Exhibit 10.24
FORM OF DIRECTORS AWARD AGREEMENT
DIRECTORS AWARD AGREEMENT, dated as of [______ __, 200_] (the
"Agreement"), between SIRVA, Inc., a Delaware corporation (the "COMPANY"), and
the director whose name appears on the signature page hereof (the "DIRECTOR").
W I T N E S S E T H:
WHEREAS, to enable the Company to attract, retain and motivate the best
qualified directors and to enhance a long-term mutuality of interest between
directors and stockholders of the Company, the Board of Directors of the Company
(the "BOARD") has adopted the SIRVA, Inc. Directors Compensation Plan (the
"PLAN");
WHEREAS, pursuant to the terms of the Plan, the Director is entitled to
receive an award of the number of shares of common stock, par value $.01 per
share, of the Company ("COMMON STOCK") set forth on the signature page hereof
(each, a "SHARE" and, collectively, the "SHARES"); and
WHEREAS, the Company and the Director desire to enter into an agreement to
evidence and confirm the award of the shares on the terms and conditions set
forth herein.
NOW, THEREFORE, to implement the foregoing and in consideration of the
mutual agreements contained herein, the parties hereto hereby agree as follows:
1. AWARD OF COMMON STOCK. Subject to the terms and conditions of this
Agreement, the Company hereby awards, as of the date hereof, to the Director the
Shares. Notwithstanding anything in this Agreement to the contrary, the Company
shall have no obligation to issue any Common Stock to any person who is a
resident of a jurisdiction in which the sale of Common Stock to such person
would constitute a violation of the securities, "blue sky" or other laws of such
jurisdiction or would require registration under any such laws.
2. ISSUANCE OF COMMON STOCK.
(a) TIME AND PLACE. Except as otherwise agreed by the Company and the
Director, the closing (the "CLOSING") of the transaction contemplated by this
Agreement shall be held at the offices of Debevoise & Xxxxxxxx, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 a.m. (New York time) on or about the first
business day after the annual meeting of shareholders of the Company.
(b) DELIVERY BY THE COMPANY. At the Closing, the Company shall deliver to
the Director a stock certificate registered in the Director's name and
representing the Shares, which certificate shall bear the legends set forth in
Section 3(b).
3. DIRECTOR'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) INVESTMENT INTENTION. The Director represents and warrants that the
Director is acquiring the Shares solely for the Director's own account for
investment and not with a view to or for sale in connection with any
distribution thereof. The Director agrees that the Director will not, directly
or indirectly, offer, transfer, sell, pledge, hypothecate or otherwise dispose
of any of the Shares (or solicit any offers to buy, purchase or otherwise
acquire or take a pledge of any Shares), except in compliance with the
Securities Act of 1933, as amended (the "SECURITIES Act"), and the rules and
regulations of the Securities and Exchange Commission (the "COMMISSION")
thereunder, and in compliance with applicable state and foreign securities or
"blue sky" laws. The Director further understands, acknowledges and agrees that
none of the Shares may be transferred, sold, pledged, hypothecated or otherwise
disposed of (i) unless the provisions of Sections 4 through 6 hereof, inclusive,
shall have been complied with or have expired, (ii) unless (A) such disposition
is pursuant to an effective registration statement under the Securities Act, (B)
the Director shall have delivered to the Company an opinion of counsel, which
opinion and counsel shall be reasonably satisfactory to the Company, to the
effect that such disposition is exempt from the provisions of Section 5 of the
Securities Act or (C) a no-action letter from the Commission, reasonably
satisfactory to the Company, shall have been obtained with respect to such
disposition and (iii) unless such disposition is pursuant to registration under
any applicable state securities laws or an exemption therefrom.
