Exhibit
10.10


 


AMENDED AND
RESTATED


CONSULTING
AGREEMENT


 


This
AMENDED AND RESTATED CONSULTING AGREEMENT, dated as of November 23, 2009
(this “Agreement”), is entered into by and among ServiceMaster Global
Holdings, Inc., a Delaware corporation (the “Company”), The
ServiceMaster Company, a Delaware corporation (“ServiceMaster”), and
Clayton, Dubilier & Rice, LLC, a Delaware limited liability company (“Manager”)
and the successor to the investment management business of Clayton, Dubilier &
Rice, Inc., a Delaware corporation (“CD&R Inc.”).


 


W I T N E S S E T H:


 


WHEREAS,
CD&R Inc. organized the Company in connection with the acquisition of all
of the outstanding shares of capital stock of ServiceMaster (the “Merger”),
pursuant to, and on the terms and subject to the conditions set forth in, a
certain Agreement and Plan of Merger, dated as of March 18, 2007 (as the
same may be amended from time to time in accordance with its terms and the
Stockholders Agreement (as defined below), the “Merger Agreement”)), by
and among the Company, CDRSVM Acquisition Co., Inc., a Delaware
corporation, and ServiceMaster.


 


WHEREAS,
the Company, Clayton, Dubilier & Rice Fund VII, L.P. (“Fund VII”),
Clayton, Dubilier &  Rice Fund VII
(Co-Investment), L.P. (“Fund VII (Co-Investment)”) and certain other
parties entered into a Stockholders Agreement, dated as of July 24, 2007
(as the same may be amended from time to time in accordance with its terms, the
“Stockholders Agreement”);


 


WHEREAS,
the Company, ServiceMaster and CD&R Inc. entered into a Consulting
Agreement, dated as of July 24, 2007 (the “Original Consulting
Agreement”);


 


WHEREAS,
concurrently with the execution and delivery of the Original Consulting
Agreement, the Company, ServiceMaster, Fund VII, Fund VII (Co-Investment),
CD&R Parallel Fund VII, L.P. (“Parallel Fund VII”), CDR SVM
Co-Investor, L.P. (“SVM Co-Investor”) and CD&R Inc. entered into an
Indemnification Agreement, dated as of July 24, 2007 (the “Original
Indemnification Agreement”);


 


WHEREAS,
CD&R Inc. has reorganized and contributed and assigned to Manager all of
CD&R Inc.’s right, title and interest in and to substantially all of
CD&R Inc.’s assets and properties, with certain enumerated exceptions, and
Manager has accepted such assets and properties and assumed all of the
liabilities, obligations and commitments of CD&R Inc. related to such
assets and properties;


 


WHEREAS,
the Company desires that it and its subsidiaries (together, the “Company
Group”) receive future financial, investment banking, management advisory


 

















 


and
other services from Manager, and Manager desires to provide such services to
the members of the Company Group; and


 


WHEREAS,
concurrently with the execution and delivery of this Agreement, the Company,
ServiceMaster, Fund VII, Fund VII (Co-Investment), Parallel Fund VII, SVM
Co-Investor, CD&R Inc., Manager and Clayton, Dubilier & Rice
Holdings, L.P. are amending and restating the Original Indemnification
Agreement, as of the date hereof (the “Amended and Restated Indemnification
Agreement”), to take account of Manager as the successor to the investment
management business of CD&R Inc.;


 


NOW,
THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:


 


1.             Engagement.
The Company hereby engages Manager (on behalf of the members of the Company
Group) as a consultant, and Manager hereby agrees to provide Consulting
Services (as defined below) and Transaction Services (as defined below) to the
Company and the other members of the Company Group on the terms and subject to
the conditions set forth below.


 


2.             Scope of Future
Services.


 


(a)           Consulting
Services. Manager hereby agrees, during the term of this Agreement, to
provide the members of the Company Group with such financial, investment
banking, management advisory and other services in connection with the
operations of the Company as may reasonably be requested from time to time by
the board of directors (the “Board”) of the Company (collectively, the “Consulting
Services”), including assistance (i) developing and
implementing corporate and business strategy and planning for the Company
Group, including plans and programs for improving operating, marketing and
financial performance, (ii) recruiting key management employees, (iii) establishing
and maintaining banking, legal and other business relationships, (iv) arranging
future debt and equity financings and refinancings for corporate purposes and (v) providing
professional employees to serve as directors or officers of the members of the
Company Group (“Manager Designees”), as permitted pursuant to the
Stockholders Agreement.


