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<SEC-DOCUMENT>0000950149-01-501984.txt : 20020413
<SEC-HEADER>0000950149-01-501984.hdr.sgml : 20020413
ACCESSION NUMBER: 0000950149-01-501984
CONFORMED SUBMISSION TYPE: 10-K
PUBLIC DOCUMENT COUNT: 10
CONFORMED PERIOD OF REPORT: 20011031
FILED AS OF DATE: 20011224
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: ABM INDUSTRIES INC /DE/
CENTRAL INDEX KEY: 0000771497
STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-TO DWELLINGS & OTHER BUILDINGS [7340]
IRS NUMBER: 941369354
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1031
FILING VALUES:
FORM TYPE: 10-K
SEC ACT: 1934 Act
SEC FILE NUMBER: 001-08929
FILM NUMBER: 1822216
BUSINESS ADDRESS:
STREET 1: 160 PACIFIC AVENUE
STREET 2: SUITE 222
CITY: SAN FRANCISCO
STATE: CA
ZIP: 94111
BUSINESS PHONE: 4157334000
MAIL ADDRESS:
STREET 1: 160 PACIFIC AVENUE
STREET 2: SUITE 222
CITY: SAN FRANCISCO
STATE: CA
ZIP: 94111
FORMER COMPANY:
FORMER CONFORMED NAME: ABM INDUSTRIES INC
DATE OF NAME CHANGE: 19950110
FORMER COMPANY:
FORMER CONFORMED NAME: AMERICAN BUILDING MAINTENANCE INDUSTRIES INC
DATE OF NAME CHANGE: 19920703
</SEC-HEADER>
<DOCUMENT>
<TYPE>10-K
<SEQUENCE>1
<FILENAME>f77849e10-k.txt
<DESCRIPTION>FORM 10-K FOR THE YEAR ENDED 10/31/2001
<TEXT>
<PAGE>
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED OCTOBER 31, 2001
OR [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the Transition Period from ________ to ________
Commission File Number 1-8929
ABM INDUSTRIES INCORPORATED
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 94-1369354
(State or other jurisdiction of incorporation or organization) (IRS Employer Identification Number)
</TABLE>
160 PACIFIC AVENUE, SUITE 222, SAN FRANCISCO, CALIFORNIA 94111
(Address and zip code of principal executive offices)
TELEPHONE: 415/733-4000
Securities registered pursuant to Section 12(b) of the Act:
<TABLE>
<S> <C>
Title of Each Class Name of Each Exchange on Which Registered
COMMON STOCK, $.01 PAR VALUE NEW YORK STOCK EXCHANGE
PREFERRED STOCK PURCHASE RIGHTS NEW YORK STOCK EXCHANGE
</TABLE>
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
As of November 30, 2001, nonaffiliates of the registrant beneficially owned
19,416,422 shares of the registrant's common stock with an aggregate market
value of $586,375,944.
As of November 30, 2001, there were 24,444,266 shares of the registrant's common
stock outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Proxy Statement to be used by the Company in connection with its
2002 Annual Meeting of Stockholders are incorporated by reference into Part III
of this Form 10-K.
<PAGE>
ABM INDUSTRIES INCORPORATED
FORM 10-K
FOR THE FISCAL YEAR ENDED OCTOBER 31, 2001
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PART I
Item 1 Business.......................................................................... 3
Executive Officers of the Company................................................. 6
Item 2 Properties........................................................................ 7
Item 3 Legal Proceedings................................................................. 7
Item 4 Submission of Matters to a Vote of Security Holders............................... 7
PART II
Item 5 Market for Registrant's Common Equity and Related Stockholder Matters............. 7
Item 6 Selected Consolidated Financial Data.............................................. 8
Item 7 Management's Discussion and Analysis of Financial Condition and Results of
Operations........................................................................ 9
Item 7A Qualitative and Quantitative Disclosures About Market Risk........................ 15
Item 8 Financial Statements and Financial Statement Schedule............................. 15
Item 9 Changes in and Disagreements with Accountants on Accounting and Financial
Disclosure........................................................................ 33
PART III
Item 10 Directors and Executive Officers of the Registrant................................ 33
Item 11 Executive Compensation............................................................ 33
Item 12 Security Ownership of Certain Beneficial Owners and Management.................... 33
Item 13 Certain Relationships and Related Transactions.................................... 33
PART IV
Item 14 Exhibits, Consolidated Financial Statement Schedules, and Reports on Form 8-K..... 33
Signatures........................................................................ 35
Exhibit Index..................................................................... 36
</TABLE>
<PAGE>
PART I
ITEM 1. BUSINESS
ABM Industries Incorporated ("ABM") is the largest facility services
contractor listed on the New York Stock Exchange. With annual revenues exceeding
$1.9 billion and more than 60,000 employees, ABM and its subsidiaries (the
"Company") provide air conditioning, elevator, engineering, janitorial,
lighting, parking and security services to thousands of commercial, industrial
and institutional customers in hundreds of cities across North America.