(b) LEGENDS. The Director acknowledges that the certificate or
certificates representing the Shares shall bear an appropriate legend, which
will include, without limitation, the following language:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TRANSFER
RESTRICTIONS, HOLDBACK AND OTHER PROVISIONS OF A DIRECTORS AWARD
AGREEMENT, DATED AS OF ______ __, 2002, AS THE SAME MAY BE AMENDED FROM
TIME TO TIME, AND NEITHER THIS CERTIFICATE NOR THE SHARES REPRESENTED BY
IT ARE ASSIGNABLE OR OTHERWISE TRANSFERABLE EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SUCH DIRECTORS AWARD AGREEMENT, A COPY OF WHICH IS ON FILE
WITH THE SECRETARY OF THE COMPANY. THE SHARES REPRESENTED BY THIS
CERTIFICATE ARE ENTITLED TO CERTAIN OF THE BENEFITS OF AND ARE BOUND BY
THE OBLIGATIONS SET FORTH IN A REGISTRATION AND PARTICIPATION AGREEMENT,
DATED AS OF MARCH 30, 1998, AS AMENDED, AND ANY AMENDMENTS, SUPPLEMENTS OR
MODIFICATIONS THERETO, AMONG THE COMPANY AND CERTAIN STOCKHOLDERS OF THE
COMPANY, A COPY OF THE CURRENT FORM OF WHICH IS ON FILE WITH THE SECRETARY
OF THE COMPANY."
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"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE OR FOREIGN
SECURITIES LAWS AND MAY NOT BE TRANSFERRED, SOLD, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF UNLESS (i) (A) SUCH DISPOSITION IS PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, (B) THE HOLDER HEREOF SHALL HAVE DELIVERED TO THE COMPANY AN
OPINION OF COUNSEL, WHICH OPINION AND COUNSEL SHALL BE REASONABLY
SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT SUCH DISPOSITION IS EXEMPT
FROM THE PROVISIONS OF SECTION 5 OF SUCH ACT OR (C) A NO-ACTION LETTER
FROM THE SECURITIES AND EXCHANGE COMMISSION, REASONABLY SATISFACTORY TO
COUNSEL FOR THE COMPANY, SHALL HAVE BEEN OBTAINED WITH RESPECT TO SUCH
DISPOSITION AND (ii) SUCH DISPOSITION IS PURSUANT TO REGISTRATION UNDER
ANY APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION THEREFROM."
(c) SECURITIES LAW MATTERS. The Director acknowledges receipt of advice
from the Company that (i) the Shares have not been registered under the
Securities Act or any state or foreign securities or "blue sky" laws, (ii) it is
not anticipated that there will be any public market for the Shares, (iii) 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 the Securities Act and such state or foreign laws or an
exemption from registration is available, (iv) Rule 144 promulgated under the
Securities Act ("RULE 144") is not presently available with respect to sales of
securities of the Company and the Company has made no covenant to make Rule 144
available, (v) when and if the Shares may be disposed of without registration in
reliance upon Rule 144, such disposition can generally be made only in limited
amounts in accordance with the terms and conditions of such Rule, (vi) the
Company does not plan to file reports with the Commission or make information
concerning the Company publicly available unless required to do so by law or the
terms of its financing agreements, (vii) if the exemption afforded by Rule 144
is not available, sales of the Shares may be difficult to effect because of the
absence of public information concerning the Company, (viii) a restrictive
legend in the form heretofore set forth shall be placed on the certificates
representing the Shares and (ix) a notation shall be made in the appropriate
records of the Company indicating that the Shares are subject to restrictions on
transfer set forth in this Agreement and, if the Company should in the future
engage the services of a stock transfer agent, appropriate stop-transfer
restrictions will be issued to such transfer agent with respect to the Shares.
(d) COMPLIANCE WITH RULE 144. If any of the Shares are to be disposed of
in accordance with Rule 144, the Director shall transmit to the Company an
executed copy
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of Form 144 (if required by Rule 144) no later than the time such form is
required to be transmitted to the Commission for filing and such other
documentation as the Company may reasonably require to assure compliance with
Rule 144 in connection with such disposition.
(e) ABILITY TO BEAR RISK. The Director represents and warrants that (i)
the Director is an accredited investor, (ii) the financial situation of the
Director is such that the Director can afford to bear the economic risk of
holding the Shares for an indefinite period and (iii) the Director can afford to
suffer the complete loss of the Director's investment in the Shares.
