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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 13, 1999
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ABM INDUSTRIES INCORPORATED
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 94-1369354
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
160 PACIFIC AVENUE, SUITE 222
SAN FRANCISCO, CA 94111
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
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ABM INDUSTRIES INCORPORATED
EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLAN)
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HARRY H. KAHN, ESQ.
VICE PRESIDENT, GENERAL COUNSEL AND CORPORATE SECRETARY
ABM INDUSTRIES INCORPORATED
160 PACIFIC AVENUE, SUITE 222
SAN FRANCISCO, CA 94111
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(415) 733-4000
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPY TO:
LESLIE P. JAY, ESQ.
ORRICK, HERRINGTON & SUTCLIFFE LLP
OLD FEDERAL RESERVE BANK BUILDING
400 SANSOME STREET
SAN FRANCISCO, CALIFORNIA 94111-3143
(415) 392-1122
CALCULATION OF REGISTRATION FEE
<TABLE>
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AMOUNT PROPOSED PROPOSED AMOUNT OF
TITLE OF SECURITIES TO BE TO BE MAXIMUM OFFERING MAXIMUM AGGREGATE REGISTRATION
REGISTERED REGISTERED PRICE PER SHARE(1) OFFERING(1) FEE
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<S> <C> <C> <C> <C>
Common Stock,(2)
par value $.01 per share 1,200,000 shares $29.65650 $35,587,800 $9,894
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</TABLE>
(1) Pursuant to Rule 457(h)(1), the proposed maximum offering price per share
and the proposed maximum aggregate offering price have been calculated on
the basis of $29.65650 per share, the average of the high and low price of
the Common Stock on the New York Stock Exchange on May 12, 1999.
(2) Includes Preferred Stock Purchase Rights which, prior to the occurrence of
certain events, will not be exercisable or evidenced separately from the
Common Stock.
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PART II
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by ABM Industries Incorporated (the
"Company") with the Securities and Exchange Commission ("Commission") are
incorporated by reference to this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended October 31, 1998.
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
January 31, 1999.
(c) The description of the Company's common stock and preferred stock
purchase rights contained in registration statements filed under
the Securities Exchange Act of 1934 (the "Exchange Act") on Form
8-A, including any subsequent amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which 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.
The consolidated financial statements and financial statement schedule
of the Company and its subsidiaries included in or incorporated by reference in
the Company's Annual Report on Form 10-K for the fiscal year ended October 31,
1998 have been incorporated herein by reference in reliance upon the report,
also incorporated herein by reference, of KPMG LLP, independent auditors, and
upon the authority of said firm as experts in auditing and accounting.
This Registration statement includes an offer to plan participants to
purchase a certain number of shares offered under the plan.
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 certain cases. Indemnification shall be
provided to directors and officers of the Company, or of
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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. Similar indemnification shall not be applicable to
employees or agents of the Company, or of other enterprises if serving at the
request of the Company (other than employees or agents who are also officers or
directors of the Company or other enterprise, as the case may be), unless and
until such indemnity is specifically approved by the Board of Directors.
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 Indemnification
Agreements 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
is 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. The Indemnification Agreements discussed in the
preceding paragraph provide indemnification of all such exclusions and
deductibles.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
ITEM 8. EXHIBITS
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP is included in Exhibit 5.1.
24.1 Power of Attorney.
99.1 Amendment No. 1 to the Employee Stock Purchase Plan
99.2 Amendment No. 2 to the Employee Stock Purchase Plan
99.3 Amendment No. 3 to the Employee Stock Purchase Plan
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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 (the "Securities Act");
(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
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 Exchange Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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 each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act 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 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 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 Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
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 13th day of
May, 1999.
ABM INDUSTRIES INCORPORATED
(Registrant)
/s/ WILLIAM W. STEELE
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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.
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Signature Title Date
<S> <C> <C>
Principal Executive Officer:
/s/ WILLIAM W. STEELE President and May 13, 1999
- --------------------------------- Chief Executive Officer
William W. Steele
Principal Financial Officer:
/s/ DAVID H. HEBBLE Vice President May 13, 1999
- --------------------------------- and Chief Financial Officer
David H. Hebble
Principal Accounting Officer:
/s/ VERNON E. SKELTON Controller and May 13, 1999
- --------------------------------- Chief Accounting Officer
Vernon E. Skelton
</TABLE>
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<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
Directors:
* Maryellen B. Cattani
- ----------------------------------- Director May 13, 1999
Maryellen B. Cattani
* Linda Chavez
- ----------------------------------- Director May 13, 1999
Linda Chavez
* John F. Egan
- ----------------------------------- Director May 13, 1999
John F. Egan
* Luke S. Helms
- ----------------------------------- Director May 13, 1999
Luke S. Helms
- ----------------------------------- Director May __, 1999
Charles T. Horngren
* Henry L. Kotkins, Jr.
