<PAGE> 1
As filed with The Securities and Exchange Commission on March 30, 1998
Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ABM INDUSTRIES INCORPORATED
(Exact name of issuer as specified in its charter)
Delaware 94-1369354
(State or other jurisdiction of (I.R.S. employer identification number)
incorporation or organization)
50 Fremont Street, Suite 2600, San Francisco, California 94105
(Address of principal executive offices) (Zip Code)
ABM INDUSTRIES INCORPORATED LONG-TERM SENIOR EXECUTIVE STOCK OPTION PLAN
(Full title of the plan)
Harry H. Kahn, Esq.
Corporate Vice President, General Counsel and Secretary
ABM Industries Incorporated
50 Fremont Street, Suite 2600
San Francisco, California 94105
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (415) 597-4500
Copy to:
John E. Aguirre
Orrick, Herrington & Sutcliffe LLP
400 Sansome Street
San Francisco, California 94111
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
========================================================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Price Aggregate Amount of
to be to be Per Share* Offering Price* Registration
Registered Registered Fee*
<S> <C> <C> <C> <C>
Common Stock 1,500,000 shares $31.34375 $47,015,625.00 $13,870.00
========================================================================================================
</TABLE>
* Estimated solely for the purpose of calculating the registration fee on the
basis of $31.34375 per share, the average of the high and low prices for the
Common Stock on the New York Stock Exchange on March 26, 1998.
<PAGE> 2
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are incorporated by reference in this
registration statement: (i) ABM Industries Incorporated's (the "Company") latest
annual report filed pursuant to Sections 13(a) or 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act"); (ii) all other reports filed by the
Company pursuant to Sections 13(a) or 15(d) of the Exchange Act since the end of
the fiscal year covered by the Company's latest annual report; and (iii) the
description of the Company's common stock set forth in the Company's
Registration Statement on Form 8-A relating thereto, including any amendment or
report filed for the purpose of updating such description. All documents filed
by the Company after the date of this registration statement pursuant to
Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment (that indicates all securities offered have been sold
or deregisters all securities then remaining unsold), shall be deemed to be
incorporated by reference in this registration statement and to be a part hereof
from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As authorized by Section 145 of the Delaware Corporation Law, the
Company's Certificate of Incorporation eliminates the personal liability of its
directors to the Company or its stockholders for monetary damages for any breach
of fiduciary duty as a director, except for: (i) any breach of the duty of
loyalty to the Company or its stockholders, (ii) acts or omissions not in good
faith, (iii) intentional misconduct or a knowing violation of law, or (iv) any
transaction from which the director derived an improper personal benefit.
As authorized by Section 145 of the Delaware Corporation Law, the
Company's By-Laws provide for the indemnification of the directors, officers,
employees or agents of the Company in
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<PAGE> 3
certain cases. Indemnification shall be provided to directors and officers of
the Company, or of other enterprises if serving at the request of the Company,
against actual and reasonable costs, charges, expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement in connection with
pending or completed actions, suits or proceedings, whether civil, criminal,
administrative or investigative (other than action by or in the right of the
Company) if the director or officer acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interest of the Company,
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe the conduct was unlawful.
If such proceeding is brought by or on the behalf of the Company, a
similar standard of care is applicable, except that no indemnification shall be
made with respect to any matter as to which such person is adjudged to be liable
to the Company unless and only to the extent that the court shall determine such
person is fairly and reasonably entitled to indemnification of such costs.
The Company's By-Laws further provide that, notwithstanding the
foregoing, directors, officers, employees and agents shall be indemnified of all
actual and reasonable costs to the extent that such persons are successful on
the merits or otherwise.
In addition to the above, the Company has entered into an
Indemnification Agreement with its directors. The Indemnification Agreement
provides directors with the same indemnification by the Company as set forth in
the preceding paragraphs except that the Indemnification Agreement differs from
the By-Laws in the following significant respects: (1) indemnification is
provided to directors in excess of that provided by any insurance coverage; and
(2) no indemnification shall be provided on account of any action commenced by
the director in his or her individual right against the Company, its directors,
officers and stockholders unless authorized by a majority of disinterested
directors.
There exists directors and officers liability insurance presently
outstanding which insures directors and officers of the Company. The losses
covered by the policy are subject to certain exclusions and the policy contains
certain deductible provisions. All exclusions and deductibles are specifically
indemnified in the Indemnification Agreement discussed in the preceding
paragraph.
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<PAGE> 4
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
ITEM 8. EXHIBITS
4.1 The ABM Industries Incorporated Long-Term Senior Executive Stock Option
Plan.
5.1 Opinion of Harry H. Kahn, Esq.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Harry H. Kahn, Esq. is included in Exhibit 5.1.
24.1 Power of Attorney of Directors.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3 or Form S-8 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
4
<PAGE> 5
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933 each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of the
Plan's annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
5
<PAGE> 6
Signatures
THE REGISTRANT
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Francisco, State of California on the 27th day of
March, 1998.
ABM INDUSTRIES INCORPORATED
(Registrant)
/s/ William W. Steele
- ------------------------------------
William W. Steele
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
date indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
Principal Executive Officer:
/s/ William W. Steele
- -------------------------------
William W. Steele President and March 27, 1998
Chief Executive
Officer
Principal Financial Officer:
/s/ David H. Hebble
- -------------------------------
David H. Hebble Vice President March 27, 1998
and Chief Financial
Officer
Principal Accounting Officer:
/s/ Vernon E. Skelton
- -------------------------------
Vernon E. Skelton Controller and March 27, 1998
Chief Accounting
Officer
</TABLE>
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<PAGE> 7
<TABLE>
Directors:
<S> <C> <C>
/s/ Maryellen B. Cattani
- -------------------------------
Maryellen B. Cattani Director March 25, 1998
/s/ John F. Egan
- -------------------------------
John F. Egan Director March 23, 1998
/s/ Luke S. Helms
- -------------------------------
Luke S. Helms Director March 25, 1998
/s/ Charles T. Horngren
- -------------------------------
Charles T. Horngren Director March 25, 1998
/s/ Henry L. Kotkins, Jr.
