Exhibit 10.9
INDEMNITY
AGREEMENT
THIS AGREEMENT
is executed this
day of
, 2008, by and between Rural/Metro Corporation, a Delaware
corporation (the “Corporation”), and
(the “Indemnitee”), a director and/or officer of the
Corporation. This Agreement is effective as of the date
hereof.
RECITALS:
A. The
Corporation believes it is important to the Corporation to retain
and attract the most capable persons available.
B. Increases
in the incidence of litigation subject the Corporation and its
executive officers and directors to significant risks at the same
time that the availability and coverage of liability insurance have
become uncertain.
C. In
recognition of the Indemnitee’s need for substantial
protection against personal liability and in order to provide the
Indemnitee with specific contractual assurances that such
protection will be available to the Indemnitee, the Corporation
desires to provide in this Agreement for the indemnification of and
the advance of expenses to the Indemnitee and, to the extent
officers’ and directors’ liability insurance is
maintained by the Corporation, to provide for the coverage of the
Indemnitee under the Corporation’s officers’ and
directors’ liability insurance policies all in accordance
with this Agreement.
D. The Board
of Directors of the Corporation has determined that this Agreement
is fair as to the Corporation.
AGREEMENT:
NOW, THEREFORE,
in consideration of the Indemnitee
agreeing to continue to serve as a director and/or officer, and
other good and valuable consideration, the parties hereto hereby
agree as follows:
1.
Definitions . As used in this
Agreement:
(a) “
Change in Control ” shall mean any one or more of the
following transactions or situations:
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(i)
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A sale,
transfer, or other disposition by the Corporation through a single
transaction or a series of transactions of securities of the
Corporation representing 30% or more of the combined voting power
of the Corporation’s then outstanding securities to any
“Unrelated Person” or “Unrelated Persons”
acting in concert with one another;
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(ii)
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A sale, transfer, or other
disposition through a single transaction or a series of
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transactions of all or
substantially all of the assets of the Corporation to an Unrelated
Person or Unrelated Persons acting in concert with one
another;
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(iii)
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A change in the
ownership of the Corporation through a single transaction or a
series of transactions such that any Unrelated Person or Unrelated
Persons acting in concert with one another becomes the
“Beneficial Owner,” directly or indirectly, of
securities of the Corporation representing at least 30% of the
combined voting power of the Corporation’s then outstanding
securities;
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(iv)
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Any
consolidation or merger of the Corporation with or into an
Unrelated Person, unless immediately after the consolidation or
merger the holders of the common stock of the Corporation
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;
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(v)
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During any
period of two (2) years, individuals who, at the beginning of
such period, constituted the Board of Directors of the Corporation
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; and
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(vi)
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A change in
control of the Corporation 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 Securities Exchange Act
of 1934 (the “Act”), or any successor regulation of
similar import, regardless of whether the Corporation is subject to
such reporting requirement.
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For purposes of this definition, the
terms (i) “Person” shall mean and include any
individual, partnership, joint venture, association, trust,
corporation, or other entity (including a “group” as
referred to in Section 13(d)(3) of the Act);
(ii) “Unrelated Person” shall mean and include any
Person other than the Corporation, a wholly-owned subsidiary of the
Corporation, or an employee benefit plan of the Corporation; and
(iii) “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.
If more than one of the transactions
or situations referred to above occurs during the term of this
Agreement, each shall be treated as a separate Change in
Control.
(b) “
Damages ” shall mean any and all liabilities, losses,
damages, judgments, fines, assessments, charges, penalties,
interest, amounts paid in settlement and any and all
Expenses.
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(c) “
Expenses ” shall mean all attorneys’ fees and
all other costs, expenses and obligations paid or incurred in
connection with investigating, defending, being a witness in or
participating in any Proceeding with respect to any Indemnifiable
Event, or preparation in connection therewith.
(d) “
Indemnifiable Event ” shall mean any event, act,
omission, occurrence or circumstance related to the fact that the
Indemnitee is or was an officer, director, employee or agent of the
Corporation, or is or was serving, in any such capacity, at the
request of the Corporation, with another corporation, partnership,
joint venture, trust, enterprise or non-profit entity, including
any subsidiary or any employee benefit plan.
(e) “
Independent Counsel ” shall mean a law firm, or a
member of a law firm, that is experienced in matters of corporation
law and neither presently is, nor in the past five years has been,
retained to represent (i) the Corporation or any Indemnitee in
any matter material to either such party (other than with respect
to matters concerning the Indemnitee under this Agreement, or of
other indemnitees under similar indemnification agreements) or
(ii) any other party to the Proceeding giving rise to a claim
for indemnification hereunder. Notwithstanding the foregoing, the
term “Independent Counsel” shall not include any person
who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing
either the Corporation or the Indemnitee in an action to determine
the Indemnitee’s rights under this Agreement. Any Independent
Counsel shall be selected by the Corporation and reasonably
satisfactory to the Indemnitee.
(f) “
Proceeding ” shall mean any threatened, pending or
completed action, suit, investigation, inquiry or other proceeding,
and any appeal, whether or not brought by or in the right of the
Corporation or otherwise, and whether or not of a civil, criminal,
administrative or investigative nature.
(g) “
Reviewing Party ” shall mean (i) if a Change in
Control shall not have occurred, an appropriate person or body
consisting of a member or members of the Board of Directors or, to
the extent permitted by applicable law, an appropriate person or
body designated by the Board of Directors or if all members of the
Board of Directors are parties to the proceeding in question,
Independent Counsel or (ii) if a Change in Control shall have
occurred, at the election of the Indemnitee, Independent Counsel or
a majority of the disinterested directors, if any.
2.
Indemnity . Subject only to the limitations set
forth herein, the Corporation shall indemnify and hold harmless the
Indemnitee, to the fullest extent permitted by law, for, from and
against any and all Damages suffered or incurred by or on behalf of
the Indemnitee in connection with or arising out of any Proceeding
with respect to any Indemnifiable Event.
3.
Limitations on Indemnity . Notwithstanding
anything contained herein the Corporation shall not be obligated to
indemnify or hold harmless the Indemnitee under this
Agreement:
(a) if and to
the extent that such indemnification shall be prohibited by
applicable law, as determined in the manner provided in this
Agreement;
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(b) except as
set forth in last sentences in of Section 4(b) and
Section 7(b), with respect to a proceeding (or part thereof)
initiated or brought voluntarily by such Indemnitee and not by way
of defense;
(c) for any
amounts paid in settlement of an action indemnified against by the
Corporation without the proper written consent of the Corporation;
or
(d) for
Expenses and other liabilities arising from the purchase and sale
by the Indemnitee of securities in violation of Section 16(b)
of the Act, or any similar state or successor statute.
4.
Advance Payment of Expenses .
(a) Expenses
incurred by the Indemnitee in investigating, defending, being a
witness or participating in a Proceeding shall be paid by the
Corporation in advance of the final disposition of such Proceeding
within thirty (30) days after receipt by the Corporation of
(i) a statement or statements from the Indemnitee requesting
such advance or advances from time to time and (ii) an
undertaking by or on behalf of the Indemnitee to repay such amount
or amounts, if, and to the extent that, it shall ultimately be
determined that the Indemnitee is not entitled to be indemnified by
the Corporation as authorized by this Agreement. Such
undertakin
