Exhibit 10.76

 

Form of Director Restricted Stock Agreement

 

This Director Restricted Stock Agreement, dated as of               , 20     (the “Grant Date”), between ServiceMaster Global Holdings, Inc., a Delaware corporation, and the director whose name appears on the signature page hereof (the “Director”), is being entered into pursuant to the Amended and Restated ServiceMaster Global Holdings, Inc. Stock Incentive Plan.  The meaning of each capitalized term not otherwise defined in this Agreement may be found in Section 10.

 

The Company and the Director hereby agree as follows:

 

Section 1.                                          Grant of Shares

 

(a)                                 Confirmation of Grant.  Subject to all of the terms of this Agreement, the Company hereby evidences and confirms, effective as of the Grant Date, its grant to the Director of the aggregate number of shares of Common Stock set forth on the signature page hereof (the “Shares”).  This Agreement is entered into pursuant to, and the terms of the Shares are subject to, the terms of the Stock Incentive Plan.  If there is any conflict between this Agreement and the terms of the Stock Incentive Plan, the terms of the Stock Incentive Plan shall govern.

 

Section 2.                                           Vesting and Forfeiture

 

(a)                                 Based on Continued Service on Board.  The Director’s Shares shall vest in full on the day immediately preceding the first anniversary of the Grant Date (the “Vesting Date”), subject to the Director’s continued service on the Board through the Vesting Date.

 

(b)                                 Effect of a Change in Control.  In the event of a Change in Control occurring prior to the Vesting Date, subject to the Director’s continued service on the Board from the Grant Date to the date of the Change in Control, any Shares which are unvested shall automatically become vested.

 

(c)                                  Discretionary Acceleration.  The Board, in its sole discretion, may accelerate the vesting of all or a portion of the Shares at any time and from time to time.

 

(d)                                 Effect of Termination of Board Service.  Upon termination of the Director’s service on the Board for any reason (whether initiated by the Company or by the Director), any unvested Shares shall be forfeited, provided that if the Director’s service on the Board is terminated by reason of the Director’s death or disability (as determined by the Board), the Director’s Shares shall become vested as of the date the Director’s service on the Board terminates.

 

(e)                                  Delivery by the Company.  The Company shall register the Shares in the name of the Director.  If the Shares are certificated, any certificates relating to

 











 

the Shares shall be held by the Secretary of the Company or his designee on behalf of the Director.

 

Section 3.                                          Representations and Warranties

 

(a)                                 Access to Information, Etc.  The Director represents and warrants as follows:

 

(i)                        the Director understands the terms and conditions that apply to the Shares and the risks associated with holding the Shares;

 

(ii)                     the Director has a good understanding of the English language; and

 

(iii)                  the Director is a resident of the jurisdiction indicated as his or her address set forth on the signature page of this Agreement.

 

(b)                                 Ability to Bear Risk.  The Director represents, warrants and covenants as follows:

 

(i)                        the Director understands that the rights of first refusal and other transfer restrictions that apply to the Shares may effectively preclude the transfer of any of the Shares prior to a Public Offering;

 

(ii)                     the financial situation of the Director is such that he or she can afford to bear the economic risk of holding the Shares for an indefinite period;

 

(iii)                  the Director can afford to suffer the complete loss of his or her interest in the Shares; and

 

(iv)                 the Director understands that the Company’s Financing Agreements may restrict the ability of the Company to repurchase the Shares pursuant to Section 5 and that the Company and its Subsidiaries may enter into or amend, refinance or enter into new Financing Agreements without regard to the impact on the Company’s ability to repurchase the Shares.

 

(c)                                  Investment Intention.  The Director represents and warrants that the Director is acquiring the Shares solely for his or her own account for investment and not on behalf of any other person or with a view to, or for sale in connection with, any distribution of the Shares.