- -------------------------------
Henry L. Kotkins, Jr. Director March 25, 1998
/s/ Martinn H. Mandles
- -------------------------------
Martinn H. Mandles Director March 27, 1998
/s/ Theodore Rosenberg
- -------------------------------
Theodore Rosenberg Director March 25, 1998
/s/ William W. Steele
- -------------------------------
William W. Steele Director March 23, 1998
/s/ William E. Walsh
- -------------------------------
William E. Walsh Director March 25, 1998
/s/ Linda Chavez
- -------------------------------
Linda Chavez Director March 26, 1998
</TABLE>
* By /s/ Harry H. Kahn
- -------------------------------
Harry H. Kahn,
Attorney-in-Fact
A majority of the members of the Board of Directors.
7
<PAGE> 8
EXHIBIT INDEX
4.1 The ABM Industries Incorporated Long-Term Senior Executive Stock Plan.
5.1 Opinion of Harry H. Kahn, Esq.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Harry H. Kahn, Esq. is included in Exhibit 5.1.
24.1 Power of Attorney of Directors.
8
<PAGE> 1
EXHIBIT 4.1
ABM INDUSTRIES INCORPORATED
LONG-TERM SENIOR EXECUTIVE STOCK OPTION PLAN
1. Purpose; Definitions.
The purpose of The Plan is to give ABM Industries Incorporated and its
Affiliates a long-term stock option plan to help in attracting,
retaining and motivating senior executives, and to provide the Company
and its Affiliates with the ability to provide incentives more directly
linked to the profitability of the Company's businesses and increases
in stockholder value.
For purposes of The Plan, the following terms are defined as set forth
below:
a. "Affiliate" or "Affiliates" means any and all subsidiary
corporations or other entities controlled by the Company and designated
by The Committee from time to time as such.
b. "Board" or "The Board" means the board of directors ("Directors") of
the Company.
c. "Cause" means:
(1) misconduct or any other willful or knowing violation of
any Company policy or employment agreement,
(2) unsatisfactory performance such that the Company notifies
the Optionee of the Company's intention not to renew the
Optionee's employment agreement with the Company,
(3) a material breach by The Optionee of his or her duties as
an employee which is committed in bad faith or without
reasonable belief that such breach is in the best interests of
the Company and its affiliated companies (other than a breach
arising from the failure of The Optionee to work as a result
of incapacity due to physical or mental illness) and which is
not remedied in a reasonable period of time after receipt of
written notice from the Company specifying such breach, or
(4) the conviction of The Optionee of a felony that has been
affirmed on appeal or as to which the period in which an
appeal can be taken has lapsed.
d. "Change in Control" and "Change in Control Price" have the meanings
set forth in Sections 6b and 6c of The Plan, respectively.
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<PAGE> 2
e. "Code" or "The Code" means the Internal Revenue Code of 1986, as
amended from time to time, and any successor thereto.
f. "Commission" or "The Commission" means the Securities and Exchange
Commission or any successor agency.
g. "Committee" or "The Committee" means the committee referred to in
Section 2 of The Plan.
h. "Company" or "The Company" means ABM Industries Incorporated, a
Delaware corporation.
i. "Disability" means the inability of The Optionee to perform his or
her duties as an employee on an active full-time basis as a result of
incapacity due to mental or physical illness which continues for more
than ninety (90) days after the commencement of such incapacity, such
incapacity to be determined by a physician selected by the Company or
its insurers and acceptable to The Optionee or the Optionee's legal
representative (such agreement as to acceptability not to be withheld
unreasonably).
j. "Eligible Person" has the meaning stated in Section 4 of The Plan.
k. "Exchange Act" or "The Exchange Act" means the Securities Exchange
Act of 1934, as amended from time to time, and any successor thereto.
l. "Fair Market Value" means, as of any given date, the average of the
highest and lowest reported trades of the Stock on the New York Stock
Exchange Composite Tape for such date, or of if there were no trades on
such date, the average of the nearest trading day after such date. If
there is no regular public trading market for such Stock, the Fair
Market Value of the Stock shall be determined by The Committee in good
faith.
m. "Non-Employee Director" shall mean a member of The Board who
qualifies as a disinterested person as defined in Rule 16b-3, as
promulgated by The Commission under The Exchange Act, or any successor
definition adopted by The Commission, and also qualifies as an "outside
director" for the purposes of Section 162(m) of The Code and the
regulations promulgated thereunder.
n. "Optionee" shall mean any Eligible Person who has been granted Stock
Options under The Plan.
p. "Plan" or "The Plan" means the ABM Industries Incorporated Long-Term
Senior Executive Stock Option Plan, as set forth herein and as
hereinafter amended from time to time.
q. "Retirement" means retirement from active full-time employment with
the Company or any of its Affiliates at or after age sixty-four (64).