(f) QUESTIONNAIRE. The Director agrees to furnish such documents and to
comply with such reasonable requests of the Company as may be necessary to
substantiate the Director's status as an accredited investor in connection with
this award of Shares to the Director. The Director represents and warrants that
all information contained in such documents and any other written materials
concerning the status of the Director furnished by the Director to the Company
in connection with such requests will be true, complete and correct in all
material respects.
(g) ACCESS TO INFORMATION. The Director represents and warrants that (i)
the Director has been granted the opportunity to ask questions of, and receive
answers from, representatives of the Company concerning the terms and conditions
of the issuance of the Shares and to obtain any additional information that the
Director deems necessary to verify the accuracy of any information provided to
the Director and (ii) the Director's knowledge and experience in financial and
business matters is such that the Director is capable of evaluating the risks of
an investment in the Shares.
(h) REGISTRATION; RESTRICTIONS ON SALE UPON PUBLIC OFFERING. The Director
shall be entitled to the rights and subject to the obligations created under the
Registration and Participation Agreement, dated as of March 30, 1998, as amended
and as the same may be amended from time to time, among the Company and certain
stockholders of the Company (the "REGISTRATION AND PARTICIPATION AGREEMENT"), to
the extent provided therein. The Director agrees that, in the event that 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
will not effect any public sale (including a sale under Rule 144) or
distribution of any Shares (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.
4. RESTRICTIONS ON DISPOSITION OF SHARES. Neither the Director nor any of
the Director's heirs or representatives shall sell, assign, transfer, pledge or
otherwise directly or indirectly dispose of or encumber any of the Shares to or
with any other person, firm or corporation (including, without limitation,
transfers to any other holder of the
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Company's capital stock, dispositions by gift, by will, by a corporation as a
distribution in liquidation and by operation of law other than a transfer of
Shares by operation of law to the estate of the Director upon the death of the
Director, PROVIDED that such estate shall be bound by all provisions of this
Agreement) except as provided in Sections 5 and 6 hereof or in Section 4 of the
Registration and Participation Agreement. The restrictions contained in this
Section 4 shall terminate in the event that an underwritten public offering of
the Common Stock led by one or more underwriters at least one of which is of
nationally recognized standing (a "PUBLIC OFFERING") has been consummated and
shall not apply to a sale as part of a Public Offering or at any time
thereafter.
5. OPTIONS OF THE COMPANY AND CD&R FUND UPON PROPOSED DISPOSITION.
(a) RIGHTS OF FIRST REFUSAL. If the Director desires to accept an offer
(which must be in writing and for cash, be irrevocable by its terms for at least
60 days and be a bona fide offer as determined in good faith by the Board) from
any prospective purchaser to purchase all or any part of the Shares at any time
owned by the Director, the Director shall give notice in writing to the Company
and the Xxxxxxx, Dubilier & Rice Fund V Limited Partnership (the "CD&R FUND")
(i) designating the number of Shares proposed to be sold, (ii) naming the
prospective purchaser of such Shares and (iii) specifying the price (the "OFFER
PRICE") at and terms (the "OFFER TERMS") upon which the Director desires to sell
the same. During the 30-day period following receipt of such notice by the
Company and CD&R Fund (the "FIRST REFUSAL PERIOD"), the Company shall have the
right to purchase from the Director all (but not less than all) of the Shares
specified in such notice, at the Offer Price and on the Offer Terms. The Company
hereby undertakes to use reasonable efforts to act as promptly as practicable
following receipt of such notice to determine whether it shall elect to exercise
such right. If the Company fails to exercise such right within the First Refusal
Period, CD&R Fund shall have the right to purchase all (but not less than all)
of the Shares specified in such notice, at the Offer Price and on the Offer
Terms, at any time during the period beginning on the earlier of (x) the end of
the First Refusal Period and (y) the date of receipt by CD&R Fund of written
notice that the Company has elected not to exercise its rights under this
Section 5(a) and ending 30 days thereafter (the "SECOND REFUSAL PERIOD"). 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
Company or CD&R Fund, as the case may be, shall deliver to the Director a
certified or bank check for the Offer Price, payable to the order of the
Director, against delivery of certificates or other instruments representing the
Shares so purchased, appropriately endorsed by the Director. If such right shall
not have been exercised prior to the expiration of the Second Refusal Period,
then at any time during the 30 days following the expiration of the Second
Refusal Period, the Director may sell such Shares to (but only to) the intended
purchaser named in the Director's notice to the Company and CD&R Fund at the
Offer Price and on the Offer Terms specified in such notice, free of all
restrictions or obligations imposed by, and free of any rights or benefits set
forth in, Sections 5 and 6 of this Agreement, provided that such intended
purchaser
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shall have agreed in writing to make and be bound by the representations,
warranties and covenants set forth in Section 3 hereof, other than those set
forth in the first sentence of Section 3(h), pursuant to an instrument of
assumption satisfactory in substance and form to the Company.