 

(d)                                 Securities Law Matters.  The Director acknowledges and represents and warrants that the Director understands that:

 

(i)                        the Shares have not been registered under the Securities Act or any state or non-United States securities or “blue sky” laws;

 

2











 

(ii)                     the Shares must be held indefinitely and the Director must continue to bear the economic risk of the investment in the Shares unless the Shares are subsequently registered under applicable securities and other laws or an exemption from registration is available;

 

(iii)                  the Company is under no obligation to register the Shares or to make an exemption from registration available; and

 

(iv)                 a restrictive legend shall be placed on any certificates representing the Shares that makes clear that the Shares are subject to the restrictions on transferability set forth in this Agreement and a notation shall be made in the appropriate records of the Company or any transfer agent indicating that the Shares are subject to such restrictions.

 

(e)                                  Voting Proxy.  By entering into this Agreement and acquiring the Shares, the Director hereby irrevocably grants to and appoints the CD&R Investors collectively (to act by unanimous consent) as the Director’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of the Director, to vote or act by unanimous written consent with respect to the Director’s Shares.  The Director hereby affirms that the irrevocable proxy set forth in this section will be valid until the consummation of a Public Offering and is given to secure the performance of the obligations of the Director under this Agreement.  The Director hereby further affirms that the proxy hereby granted shall be irrevocable and shall be deemed coupled with an interest and shall extend for the term of this Agreement, or, if earlier, until the last date permitted by law.  For the avoidance of doubt, except as expressly contemplated by this section, the Director has not granted a proxy to any Person to exercise the rights of the Director under this Agreement or any other agreement relating to the Shares to which the Director is a party.

 

Section 4.                                          Restriction on Transfer of Shares.

 

(a)                                 In General.  Prior to the date as of which the Shares become vested as set forth in Section 2, the Director shall not Transfer any of the Shares other than (i) upon the Director’s death by will or by the laws of descent and distribution, (ii) repurchases by the Company (or an assignee thereof) or the CD&R Investors pursuant to Section 5 hereof, (iii) pursuant to Section 6 or Section 7 hereof, or (iv) with the Company’s consent.  Shares may only be Transferred in a manner that complies with all applicable securities laws and, if the Company so requests, prior to any attempted Transfer, the Director shall provide to the Company at the Director’s expense such information relating to the compliance of such proposed Transfer with the terms of this Agreement and applicable securities laws as the Company shall reasonably request, which may include an opinion in form and substance reasonably satisfactory to the Company of counsel regarding such securities law or other matters as the Company shall request (such counsel to be reasonably satisfactory to the Company).

 

3











 

(b)                                 No Transfer That Would Result In Registration Requirements.  Prior to a Public Offering, the Shares may not be Transferred if such Transfer would result in the Company becoming subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (or other similar provision of non-U.S. law) or would increase the risk that the Company would be subject to such reporting requirements as determined by the Company in its sole and absolute discretion.  Any purported Transfer in violation of Section 4(a) or this Section 4(b) shall be void ab initio.

 

Section 5.                                          Options Effective on Termination of Service Prior to a Public Offering.

 

(a)                                 Rights of the Company and the Initial Investors.  If the Director’s service on the Board terminates for any reason prior to a Public Offering, the Company may elect to purchase all or a portion of the Shares by written notice to the Director delivered on or before the 60th day after the Director’s termination of service (the “First Option Period”).  The CD&R Investors may elect to purchase all or any portion of the Shares that the Company has not elected to purchase by written notice to the Director delivered at any time on or before the 80th day after the Director’s termination of service (the “Second Option Period”).

 

(b)                                 Limited Right of the Director to Require the Company to Repurchase Shares.  If the Director’s service on the Board is terminated prior to a Public Offering by reason of the Disability or death of the Director, the Director (or his or her beneficiary) may require the Company to purchase all (but not less than all) of the Director’s Shares by written notice delivered to the Company within 30 days following the expiration of the Second Option Period.

 

(c)                                  Purchase Price.  The purchase price per Share pursuant to this Section 5 shall equal the Fair Market Value as of the later of (i) the effective date of the Director’s termination of service and (ii) six months and one day from the date of the Director’s acquisition of the Shares pursuant to this Agreement (such date, the “Determination Date”), provided that if the Director’s service is terminated for Cause, the purchase price per Share shall equal the lesser of (i) the Fair Market Value of such Share as of the Determination Date and (ii) the Fair Market Value of such Share as of the Grant Date.

