Exhibit 5 to Form 8-K submitted on December 19, 1997
MERGER AND REORGANIZATION AGREEMENT
As Amended and Restated on October 3, 1997
This Merger and Reorganization Agreement has been amended and restated as
of October 3, 1997 (the "Restatement Date") by: ServiceMaster Incorporated of
Delaware (which is incorporated in Delaware, will be renamed "The ServiceMaster
Company" on or before the Reorganization Date as defined herein and is herein
called the "Successor Parent Corporation"); ServiceMaster Limited Partnership, a
Delaware limited partnership (the "Public Partnership"); The ServiceMaster
Company Limited Partnership, a Delaware limited partnership (the "Principal
Subsidiary Partnership"); ServiceMaster Management Corporation, a Delaware
corporation (the "Management Corporation"); ServiceMaster Corporation, a
Delaware corporation and a special general partner of the Public Partnership and
NewSub B, Inc., a Delaware corporation and wholly-owned subsidiary of Parent
("NewSub B").
WHEREAS: The limited partnership interest in the Public Partnership is
currently represented by limited partner shares (the "Partnership Shares"). The
Partnership Shares are publicly traded on the New York Stock Exchange. The
Management Corporation serves as the managing general partner of the Public
Partnership and the Principal Subsidiary Partnership and holds a 1% carried
interest in each Partnership.
WHEREAS: Each of the parties hereto (collectively, the "parties") desire to
consummate on or about December 26, 1997 the merger specified in Part 1 of this
Agreement (the "Reincorporating Merger"). The Reincorporating Merger will cause
the Parent to take the place of the Public Partnership as the vehicle through
which the public invests in businesses now owned directly or indirectly by the
Public Partnership.
WHEREAS: From its inception until the Restatement Date (i) Parent has been
a wholly owned subsidiary of the Public Partnership and (ii) New Sub B has been
a wholly owned subsidiary of the Parent and these relationships will continue
until the consummation of the Reincorporating Merger.
WHEREAS: ServiceMaster Corporation has never issued any of its common stock
and accordingly does not own any equity interest in the Public Partnership. The
only Voting Stock issued by ServiceMaster Corporation is the voting common stock
which was issued to the Management Corporation for nominal consideration, and
accordingly, ServiceMaster Corporation has always been a dormant wholly owned
subsidiary of the Management Corporation.
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
Part 1.
The Reincorporating Merger
1.1 Entity Effect.
(a) The Merger. At the Reincorporation Time (determined as
prescribed in Section 1.3), in accordance with this
Agreement and the provisions of the Delaware General
Corporation Law (the "Delaware Corporation Law") and
the Delaware Revised Uniform Limited Partnership Act
(the "Delaware Partnership Act"), NewSub B shall merge
with and into the Public Partnership, the separate
existence of NewSub B shall cease and the Public
Partnership shall survive the Merger.
(b) General Partners. The Reincorporating Merger shall not cause any
change in the Agreement of Limited Partnership governing the Public
Partnership, in the identity of its general partners or in the nature
of the interest of either the Management Corporation as the managing
general partner or ServiceMaster Corporation as a special general
partner.
(c) Officers. No change shall be made by reason of the Reincorporating
Merger in the officers of the Public Partnership. Accordingly, every
person who was serving as an officer of the Public Partnership prior
to the Consolidating Merger shall after the Consolidating Merger
continue to hold the same officership position as he or she held prior
to the Consolidating Merger.
(d) Rights and Obligations. From and after the
Reincorporation Time, the Public Partnership shall have
and possess all rights and property of any kind which
were had or possessed prior to the Reincorporation Time
by any of the Public Partnership and NewSub B
(collectively, the "Reincorporation Constituents") and,
the Public Partnership shall be subject to all
commitments, debts, duties and other contracts and
obligations of any kind to which any of the
Reincorporation Constituents were subject prior to the
Reincorporation Time.
1.2 Consummation of the Merger.
(a) The parties shall cause the Reincorporating Merger to become effective
on December 26, 1997 (which, unless it shall be changed as prescribed
in Section 3.2, is herein called the "Reincorporation Date").
(b) Not later than the Reincorporation Date, the Parent, the Public
Partnership and NewSub B shall file a Certificate of Merger (the
"Merger Certificate") with the Secretary of State of the State of
Delaware in such form as required by, and executed in accordance with,
the relevant provisions of the Delaware Corporation
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Law and the
Delaware Partnership Act. The Reincorporating Merger shall be
effective on the Merger Date at such time as is set forth in the
Certificate of Merger relating thereto; provided that if no earlier
time shall be established pursuant to the preceding provisions in this
Section 1.2, the Reincorporating Merger shall become effective at
12:01 AM Delaware time on the Reincorporation Date. The time at which
the Reincorporating Merger shall actually become effective and be
consummated in Delaware is herein called the "Reincorporation Time."