ABM was reincorporated in Delaware on March 19, 1985, as the successor to
a business founded in California in 1909. The Corporate Headquarters of the
Company are located at 160 Pacific Avenue, Suite 222, San Francisco, California
94111, and its telephone number is 415/733-4000.
INDUSTRY INFORMATION
The Company's operations are grouped into eight divisions (comprised of
one or more subsidiaries of the Company), as they existed at October 31, 2001.
Referred to as "ABM Industries Incorporated Family of Services", they are listed
below by their respective division name:
- ABM Engineering Services
- ABM Janitorial Services
- ABM Service Network
- American Commercial Security Services
- Ampco System Parking
- Amtech Elevator Services
- Amtech Lighting Services
- CommAir Mechanical Services
Additional information relating to the Company's industry segments
appears in Note 13 of Notes to Consolidated Financial Statements contained in
Item 8, "Financial Statements and Financial Statement Schedule." The business
activities of the Company's industry segments, as they existed at October 31,
2001, are more fully described below.
- ABM ENGINEERING SERVICES provides building owners and managers with
on-site engineers to operate, maintain and repair electrical, energy management,
mechanical, and plumbing systems utilizing computerized maintenance management
systems ("CMMS"). This service is primarily for high-rise office buildings, but
customers also include schools, warehouses, factories, shopping malls and
universities. ABM Engineering Services operates in 21 states through ten
regional offices, three of which are in California and one each in Arizona,
Colorado, Florida, Illinois, Pennsylvania, New York and Texas. In 1999, this
Division earned ISO 9002 Certification, the first national engineering services
provider of on-site operating engineers to earn this exclusive designation. ISO
is a quality standard comprised of a rigorous set of guidelines and good
business practices against which companies are rated through a comprehensive
independent audit process that can take several years.
- ABM JANITORIAL SERVICES (also known as "American Building Maintenance")
provides a wide range of basic janitorial services for a variety of structures
and organizations, including office buildings, industrial plants, banks,
department stores, theaters, warehouses, educational and health institutions and
airport terminals. Services provided include floor cleaning and finishing, wall
and window washing, furniture polishing, rug cleaning, dusting, as well as other
building cleaning services. ABM Janitorial Services maintains 99 offices in 35
states, the District of Columbia and one Canadian province, and operates under
thousands of individually negotiated building maintenance contracts, the
majority of which are obtained by competitive bidding. Generally, profit margins
on maintenance contracts tend to be inversely proportional to the size of the
contract. Although many of this Division's maintenance contracts are fixed-price
agreements, others contain clauses under which the customer agrees to reimburse
the full amount of wages, payroll taxes, insurance charges and other expenses
plus a profit percentage. The majority of ABM Janitorial Services contracts are
for one-year periods, contain automatic renewal clauses and are subject to
termination by either party by a 30 to 90 day written notice.
3
<PAGE>
- ABM SERVICE NETWORK (also known as "ABM Facility Services") provides
customers with streamlined, centralized control and coordination of multiple
facility service needs. This process is consistent with the greater competitive
demands on corporate organizations to become more efficient in the business
market today. By leveraging the core competencies of the Company's other
divisions, this Division attempts to reduce overhead, such as redundant
personnel, for its customers by providing multiple services under a single
contract, with one contact and one invoice. Its National Service Center provides
centralized dispatching, emergency services, accounting and related reports to
financial institutions, high-tech companies, and other customers regardless of
industry or size. ABM Service Network is headquartered in San Francisco, where
it also maintains its National Service Center.