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<PAGE> 3
r. "Rule 16b-3" means Rule 16b-3, as promulgated by The Commission
under Section 16(b) of The Exchange Act, as amended from time to time.
s. "Stock" means common stock, par value $0.01 per share, of the
Company.
t. "Stock Option" or "Option" means an option granted under Section 5
of The Plan.
u. "Termination of Employment" means the termination of an Optionee's
employment with the Company or any of its Affiliates, excluding any
such termination where there is a simultaneous reemployment by the
Company or any of its Affiliates. An Optionee shall be deemed to have
terminated employment if he or she ceases to perform services for the
Company or any of its Affiliates on an active full-time basis,
notwithstanding the fact that such Optionee continues to receive
compensation or benefits pursuant to an employment contract or other
agreement or arrangement with the Company or any of its Affiliates. A
non-medical leave of absence shall, unless such leave of absence is
otherwise approved by The Committee, be deemed a Termination of
Employment. An Optionee employed by an Affiliate of the Company shall
also be deemed to incur a Termination of Employment if that Affiliate
ceases to be an Affiliate of the Company, as the case may be, and that
Optionee does not immediately thereafter become an employee of the
Company or any other Affiliate of the Company.
In addition, certain other terms have definitions given to them as they
are used herein.
2. Administration.
The Plan shall be administered by the Executive Officer Compensation &
Stock Option Committee of The Board or such other committee of The
Board, composed solely of not less than two Non-Employee Directors,
each of whom shall be appointed by and serve at the pleasure of The
Board. If at any time no such committee(s) shall be in office, the
functions of The Committee specified in The Plan shall be exercised by
The Board.
The Committee shall have all discretionary authority to administer the
Plan and to grant Stock Options pursuant to the terms of The Plan to
senior executives of the Company and any of its Affiliates.
Among other things, The Committee shall have the discretionary
authority, subject to the terms of The Plan:
a. to select the Eligible Persons to whom Stock Options may from time
to time be granted;
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<PAGE> 4
b. to determine the number of shares of Stock to be covered by each
Stock Option granted hereunder; and
c. to determine the terms and conditions of any Stock Option granted
hereunder including, but not limited to, the option price (subject to
Section 5a of The Plan) and any vesting condition, restriction or
limitation based on such factors as The Committee shall determine.
The Committee shall have the authority to adopt, alter and repeal such
administrative rules, guidelines and practices governing The Plan as it
shall, from time to time, deem advisable, to interpret the terms and
provisions of The Plan and any Stock Option issued under The Plan (and
any agreement relating thereto) and to otherwise supervise the
administration of The Plan.
The Committee may act only by a majority of its members then in office,
except that the members thereof may authorize any one or more of their
number or any officer of the Company to execute and deliver documents
on behalf of The Committee.
Any determination made by The Committee or pursuant to delegated
authority pursuant to the provisions of The Plan with respect to any
Stock Option shall be made in the sole discretion of The Committee or
such delegate at the time of the grant of the Stock Option or, unless
in contravention of any express term of The Plan, at any time
thereafter. All decisions made by The Committee or any appropriately
delegated officer pursuant to the provisions of The Plan shall be final
and binding on all persons, including the Company and Plan
participants, and shall be given the maximum deference permitted by
law.
3. Stock Subject to Plan.
Subject to adjustment as provided herein, the total number of shares of
Stock available for grant under The Plan shall be one million five
hundred thousand 1,500,000). No individual shall be eligible to receive
Stock Options to purchase more than 100,000 shares of Stock under The
Plan. Shares subject to a Stock Option under The Plan may be authorized
and unissued shares or may be treasury shares.
If any Stock Option terminates without being exercised, shares subject
to such Stock Option shall be available for further grants under The
Plan.
In the event of any merger, reorganization, consolidation,
recapitalization, stock dividend, stock split, or extraordinary
distribution with respect to the Stock or other change in corporate
structure affecting the Stock, The Committee or The Board may make such
substitution or adjustments in the number, kind and option price of
shares authorized or outstanding as Stock Options, and/or such other
equitable substitution or
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<PAGE> 5
adjustments as its may determine to be appropriate in its sole
discretion; provided, however, that the number of shares subject to any
Stock Option shall always be a whole number.
4. Eligibility.
Senior executives who are actively employed on a full-time basis by the
Company or any of its Affiliates, and who are responsible for or
contribute to the management, growth and profitability of the business
of the Company or any of Affiliates, are eligible to be granted Stock
Options under The Plan ("Eligible Persons").
5. Stock Options.
Any Stock Option granted under The Plan shall be in the form attached
hereto as Annex "A", which is incorporated herein and made a part of
The Plan, with such changes as The Committee may from time to time
approve which are consistent with The Plan. None of the Stock Options
granted under The Plan shall be "incentive stock options" within the
meaning of Section 422 of The Code.
The grant of a Stock Option shall occur on the date The Committee
selects a Senior Executive of the Company or any of its Affiliates to
receive any grant of a Stock Option, determines the number of shares of
Stock to be subject to such Stock Option to be granted to such Senior
Executive, and specifies the terms and provisions of said Stock Option.
Such selection shall be evidenced in the records of the Company whether
in the minutes of the meetings of The Committee or by their consent in
writing. The Company shall notify an Optionee of any grant of a Stock
Option, and a written option agreement or agreements shall be duly
executed and delivered by the Company to the Optionee.
Stock Options granted under The Plan shall be subject to the following
terms and conditions and shall contain such additional terms and
conditions as The Committee shall deem desirable:
a. Option Price. The option price per share of Stock purchasable under
a Stock Option shall be the greater of: (i) $20.00 per share, (ii) the
Fair Market Value per share of Stock on the grant date, or (iii) the
Fair Market Value per share of Stock on the date of Stockholder
approval of The Plan .
b. Option Term. The term of each Stock Option shall be ten (10) years
from its date of grant, unless earlier terminated.
c. Exercisability. Except as otherwise provided herein, each Stock
Option shall be exercisable during its term only if such Stock Option
has vested, and only after the first (1st) anniversary of its date of
grant.