1.3 Conversion of Securities. Upon consummation of the Reincorporation
Merger:
(a) All of NewSub B's common stock issued and outstanding immediately
prior to the Reincorporation Time shall automatically be converted
into and become a number of Partnership Shares issued by the Public
Partnership to the Successor Parent Corporation equal to the number of
Partnership Shares outstanding immediately prior to the
Reincorporation Time.
(b) Every Partnership Share issued by the Public
Partnership and outstanding immediately prior to the
Reincorporation Time shall at the Reincorporation Time
automatically be converted into and become one share of
common stock issued by the Successor Parent
Corporation. The term "Successor Parent Corporation
Share" whenever it is used in this Agreement means a
share of common stock issued or issuable by the
Successor Parent Corporation.
(c) Every Partnership Share issued by the Public
Partnership but which is not outstanding immediately
prior to the Reincorporating Time (i.e., treasury
shares of the Public Partnership) shall at the
Reincorporation Time automatically be converted into
and become one share of common stock issued by the
Successor Parent Corporation which is not outstanding
(i.e., treasury shares of the Successor Parent
Corporation).
(d) Every option or other right to acquire Partnership
Shares from the Public Partnership shall at the
Reincorporation Time automatically be converted into
the right to acquire the same number of Successor
Parent Corporation Shares from the Successor Parent
Corporation at the same price per share and subject to
the same terms and conditions as previously governed
the right to acquire Partnership Shares.
(e) Each Parent Share issued in the Reincorporation Merger shall have
associated with it one Right issued under The ServiceMaster Company
Shareholders' Rights Plan in effect at the Reincorporation Time.
(f) No change shall be made by reason of the Reincorporating Merger in
either the Special General Partner interest in the Public Partnership
(which shall continue to be held after the Reincorporating Merger by
ServiceMaster Corporation).
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(g) No change shall be made by reason of the Reincorporating Merger in
Management Corporation's 1% carried interest in the Public
Partnership.
(h) As a result of the preceding actions, it is intended that immediately
after the Reincorporating Merger:
(1) The Successor Parent Corporation will own all Partnership Shares
issued by the Public Partnership (representing 99% of the
ownership interest in the Public Partnership) and the Management
Corporation will own a 1% carried interest in the Public
Partnership; and
(2) The Successor Parent Corporation will be owned by the same
shareholders who owned the Public Partnership prior to the
Reincorporating Merger and each such shareholder shall
immediately after the Merger own the same number of Successor
Parent Corporation Shares as the number of Partnership Shares
owned by that shareholder immediately prior to the
Reincorporating Merger.
1.4 Share Records. The share records maintained prior to the
Reincorporation Time with respect to the Partnership Shares shall become the
basis for the share records maintained for the Successor Parent Corporation
Shares from and after the Reincorporation Time. Accordingly, each person who
immediately prior to the Reincorporation Time shall have been a record holder of
Partnership Shares shall at and after the Reincorporation Time automatically be
deemed the record holder of the Successor Parent Corporation Shares into which
those Partnership Shares shall have been converted in the Reincorporating
Merger.
1.5 Exchange of Share Certificates. Each certificate which prior to the
Reincorporation Time represented Partnership Shares (an "Old Partnership
Certificate") shall after the Reincorporation Time be deemed to represent the
Successor Parent Corporation Shares into which those Partnership Shares were
converted in the Reincorporating Merger. Upon each presentation of an Old
Partnership Certificate to the transfer agent, whether or not presented for
transfer, the transfer agent shall replace such certificate with a new
certificate representing the Successor Parent Corporation Shares into which the
Partnership Shares formerly represented by the Old Partnership Certificate were
converted in the Reincorporating Merger. A shareholder shall be entitled to
obtain this exchange of certificates upon request and it shall not be necessary
to transfer the shares to a new record owner in order to have an Old Partnership
Certificate replaced with a certificate which explicitly represents the
Successor Parent corporation shares into which the Partnership Shares originally
represented by the certificate shall have been concerned. If a Successor Parent
Corporation Share certificate is to be issued in the name of a person other than
the person in whose name the relevant Old Partnership Certificate was
registered, it shall be a condition of the exchange that the person requesting
such exchange shall pay any transfer or other taxes required by reason of the
issuance of such Successor Parent Corporation Shares in the name of a
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person
other than the registered owner of the Old Partnership Certificate surrendered,
or shall establish to the satisfaction of the transfer agent that such tax has
been paid or is not applicable. Notwithstanding the foregoing, neither the
transfer agent nor any of the parties shall be liable to a holder of any Old
Partnership Certificate for anything paid or surrendered to a public official
pursuant to any applicable abandoned property, escheat or similar law. Parent
shall make available to its exchange agent certificates to be used to represent
Successor Parent Corporation Shares in sufficient quantities to accomplish the
replacement of the Old Partnership Certificates as contemplated by this Section
1.5.