 

(d)                                 Closing of Purchase; Payment of Purchase Price.  Subject to Section 5(f), the closing of a purchase pursuant to this Section 5 shall take place at the principal office of the Company no later than the 90th day following the Determination Date (or, in the case of a purchase pursuant to Section 5(b), no later than 10 business days following the Company’s receipt of written notice from the Director (or his or her beneficiary) pursuant to Section 5(b)).  At the closing, (i) the Company or the CD&R Investors, as the case may be, shall, subject to Section 5(e), pay the Purchase Price to the Director and (ii) if the Director actually holds any certificates or other instruments representing the Shares so purchased, the Director shall deliver to the Company such certificates or other instruments,

 

4











 

appropriately endorsed by the Director or directing that the shares be so transferred to the purchaser thereof, as the Company may reasonably require.

 

(e)                                  Application of the Purchase Price to Certain Loans or Other Obligations.  The Company shall be entitled to apply any amounts otherwise payable pursuant to this Section 5 to discharge any indebtedness of the Director to the Company or any of its Subsidiaries or indebtedness that is guaranteed by the Company or any of its Subsidiaries or to offset any such amounts against any other obligations of the Director to the Company or any of its Subsidiaries.

 

(f)                                   Certain Restrictions on Repurchases; Delay of Repurchase.  Notwithstanding any other provision of this Agreement, the Company shall not be permitted or obligated to make any payment with respect to a repurchase of any Shares from the Director if (i) such repurchase (or the payment of a dividend by a Subsidiary to the Company to fund such repurchase) would result in a violation of the terms or provisions of, or result in a default or an event of default under any guaranty, financing or security agreement or document entered into by the Company or any Subsidiary from time to time (the “Financing Agreements”), (ii) such repurchase would violate any of the terms or provisions of the Certificate of Incorporation and By-laws of the Company or (iii) the Company has no funds legally available to make such payment under the General Corporation Law of the State of Delaware.  If payment with respect to a repurchase by the Company otherwise permitted or required under this Section 5 is prevented by the terms of the preceding sentence: (i) the payment of the applicable Purchase Price shall be postponed and will take place at the first opportunity thereafter when the Company has funds legally available to make such payment and when such payment will not result in any default, event of default or violation under any of the Financing Agreements or in a violation of any term or provision of the Certificate of Incorporation or By-laws, (ii) such repurchase obligation shall rank against other similar repurchase obligations with respect to Common Stock according to priority in time of the effective date of the termination of employment or service giving rise to such repurchase (provided that any repurchase commitment arising from Disability or death shall have priority over any other repurchase obligation) and (iii) the Purchase Price, except in the case of a termination for Cause, shall be increased by an amount equal to interest on such Purchase Price for the period during which payment is delayed at an annual rate equal to the weighted average cost of the Company’s senior secured bank indebtedness outstanding during the delay period.

 

(g)                                  Right to Retain Shares.  If the options of the Company and the CD&R Investors to purchase the Shares pursuant to this Section 5 are not exercised with respect to all of the Shares, the Director shall be entitled to retain the remaining Shares, although those Shares shall remain subject to all of the other provisions of this Agreement.

 

(h)                                 Notice of Termination; Etc.  Prior to a Public Offering, the Company shall give prompt written notice to the CD&R Investors of any termination of the

 

5











 

Director’s service with the Company and of the Company decision whether or not to purchase Shares pursuant to Section 5.

 

(i)                                     Public Offering.  The provisions of this Section 5 shall terminate upon a Public Offering, provided that such termination shall not affect the Company’s repurchase right following a termination for Cause that was effective (or deemed to be effective) prior to such Public Offering or any payment obligation postponed pursuant to Section 5(f).

 

(j)                                    Allocation of Purchase Rights.  The Director acknowledges and agrees that the CD&R Investors may allocate and assign their purchase rights under this Section 5, as among themselves and the other Investors, in such manner as they, in their sole discretion, may agree from time to time.

 

Section 6.                                          “Tag-Along” Rights.