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d. Vesting. Each Stock Option shall have assigned to it by The
Committee a vesting price (the "Vesting Price") which will be used to
provide for accelerated vesting so that such Stock Option will vest
immediately if, on or before the close of business on the fourth (4th)
anniversary of its date of grant, the Fair Market Value of the Common
Stock shall have been equal to or greater than the Vesting Price with
respect to such Stock Option for ten (10) trading days in any period of
thirty (30) consecutive trading days. Any Stock Option that has not
vested on or before the close of business on the fourth (4th)
anniversary of its date of grant shall vest at the close of business on
the business day immediately preceding the eighth (8th) anniversary of
its date of grant, if such Option has not previously terminated.
e. Method of Exercise. Subject to the provisions of this Section 5 of
The Plan, Stock Options may be exercised, in whole or in part, by
giving written notice of exercise to the Company specifying the number
of shares of Stock subject to the Stock Option to be purchased.
The option price of Stock to be purchased upon exercise of any Option
shall be paid in full:
(1) in cash (by certified or bank check or such other
instrument as the Company may accept),
(2) in the discretion of The Committee, in the form of
unrestricted Stock already owned by The Optionee for six (6)
months or more and based on the Fair Market Value of the Stock
on the date the Stock Option is exercised,
(3) in any other form approved in the discretion of The
Committee, or
(4) by any combination thereof.
In the discretion of The Committee, payment for any shares subject to a
Stock Option may also be made by delivering a properly executed
exercise notice to the Company, together with a copy of irrevocable
instructions to a broker to deliver promptly to the Company the amount
of sale or loan proceeds to pay the purchase price, and, if requested,
the amount of any federal, state, local or foreign withholding taxes.
To facilitate the foregoing, the Company may enter into agreements for
coordinated procedures with one or more brokerage firms.
No shares of Stock shall be issued until full payment therefor has been
made. The Optionee shall have all of the rights of a stockholder of the
Company holding the Stock that is subject to such Stock Option
(including, if applicable, the right to vote the share and the right to
receive dividends), only when The Optionee has given written notice of
exercise, has paid in full
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<PAGE> 7
for such shares and, if requested, has given the representation
described in Section 9a of The Plan.
f. Non-transferability of Stock Options. No Stock Option shall be
transferable by The Optionee other than:
(1) to a beneficiary designation satisfactory to The
Committee, or
(2) by will or by the laws of descent and distribution.
All Stock Options shall be exercisable, during The Optionee's lifetime,
only by The Optionee or by the guardian or legal representative of The
Optionee, it being understood that the terms "holder" and "Optionee"
include the guardian and legal representative of The Optionee named in
the option agreement and any person to whom an option is transferred by
will or the laws of descent and distribution or pursuant to a qualified
domestic relations order. The Committee may establish such procedures
as it deems appropriate for an Optionee to designate a beneficiary to
whom any amounts payable in the event of the Optionee's death are to be
paid or by whom any rights of the Optionee, after the Optionee's death,
may be exercised.
g. Termination by Death, Disability, Retirement or by the Company
Without Cause. If The Optionee's employment terminates by reason of
death, Disability or Retirement, or if such employment is terminated by
the Company without Cause, in each case prior to the vesting of a Stock
Option held by The Optionee, the following provisions shall apply:
(1) if termination occurs by death or Disability, or by the
Company without Cause, such Stock Options shall be exercisable
only within ninety (90) days of such termination, and only if
such Stock Options are then vested;
(2) if termination occurs by Retirement or other "voluntary
quit," such Stock Options shall terminate immediately; and
h. Termination by the Company for Cause. If The Optionee's employment
is terminated by the Company for Cause prior to the vesting of a Stock
Option, such Stock Options shall terminate immediately.
i. Termination After Vesting. If The Optionee's employment is
terminated for any reason after a Stock Option has vested, such Stock
Options shall be exercisable only within ninety (90) days of such
termination,
j. Change in Control Cash Out. Notwithstanding any other provision of
The Plan, upon the occurrence of a Change of Control
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<PAGE> 8
all outstanding Stock Options shall immediately vest and become fully
exercisable, and during the ninety (90) day period from and after such
Change in Control (the "Exercise Period"), The Optionee shall have the
right, in lieu of the payment of the exercise price for the shares of
Stock being purchased under the Stock Option and by giving notice to
the Company, to elect (within the Exercise Period) to surrender all or
part of the Stock Option to the Company and to receive cash, within
ninety (90) days of such notice, in an amount equal to the amount by
which the Change in Control Price per share of Stock on the date of
such election shall exceed the exercise price per share of Stock under
the Stock Option (the "Spread"), multiplied by the number of shares of
Stock granted under the Stock Option as to which the right granted
under this Section 5j of The Plan shall have been exercised.
Notwithstanding the foregoing, if any right granted pursuant
to this Section 5j of The Plan would make a Change in Control
transaction ineligible for pooling of interests accounting under APB
No. 16 than but for this Section 5j of The Plan would otherwise be
eligible for such accounting treatment, The Committee shall have the
authority to replace the cash payable pursuant to this Section 5j of
The Plan with Stock having a Fair Market Value equal to the cash that
would otherwise be payable hereunder. For purposes of this Section 5j
only, the date of grant of any Stock Option approved by The
Committee on December 17, 1996 shall be deemed to be the date
on which The Plan is approved by the Company's stockholders.
