Exhibit 10.70
Employee Stock Option Agreement
This Employee Stock Option Agreement, dated as of ________, 20__, between ServiceMaster Global Holdings, Inc., a Delaware corporation (the “Company”), and the associate whose name appears on the signature page hereof and who is employed by the Company or one of its Subsidiaries, is being entered into pursuant to the Amended and Restated ServiceMaster Global Holdings, Inc. 2014 Omnibus Incentive Plan. The meaning of capitalized terms used in this Agreement may be found in Section 6.
The Company and the Associate hereby agree as follows:
Section 1. Grant of Options. |
(a) Confirmation of Grant. The Company hereby evidences and confirms, effective as of the date hereof, its grant to the Associate of Options to purchase the number of shares of Company Common Stock specified on the signature page hereof. The Options are not intended to be Incentive Stock Options. This Agreement is entered into pursuant to, and the terms of the Options are subject to, the terms of the Plan. If there is any inconsistency between this Agreement and the terms of the Plan, the terms of the Plan shall govern. |
(b) Option Price. Each share covered by an Option shall have the Option Price specified on the signature page hereof. |
(b) Discretionary Acceleration. The Administrator, in its sole discretion, may accelerate the vesting or exercisability of all or a portion of the Options, at any time and from time to time. |
(c) Exercise. Once vested in accordance with the provisions of this Agreement, the Options may be exercised at any time and from time to time prior to the date such Options terminate pursuant to Section 3. Options may only be exercised with respect to whole shares and must be exercised in accordance with Section 4. |
from time to time and shall include the Associate specifying the proposed date on which the Associate desires to exercise a vested Option (the “Exercise Date”), the number of whole shares with respect to which the Options are being exercised (the “Exercise Shares”) and the aggregate Option Price for such Exercise Shares (the “Exercise Price”) or such other or different requirements as may be imposed by the Company. On or before any Exercise Date, the Company and the Associate shall enter into a Subscription Agreement that establishes the rights and obligations of the Company and the Associate relating to the Exercise Shares in the form then customarily used by the Company under the Plan for such purpose. Unless otherwise determined by the Administrator, and subject to such other terms, representations and warranties as may be provided for in the Subscription Agreement, (i) on or before the Exercise Date the Associate shall deliver to the Company full payment for the Exercise Shares in United States dollars in cash, or cash equivalents satisfactory to the Company, in an amount equal to the Exercise Price plus any required withholding taxes or other similar taxes, charges or fees (including, if available, pursuant to a broker-assisted cashless exercise program established by the Company whereby the Associate may exercise vested Options by an exercise-and-sell procedure in which the Exercise Price (together with any required withholding taxes or other similar taxes, charges or fees) is obtained from the sale of shares in the public market) and (ii) the Company shall register the issuance of the Exercise Shares on its records (or direct such issuance to be registered by the Company’s transfer agent). The Company may require the Associate to furnish or execute such other documents as the Company shall reasonably deem necessary (i) to evidence such exercise or (ii) to comply with or satisfy the requirements of the Securities Act, applicable state or non‑U.S. securities laws or any other law. |
event of default under, any guarantee, financing or security agreement entered into by the Company or any Subsidiary from time to time. The Company shall use its commercially reasonable efforts to obtain any consents or approvals referred to in clause (i) (A) of the preceding sentence, but shall otherwise have no obligations to take any steps to prevent or remove any impediment to exercise described in such sentence. Except where prohibited by applicable law, the Normal Termination Date of any Option that may not be exercised pursuant to this Section 4(b) shall be extended for a period of time equal to any period of time such Option may not exercised pursuant to this Section 4(b), such extension not to exceed ten years in the aggregate. |
“Agreement” means this Employee Stock Option Agreement, as amended from time to time in accordance with the terms hereof.
“Associate” means the grantee of the Options whose name is set forth on the signature page of this Agreement; provided that for purposes of Section 4 and Section 7, following such person’s death “Associate” shall be deemed to include such person’s beneficiary or estate and following such
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Person’s Disability, “Associate” shall be deemed to include such person’s legal representative.
“Company Group” means the Company and its Subsidiaries.
“Covered Options” has the meaning given in Section 3(b).
“Determination Date” means the effective date of the Associate’s termination of employment.
“Exercise Date” has the meaning given in Section 4(a).
“Exercise Price” has the meaning given in Section 4(a).
“Exercise Shares” has the meaning given in Section 4(a).
“Grant Date” means the date hereof, which is the date on which the Options are granted to the Associate.
“Normal Termination Date” has the meaning given in Section 3(a).
“Option” means the right granted to the Associate hereunder to purchase one share of Company Common Stock for a purchase price equal to the Option Price subject to the terms of this Agreement and the Plan.
“Option Price” means, with respect to each share of Company Common Stock covered by an Option, the purchase price specified in Section 1(b) for which the Associate may purchase such share of Company Common Stock upon exercise of an Option.
“Plan” means the Amended and Restated ServiceMaster Global Holdings, Inc. 2014 Omnibus Incentive Plan.
“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 such successor statute, and the rules and regulations.