(b) PUBLIC OFFERING. In the event that a Public Offering has been
consummated, neither the Company nor CD&R Fund shall have any rights to purchase
the Shares from the Director pursuant to this Section 5 and this Section 5 shall
not apply to a sale as part of a Public Offering or at any time thereafter.
6. DRAG-ALONG RIGHTS.
(a) DRAG-ALONG NOTICE. If CD&R Fund intends to effect a sale of 51% or
more of its shares of Common Stock of the Company to a third party (a "THIRD
PARTY BUYER") and CD&R Fund elects to exercise its rights under this Section 6,
CD&R Fund shall deliver written notice (a "DRAG-ALONG NOTICE") to the Director,
which notice shall (a) state (i) that CD&R Fund wishes to exercise its rights
under this Section 6 with respect to such sale, (ii) the name and address of the
Third Party Buyer, (iii) the per share amount and form of consideration CD&R
Fund proposes to receive for its shares of Common Stock of the Company and (iv)
the terms and conditions of payment of such consideration and all other material
terms and conditions of such sale, (b) contain an offer (the "DRAG-ALONG OFFER")
by the Third Party Buyer to purchase from the Director a percentage of the
Director's Shares equal to the percentage of the shares of Common Stock of the
Company owned by CD&R Fund that are to be sold to the Third Party Buyer (such
percentage, the "APPLICABLE PERCENTAGE") on and subject to the same terms and
conditions offered to CD&R Fund and (c) state the anticipated time and place of
the closing of the purchase and sale of the Applicable Percentage of the Shares
(a "SECTION 6 CLOSING"), which (subject to such terms and conditions) shall
occur not fewer than five (5) days nor more than ninety (90) days after the date
such Drag-Along Notice is delivered, provided that if such Section 6 Closing
shall not occur prior to the expiration of such 90-day period, CD&R Fund shall
be entitled to deliver additional Drag-Along Notices with respect to such
Drag-Along Offer.
(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
the Applicable Percentage of the Director's Shares pursuant to the Drag-Along
Offer, as the same may be modified from time to time, PROVIDED that CD&R Fund
sells and transfers the Applicable Percentage of its shares of Common Stock of
the Company to the Third Party Buyer at the Section 6 Closing. Within ten (10)
days of receipt of the Drag-Along Notice, the Director shall (i) execute and
deliver to CD&R Fund a power of attorney and a letter of transmittal and custody
agreement appointing, and in form and substance reasonably satisfactory to, CD&R
Fund or one or more of its affiliates designated by CD&R Fund (the "CUSTODIAN"),
the true and lawful attorney-in-fact and custodian for the
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Director, with full power of substitution, and authorizing 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 Shares to the Third Party
Buyer, upon receipt of the purchase price therefor at the Section 6 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 CD&R Fund also so consents, and, to the extent applicable, sells
and transfers the Applicable Percentage of its shares of common stock of the
Company on the same terms as so amended, waived, modified or supplemented), and
(ii) deliver to the Custodian certificates representing the Applicable
Percentage of the Shares, together with all necessary duly executed stock
powers. The Custodian shall hold the Applicable Percentage of the Shares and
other documents in trust for the Director pending completion or abandonment of
such sale. If, within 90 days after CD&R Fund delivers the Drag-Along Notice,
CD&R Fund has not completed the sale of the Applicable Percentage of the Shares
and of its shares of Common Stock of the Company to the Third Party Buyer and
another Drag-Along Notice with respect to such Drag-Along Offer has not been
sent to the Director, the Custodian shall return to the Director all
certificates representing the Applicable Percentage of the Shares and all other
documents that the Director delivered in connection with such sale. Promptly
after the Section 6 Closing, the Custodian shall give notice thereof to the
Director, shall remit to the Director the total consideration for the Applicable
Percentage of the Shares sold pursuant thereto (reduced by any amount required
to be held in escrow pursuant to the terms of the purchase and sale agreement),
and shall furnish such other evidence of the completion and time of completion
of such sale and the terms thereof as may reasonably be requested by the
Director.
