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As filed with the Securities and Exchange Commission on April 22, 1999
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 registrant as specified in its charter)
Delaware 94-1369354
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
160 Pacific Avenue, Suite 222, San Francisco, California 94111
(Address of principal executive offices) (Zip Code)
ABM INDUSTRIES INCORPORATED EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Harry H. Kahn, Esq.
Vice President, General Counsel and Corporate Secretary
ABM Industries Incorporated
160 Pacific Avenue, Suite 222
San Francisco, California 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
Orrick, Herrington & Sutcliffe LLP
400 Sansome Street
San Francisco, California 94111
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered Per Share(1) Offering(1) Fee(1)
- ---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 1,200,000 shares $30.21875 $36,262,500.00 $10,081.00
value $.01 per
share(2)
=======================================================================================
</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 $30.21875 per share, the average of the high and low price of
the Common Stock on the New York Stock Exchange on April 20, 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 schedules 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 reports, also
incorporated herein by reference, of KPMG LLP, independent auditors, given on
their authority as experts in auditing and accounting.
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 other enterprises if serving at
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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.
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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 21st day of
April, 1999.
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
- --------------------------- President and April 21, 1999
William W. Steele Chief Executive Officer
Principal Financial Officer:
/s/ David H. Hebble
- --------------------------- Vice President April 21, 1999
David H. Hebble and Chief Financial Officer
Principal Accounting Officer:
/s/ Vernon E. Skelton
- --------------------------- Controller and April 21, 1999
Vernon E. Skelton Chief Accounting Officer
</TABLE>
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<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
Directors:
* Maryellen B. Cattani Director April 21, 1999
- ---------------------------
Maryellen B. Cattani
* Linda Chavez Director April 21, 1999
- ---------------------------
Linda Chavez
* John F. Egan Director April 21, 1999
- ---------------------------
John F. Egan
* Luke S. Helms Director April 21, 1999
- ---------------------------
Luke S. Helms
* Charles T. Horngren Director April 21, 1999
- ---------------------------
Charles T. Horngren
* Henry L. Kotkins, Jr. Director April 21, 1999
- ---------------------------
Henry L. Kotkins, Jr.
* Martinn H. Mandles Director April 21, 1999
- ---------------------------
Martinn H. Mandles
* Theodore Rosenberg Director April 21, 1999
- ---------------------------
Theodore Rosenberg
* William W. Steele Director April 21, 1999
- ---------------------------
William W. Steele
* William E. Walsh Director April 21, 1999
- ---------------------------
William E. Walsh
* By /s/ Harry H. Kahn
----------------------
Harry H. Kahn
Attorney-in-Fact
</TABLE>
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EXHIBIT INDEX
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.
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EXHIBIT 5.1
April 21, 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 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.
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 Form 10-K of ABM Industries
Incorporated dated January 27, 1999 and to the reference to our firm under the
heading "Experts" in the Form S-8.
/s/ KPMG LLP
San Francisco, California
April 19, 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 1985 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 15th day of December, 1998.
<TABLE>
<S> <C>
/s/ Maryellen Cattani /s/ Henry L. Kotkins, Jr.
- --------------------------------------- --------------------------------------
Maryellen Cattani Henry L. Kotkins, Jr.
/s/ Linda Chavez /s/ Martinn H. Mandles
- --------------------------------------- --------------------------------------
Linda Chavez Martinn H. Mandles
/s/ John F. Egan /s/ Theodore Rosenberg
- --------------------------------------- --------------------------------------
John F. Egan Theodore Rosenberg
/s/ Luke S. Helms /s/ William W. Steele
- --------------------------------------- --------------------------------------
Luke S. Helms William W. Steele
/s/ Charles T. Horngren /s/ William E. Walsh
- --------------------------------------- --------------------------------------
Charles T. Horngren William E. Walsh
</TABLE>
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