, both Executive
and Rural/Metro may seek preliminary judicial relief if such action is necessary
to avoid irreparable damage during the pendency of the proceedings described in
this paragraph 20. Any demand for mediation shall be made in writing and served
upon the other party to the dispute, by certified mail, return receipt
requested, at the business address of Rural/Metro, or at the last known
residence address of Executive, respectively. The demand shall set forth with
reasonable specificity the basis of the dispute and the relief sought. The
mediation hearing will occur at a time and place convenient to the parties in
Maricopa County, Arizona, within thirty (30) days of the date of selection or
appointment of the mediator.
B. ARBITRATION.
In the event that the dispute is not settled through
mediation, the parties shall then proceed to binding arbitration before a single
independent arbitrator selected pursuant to paragraph 20D. The mediator shall
not serve as arbitrator. TO THE
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EXTENT ALLOWABLE UNDER APPLICABLE LAW, ALL DISPUTES INVOLVING ALLEGED UNLAWFUL
EMPLOYMENT DISCRIMINATION, BREACH OF CONTRACT OR POLICY, OR EMPLOYMENT TORT
COMMITTED BY RURAL/METRO OR A REPRESENTATIVE OF RURAL/METRO, INCLUDING CLAIMS OF
VIOLATIONS OF FEDERAL OR STATE DISCRIMINATION STATUTES OR PUBLIC POLICY, SHALL
BE RESOLVED PURSUANT TO THIS POLICY AND THERE SHALL BE NO RECOURSE TO COURT,
WITH OR WITHOUT A JURY TRIAL. The arbitration hearing shall occur at a time and
place convenient to the parties in Maricopa County, Arizona, within thirty (30)
days of selection or appointment of the arbitrator. If Rural/Metro has adopted a
policy that is applicable to arbitrations with executives, the arbitration shall
be conducted in accordance with said policy to the extent that the policy is
consistent with this Agreement and the Federal Arbitration Act, 9 U.S.C.
Sections 1-16. If no such policy has been adopted, the arbitration shall
be governed by the National Rules for the Resolution of Employment Disputes of
AAA in effect on the date of the first notice of demand for arbitration. The
arbitrator shall issue written findings of fact and conclusions of law, and an
award, within fifteen (15) days of the date of the hearing unless the parties
otherwise agree.
C. DAMAGES.
In cases of breach of contract or policy, damages
shall be limited to contract damages. In cases of discrimination claims
prohibited by statute, the arbitrator may direct payment consistent with the
applicable statute. In cases of employment tort, the arbitrator may award
punitive damages if proved by clear and convincing evidence. The arbitrator may
award fees to the prevailing party and assess costs of the arbitration to the
non-prevailing party. Issues of procedure, arbitrability, or confirmation of
award shall be governed by the Federal Arbitration Act, 9 U.S.C. Sections
1-16, except that Court
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review of the arbitrator's award shall be that of an appellate court reviewing a
decision of a trial judge sitting without a jury.
D. SELECTION OF MEDIATORS OR ARBITRATORS.
The parties shall select the mediator or arbitrator
from a panel list made available by the AAA. If the parties are unable to agree
to a mediator or arbitrator within ten (10) days of receipt of a demand for
mediation or arbitration, the mediator or arbitrator will be chosen by
alternatively striking from a list of five (5) mediators or arbitrators obtained
by Rural/Metro from AAA. Executive shall have the first strike.
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IN WITNESS WHEREOF, Rural/Metro and Executive have executed this
Agreement on this day of September, 1998.
"EXECUTIVE" RURAL/METRO CORPORATION
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____________________________ By:_______________________________
Xxxx X. Xxxxxx Xxxxx X. Xxxxx
Vice Chairman
Board of Directors