 


(b)           Transaction
Services. In addition to, and without duplication of, the Consulting
Services, Manager hereby agrees, during the term of this Agreement, to provide
the members of the Company Group with financial, investment banking, management
advisory and other services as may reasonably be agreed from time to time by
the Company (subject to Unanimous Board Approval (as defined in the
Stockholders Agreement) if required pursuant to Section 2.3(c)(iii) of
the Stockholders Agreement) and Manager with respect to proposed transactions,
including, without limitation, any proposed acquisition, merger (other than to
effect the sale of the Company), full or partial recapitalization, structural
reorganization (including any divestiture of one or more


 


2

















 


subsidiaries
or operating divisions of any member of the Company Group), reorganization of
the shareholdings or other ownership structure of the Company Group, sales or
dispositions of assets or any other similar transaction, in each case other
than the sale of all or substantially all of the assets of the Company (each, a
“Transaction”) directly or indirectly involving the members of the
Company Group (collectively, the “Transaction Services”). For the
avoidance of doubt, the Transaction Services shall not include the Initial
Services, as defined and provided for under the Transaction Fee Agreement,
dated as of July 24, 2007, among the Company, ServiceMaster, CD&R Inc.
and other parties named therein.


 


3.                                       Compensation;
Reimbursement of Expenses.


 


(a)           Compensation for
Consulting Services. As compensation for the Consulting Services, the
Company shall, or shall cause one or more other members of the Company Group
to, on behalf of the members of the Company Group, pay Manager a fee (the “Consulting
Fee”) of $6,250,000 per year, one quarter of which shall be payable quarterly
in advance on the first day of each January, April, July and October,
beginning on January 1, 2010 (it being acknowledged that such Consulting
Fee is equal to the annual consulting fee payable under the Original Consulting
Agreement, as such consulting fee was heretofore increased by the Board in
accordance with the Original Consulting Agreement and prior to the amendment
and restatement of this Agreement). If an employee of Manager or any of its
Affiliates is appointed to an executive management position (or a position of
comparable responsibility) with the Company or any other member of the Company
Group, then, for the period of such employee’s service in such position, the
Consulting Fee shall be increased by an amount to be reasonably determined by
Manager but not to exceed 100% of the Consulting Fee then in effect. The
Consulting Fee may otherwise be increased only by the Company, subject to (i) Unanimous
Board Approval (as defined in the Stockholders Agreement), or (ii) the
approval of a majority of the members of the Board who are not employees of the
Company, Manager, Fund VII, Fund VII (Co-Investment) or their respective
Affiliates (“Disinterested Directors”) or, if there are no Disinterested
Directors serving on the Board, the approval of a nationally recognized expert
with expertise in appraising the terms and conditions of the fee for which
approval is required (in either case under clause (ii), a “Disinterested
Approval”). The Consulting Fee may not be decreased without the prior
written consent of Manager. For purposes of this Agreement, “Affiliate”
shall mean, with respect to any person or entity, any other person or entity
directly or indirectly controlling, controlled by or under common control with,
such person or entity.


 


(b)           Compensation for
Transaction Services. As compensation for the Transaction Services, in
connection with each Transaction that is consummated, the Company shall, or
shall cause one or more of its Affiliates to, on behalf of the members of the
Company Group, pay Manager a fee (a “Transaction Fee”) equal to 1.0% of
the Transaction Value, or such lesser amount as Manager and the Company, on
behalf of the members of the Company Group, may agree. The Company, on behalf
of the members


 


3

















 


of
the Company Group, may agree to pay a Transaction Fee in excess of 1.0% of the
Transaction Value of a Transaction, subject to Unanimous Board Approval (as
defined in the Stockholders Agreement) or Disinterested Approval. As used
herein, “Transaction Value” means the total value of the applicable
Transaction, including, without limitation, the aggregate amount of the cash
funds and the aggregate value of the other securities or obligations required
to complete such Transaction (excluding any fees payable pursuant to this Section 3(b)),
including any indebtedness, guarantees, capital stock or similar items issued
or made to facilitate, and the amount of any revolving credit or other
liquidity facilities or arrangements established in connection with, such
Transaction or assumed, refinanced or left outstanding in connection with or
immediately following such Transaction. For purposes of calculating a
Transaction Fee, the value of any securities included in the Transaction Value
will be determined by the average of the last sales prices for such securities
on the five trading days ending five days prior to the consummation of the
applicable Transaction, provided that if such securities do not have an
existing public trading market, the value of the securities shall be their fair
market value as mutually reasonably agreed between Manager and the Company, on
behalf of the members of the Company Group, on the day prior to consummation of
such Transaction.


 


(c)          Reimbursement of Expenses. The Company shall, or
shall cause one or more other members of the Company Group to, on behalf of the
members of the Company Group, reimburse Manager for such reasonable travel and
other out-of-pocket expenses (“Expenses”) as may be incurred by Manager
and its Affiliates and its and their respective employees and agents in the
course or on account of rendering any services under this Agreement, including
but not limited to any applicable fees and expenses of any legal, accounting or
other professional advisors to Manager and its subsidiaries and Affiliates and
any expenses incurred by any Manager Designee in connection with the
performance of his or her duties to any member of the Company Group, including
the cost of all air travel whether on commercial or private aircraft. Manager
may submit monthly expense statements to the Company or any other such member
of the Company Group, which statements shall be payable within thirty days.