(c) REMEDIES. The Director acknowledges that CD&R Fund would be
irreparably damaged in the event of a breach or a threatened breach by the
Director of any of its obligations under this Section 6 and the Director agrees
that, in the event of a breach or a threatened breach by the Director of any
such obligation, CD&R Fund shall, in addition to any other rights and remedies
available to it in respect of such breach, be entitled to an injunction from a
court of competent jurisdiction (without any requirement to post bond) granting
it specific performance by the Director of its obligations under this Section 6.
In the event that CD&R Fund shall file suit to enforce the covenants contained
in this Section 6 (or obtain any other remedy in respect of any breach thereof),
the prevailing party in the suit shall be entitled to recover, in addition to
all other damages to which it may be entitled, the costs incurred by such party
in conducting the suit, including reasonable attorney's fees and expenses. In
the event that, following a breach or a threatened breach by the Director of the
provisions of this Section 6, CD&R Fund does not obtain an injunction granting
it specific performance of the Director's obligations under this Section 6 in
connection with such proposed sale prior to the time
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CD&R Fund completes the sale of the Applicable Percentage of its shares of
Common Stock of the Company or, in its sole discretion, abandons such sale, then
the Company shall have the option to purchase all of the Shares from the
Director at a purchase price per Share equal to the price at which the Director
purchased such shares of Common Stock from the Company or, if less, the per
share consideration payable pursuant to the Drag-Along Offer.
(d) PUBLIC OFFERING. In the event that a Public Offering has been
consummated, the provisions of this Section 6 shall terminate and cease to have
further effect.
7. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to the Director that (a) the Company has been duly incorporated and
is an existing corporation in good standing under the laws of the State of
Delaware, (b) this Agreement has been duly authorized, executed and delivered by
the Company and constitutes a valid and legally binding obligation of the
Company enforceable against the Company in accordance with its terms, and (c)
the Shares, when issued and delivered in accordance with the terms hereof, will
be duly and validly issued, fully paid and nonassessable, and free and clear of
any liens or encumbrances other than those created pursuant to this Agreement,
or otherwise in connection with the transactions contemplated hereby.
8. COVENANTS OF THE COMPANY.
(a) RULE 144. The Company agrees that at all times after it has filed a
registration statement after the date hereof pursuant to the requirements of the
Securities Act or Section 12 of the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT"), relating to any class of equity securities of the Company
(other than (i) the registration of equity securities of the Company and/or
options in respect thereof to be offered primarily to directors or members of
management or employees of the Company, any Subsidiary thereof or any of their
respective predecessors, or to senior executives of, or consultants to,
corporations in which entities managed or sponsored by Xxxxxxx, Dubilier & Rice,
Inc. have or have made equity investments, or (ii) the registration of equity
securities and/or options in respect thereof solely on Form S-4 or S-8 or any
successor form), it will file the reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted by the
Commission thereunder (or, if the Company is not required to file such reports,
it will, upon the request of the Director, make publicly available such
information as necessary to permit sales pursuant to Rule 144 under the
Securities Act), and will take such further action as the Director may
reasonably request, all to the extent required from time to time to enable the
Director to sell Shares without registration under the Securities Act within the
limitation of the exemptions provided by (i) Rule 144, as such Rule may be
amended
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from time to time, or (ii) any successor rule or regulation hereafter adopted by
the Commission.