Part 2.
The Consolidating Mergers
2.1 Entity Effect. At the Consolidating Time (determined as prescribed in
Section 2.2), in accordance with this Agreement and the provisions of the
Delaware Corporation Law and the Delaware Partnership Act the following two
mergers (the "Consolidating Mergers") shall occur simultaneously:
(1) the Public Partnership shall merge with and into the Successor
Parent Corporation, the separate existence of the Public
Partnership shall cease and the Successor Parent Corporation
shall survive the merger, and
(2) the Principal Subsidiary Partnership shall merge with and into
the Successor Parent Corporation, the separate existence of the
Principal Subsidiary Partnership shall cease and the Successor
Parent Corporation shall survive the merger.
2.2 Consummation of the Consolidating Mergers. Prior to the Consolidation
Time, the Successor Parent Corporation, the Public Partnership and the Principal
Subsidiary Partnership shall file a Certificate of Merger (the "Consolidation
Certificate") with the Secretary of State of the State of Delaware, in such form
as required by and executed in accordance with, the relevant provisions of the
Delaware Corporation Law and the Delaware Partnership Act. The Consolidating
Merger shall be effective at such time as is set forth in the Consolidation
Certificate; provided that if no earlier time shall be established pursuant the
preceding provisions in this Section 2.2, then the Consolidating Mergers shall
become effective at 12:01 AM Delaware time on January 1, 1998. The time at which
the Consolidating Mergers actually become effective and consummate in Delaware
is herein called the "Consolidation Time."
2.3 Transfer of Rights and Property. From and after the Consolidation Time,
the Successor Parent Corporation shall have and possess all rights and property
of any kind which were had or possessed prior to the Consolidation Time by any
of the Successor Parent Corporation, the Public Partnership, and the Principal
Subsidiary Partnership (collectively, the "Consolidation
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Constituents")
including but not limited to: ownership of partnership interests and stock in
subsidiaries; real property; rights in the capacity of lessee; the rights to use
the name "ServiceMaster" and all other trademarks, service marks and all other
intellectual property rights; all personal property; all rights under existing
contracts and commitments, arrangements and understandings of any kind; every
claim of any kind which any of the Consolidation Constituents may have against
any person or property whether or not known to anyone (including claims which
arise in the future based in part on occurrences prior to any of the Mergers and
in part on occurrences thereafter; claims or rights arising under tax laws or
regulations or rulings; and all other rights or property which under the
operation of the Delaware Corporation Law or the Delaware Partnership Act or
other applicable statute, or regulation, or case law, or other governmental law,
principal or requirement would pass to the Parent by reason of the Consolidating
Mergers.
2.4 Assumption of Obligations. From and after the Consolidation Time, the
Successor Parent Corporation shall be subject to all commitments, debts, duties,
liabilities and other contracts and obligations of any kind to which any of the
Consolidation Constituents were subject prior to the Consolidation Time. Without
limiting in any way by implication the generality of the preceding provisions,
at the Consolidation Time:
(a) The Successor Parent Corporation shall assume all
outstanding 2007 and 2027 Notes outstanding under the
Indenture dated as of August 15, 1997 and the First
Supplemental Indenture to that Indenture also dated as
of August 15, 1997 and shall assume all obligations of
the Public Partnership and the Principal Subsidiary
Partnership with respect to the 2007 Notes, the 2027
Notes, the First Supplemental Indenture and the
Indenture.
(b) The Successor Parent Corporation shall assume all obligations of the
Principal Subsidiary Partnership under the private loan agreements
listed in Exhibit A to this Agreement.
2.5 Directors, Officers, Employees and Employee Benefit Plans
(a) No change shall be made by reason of the Consolidating
Mergers in the directors or officers of the Successor
Parent Corporation. Accordingly:
(1) Every person who was serving as a director of the Successor
Parent Corporation prior to the Consolidating Merger shall after
the Consolidating Merger continue to hold the same directorship
position in the same class as he or she held prior to the
Consolidating Merger and
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(2) Every person who held an officership position with any of the
Consolidating Constituents prior to the Reincorporation shall
after the Reincorporation hold the same officership position with
the Successor Parent Corporation on exactly the same terms as
applied to his or her officership position with the Consolidating
Constituents prior to the Consolidation Time.