(a) Withholding. The Company or one of its Subsidiaries may require the Associate to remit to the Company an amount in cash sufficient to satisfy any applicable U.S. federal, state and local and 5
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non-U.S. tax withholding or other similar charges or fees that may arise in connection with the grant, vesting, exercise, settlement or purchase of the Options. |
(b) Incorporation of Forfeiture Provisions. The Associate acknowledges and agrees that, pursuant to the Plan, he or she shall be subject to any generally applicable disgorgement or forfeiture provisions set forth in Article XIII of the Plan as of the date of this Agreement or as required by applicable law after the date of this Agreement. |
(c) Restrictive Covenants. In consideration of the grant of the Options, during the Associate’s employment with the Company Group and for a period of twelve (12) months following the termination of the Associate’s employment (whether such termination is initiated by the Associate or the Associate’s employer), the Associate shall not (i) become employed by, operate or provide services to any business or other entity that competes with the Company Group; (ii) solicit or sell any product or service in competition with the Company Group to any person, business or other entity that is a customer of the Company Group; (iii) interfere with the Company Group’s relations with any of its customers, franchisees, subcontractors, consultants, vendors or business partners; or (iv) induce or encourage any Company Group employee to leave his/her position or to seek employment or association with any person or entity other than the Company Group. This Agreement is in addition to and does not supersede any other agreements between the Associate and the Company Group prohibiting competition with the Company Group. Nothing in this paragraph shall be construed to restrict the right of an attorney to practice law to the extent protected by statute, common law or applicable rules of professional conduct. |
(d) Dispute Resolution. Any dispute or controversy between Associate and the Company, whether arising out of or relating to this Agreement, the breach of this Agreement, or otherwise, shall be resolved in accordance with the ServiceMaster We Listen Dispute Resolution Plan then in effect. Notwithstanding the foregoing, the Associate agrees that the Company may seek a temporary restraining order and/or preliminary injunction in any court of competent jurisdiction, without the posting of a bond, in order to preserve the status quo or to enforce the restrictive covenants in Section 7(c) of this Agreement. |
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(e) Authorization to Share Personal Data. The Associate authorizes any Affiliate of the Company that employs the Associate or that otherwise has or lawfully obtains personal data relating to the Associate to divulge or transfer such personal data to the Company or 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. |
(f) No Rights as Stockholder; No Voting Rights. The Associate shall have no rights as a stockholder of the Company with respect to any shares covered by the Options until the exercise of the Options and delivery of the shares. Any shares delivered in respect of the Options shall be subject to the Subscription Agreement. |
(g) No Right to Continued Employment. Nothing in this Agreement shall be deemed to confer on the Associate any right to continue in the employ of the Company or any Subsidiary, or to interfere with or limit in any way the right of the Company or any Subsidiary to terminate such employment at any time. |
(h) Non-Transferability of Options. The Options may be exercised only by the Associate. The Options are not assignable or transferable, in whole or in part, and they may not, directly or indirectly, be offered, transferred, sold, pledged, assigned, alienated, hypothecated or otherwise disposed of or encumbered (including, but not limited to, by gift, operation of law or otherwise) other than by will or by the laws of descent and distribution to the estate of the Associate upon the Associate’s death or with the Company’s consent. |
(i) 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 or the Associate, as the case may be, at the following addresses or to such other address as the Company or the Associate, as the case may be, shall specify by notice to the other: |
(i) if to the Company, to it at: |
ServiceMaster Global Holdings, Inc.
7
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 (iii) below);
(ii) if to the Associate, to the Associate at his or her most recent address as shown on the books and records of the Company or Subsidiary employing the Associate; |
(iii) copies of any notice or other communication given under this Agreement shall also be given to: |
Debevoise & Plimpton LLP
919 Third Avenue
New York, New York 10022
Attention: Peter J. Loughran
Fax: (212) 909-6836
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.
(i) Waiver. Any party hereto or beneficiary hereof 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. Except as 8
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provided in the preceding sentence, no action taken pursuant to this Agreement, including, without limitation, any investigation by or on behalf of any party or beneficiary, shall be deemed to constitute a waiver by the party or beneficiary taking such action of compliance with any representations, warranties, covenants or agreements contained herein. The waiver by any party hereto or beneficiary hereof 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 or beneficiary to exercise any right or privilege hereunder shall be deemed a waiver of such party’s or beneficiary’s rights or privileges hereunder or shall be deemed a waiver of such party’s or beneficiary’s rights to exercise the same at any subsequent time or times hereunder. |
(ii) Amendment. This Agreement may not be amended, modified or supplemented orally, but only by a written instrument executed by the Associate and the Company. |
(l) 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 Associate without the prior written consent of the other party. |
(m) Applicable Law and Forum. 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. Subject to the dispute resolution provision contained herein, any judicial action to enforce, interpret or challenge this Agreement shall be brought in the federal or state courts located in the State of Delaware, which shall be the exclusive forum for resolving such disputes. Both parties irrevocably consent to the personal jurisdiction of such courts for purposes of any such action. |
induced to enter into the Agreement by, among other things, the mutual waivers and certifications in this Section 7(n). |
(o) 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. |
(p) 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. |
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IN WITNESS WHEREOF, the Company and the Associate have executed this Agreement as of the date first above written.
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| SERVICEMASTER GLOBAL HOLDINGS, INC. | |
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| By: | ________________________ |
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| Name: |
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| Title: |
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| THE ASSOCIATE: | |
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| _____________________________ | |
| Name |
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Total Number of Shares | Option Price |
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_______ Shares | $_____ |
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