 

(a)                                 Sale Notice.  At least 30 days before any of the Investors (whether acting alone or jointly with one or more of the other Investors) consummates a sale of more than 50.01% of the Common Stock collectively owned by the Investors as of the Effective Date to a Third-Party Buyer, the Company will deliver a written notice (the “Sale Notice”) to the Director.  The Sale Notice will disclose the material terms and conditions of the proposed sale or transfer, including the number of shares of Common Stock that the prospective transferee is willing to purchase, the proposed purchase price per share and the intended consummation date of such sale.

 

(b)                                 Right to Participate.  The Director may elect to participate in the sale or other transfer described in the Sale Notice by giving written notice to the applicable Investors and the Company within 15 days after the Company has given the related Sale Notice to the Director.  If the Director elects to participate, the Director will be entitled to sell in the contemplated transaction, at the same price and on the same terms and conditions as set forth in the Sale Notice, an amount of Shares equal to the product of (i) the quotient determined by dividing (A) the percentage of the Company’s then outstanding Common Stock represented by the Shares then held by the Director by (B) the aggregate percentage of the Company’s then outstanding Common Stock represented by the Common Stock then held by the Investor(s) participating in the sale or other transfer described in the Sale Notice and all holders of Common Stock electing to participate in such sale and (ii) the number of Common Stock the prospective transferee has agreed to purchase in the contemplated transaction.

 

(c)                                  Certain Matters Relating to the Investors.  The Company will use its commercially reasonable best efforts to cause the Investors to conduct any sale that is within the scope of this Section 6 in a manner consistent with this Section 6.  If the Company is not able to do so or fails to give the Sale Notice to the Director as prescribed in Section 6(a), the Director’s sole remedy shall be against the Company.

 

6











 

(d)                                 Expiration Upon a Public Offering.  The provisions of this Section 6 shall terminate upon the consummation of a Public Offering.

 

Section 7.                                          “Drag-Along” Rights.

 

(a)                                 Drag-Along Notice.  If any of the Investors (whether acting alone or jointly with one or more of the other Investors) intends to sell or otherwise Transfer, or enter into an agreement to sell or otherwise Transfer, for cash or other consideration, more than 50.01% of the Common Stock collectively owned by the Investors as of the Effective Date to a Third-Party Buyer and the applicable Investor(s) elects to exercise its rights under this Section 7, the Company shall deliver written notice (a “Drag-Along Notice”) to the Director, which notice shall state (i) that the Investor(s) wishes to exercise its rights under this Section 7 with respect to such sale, (ii) the name and address of the Third-Party Buyer, (iii) the per share amount and form of consideration the applicable Investor(s) proposes to receive for its Common Stock, (iv) the material terms and conditions of payment of such consideration and all other material terms and conditions of such sale, and (v) the anticipated time and place of the closing of the purchase and sale (a “Drag-Along Closing”).

 

(b)                                 Conditions to Drag-Along.  Upon delivery of a Drag-Along Notice, the Director shall have the obligation to sell and transfer to the Third-Party Buyer at the Drag-Along Closing the percentage of the Director’s Shares equal to the percentage of the Common Stock owned by the Investor(s) that are to be sold to the Third-Party Buyer (the “Applicable Percentage”) on the same terms as the applicable Investor(s), but only if such Investor(s) sells and transfers the Applicable Percentage of the Investor’s (Investors’) Common Stock to the Third-Party Buyer at the Drag-Along Closing.

 

(c)                                  Power of Attorney, Custodian, Etc.  By entering into this Agreement and purchasing the Shares, the Director hereby appoints the applicable Investor(s) and any Affiliates of such Investor(s) so designated by the Investor(s) the Director’s true and lawful attorney-in-fact and custodian, with full power of substitution (the “Custodian”), and authorizes the Custodian to take such actions as the Custodian may deem necessary or appropriate to effect the sale and transfer of the Applicable Percentage of the Director’s Shares to the Third-Party Buyer, upon receipt of the purchase price therefor at the Drag-Along Closing, free and clear of all security interests, liens, claims, encumbrances, charges, options, restrictions on transfer, proxies and voting and other agreements of whatever nature, and to take such other action as may be necessary or appropriate in connection with such sale or transfer, including consenting to any amendments, waivers, modifications or supplements to the terms of the sale (provided that the applicable Investor also so consents, and, to the extent applicable, sells and transfers the Applicable Percentage of its Common Stock on the same terms as so amended, waived, modified or supplemented) and instructs the Secretary of the Company (or other person holding any certificates for the Shares) to deliver to the Custodian certificates representing the Applicable Percentage of the Director’s