k. Initial Grants. On December 17, 1996, The Committee granted the
following Stock Options to the senior executives set forth below, in
the share amounts and at the Vesting Prices and exercise prices
indicated, subject to approval by the Stockholders of the Company on
March 18, 1997:
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<TABLE>
<CAPTION>
Optionees No. of Options Exercise Price Vesting Prices
--------- -------------- -------------- --------------
<S> <C> <C> <C>
William W. Steele, 25,000 $20.00 $25.00
President & CEO of the 25,000 20.00 30.00
Company 25,000 20.00 35.00
25,000 20.00 40.00
Martinn H. Mandles, 20,000 $20.00 $25.00
Executive Vice President of 20,000 20.00 30.00
the Company 20,000 20.00 35.00
20,000 20.00 40.00
Jess E. Benton, III 15,000 $20.00 $25.00
Senior Vice President of 15,000 20.00 30.00
the Company 15,000 20.00 35.00
15,000 20.00 40.00
John F. Egan 15,000 $20.00 $25.00
Vice President of the 15,000 20.00 30.00
Company & President of the 15,000 20.00 35.00
Janitorial Services Division 15,000 20.00 40.00
One (1) other 15,000 $20.00 $25.00
Senior Executive of 15,000 20.00 30.00
the Company 15,000 20.00 35.00
15,000 20.00 40.00
Sixteen (16) other 10,000 $20.00 $25.00
Senior Executives of 10,000 20.00 30.00
the Company and/or its 10,000 20.00 35.00
Affiliates (each) 10,000 20.00 40.00
All twenty-one (21) of 250,000 $20.00 $25.00
these Senior Executives of 250,000 20.00 30.00
the Company and/or its 250,000 20.00 35.00
Affiliates as a Group 250,000 20.00 40.00
</TABLE>
17
<PAGE> 10
for these and any other Options granted under The Plan, the Exercise
Price shall be the greater of: (i) $20.00 per share, (ii) the Fair
Market Value per share of Stock on the grant date of any such Options,
or (iii) the Fair Market Value per share of Stock on the date of
Stockholder approval of The Plan.
6. Change in Control Provisions.
a. Impact of Event. Notwithstanding any other provision of The Plan to
the contrary, in the event of a Change in Control, any Stock Options
outstanding as of the date such Change in Control is determined to have
occurred, and not then vested and exercisable, shall become vested and
exercisable to the full extent of the original grant, provided that
such accelerated vesting shall occur only if The Optionee is an active
full-time employee of the Company or any of its Affiliates as of such
date.
b. Definition of Change in Control. For purposes of The Plan, a "Change
in Control" shall mean the happening of any of the following events:
(1) An acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of The Exchange
Act) (a "Person") of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under The Exchange Act) of thirty
percent (30%) or more of either:
(a) the then outstanding shares of common stock of
the Company (the "Outstanding Company Common Stock"),
or
(b) the combined voting power of the then outstanding
voting securities of the Company entitled to vote
generally in the election of Directors (the
"Outstanding Company Voting Securities"),
(c) excluding, however, the following acquisitions of
Outstanding Company Common Stock and Outstanding
Company Voting Securities:
(i) any acquisition directly from the
Company (other than an acquisition pursuant
to the exercise of a conversion privilege),
(ii) any acquisition by the Company,
(iii) any acquisition by any employee
benefit plan (or related trust) sponsored or
maintained by the Company or any corporate
controlled by the Company or
(iv) any acquisition by any Person pursuant
to a reorganization, merger or consolidation
if,
18
<PAGE> 11
following such reorganization, merger or
consolidation, the conditions described in
Section 6b(3) of The Plan are satisfied; or
(2) Individuals who, as of the effective date of The Plan,
constitute The Board (the "Incumbent Board") cease for any
reason to constitute at least a majority of The Board;
provided, however, that any individual who becomes a member of
The Board subsequent to such effective date, whose election,
or nomination for election by the Company's shareholders, was
approved by:
(a) a vote of at least a majority of Directors then
comprising the Incumbent Board, or
*(b) a vote of at least a majority of the Directors
then constituting the Executive Committee of The
Board at a time when such Committee comprised at
least five members and all members of such Committee
were either members of the Incumbent Board of
considered as being members of the Incumbent Board,
pursuant to Section 6b(2)(a), shall be considered as
though such individual were a member of the Incumbent
Board; but, provided further, that any such
individual whose initial assumption of office occurs
as a result of either an actual or threatened
election contest (as such terms are used in Rule
14a-11 of Regulation 14A promulgated under The
Exchange Act) or other actual or threatened
solicitation of proxies or consents by or on behalf
of a Person other than The Board shall not be so
considered as a member of the incumbent Board; or
(3) Approval by the shareholders of the Company of a
reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of the
Company ("Business Combination"); excluding, however, such a
Business Combination pursuant to which:
(a) all or substantially all of the individuals and
entities who are the beneficial owners, respectively,
of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately
prior to such Business Combination own, directly or
indirectly, more than sixty percent (60%) of,
respectively, the outstanding shares of common stock,
and the combined voting power of the then outstanding
voting securities entitled to vote generally in the
election of directors, as the case may be, of the
corporation resulting from such Business Combination
(including, without limitation, a corporation which
as a result of such transaction owns the Company or
all or substantially all of the Company's assets
either
19
<PAGE> 12
directly or through one or more subsidiaries) in
substantially the same proportions as their
ownership, immediately prior to such Business
Combination, of the Outstanding Company Common Stock
and Outstanding Company Voting Securities, as the
case may be,
(b) no Person (other than the Company, any employee
benefit plan (or related trust) sponsored or
maintained by the Company or any corporation
controlled by the Company or such corporation
resulting from such Business Combination and any
Person beneficially owning, immediately prior to such
Business Combination, directly or indirectly, twenty
percent (20%) or more of the Outstanding Company
Common Stock or Outstanding Company Voting
Securities, as the case may be) will beneficially
own, directly or indirectly, twenty (20%) or more of,
respectively, the outstanding shares of common stock
of the corporation resulting from such Business
Combination or the combined voting power of the
outstanding voting securities of such corporation
entitled to vote generally in the election of
directors, and
(c) at least a majority of the members of the board
of directors of the corporation resulting from such
Business Combination were members of the Incumbent
Board at the time of the execution of the initial
agreement, or of the action of The Board, providing
for such Business Combination; or
(4) The approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company.
