and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1.
ENGAGEMENT.
THE COMPANY HEREBY CONFIRMS THAT EACH EQUITY SPONSOR
HAS PERFORMED THE INITIAL SERVICES AS A CONSULTANT TO THE COMPANY.
2.
COMPENSATION FOR INITIAL SERVICES, ETC.
(a)
As compensation for the Initial Services, immediately following the
later of the date of this Agreement and the date of the consummation of the
Merger, the Company shall, or shall cause one or more of its subsidiaries
(together with the Company, the "Company Group") to, on behalf of the members of
the Company Group, pay each Equity Sponsor its pro rata portion (in accordance
with the commitment amounts set forth in the respective Commitment Letters of
the Committing Investors that are Affiliates of such Equity Sponsor) of an
aggregate Initial Services Fee of $55,000,000.
Pursuant to Section 1.5 of the
Stockholders Agreement, at or promptly following the consummation of the Merger,
the Company shall pay, or reimburse each Committing Investor for, all
Acquisition Costs and Expenses (as defined therein) incurred by such Committing
Investor and its Affiliates (without duplication) in connection with the
performance of the Initial Services.
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)
ServiceMaster and the Company (on behalf of the members of the
Company Group) hereby agree that the obligations of the Company under Section 2
shall be borne jointly and severally by each member of the Company Group.
3.
INDEPENDENT CONTRACTOR STATUS.
THE PARTIES ACKNOWLEDGE AND AGREE
THAT EACH EQUITY SPONSOR HAS PERFORMED THE INITIAL SERVICES AS AN INDEPENDENT
CONTRACTOR, RETAINING CONTROL OVER AND RESPONSIBILITY FOR ITS OWN OPERATIONS AND
PERSONNEL AND THOSE OF ITS CONTROLLED AFFILIATES.
NONE OF THE EQUITY SPONSORS
AND THEIR RESPECTIVE AFFILIATES 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.
ANY DUTIES OF THE
EQUITY SPONSORS ARISING OUT OF THEIR ENGAGEMENT TO PERFORM SERVICES HEREUNDER
SHALL BE OWED SOLELY TO THE MEMBERS OF THE COMPANY GROUP.
4.
LIMITATION ON LIABILITY.
EXCEPT IN CASES OF GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT, NONE OF THE EQUITY SPONSORS, THEIR RESPECTIVE AFFILIATES OR
ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, PARTNERS, CONSULTANTS,
MEMBERS, STOCKHOLDERS SHALL HAVE ANY LIABILITY OF ANY KIND WHATSOEVER TO ANY
MEMBER OF THE COMPANY GROUP FOR
2
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 INITIAL SERVICES.
5.
ENTIRE AGREEMENT; NO REPRESENTATIONS OR WARRANTIES.
THIS
AGREEMENT, THE STOCKHOLDERS AGREEMENT AND THE INDEMNIFICATION AGREEMENT (A)
CONTAIN THE COMPLETE AND ENTIRE UNDERSTANDING AND AGREEMENT BETWEEN THE EQUITY
SPONSORS AND THE COMPANY WITH RESPECT TO THE SUBJECT MATTER HEREOF