 

7











 

Shares, together with all necessary duly-executed stock powers.  If so requested by the applicable Investor(s) or the Company, the Director will confirm the preceding sentence in writing in form and substance reasonably satisfactory to such Investor promptly upon receipt of a Drag-Along Notice (and in any event no later than 10 days after receipt of the Drag-Along Notice).  Promptly after the Drag-Along Closing, the Custodian shall give notice thereof to the Director and shall remit to the Director the net proceeds of such sale (reduced by any amount required to be held in escrow pursuant to the terms of the purchase and sale agreement and any other expenses).

 

(d)                                 The Investors are Third-Party Beneficiaries; Remedies.  The Director acknowledges and agrees that any of the Investors that takes action pursuant to this Section 7 is an intended third-party beneficiary of this Section 7, as if such Investor were a party to this Agreement directly.  Following a breach or a threatened breach by the Director of the provisions of this Section 7, the applicable Investor may obtain an injunction granting it specific performance of the Director’s obligations under this Section 7.  Whether or not the applicable Investor obtains such an injunction, and whether or not the transaction with respect to which the Drag-Along Notice relates is consummated, following such a breach or threatened breach by the Director the Company shall have the option to purchase any or all of the Director’s Shares at a purchase price per Share equal to the lesser of the Fair Market Value per share as of the Grant Date or the per share consideration payable pursuant to the Drag-Along Offer.  The preceding sentence shall not limit the Company’s or the Investors’ rights to recover damages (or the amount thereof) from the Director.

 

(e)                                  Expiration on a Public Market.  The provisions of this Section 7 shall terminate and cease to have further effect upon the establishment of the Public Market, provided that such termination shall not affect any right to receive or seek damages or purchase Shares pursuant to Section 7.

 

Section 8.                                          Rights of First Refusal.

 

(a)                                 Notice.  At any time prior to a Public Offering, in addition to the Transfer restrictions set forth in Section 4 and except as otherwise expressly provided in this Agreement, the Director may not Transfer any Shares other than pursuant to a Qualified Offer and if the Director desires to accept a Qualified Offer, the Director shall first give at least 60 days’ prior written notice to the Company and the CD&R Investors:

 

(i)                        designating the number of Shares proposed to be Transferred (the “Offered Shares”);

 

(ii)                     naming the prospective acquiror of such Shares; and

 

(iii)                 specifying the price at (the “Offer Price”) and terms upon which (the “Offer Terms”) the Director desires to Transfer such Shares.

 

8









 

(b)                                 Right of the Company. During the 30-day period following the Company’s receipt of the Director’s notice pursuant to Section 8(a) (the “First Refusal Period”), the Company shall have the right to purchase from the Director all or any portion of the Offered Shares, at the Offer Price and on the Offer Terms, and any such purchase shall be settled at the time and in the manner specified in Section 8(d) hereof.  The Company shall use its reasonable efforts to act as promptly as practicable following receipt of the notice from the Director to determine whether it shall elect to exercise such right.

 

(c)                                  Right of the CD&R Investors.  If the Company determines within the First Refusal Period that it does not wish to exercise its right to purchase all of the Offered Shares, the CD&R Investors shall have the right to purchase all or any portion remaining of the Offered Shares specified in such notice, at the Offer Price and on the Offer Terms, and any such purchase shall be settled at the time and in the manner specified in Section 8(d) hereof.  The CD&R Investors must determine whether to exercise such right during the period beginning on the earlier of (x) the end of the First Refusal Period and (y) the date of receipt by the CD&R Investors of written notice that the Company has elected not to exercise its rights under Section 8(b) and ending 60 days after the CD&R Investors’ receipt of the Director’s notice pursuant to Section 8(a) (the “Second Refusal Period”).