c. Change in Control Price. For purposes of The Plan, "Change in
Control Price" means the higher of:
(1) the highest reported sales price, regular way, of a share
of Stock in any transaction reported on the New York Stock
Exchange Composite Tape or other national securities exchange
on which such shares are listed or on NASDAQ, as applicable,
during the ninety (90) day period prior to and including the
date of a Change in Control, and or
(2) if the Change in Control is the result of a tender or
exchange offer or a Business Combination, the highest price
per share of Stock paid in such tender or exchange offer or
Business Combination; provided, however, that in the case of a
Stock Option which:
(a) is held by an Optionee who is an officer of the
Company and is subject to Section 16(b) of The
Exchange Act, and
20
<PAGE> 13
(b) was granted within two hundred and forty (240)
days of the Change in Control,
then the Change in Control Price for such Stock
Option shall be the Fair Market Value of the Stock on
the date such Stock Option is exercised or canceled.
To the extent that the consideration paid in any such
transaction described above consists all or in part
of securities or other non-cash consideration, the
value of such securities or other non-cash
consideration shall be determined in the sole
discretion of The Board.
7. Term, Amendment and Termination.
The Plan will terminate on December 17, 2006. Stock Options outstanding
as of December 17, 2006 shall not be affected or impaired by the
termination of The Plan.
The Committee shall have authority to amend The Plan without the
approval of the Company's stockholders to take into account changes in
law and tax and accounting rules, including Rule 16b-3 and Section
162(m) of The Code; provided that no amendment shall be made without
the Optionee's consent which would impair the rights of an Optionee
under a Stock Option theretofore granted without the Optionee's
consent.
8. Unfunded Status of Plan.
It is presently intended that The Plan constitute an "unfunded" plan
for incentive and deferred compensation. The Committee may authorize
the creation of trusts or other arrangements to meet the obligations
created under The Plan to deliver Stock or make payments; provided,
however, that, unless The Committee otherwise determines, the existence
of such trusts or other arrangements is consistent with the "unfunded"
status of The Plan.
9. General Provisions.
a. The Committee may require each person purchasing shares pursuant to
a Stock Option to represent to and agree with the Company in writing
that such person is acquiring the shares without a view to the
distribution thereof. The certificates for such shares may include any
legend which The Committee deems appropriate to reflect any
restrictions on transfer.
Notwithstanding any other provision of The Plan or agreements made
pursuant thereto, the Company shall not be required to issue or deliver
any certificate or certificates for shares of Stock under The Plan
prior to fulfillment of all of the following conditions:
(1) the listing or approval for listing
21
<PAGE> 14
(2) any registration or other qualification
(3) the obtaining of any other consent, approval, or permit
from any state or federal governmental agency which The
Committee shall, in its absolute discretion after receiving
the advice of counsel, determine to be necessary or advisable.
b. Nothing contained in The Plan shall prevent the Company or any of
its Affiliates from adopting other or additional compensation
arrangements for any Optionee.
c. The adoption of The Plan shall not confer upon any Optionee any
right to continued employment, nor shall it interfere in any way with
the right of the Company or any of its Affiliates to terminate the
employment of any Optionee with or without cause at any time whatsoever
absent a written employment contract to the contrary.
d. No later than the date as of which an amount first becomes
includable in the gross income of the Optionee for federal income tax
purposes with respect to any Stock Option under The Plan, and prior to
the delivery of any shares of Stock to any Optionee, the Optionee shall
pay to the Company, or make arrangements satisfactory to the Company
regarding the payment of, any federal, state, local or foreign taxes of
any kind required by law to be withheld by the Company with respect to
such amount. In the discretion of The Committee, withholding
obligations may be settled with Stock in an amount having a Fair Market
Value not exceeding the minimum withholding tax payable by the Optionee
with respect to the income recognized, including Stock that is subject
to the Stock Option that gives rise to the withholding requirement. The
obligations of the Company under The Plan shall be conditional on such
payment or arrangements, and the Company and any of its Affiliates
shall, to the extent permitted by law, have the right to deduct any
such taxes from any payment otherwise due to the Optionee. The
Committee shall establish such procedures as it deems appropriate,
including the making of irrevocable elections, for the settlement of
withholding obligations with Stock.
e. In the case of a grant of a Stock Option to any employee of a
Company Affiliate, the Company, may, if The Committee so directs, issue
or transfer the shares of Stock covered by the Stock Option to the
Affiliate, for such lawful consideration as The Committee may specify,
upon the condition or understanding that the Affiliate will transfer
the shares of Stock to that Optionee in accordance with the terms of
the Stock Option specified by The Committee pursuant to the provisions
of The Plan.
f. The Plan and all Stock Options made and actions taken thereunder
shall be governed by and construed in accordance with
22
<PAGE> 15
the laws of the State of California, without reference to principles of
conflict of law.
10. Effective Date of Plan.
Subject to approval by the Stockholders of the Company on March 18,
1997, The Plan shall be effective on December 17, 1996.