(b) Every person who held an employment position with any of the
Consolidating Constituents prior to the Reincorporation shall after
the Reincorporation hold the same employment position with the
Successor Parent Corporation on exactly the same terms as applied to
his or her employment position with the Constituent prior to the
Consolidation Time.
(c) Neither the Reincorporating Merger, the Consolidating Mergers nor any
other actions taken under or by reason of this Agreement or any of
those Mergers shall be deemed to be a Compensable Takeover for
purposes of the ServiceMaster Plan for Continuity of Employment.
(d) The ServiceMaster Plan for Continuity of Employment shall terminate
upon consummation of the Reincorporating Merger and no one shall have
any rights or liabilities under or by reason of that Plan after the
Reincorporation Time.
(e) Upon consummation of the Reincorporating Merger, the
Successor Parent Corporation shall have and be entitled
to exercise all rights (herein called Call Rights") to
purchase shares of any kind issued or issuable under
programs provided to employees or directors of any
present or former unit of the ServiceMaster enterprise
including but not limited to: (i) call agreements made
in connection with Stock Subscription and Purchase
Agreements with various employees; (ii) call agreements
made in connection with the issuance of Convertible
Subordinated Debentures; (iii) first refusal rights and
call rights existing under option agreements. The
Successor Parent Corporation and the Public Partnership
hereby agree and determine that the terms of each of
the Call Rights shall be changed at the Reincorporation
Time so that such Call Rights immediately after the
Reincorporation Time shall entitle the Successor Parent
Corporation to purchase a number of Successor Parent
Corporation Shares equal to the number of Partnership
Shares purchasable by the Public Partnership under such
Call Rights immediately prior to the Reincorporation
Time at a price per share equal to the price per share
at which the Partnership Shares were purchasable with
such Call Rights immediately prior to the
Reincorporation Time.
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2.6 Elimination of Partnership Interests in the Public
Partnership
At the Consolidation Time,--
(1) the entire limited partnership interest in the Public Partnership
(all of which shall have been owned by the Successor Parent
Corporation immediately prior to the Consolidation Time) shall be
terminated in exchange for the acquisition by the Successor
Parent Corporation in the Consolidating Mergers of all assets and
liabilities of the Public Partnership;
(2) the 1% general partner interest in the Public Partnership held by
the Management Corporation shall be terminated without right of
any person to receive anything in exchange therefor except as
provided in Section 2.8; and
(3) all interest and rights held by ServiceMaster Corporation in the
Public Partnership (including the rights and interest arising out
of its interest as Special General Partner) shall terminate and
no consideration shall be payable to ServiceMaster Corporation or
anyone else by reason of the Consolidating Merger or by reason of
any interest or involvement which ServiceMaster Corporation had
with respect to the Public Partnership prior to the Consolidating
Mergers.
2.7 Elimination of Partnership Interests in the Principal
Subsidiary Partnership
At the Consolidation Time, --
(1) the entire limited partnership interest in the Principal
Subsidiary Partnership (all of which shall have been owned by the
Public Partnership immediately prior to the Consolidation Time)
shall be terminated in exchange for the acquisition by the
Successor Parent Corporation in the Consolidating Mergers of all
assets and liabilities of the Principal Subsidiary Partnership
(including all assets distributable to the successor Parent
Corporation in its capacity as sole Residual Beneficiary of the
ServiceMaster A Trust (as hereinafter defined));
(2) the 1% general partner interest in the Principal Subsidiary
Partnership held by the Management Corporation shall be
terminated without right of any person to receive anything in
exchange therefor except as provided in section 2.8; and
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(3) the special general partner interest in the Principal Subsidiary
Partnership held by the ServiceMaster A Trust (as hereinafter
defined) shall be terminated without right of any person to
receive anything in exchange therefor except as
provided in section 2.9.
2.8 Successor Parent Corporation Assumption of Obligations in respect of
the 1% General Partner Interests in each of the Public Partnership and the
Principal Subsidiary Partnership.
(a) The parties acknowledge that the partnership agreement
for the Public Partnership provides that for any period
in which the Public Partnership has Net Income (as
defined in the partnership agreement), there shall be
allocated to the Management Corporation's capital
account, in respect of the 1% carried interest owned by
the Management Corporation in the Public Partnership,
the greater of (i) 1% of the Net Income for the period
or (ii) 1% of the Public Partnership's GAAP Income for
the period. The parties further acknowledge that the
partnership agreement for the Principal Subsidiary
Partnership contains a comparable provision in respect
of the 1% carried interest owned by the Management
Corporation in that partnership.