 

(d)                                 Manner of Exercise.  The rights provided hereunder shall be exercised by written notice to the Director given at any time during the applicable period.  If such right is exercised, the Director may not sell pursuant to the Qualified Offer any of the Shares that the Company or the CD&R Investors have elected to purchase and the Company or the CD&R Investors, as the case may be, shall deliver to the Director cash, check or other readily-available funds for the Offer Price, against delivery of certificates or other instruments representing the Shares so purchased, appropriately endorsed by the Director, and free and clear of all security interests, liens, claims, encumbrances, charges, etc.  Notwithstanding the foregoing, neither the Company nor the CD&R Investors, as the case may be, shall deliver any cash, check or other readily-available funds for the Offer Price to the Director prior to the date which is six months and one day from the date of the Director’s acquisition of the Shares pursuant to this Agreement.

 

(e)                                  Additional Requirements for Sale.  Subject to Section 4, if neither the Company nor the CD&R Investors shall have exercised its rights under this Section 8, then the Director may Transfer the Offered Shares to (but only to) the intended purchaser named in his notice to the Company and the CD&R Investors at the Offer Price and on the Offer Terms; provided that:

 

(i)                        such Transfer must be consummated within 30 days following the expiration of the Second Refusal Period; and

 

(ii)                     the intended purchaser must first agree in writing in form and substance satisfactory to the Company to make and be bound by the representations and warranties set forth in Section 3(a)(i), Section 3(c) and

 

9











 

Section 3(d) and to agree to and be bound by the covenants and other restrictions set forth in this Agreement (including, but not limited to, Section 3(e), Section 4, Section 5, Section 6, Section 7, Section 9 and Section 11) and such other covenants or restrictions as the Company shall reasonably request (it being understood that the Director and any intended purchaser therefrom shall not have any of the benefits provided for in Section 5).

 

Any purported Transfer in violation of this Section 8 shall be void ab initio.

 

(f)                                   Allocation by CD&R Investors.  The Director acknowledges and agrees that the CD&R Investors may allocate and assign their rights to purchase any or all of the Offered Shares within the Second Refusal Period, as among themselves and the other Investors, in such manner as they, in their sole discretion, may agree from time to time.

 

Section 9.                                          Holdback Agreements.  If the Company files a registration statement under the Securities Act with respect to an underwritten public offering of any shares of its capital stock, the Director shall not effect any public sale (including a sale under Rule 144 under the Securities Act or other similar provision of applicable law) or distribution of any Common Stock, other than as part of such underwritten public offering, during the 20 days prior to and the 180 days after the effective date of such registration statement (or such other period as may be generally applicable to or agreed by the Company’s senior-most executives).  If the Company files a prospectus in connection with a takedown from a shelf registration statement, the Director shall not effect any public sale (including a sale under Rule 144 under the Securities Act or other similar provision of applicable law) or distribution of any Common Stock, other than as part of such offering, for 20 days prior to and 90 days after the date the prospectus supplement is filed with the Securities and Exchange Commission (or such other period as may be generally applicable to or agreed by the Company’s senior-most executives).

 

Section 10.                                   Certain Definitions.

 

(a)                                 Capitalized terms not otherwise defined in this Agreement have the meanings given to them in the ServiceMaster Global Holdings, Inc. Stock Incentive Plan.

 

(b)                                 As used in this Agreement, the following terms shall have the meanings set forth below:

 

“Agreement” means this Director Restricted Stock Agreement, as amended from time to time in accordance with the terms hereof.

 

“Applicable Percentage” has the meaning given in Section 7(b).

 

“Custodian” has the meaning given in Section 7(c).

 

“Determination Date” has the meaning given in Section 5(c).

 

10











 

“Drag-Along Closing” has the meaning given in Section 7(a).

 

“Drag-Along Notice” has the meaning given in Section 7(a).

 

“Exchange Act” means the United States Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations thereunder that are in effect at the time, and any reference to a particular section thereof shall include a reference to the corresponding section, if any, of any such successor statute, and the rules and regulations thereunder.

 

“Financing Agreements” has the meaning given in Section 5(f).