23
<PAGE> 16
ANNEX "A" TO ABM INDUSTRIES INCORPORATED
LONG-TERM SENIOR EXECUTIVE STOCK OPTION PLAN
ABM INDUSTRIES INCORPORATED
STOCK OPTION AGREEMENT
THIS AGREEMENT ("Agreement") dated as of the _____ day of
_____, between ABM Industries Incorporated, a Delaware corporation (the
"Company"), and __________________ (the "Optionee").
WITNESSETH:
The Company has adopted the ABM Industries Incorporated
Long-Term Senior Executive Stock Option Plan (the "Plan"). The Plan is made a
part hereof with the same effect as if set forth in this Agreement. All
capitalized terms that are used herein and not otherwise defined shall have the
meanings set forth in The Plan.
In consideration of the mutual promises and covenants made
herein and the mutual benefits to be derived here from, the parties hereto agree
as follows:
1. Grant of Options.
Subject to the provisions of this Agreement and to The Plan,
the Company hereby grants to the Optionee the right and option (the "Option") to
purchase:
a. __________ shares of common stock, par value $0.01 per share
("Common Stock"), of the Company at an exercise price of $________ per
share and a Vesting Price of $________ per share,
b. __________ shares of Common Stock at an exercise price of $________
per share and a Vesting Price of $________ per share,
c. __________ shares of Common Stock at an exercise price of $________
per share and a Vesting Price of $________ per share, and
d. __________ shares of Common Stock at an exercise price of $________
per share and a Vesting Price of $________ per share.
2. Exercisability of Options.
a. No unvested and/or expired Option may be exercised, and
b. any unexpired vested Option may be exercised in whole or in part at
the times and in the manner set forth in The Plan; provided, however,
that an unexpired vested Option may not be exercised:
(1) before the first (1st) anniversary of its date of grant,
24
<PAGE> 17
(2) at any one time as to fewer than 100 shares, or such
number of shares as to which such Option is then exercisable
if such number of shares is less than 100,
(3) on or after the tenth (10th) anniversary of its date of
grant.
3. Vesting of Options.
Each Option granted hereunder shall vest in the circumstances set forth
in The Plan or as set forth in this paragraph. During the four-year period
commencing on its date of grant, each Option granted hereunder shall vest at
such time as the Fair Market Value of the Common Stock shall have been equal to
or greater than the Vesting Price with respect to such Stock Option for ten (10)
trading days in any period of thirty (30) consecutive trading days. Any Stock
Option that has not has vested on or before the close of business on the fourth
(4th) anniversary of its date of grant shall vest at the close of business on
the eighth (8th) anniversary of its date of grant, if such Option has not
previously terminated.
4. No Right to Employment.
Nothing in this Agreement or The Plan shall confer upon the Optionee
any right to continue in the employ of the Company or any of its Affiliates, or
interfere in any way with the right of the Company or any such Affiliate to
terminate such employment with or without cause at any time whatsoever absent a
written employment contract to the contrary.
5. Effect of Certain Changes.
a. If there is any change in the number of issued shares of Common
Stock through the declaration of stock dividends, or through
recapitalization resulting in stock splits, or combinations or
exchanges of such shares, the number of Options granted pursuant to
this Agreement that have not been exercised or lapsed, and the price
per share of such Options shall be proportionately adjusted by The
Committee to reflect any increase or decrease in the number of shares
of Common Stock, provided, however, that any fractional shares
resulting from such adjustment shall be eliminated.
b. In the event of a change in the Common Stock of the Company as
presently constituted, which is limited to a change of all of its
authorized shares with a par value into the same number of shares with
a different par value or without par value, the shares resulting from
any such change shall be deemed to be a Common Stock within the meaning
of this Agreement and The Plan.
c. To the extent that the foregoing adjustments relate to stock or
securities of the Company, such adjustments shall be
25
<PAGE> 18
made by The Committee, whose determination in that respect shall be
final, binding and conclusive.
6. Payment of Transfer Taxes, Fees and Other Expenses.
The Company agrees to pay any and all original issue taxes and stock
transfer taxes that may be imposed on the issuance of shares acquired pursuant
to exercise of the Options, together with any and all other fees and expenses
necessarily incurred by the Company in connection therewith.
7. Taxes and Withholding.
a. No later than the date of exercise of any Options granted hereunder,
and prior to the delivery of any shares of Stock to any Optionee, the
Optionee shall pay to the Company or make arrangements satisfactory to
The Committee regarding payment of any federal, state or local taxes of
any kind required by law to be withheld upon the exercise of such
Options and the Company shall, to the extend permitted or required by
law, have the right to deduct from any payment of any kind otherwise
due to the Optionee, federal, state and local taxes of any kind
required by law to be withheld upon the exercise of such Options,
b. Optionee agrees that, in the event any governmental taxing authority
claims that any unpaid taxes, interest or penalties are due and owing
in connection with The Optionee's exercise of any Stock Options granted
under The Plan, The Optionee will be solely responsible to defend
and/or pay any such claim. Employee further agrees to indemnify and
hold The Company harmless from defending and/or paying any such claim,
including reasonable attorney's fees, in the event that any
governmental taxing authority seeks payment of any and all such unpaid
taxes, interest or penalties from the Company.
8. Notices.
Any notice to be given under the terms of this Agreement shall be in
writing and delivered to the Company at 50 Fremont Street, 26th Floor, San
Francisco, California, 94105, Attention: General Counsel, and to the Optionee at
the address set forth on the last page of this Agreement or at such other
address as either party may hereafter designate in writing to the other.
9. Effect of Agreement.
Except as otherwise provided hereunder, this Agreement shall be binding
upon and shall inure to the benefit of any successor(s) of the Company.