(b) The parties agree that when the Net Income of the
Public Partnership for the year 1997 has been
determined and the audit of the Public Partnership's
financial statements for 1997 has been completed an
allocation of such Net Income as required by the
provisions identified in paragraph (a) above shall be
made to the Management Corporation and the allocation
of the Principal Subsidiary Partnership's Net Income
required by the provisions identified in paragraph (a)
above shall be made to the Management Corporation.
(c) The Successor Parent Corporation hereby agrees to make
a cash payment to the Management Corporation on the
same date that the Successor Parent Corporation makes
its first dividend payment in the year 1998 to its
stockholders. The amount of such cash payment shall be
equal to the difference between (i) the total amount of
income of the Public Partnership and the Principal
Subsidiary Partnership allocable to the Management
Corporation in respect of the year 1997 pursuant to
the provisions identified in paragraph (a) above and
(ii) the total amount of the cash distributions made to
the Management Corporation by the Public Partnership
and the Principal Subsidiary Partnership during the
year 1997 excluding the amount of the cash
distributions made on January 31, 1997. Such payment
by the Successor Parent Corporation is intended to be,
and shall be deemed to be, a payment made for and on
behalf of the Public Partnership and the Principal
Subsidiary Partnership, respectively, as a discharge of
their obligation to distribute the amount of the income
allocable to the Management Corporation's capital
accounts for the year 1997 which shall not have been
distributed prior to the consummation of the
Consolidating Mergers. In no event shall such cash
payment by the Successor
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Parent Corporation be
considered as a dividend payment by the Successor
Parent Corporation.
2.9 Successor Parent Corporation Assumption of Obligations
in respect of the ServiceMaster A Trust
(a) The parties acknowledge that a Class T special general partner
interest in the Principal Subsidiary Partnership is held by the
trustee of the trust created by an Agreement of Trust dated January 1,
1993 and which is identified in that Agreement and in this Merger
Agreement as the "ServiceMaster A Trust."
(b) The parties agree that the Principal Subsidiary Partnership shall
allocate to the ServiceMaster A Trust the amount of the Principal
Subsidiary Partnership's Net Income for the year 1997 in the amount
required by the Partnership Agreement governing the Principal
Subsidiary Partnership.
(c) The Successor Parent Corporation shall assume the obligation
of the Principal Subsidiary Partnership to make a distribution to
the trustee of the ServiceMaster A Trust in the amount required
to enable the trustee to timely pay all federal and state income
taxes of the A Trust for the year 1997. In lieu of making such a
distribution, the Successor Parent Corporation make pay such
taxes itself, for and on behalf of, and as agent for, the
ServiceMaster A Trust. In any and all events, the Successor
Parent Corporation shall assume all of the obligations of the
Principal Subsidiary Partnership under the January 1, 1993 Trust
Agreement to indemnifying the trustee of the ServiceMaster A
Trust from liability for taxes and from all other claims
specified in that Agreement.
(d) The Public Partnership hereby assigns to the Successor
Parent Corporation the Public Partnership's rights as Remainder
Beneficiary of the ServiceMaster A Trust. This assignment shall
become effective immediately prior to the consummation of the
Consolidating Mergers. The parties acknowledge that when this
assignment becomes effective, the Successor Parent Corporation
will be the sole remaining Remainder Beneficiary of the
ServiceMaster A Trust and will be entitled to all distributions
and rights prescribed for the Remainder Beneficiary in the
applicable Agreement of Trust.
(e) In light of the position of the Successor Parent Corporation as the
sole remainder beneficiary of the ServiceMaster A Trust after the
consummation of the Consolidating Mergers, nothing shall be
distributable to the ServiceMaster A Trust by reason of the
Consolidating Mergers or for any reason after the Consolidation Time.
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2.10No Special Write Up of Management Corporation's Capital Accounts. For
purposes of determining Management Corporation's capital account balances under
Sections 2.6 and 2.7, no adjustment in the capital account balances shall be
made by reason of the Reincorporating Merger or the Consolidating Mergers, but
rather such balances shall be determined in the same manner used to determine
such balances the ordinary course as if none of those Mergers had occurred.