(b) STATE SECURITIES LAWS. The Company agrees to use its best efforts to
comply with all state securities or "blue sky" laws applicable to the sale of
the Shares to the Director, PROVIDED that the Company shall not be obligated to
qualify or register the Shares under any such law or to qualify as a foreign
corporation or file any consent to service of process under the laws of any
jurisdiction or subject itself to taxation as doing business in any such
jurisdiction.
9. MISCELLANEOUS.
(a) 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, CD&R Fund or the Director, as the
case may be, at the following addresses or to such other address as the Company,
CD&R Fund or the Director, as the case may be, shall specify by notice to the
others:
(i) if to the Company, to it at:
SIRVA, Inc.
000 X. Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
ATTENTION: General Counsel
(ii) if to the Director, to the Director at the address set forth on
the signature page hereof.
(iii) if to CD&R Fund, to:
Xxxxxxx, Dubilier & Rice Fund V Limited Partnership
0000 Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
ATTENTION: Xxxxxx X. Xxxx, III
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. Copies of any notice or other communication
given under this Agreement shall also be given to:
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Xxxxxxx, Dubilier & Rice, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTENTION: Xxxxx X. Xxxxxx
and
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTENTION: Xxxx X. Xxxx, Esq.
CD&R Fund also shall be given a copy of any notice or other communication
between the Director and the Company under this Agreement at its address as set
forth above.
(b) 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 provided in Sections 4 through 6, inclusive,
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.
(c) 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
Sections 4 through 6, inclusive, must be consented to by CD&R Fund. Except as
provided in the preceding sentence, no action taken pursuant to this Agreement,
including, without limitation, 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,
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PROVIDED that any amendment adversely affecting the rights of CD&R Fund
hereunder must be consented to by CD&R Fund.
(d) 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. CD&R Fund may assign from time to time all or any portion of
its rights under Sections 4 through 6, inclusive, to one or more persons or
other entities designated by it.
(e) APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE, REGARDLESS OF THE LAW THAT
MIGHT BE APPLIED UNDER PRINCIPLES OF CONFLICT OF LAWS.
(f) 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.
(g) 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.
(h) CERTAIN DEFINITIONS.
"ACCREDITED INVESTOR": as defined in Regulation D promulgated under the
Securities Act of 1933, as amended.
"AFFILIATE": with respect to any Person, means any other Person that,
directly or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with the first Person, including but
not limited to a Subsidiary of the first Person, a Person of which the first
Person is a Subsidiary, or another Subsidiary of a Person of which the first
Person is also a Subsidiary.
"CONTROL": with respect to any Person, means the possession, directly or
indirectly, severally or jointly, of the power to direct or cause the direction
of the management policies of such Person, whether through the ownership of
voting securities, by contract or credit arrangement, as trustee or executor, or
otherwise.
"PERSON": any natural person, firm, partnership, limited liability
company, association, corporation, company, trust, business trust, governmental
authority or other entity.
"SUBSIDIARY": with respect to any Person, each corporation or other Person
in which the first Person owns or Controls, directly or indirectly, capital
stock or other
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ownership interests representing 50% or more of the combined voting power of the
outstanding voting stock or other ownership interests of such corporation or
other Person.
"SUCCESSOR": of a Person means a Person that succeeds to the first
Person's assets and liabilities by merger, liquidation, dissolution or otherwise
by operation of law, or a Person to which all or substantially all the assets
and/or business of the first Person are transferred.
[Signature page follows]
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IN WITNESS WHEREOF, the Company and the Director have executed this
Agreement as of the date first above written.
SIRVA, INC.
By: ________________________________
Name:
Title:
THE DIRECTOR:
By: ________________________________
as Attorney-in-Fact
Name:
Address of the Director:
Total Number of Shares
of Common Stock to be
Issued:
The number of Shares to be issued is equal to the quotient of $5,000 divided by
the fair market value of one share of Common Stock as of December 31, 200[_] as
determined by the Board.
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