10. Laws Applicable to Construction.
26
<PAGE> 19
The Options have been granted, executed and delivered in the State of
California, and the interpretation, performance and enforcement of this
Agreement, shall be governed by the laws of the State of California, as applied
to contracts executed in and performed wholly within the State of California.
11. Interpretation.
In the event of any ambiguity in this Agreement, any term which is not
defined in this Agreement, or any matters as to which this Agreement is silent,
The Plan shall govern including, without limitation, the provisions thereof
pursuant to which The Committee has the power, among others, to:
a. interpret The Plan,
b. prescribe, amend and rescind rules and regulations relating to The
Plan, and
c. make all other determinations deemed necessary or advisable for the
administration of The Plan.
12. Headings.
The headings of paragraphs herein are included solely for convenience
of reference and shall not affect the meaning or interpretation of any of the
provisions of this Agreement.
13. Amendment.
This Agreement may not be modified, amended or waived in any manner
except by an instrument in writing signed by both parties hereto. The waiver by
either party of compliance with any provision of this Agreement shall not
operate or be construed as a waiver of any other provision of this Agreement, or
of any subsequent breach by such party of a provision of this Agreement.
27
<PAGE> 20
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed on its
behalf by a duly authorized officer and the Optionee has hereunto set his or her
hand.
for ABM INDUSTRIES INCORPORATED: for OPTIONEE:
By: _______________________________ _______________________________
(Print Name) (Print Name)
------------------------------- -------------------------------
(Signature) (Signature)
------------------------------- -------------------------------
(Title) (Street Address)
-------------------------------
(City, ST ZIP)
28
<PAGE> 1
EXHIBIT 5.1
March 23, 1998
ABM Industries, Inc.
50 Fremont Street, 26th Floor
San Francisco, CA 94105-2230
Re: ABM Industries Incorporated Registration Statement on Form
S-8/ Long-Term Senior Executive Stock Option Plan
Ladies and Gentlemen:
At your request, I am rendering this opinion in connection
with the proposed issuance pursuant to the ABM Industries Incorporated Long-Term
Senior Executive Stock Option Plan (the "Plan"), of up to 1,500,000 shares of
common stock, $0.01 par value ("Common Stock"), of ABM Industries Incorporated,
a Delaware corporation (the "Company").
I have examined instruments, documents, and records which I
deemed relevant and necessary for the basis of my opinion hereinafter expressed.
In such examination, I have assumed the following: (a) the authenticity of
original documents and the genuineness of all signatures; (b) the conformity to
the originals of all documents submitted to me as copies; and (c) the truth,
accuracy and completeness of the information, representations and warranties
contained in the records, documents, instruments and certificates I have
reviewed.
Based on such examination, I am of the opinion that the
1,500,000 shares of Common Stock to be issued by the Company pursuant to the
Plan are validly authorized shares of Common Stock and, when issued in
accordance with the provisions of the Plan, will be legally issued, fully paid
and nonassessable.
I hereby consent to the filing of this opinion as an exhibit
to this Registration Statement on Form S-8 and to the use of our name whenever
it appears in said Registration Statement. In giving such consent, I do not
consider that I am an "expert" within the meaning of such term as used in the
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission issued thereunder, with respect to any part
of the Registration Statement, including this opinion as an exhibit or
otherwise.
Very truly yours,
/s/ Harry H. Kahn
Harry H. Kahn
29
<PAGE> 1
EXHIBIT 23.1
Consent of Independent Certified Public Accountants
To the Stockholders and Board of Directors
ABM Industries Incorporated:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the Registration Statement
on Form S-8.
/s/ KPMG Peat Marwick LLP
San Francisco, California
March 25, 1998
30
<PAGE> 1
EXHIBIT 24.1
POWER OF ATTORNEY OF DIRECTORS
KNOW BY ALL PERSONS BY THESE PRESENT:
Each of the undersigned hereby constitutes and appoints Martinn H.
Mandles and Harry H. Kahn, and each of them with power to act alone, his true
and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in hi name, place and stead, in any and all
capacities, to sign a Registration Statement or Registration Statements on Form
S-8 relating to 1,500,000 shares of common stock issuable under the ABM
Industries Incorporated Long-Term Senior Executive Stock Option Plan and any and
all amendments of such Registration Statements, including post-effective
amendments, and to file the same, together with exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange commission,
granting unto such attorney-in-fact full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises hereof, as fully to all intents and purposes as he might do or could do
in person, thereby ratifying and confirming all that said attorney-in-fact or
his or her substitutes may lawfully do or cause to be done by virtue hereof.
Directors
<TABLE>
<S> <C> <C>
/s/ Maryellen B. Cattani
- -------------------------------
Maryellen B. Cattani Director March 25, 1998
/s/ John F. Egan
- -------------------------------
John F. Egan Director March 25, 1998
/s/ Luke S. Helms
- -------------------------------
Luke S. Helms Director March 25, 1998
/s/ Charles T. Horngren
- -------------------------------
Charles T. Horngren Director March 25, 1998
/s/ Henry L. Kotkins, Jr.
- -------------------------------
Henry L. Kotkins, Jr. Director March 25, 1998
/s/ Martinn H. Mandles
- -------------------------------
Martinn H. Mandles Director March 25, 1998
</TABLE>
31
<PAGE> 2
<TABLE>
<S> <C> <C>
/s/ Theodore Rosenberg
- -------------------------------
Theodore Rosenberg Director March 25, 1998
/s/ William W. Steele
- -------------------------------
William W. Steele Director March 23, 1998
/s/ William E. Walsh
- -------------------------------
William E. Walsh Director March 25, 1998
/s/ Linda Chavez
- -------------------------------
Linda Chavez Director March 26, 1998
</TABLE>
32