 


(d)         Obligations Joint and Several; Payment Obligations for
Certain Transaction Fees and Expenses. ServiceMaster and the Company (on
behalf of the members of the Company Group) hereby agree that the obligations
of the Company under this Section 3 shall be borne jointly and severally
by each member of the Company Group.


 


4.           Term, etc. (a) This Agreement shall be in
effect until, and shall terminate upon the tenth anniversary of the date of the
Original Consulting Agreement, and may be earlier terminated by Manager on
thirty days’ prior written notice to the Company. The provisions of this
Agreement shall survive any termination hereof, provided that,
notwithstanding the foregoing, Sections 1 and 2 shall not survive any
termination hereof and provided, further, that Section 3
shall survive any termination hereof solely as to any


 


4

















 


portion
of any Consulting Fee, Transaction Fee or Expenses not paid or reimbursed prior
to such termination and not required to be paid or reimbursed thereafter
pursuant to Section 4(c).


 


(b)         Upon any consolidation or merger of any member of the
Company Group, or any conveyance, transfer or lease of all or substantially all
of the assets of any member of the Company Group, the entity formed by such
consolidation, or into which such member of the Company Group is merged or to which
such conveyance, transfer or lease is made (each, a “Successor Entity”),
shall succeed to and be substituted for the Company or such member of the
Company Group, as applicable, under this Agreement with the same effect as if
the Successor Entity had been a party hereto. No such consolidation, merger or
conveyance, transfer or lease shall have the effect of terminating this
Agreement or of releasing any member of the Company Group or any Successor
Entity from its obligations hereunder.


 


(c)          Upon any termination of this Agreement, the Company, agrees
immediately to pay or reimburse, (or cause one or more other members of the
Company Group to pay or reimburse), as the case may be, any accrued and unpaid
installment of the Consulting Fee or portion thereof (pro rated, with respect
to the month in which such termination occurs, for the portion of such month
that precedes such termination), and any accrued and unpaid Transaction Fee or
portion thereof and any unpaid and unreimbursed Expenses that shall have been
incurred prior to such termination (whether or not such Expenses shall then
have become payable). If, at any time, no member of the Company Group is
permitted to make any payment or reimbursement
due to Manager under this Agreement under the terms of any credit agreement or other
financing agreement to which any member of the Company Group is a party, such
obligations shall accrue as provided herein, but payment or reimbursement
thereof shall be deferred until such time as (i) such payments are no
longer prohibited under the terms of the applicable agreement, or (ii) the
loan amount due thereunder is repaid in full. In the event of the liquidation
of the Company, all amounts due Manager under this Agreement shall be paid to
Manager before any liquidating distributions or similar payments are made to
stockholders of the Company.


 


5.           Information. The Company will, and will cause each
member of the Company Group to, use its reasonable best efforts to furnish, or
to cause their respective subsidiaries, employees and agents to furnish,
Manager with such information (the “Information”) as Manager reasonably
believes appropriate to its engagement hereunder. The Company acknowledges and
agrees that (a)
Manager will rely on the Information and on information available from
generally recognized public sources in performing the Consulting Services and
the Transaction Services and (b) Manager does not assume responsibility
for the accuracy or completeness of the Information and such other information.


 


5

















 


6.           Independent Contractor Status. The parties
acknowledge and agree that Manager shall perform the Consulting Services and
the Transaction Services as an independent contractor, retaining control over
and responsibility for its own operations and personnel and those of its
controlled Affiliates (other than the Company and its subsidiaries). The
Company further acknowledges and agrees that Manager may, in its sole
discretion, remove or substitute any of the members of, or add members to, the
team of professional employees of Manager and its Affiliates (other than the
Company and its subsidiaries) that will be providing services pursuant to this
Agreement, and that any such removal, substitution or addition shall not in any
way modify or affect any of the obligations of the Company hereunder,
including, without limitation, its obligation to pay the any fee or reimburse
any Expenses. None of Manager and its Affiliates (other than the Company and
its subsidiaries) and its and their respective employees and agents shall,
solely by virtue of this Agreement or the arrangements hereunder, be considered
employees or agents of any member of the Company Group or any of their
respective Affiliates, nor shall any of them have authority hereunder to
contract in the name of or bind any member of the Company Group or any of their
respective Affiliates, except (i) to the extent that any
professional employee of Manager or any of its Affiliates may be serving as a
director or an officer of any member of the Company Group or (ii) as
expressly agreed to in writing by such member of the Company Group. Any duties
of Manager arising out of its engagement to perform services hereunder shall be
owed solely to the members of the Company Group.