2.11Quit Claim Assignments. Each of Management Corporation and
ServiceMaster Corporation acknowledges (i) that it does not have any interest in
or claim against either the Successor Parent Corporation or any entity in which
the Successor Parent Corporation shall have a direct or indirect ownership
interest immediately after the Consolidating Mergers and (ii) hereby assigns to
the Successor Parent Corporation effective immediately prior to the consummation
of the Consolidating Mergers any such claim or interest which may exist.
2.12Indemnification.
(a) The parties expressly intend that the Successor Parent
Corporation shall after the Consolidation Time assume
all liabilities of any kind for which the Management
Corporation, ServiceMaster Corporation or the
ServiceMaster A Trust or any other person who may have
served at any time as a general partner of the Public
Partnership or the Principal Subsidiary Partnership may
have been (or may be) responsible by reason of their
general partnership interests in the Public Partnership
or the Principal Subsidiary Partnership or by reason of
any action or failure to act with respect to either
such Partnership and shall indemnify the Management
Corporation, ServiceMaster Corporation, the
ServiceMaster A Trust, and each former general partner
completely against any claim alleging any such
liability which may be asserted or arise after the
Consolidation Time.
(b) The parties agree that all rights to indemnification
and expense reimbursement ("indemnification rights")
now existing in favor of the present or former
directors, officers or employees of ServiceMaster
Corporation or either of the Partnerships as provided
in the certificate of corporation, partnership
agreements or similar documents of any of the foregoing
as in effect on the date hereof or at any time
hereafter with respect to any act or failure to act
occurring prior to the Reincorporation Time shall
survive the Mergers and shall continue in full force
and effect with respect to any claim now pending or
which shall be asserted at any time before or after the
Reincorporation Time or the Consolidate Time which
shall be covered by the indemnification rights and from
and after the Reincorporation Time the Successor Parent
Corporation shall assume full liability and
responsibility for such indemnification rights and
shall indemnify such individuals to the full extent
they would have been entitled to indemnification from
the entity which originally granted such
indemnification rights.
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(c) Service by any individual as a director of Management
Corporation or ServiceMaster Corporation or as an
officer of Management Corporation, ServiceMaster
Corporation, the Public Partnership or the Principal
Subsidiary Partnership shall entitle such individual to
indemnification under the indemnification provisions in
the Successor Parent Corporation's Certificate of
Incorporation to the same extent as if such individual
had held the director or officership position with the
Successor Parent Corporation the times at which the
acts or failures to act occurred which shall give rise
to the indemnification claim.
Part 3.
Amendment and Restatement Process
3.1 Original Version. The parties acknowledge that:
(1) The original version of this Agreement (the "Original Version")
was entered into as of December 10, 1991.
(2) The Original Version was approved by the Board of Directors of
Management Corporation, ServiceMaster Corporation and NewSub B
prior to the execution of the Original Version.
(3) The record holders of more than a majority of the Partnership
Shares issued by the Public Partnership and outstanding on the
relevant record date authorized the Reincorporating Merger at a
meeting duly called and held on January 13, 1992 (the "1992
Shareholder Approval Meeting").
3.2 Reincorporation Date. The parties acknowledge and
affirm that:
(1) The Original Version scheduled the Reincorporating Merger for
December 31, 1997. In connection with the rescheduling of the
Reincorporating Merger in this Amended and Restated Merger and
Reorganization Agreement for December 26, 1997, the Board
determined that the advantages to the Public Partnership and the
holders of a majority of its outstanding Partnership Shares of
rescheduling the Reincorporating Merger for December 26, 1997
outweigh the disadvantages to those same persons.
(2) This amendment and restatement has been authorized by the Board
of Directors of the Managing General Partner of the Public
Partnership and the Board of Directors of ServiceMaster
Corporation. In connection with its authorization, each of those
boards determined that: (i) this amendment and restatement is not
materially disadvantageous to the holders of at least a
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majority
of the outstanding Partnership Shares; (ii) since no common stock
has been issued by ServiceMaster Corporation, this amendment and
restatement is not materially disadvantageous to any holders of
common stock issued by ServiceMaster Corporation; and (iii) no
approval is required by the holders of the outstanding
Partnership Shares is required to authorize the Public
Partnership to execute this amended and restated agreement or to
make this amended and restated agreement valid, binding and
enforceable against the parties hereto in accordance with its
terms.
(3) This amendment and restatement has been duly authorized by the
Board of Directors of the Successor Parent Corporation and by the
Board of Directors of NewSub B.
(4) This amendment and restatement is hereby approved by the Public
Partnership in its capacity as sole shareholder of Parent, by the
Successor Parent Corporation in its capacity as sole shareholder
of NewSub B, and by Management Corporation in its capacity as the
holder of all Voting Stock issued by ServiceMaster Corporation.