- ----------------------------------- Director May 13, 1999
Henry L. Kotkins, Jr.
- ----------------------------------- Director May __, 1999
Martinn H. Mandles
* Theodore Rosenberg
- ----------------------------------- Director May 13, 1999
Theodore Rosenberg
* William W. Steele
- ----------------------------------- Director May 13, 1999
William W. Steele
* William E. Walsh
- ----------------------------------- Director May 13, 1999
William E. Walsh
* By /s/ Harry H. Kahn
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Harry H. Kahn
Attorney-in-Fact
</TABLE>
A majority of the members of the Board of Directors,
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EXHIBIT INDEX
<TABLE>
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5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP is included in Exhibit 5.1.
24.1 Power of Attorney.
99.1 Amendment No. 3 to the Employee Stock Purchase Plan.
99.2 Amendment No. 2 to the Employee Stock Purchase Plan.
99.3 Amendment No. 3 to the Employee Stock Purchase Plan.
</TABLE>
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EXHIBIT 5.1
May 13, 1999
ABM Industries Incorporated
160 Pacific Avenue, Suite 222
San Francisco, California 94111
Re: ABM Industries Incorporated Registration Statement
on Form S-8/Employee Stock Purchase Plan
Ladies and Gentlemen:
At your request, we are rendering this opinion in connection with the
proposed issuance pursuant to the ABM Industries Incorporated Employee Stock
Purchase Plan (the "Plan"), of up to 1,200,000 shares of common stock, $0.01 par
value ("Common Stock"), of ABM Industries Incorporated, a Delaware corporation
(the "Company").
We have examined instruments, documents, and records which we deemed
relevant and necessary for the basis of our opinion hereinafter expressed. In
such examination, we 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 we have
reviewed.
Based on such examination, we are of the opinion that the 1,200,000
shares of Common Stock issuable by the Company pursuant to the Plan are duly
authorized shares of Common Stock and are or will be, when issued in accordance
with the provisions of the Plan, validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to this
Registration Statement on Form S-8. In giving such consent, we do not consider
that we are 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/ ORRICK, HERRINGTON & SUTCLIFFE LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
ABM Industries Incorporated
We consent to the incorporation by reference in the registration statement on
Form S-8 of ABM Industries Incorporated of our report dated December 14, 1998,
with respect to the consolidated balance sheets of ABM Industries Incorporated
and subsidiaries as of October 31, 1997 and 1998, and the related consolidated
statements of income, stockholders' equity, and cash flows for each of the years
in the three-year period ended October 31, 1998 and the related financial
statement schedule II, which report appears in the 1998 Annual Report on Form
10-K of ABM Industries Incorporated dated January 27, 1999 and to the reference
to our firm under Item 3 "Incorporation of Certain Documents by Reference" in
Part II of Form S-8.
/s/ KPMG LLP
San Francisco, California
May 12, 1999
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EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
The undersigned hereby constitutes and appoints HARRY KAHN and LORRAINE
O'HARA, and each of them with power to act alone, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign (either manually or electronically through the EDGAR System
of the United States Securities and Exchange Commission) a Registration
Statement or Registration Statements on Form S-8 related to shares of common
stock of ABM Industries Incorporated issuable under the ABM Industries
Incorporated Employee Stock Purchase 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 each 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 as to all intents and purposes as he or she might do or could do in
person, hereby ratifying and confirming all that each such attorney-in-fact or
his or her substitutes may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned directors have executed this Power
of Attorney effective as of the 13th day of May, 1999.
/s/ Maryellen Cattani /s/ Henry L. Kotkins, Jr.
___________________________________ ___________________________________
Maryellen Cattani Henry L. Kotkins, Jr.
/s/ Linda Chavez
___________________________________ ___________________________________
Linda Chavez Martinn H. Mandles
/s/ John F. Egan /s/ Theodore Rosenberg
___________________________________ ___________________________________
John F. Egan Theodore Rosenberg
/s/ Luke S. Helms
___________________________________ ___________________________________
Luke S. Helms William W. Steele
/s/ William E. Walsh
___________________________________ ___________________________________
Charles T. Horngren William E. Walsh
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