 


7.          Limitation on Liability. Except in cases of gross
negligence or willful misconduct, Manager, its Affiliates and any of its and
their respective employees, officers, directors, partners, consultants,
members, stockholders or Affiliates shall have no liability of any kind
whatsoever to any member of the Company Group for any damages, losses or
expenses (including, without limitation, special, punitive, incidental or
consequential damages and interest, penalties and fees and disbursements of
attorneys, accountants, investment bankers and other professional advisors)
with respect to the provision of the Consulting Services and the Transaction
Services.


 


8.          Entire Agreement; No Representations or Warranties.
This Agreement, the Stockholders Agreement and the Amended and Restated
Indemnification Agreement (a) contain the complete and entire
understanding and agreement between Manager and the Company with respect to the
subject matter hereof and (b) supersede all prior and contemporaneous
understandings, conditions and agreements, whether written or oral, express or
implied, in respect of the subject matter hereof. The Company acknowledges and
agrees that Manager makes no representations or warranties in connection with
this Agreement or its provision of the Consulting Services and the Transaction
Services. The Company agrees that any acknowledgment or agreement made by the
Company in this Agreement is made on behalf of the Company and the other
members of the Company Group.


 


6

















 


9.         Counterparts; Amendments and Waivers. This Agreement
may be executed in any number of counterparts, each of which shall be deemed an
original and which together shall constitute one agreement. This Agreement may
not be amended, restated, supplemented or otherwise modified, and no provision
of this Agreement may be waived, other than in a writing duly executed by the
parties hereto, subject to Unanimous Board Approval (as defined in the
Stockholders Agreement) if required pursuant to Section 2.3(c)(iii) of
the Stockholders Agreement or, if not required thereunder, Disinterested
Approval.


 


10.        Binding Effect; Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties to this Agreement and
their respective successors and assigns; provided, that (i) neither
this Agreement nor any right, interest or obligation hereunder may be assigned
by either party, whether by operation of law or otherwise, without the express
written consent of the other party hereto and (ii) any assignment by
Manager of its rights but not the obligations under this Agreement to any
entity directly or indirectly controlling, controlled by or under common
control with Manager shall be expressly permitted hereunder and shall not
require the prior written consent of the Company. This Agreement is not
intended to confer any right or remedy hereunder upon any person or entity
other than the parties to this Agreement and their respective successors and
assigns.


 


11.        Governing Law; Jurisdiction; Waiver of Jury Trial. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF
LAWS TO THE EXTENT THAT SUCH PRINCIPLES WOULD REQUIRE OR PERMIT THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION. Each of the parties hereto irrevocably and
unconditionally (a) agrees that any legal suit, action or
proceeding brought by any party hereto arising out of or based upon this
Agreement or the transactions contemplated hereby may be brought in any court
of the State of New York or Federal District Court for the Southern District of
New York located in the City, County and State of
New York (each, a “New York Court”), (b) waives, to the fullest
extent that it may effectively do so, any objection that it may now or hereafter have to the laying
of venue of any such proceeding brought in a New York Court, and any claim that
any such action or proceeding brought in a New York Court has been brought in
an inconvenient forum, (c) submits to the non-exclusive
jurisdiction of any New York Court in any suit, action or proceeding and (d) ACKNOWLEDGES
AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS
LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE HEREBY WAIVES
ANY RIGHT THAT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT,
OR THE BREACH, TERMINATION OR VALIDITY OF THIS AGREEMENT. With respect to
clause (d) of the immediately preceding sentence, each of the parties
hereto acknowledges and certifies that (i) no


 


7

















 


representative,
agent or attorney of any other party has represented, expressly or otherwise,
that such other party would not, in the event of litigation, seek to enforce
the waiver contained therein, (ii) it understands and has
considered the implications of such waiver, (iii) it makes such
waiver voluntarily and (iv) it has been induced to enter into this
Agreement by, among other things, the mutual waivers and certifications
contained in this Section 11.


 


[The remainder of this page left intentionally blank.]


 


8

















 


IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first above written.


 


	
   

  	
  CLAYTON,
  DUBILIER & RICE, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Theresa A. Gore

  
	
   

  	
   

  	
  Name:
  Theresa A. Gore

  
	
   

  	
   

  	
  Title:
  Vice President, Treasurer and Assistant Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SERVICEMASTER
  GLOBAL HOLDINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven J. Martin

  
	
   

  	
   

  	
  Name:
  Steven J. Martin

  
	
   

  	
   

  	
  Title:
  Vice President and Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE
  SERVICEMASTER COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven J. Martin

  
	
   

  	
   

  	
  Name:
  Steven J. Martin

  
	
   

  	
   

  	
  Title:
  Senior Vice President and Chief Financial Officer