(5) This amendment and restatement has been duly executed and
delivered by each of the parties hereto and constitutes the valid
and binding agreement of each such party which is enforceable
against such party in accordance with its terms.
3.3 No Other Shareholder Vote Required. It is the express intention of the
parties to this Agreement that no vote by the holders of Partnership Shares
shall be required in connection with the Mergers and related transactions to be
undertaken under or by reason of this Agreement (collectively the "Merger
Transactions") other than the vote by the holders of the Partnership Shares to
approve the Reincorporating Merger which occurred on January 13, 1992. No
subsequent vote by the holders of any capital stock which may hereafter be
issued by the Successor Parent Corporation shall be required as a condition,
precedent to any of the Mergers authorized by this Agreement and holders of
Partnership Shares or any capital stock which may at any time hereafter be
issued by the Successor Parent Corporation shall not have any appraisal or
similar rights in connection with any of the Merger Transactions. All of the
following issued after the record date for the 1992 Shareholder Approval Meeting
shall be issued subject to the terms prescribed in the preceding provisions of
this Section 3.3 and shall be deemed to be inherent terms of all of the
following: all Partnership Shares and other securities of any kind issued by the
Public Partnership and all capital stock issued by the Successor Parent
Corporation.
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Part 4.
Amendment
4. Basic Requirement. This Agreement may be amended in any respect without
any consent or approval of any of the holders of Partnership Shares or any other
securities at any time issued by any of the parties to this Agreement, provided
that (i) the Board of Directors of the Public Partnership's Managing General
Partner determines in its sole discretion that the amendment would not be
materially disadvantageous to the holders of a majority of the Partnership
Shares then outstanding and (ii) if the amendment incorporates an acceleration
of the Reincorporation Date to earlier than December 26, the Board shall make
the additional findings required by Section 4.2.
4.2 Acceleration of the Reincorporation Date. The Board of Directors of the
Public Partnership's Managing General Partner shall have the right to accelerate
the Reincorporation Date to a date determined by the Board earlier than December
26, 1997, if either (i) changes in the tax law or other developments cause more
than 51% of ServiceMaster's income to become subject to Federal corporate income
tax prior to 1998 (provided that the Reincorporation Date may only be
accelerated under this clause (i) to a time not earlier than 30 days prior to
the year in which such condition would arise) or (ii) the Board in its sole
discretion shall determine that the advantages to the Public Partnership and the
holders of a majority of the then outstanding Partnership Shares of accelerating
the Reincorporation Date to the date determined by the Board outweigh the
disadvantages to those same persons.
4.3 Abandonment. This Agreement may be terminated and all or any one or
more of the Merger Transactions may be abandoned for any reason by a resolution
adopted by the Board of Directors of the Managing General Partner of the Public
Partnership at any time prior to the consummation of the Reincorporating Merger
notwithstanding the approval of the Reincorporating Merger by the holders of
Partnership Shares.
4.4 Transfer of Responsibility to the Parent Board. After the
Reincorporation Time, the Board of Directors of the Successor Parent Corporation
shall have the authority assigned under this Agreement to the Board of Directors
of the Managing General Partner of the Public Partnership.
4.5 No Liability For Changes. In no event shall any of the parties, any of
their directors or officers, any of their existing or former partners, or any
other person be liable by reason of any of the following which the Board of
Directors of the Managing General Partner of the Public Partnership of the Board
of Directors of the Successor Parent Corporation shall in good faith determine
to be authorized by this Agreement: (i) any acceleration of the Reincorporation
Date; (ii) any amendment, abandonment or termination of this Agreement; or (iii)
any failure to amend, terminate or abandon this Agreement.
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Part 5.
Miscellaneous
5.1 Follow Through Actions. If, at any time after the Consolidation Time,
any further action is necessary or desirable to carry out any purpose of this
Agreement or to vest the Successor Parent Corporation with full right, title and
possession to all assets, property, rights, privileges, immunities, powers and
franchises of either of the Partnerships or the ServiceMaster A Trust, any of
the officers of the Successor Parent Corporation are fully authorized in the
name of any or all of the parties or otherwise to take any such action as such
officer deems necessary or desirable.
5.2 Entire Agreement. This Agreement constitutes the entire agreement among
the parties and supersedes any prior understandings, agreements, or
representations by or among the parties, written or oral, that may have related
in any way to the subject matter thereof. Without limiting by implication the
generality of the preceding sentence, this amended and restated version of this
Agreement supersedes and replaces the Original Version of this Agreement.