 

“First Option Period” has the meaning given in Section 5(a).

 

“First Refusal Period” has the meaning given in Section 8(b).

 

“Offer Price” has the meaning given in Section 8(a).

 

“Offer Terms” has the meaning given in Section 8(a).

 

“Offered Shares” has the meaning given in Section 8(a).

 

“Person” means any natural person, firm, partnership, limited liability company, association, corporation, company, trust, business trust, governmental authority or other entity.

 

“Public Market” shall be deemed to have been established at such time as 30% of the Common Stock (on a fully diluted basis) has been sold to the public pursuant to an effective registration statement under the Securities Act, pursuant to Rule 144 or pursuant to a public offering outside the United States.

 

“Purchase Price” means the purchase price per Share determined in accordance with Section 5(c).

 

“Qualified Offer” means an offer to purchase Shares from a single purchaser and which must be in writing and for cash or other immediately-available funds, be irrevocable by its terms for at least 60 days and be a bona fide offer as determined in good faith by the Board or the Compensation Committee thereof.

 

“Rule 144” means Rule 144 under the Securities Act (or any successor provision thereto).

 

“Sale Notice” has the meaning given in Section 6(a).

 

“Second Option Period” has the meaning given in Section 5(a).

 

“Second Refusal Period” has the meaning given in Section 8(c).

 

11











 

“Securities Act” means the United States Securities Act of 1933, as amended, or any successor statute, and the rules and regulations thereunder that are in effect at the time and any reference to a particular section thereof shall include a reference to the corresponding section, if any, of any such successor statute, and the rules and regulations thereunder.

 

“Shares” has the meaning given in Section 1(a), and for purposes of Section 3(e), Section 4, Section 5, Section 6, Section 7, Section 8, and Section 9 it also includes Common Stock delivered as dividends in respect of the Shares.

 

“Stock Incentive Plan” means the Amended and Restated ServiceMaster Global Holdings, Inc. Stock Incentive Plan adopted by the Board, as amended from time to time.

 

“Third-Party Buyer” means any Person other than (i) the Company or any of its Subsidiaries, (ii) any employee benefit plan of the Company or any of its Subsidiaries, (iii) the Investors or (iv) any Affiliates of any of the foregoing.

 

“Transfer” means any sale, assignment, transfer, pledge, encumbrance, or other direct or indirect disposition (including a hedge or other derivative transaction).

 

Section 11.                                   Miscellaneous.

 

(a)                                 Authorization to Share Personal Data.  The Director authorizes any Affiliate of the Company that has or lawfully obtains personal data relating to the Director to divulge or transfer such personal data to the Company or a to a third party, in each case in any jurisdiction, if and to the extent appropriate in connection with this Agreement or the administration of the Plan.

 

(b)                                 Unforeseen Personal Hardship.  If the Director, prior to a Public Offering and still serving on the Board, experiences financial hardship arising from (i) extraordinary medical expenses or other expenses directly related to illness or disability of the Director, a member of the Director’s immediate family or one of the Director’s parents or (ii) payments necessary or required to prevent the eviction of the Director from the Director’s principal residence or foreclosure on the mortgage on that residence, the Board will carefully consider any request by the Director that the Company repurchase the Director’s Shares at the Purchase Price, but the Company shall have no obligation to do so.

 

(c)                                  Notices.  All notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given if delivered personally or sent by certified or express mail, return receipt requested, postage prepaid, or by any recognized international equivalent of such delivery, to the Company, any of the Investors or the Director, as the case may be, at the following addresses or to such other address as the Company, the Investors or the Director, as the case may be, shall specify by notice to the others:

 

12











 

(i)                        If to the Company, to it at:

 

ServiceMaster Global Holdings, Inc.

c/o The ServiceMaster Company

860 Ridge Lake Boulevard

Memphis, Tennessee 38120

 

Attention: General Counsel

Fax: (901) 597-8025

 

with copies (which shall not constitute notice) to the Persons listed in clause (iv) below);

 

(ii)                     If to the Director, to the Director at his or her most recent address as shown on the books and records of the Company or Subsidiary employing the Director;

 

(iii)                  If to any Investor, to the Persons listed in clause (iv) below:

 

(iv)                 Copies of any notice or other communication given under this Agreement shall also be given to:

 

Clayton, Dubilier & Rice, Inc.

375 Park Avenue, 18th Floor

New York, New York 10152

Attention:  David Wasserman

Fax: (212) 893-7061

 

and

 

Debevoise & Plimpton LLP

919 Third Avenue 

New York, New York 10022

Attention:  Peter Loughran

Fax:  (212) 909-6375

 

All such notices and communications shall be deemed to have been received on the date of delivery if delivered personally or on the third business day after the mailing thereof.

 

(d)                                 Binding Effect; Benefits.  This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their respective successors and assigns.  Except as otherwise provided herein with respect to the Investors, nothing in this Agreement, express or implied, is intended or shall be construed to give any person other than the parties to this Agreement or their respective successors or assigns any legal or equitable right, remedy or claim under or in respect of any agreement or any provision contained herein.

 

13











 

(e)                                  Waiver; Amendment.

 

(i)                        Waiver.  Any party hereto may by written notice to the other parties (A) extend the time for the performance of any of the obligations or other actions of the other parties under this Agreement, (B) waive compliance with any of the conditions or covenants of the other parties contained in this Agreement, and (C) waive or modify performance of any of the obligations of the other parties under this Agreement; provided that any waiver of the provisions of Section 4 through and including Section 9 or this Section 11(e) must be consented to in writing by the CD&R Investors.  Except as provided in the preceding sentence, no action taken pursuant to this Agreement, including, but not limited to, any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action of compliance with any representations, warranties, covenants or agreements contained herein.  The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any preceding or succeeding breach and no failure by a party to exercise any right or privilege hereunder shall be deemed a waiver of such party’s rights or privileges hereunder or shall be deemed a waiver of such party’s rights to exercise the same at any subsequent time or times hereunder.

 

(ii)                     Amendment.  This Agreement may be amended, modified or supplemented only by a written instrument executed by the Director and the Company; provided that the provisions of Section 4 through and including Section 9 or this Section 11 may be amended by the Company with the vote of a majority (by number of shares of Common Stock) of the directors who hold Common Stock purchased pursuant to a stock subscription agreement having comparable provisions; provided, further, that any amendment adversely affecting the rights of the CD&R Investors hereunder must be consented to by the CD&R Investors.

 

(f)                                   Assignability.  Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable by the Company or the Director without the prior written consent of the other parties, provided that the CD&R Investors may assign from time to time all or any portion of their respective rights under this Agreement, to one or more persons or other entities designated by each of them.

 

(g)                                  Applicable Law.  This Agreement shall be governed by and construed in accordance with the law of the State of Delaware regardless of the application of rules of conflict of law that would apply the laws of any other jurisdiction.

 

(h)                                 Waiver of Jury Trial.  Each party hereby waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding arising out of this Agreement or any transaction

 

14











 

contemplated hereby.  Each party (i) certifies that no 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 foregoing waiver and (ii) acknowledges that it and the other parties have been induced to enter into the Agreement by, among other things, the mutual waivers and certifications in this Section 11(h).

 

(i)                                     Section and Other Headings, etc.  The section and other headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.

 

(j)                                    Counterparts.  This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument.  Delivery of an executed counterpart of a signature page to this Agreement by electronic transmission (including, without limitation, email or facsimile) shall be as effective as delivery of a manually executed counterpart of this Agreement.

 

 [signature page follows]

 

15











 

IN WITNESS WHEREOF, the Company and the Director have executed this Agreement as of the date first above written.

 

	
 
    	
SERVICEMASTER GLOBAL HOLDINGS, INC.
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Name:
    
	
 
    	
 
    	
Title:
    
	
 
    	
 
    	
 
    
	
 
    	
THE DIRECTOR:
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Address of the Director:
    
	
 
    	
 
    
	
Total Number of Shares
    	
 
    
	
of Common Stock as to 
    	
 
    
	
which Restricted Stock 
    	
 
    
	
Award has been granted 
    	
 
    
	
pursuant hereto:              
    	
 
    


 

16