5.3 Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties named herein and their respective successors
and assigns.
5.4 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
5.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws (and not the law of conflicts) of the State of
Delaware.
5.6 Severability. Whenever possible, each provision of this agreement will
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this agreement is held to be prohibited by or invalid
under applicable law, such provision will be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provisions or the remaining provisions of this agreement.
5.7 Notices. All notices and other communications to be given or made
hereunder by any party shall be delivered by first class mail, or by personal
delivery, postage or fees prepaid, to the other party c/o ServiceMaster Limited
Partnership (prior to the Reincorporating Merger) or Successor Parent
Corporation (after the Reincorporating Merger) at Xxx XxxxxxxXxxxxx Xxx, Xxxxxxx
Xxxxx, Xxxxxxxx 00000, Attention: General Counsel.
5.8 Expenses. Except as may otherwise be provided herein, the Public
Partnership will bear all of the costs and expenses (including legal fees and
expenses) incurred in connection with this Agreement and the transactions
contemplated hereby.
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The parties have executed this agreement at the place provided below to
evidence their agreement to be bound by all of its terms.
SERVICEMASTER LIMITED PARTNERSHIP
By ServiceMaster Management Corporation
(general partner)
By: /s/ Xxxxxx X. Xxxxx
Its: President and Chief Executive Officer
THE SERVICEMASTER COMPANY LIMITED PARTNERSHIP
By ServiceMaster Management Corporation
(general partner
By: /s/ Xxxxxx X. Xxxxx
Its: President and Chief Executive Officer
SERVICEMASTER INCORPORATED OF DELAWARE
(to be renamed "The ServiceMaster Company"
prior to the Reincorporating Merger)
By: /s/ Xxxxxx X. Xxxxxxx
Its: Vice President
SERVICEMASTER MANAGEMENT
CORPORATION
By: /s/ Xxxxxx X. Xxxxx
Its: President and Chief Executive Officer
SERVICEMASTER CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
Its: Vice President
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NEWSUB B, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Its: Vice President
Consent by NewSub A
NewSub A, Inc. (a Delaware Corporation) hereby: acknowledge that it is a
party to the Original Version of this Agreement; that the amendment and
restatement of this Agreement have eliminated the role contemplated for NewSub A
by the Original Version; approves this Amended and Restated Agreement; and
waives and releases any rights it may have had under or by reason of the
Original Version and any other rights it may have against any of the parties.
NEWSUB A, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Its: Vice President
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EXHIBIT A
Specified Assumed Loan Agreements
1. $750 million Five-Year Credit Agreement dated as of April 1, 1997 among the
Company, the Lenders party thereto, The First National Bank of Chicago as
Administrative Agent and Xxxxxx Guaranty Trust Company of New York as
Documentation Agent.
2. $250 million 364-Day Credit Agreement dated as of April 1, 1997 among the
Company, the Lenders party thereto, The First National Bank of Chicago as
Administrative Agent and Xxxxxx Guaranty Trust Company of New York as
Documentation Agent.
3. Note Agreements dated as of September 15, 1988, as amended through Third
Amendments thereto dated as of July 15, 1996 (relating to the Company's $45
million, 10.57% Senior Notes, Series A, due October 1, 2000).
4. Exchange Agreements dated as of August 1, 1990, as amended through Third
Amendments thereto dated as of July 15, 1996, and related Guaranty Agreements
dated as of August 1, 1990, as amended through Third Amendments thereto dated as
of July 15, 1996 (relating to the $55 million, 10.8125% Senior Notes, due
October 1, 2002, of American Home Shield Corporation (as successor by merger to
SVM Holding Corp.) and guaranteed by the Company).
5. Note Agreements dated as of April 1, 1992, as amended through Second
Amendments thereto dated as of July 15, 1996 (relating to the Company's $50
million, 8.38% Senior Notes, due July 15, 2001).
6. Note Agreements dated as of October 1, 1992, as amended through First
Amendments thereto dated as of July 15, 1996 (relating to the Company's $75
million, 7.47% Senior Notes, due October 9, 1997).
7. Note Agreements dated as of January 15, 1994, as amended through First
Amendments thereto dated as of July 15, 1996 (relating to the Company's $70
million, 6.65% Senior Notes, due January 31, 2004).
8. Note Agreements dated as of July 16, 1996, as amended through First
Amendments thereto dated as of March 1, 1997 (relating to the Company's $100
million, 7.40% Senior Notes, Series A, due July 16, 2006, and the Company's $25
million, 7.40% Senior Notes, Series B, due September 26, 2006).
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