- AMERICAN COMMERCIAL SECURITY SERVICES (also known as "ACSS" and "ABM
Security Services") provides security guards, electric monitoring of fire, life,
safety, and access control devices, and security consulting services to a wide
range of businesses in the major metropolitan areas of Phoenix, Arizona; San
Francisco, San Diego and Los Angeles, California; Chicago, Illinois; New
Orleans, Louisiana; Minneapolis, Minnesota; Portland, Oregon; Houston, Dallas,
Fort Worth, Austin and San Antonio, Texas; Seattle, Washington; and Salt Lake
City, Utah. Much like ABM Janitorial Services, the majority of this Division's
contracts are for one-year periods, contain automatic renewal clauses and are
subject to termination by either party by a 30 to 90 day written notice.
- AMPCO SYSTEM PARKING (also known as "Ampco System Airport Parking" and
"Ampco Express Airport Parking") operates approximately 1,600 parking lots and
garages, which are either leased from or operated through management contracts
for third parties. The lease terms generally range from 5 to 20 years and
usually contain provisions for renewal options. Leases which expire may continue
on a month-to-month basis or may be replaced by similar leases. Many leases
contain provisions for contingent rentals based on revenues. Ampco System
Parking currently operates in 26 states and the following airports: Austin,
Texas; Denver, Colorado; Detroit, Michigan; Honolulu, Hawaii; and San Francisco,
California, to name a few. In conjunction with its on-airport parking services,
this Division also operates off-airport parking facilities in Philadelphia,
Pennsylvania; Houston, Texas; Los Angeles and San Diego, California, and parking
shuttle bus services at thirteen locations.
- AMTECH ELEVATOR SERVICES maintains, modernizes and repairs elevators
and escalators in major metropolitan areas of California; Houston, Texas;
Cincinnati, Ohio; Detroit, Michigan; Upper Marlboro, Maryland; Las Vegas,
Nevada; Pennsauken, New Jersey; Atlanta, Georgia; Philadelphia, Pennsylvania;
Phoenix, Arizona; Denver, Colorado; Chicago, Illinois; and Washington, D.C.
Amtech Elevator Services maintains 18 offices and several parts warehouses, and
operates a fleet of radio-equipped service vehicles.
- AMTECH LIGHTING SERVICES provides relamping, fixture cleaning, and
periodic lighting maintenance service to a variety of commercial, retail, and
industrial customers. Amtech Lighting Services also maintains electrical outdoor
signage and provides electrical service and repairs for their customer base.
This Division maintains 28 offices, eight of which are located in California,
four are in Texas, two in North Carolina; and one office in each of the
following states: Alabama, Arizona, Florida, Georgia, Illinois, Louisiana,
Maryland, Minnesota, Nevada, New Jersey, New York, Oklahoma, Oregon, and
Washington.
- COMMAIR MECHANICAL SERVICES (also known as "CommAir Preferred
Mechanical Services") installs, maintains, and repairs heating, ventilation and
air conditioning equipment, performs chemical water treatment, and provides
energy conservation services for commercial, industrial and institutional
facilities. CommAir Mechanical Services maintains nine offices, eight of which
are located in California, and one in Phoenix, Arizona.
Effective April 30, 2001, the Company sold its Easterday Janitorial
Supply Division, which in fiscal 2000 had annual revenues of $43.9 million, of
which 27% were intercompany sales. Additional information regarding this
transaction appears in Note 10 of Notes to Consolidated Financial Statements
contained in Item 8, "Financial Statements and Financial Statement Schedule."
The effect on revenues and operations of the September 11 terrorist
attacks is described in Part II, Item 7, "Management's Discussion and Analysis
of Financial Condition and Results of Operations."
4
<PAGE>
TRADEMARKS
The Company believes that it owns or is licensed to use all corporate
names, trade names, trademarks, service marks, copyrights, patents and trade
secrets which are material to the Company's operations.
COMPETITION
The Company believes that each aspect of its business is highly
competitive, and that such competition is based primarily on price and quality
of service. Nearly all services provided by the Company are under contracts
originally obtained through competitive bidding. The Company's competitors
include a large number of regional and local companies located in major cities
throughout the United States and Canada. While the majority of the Company's
competitors operate in a limited geographic area, the operating divisions of a
few large, diversified facility service companies compete with the Company on a
national basis.
SALES AND MARKETING
The Company's sales and marketing efforts are conducted by its corporate,
division, region, branch and district offices. Sales, marketing, management and
operations personnel in each of these offices participate directly in selling
and servicing customers. The broad geographic scope of these offices enables the
Company to provide a full range of facility services through intercompany sales
referrals, multi-service "bundled" sales and national account sales. The Company
also has designated a nationwide group of "ABM Family of Services" executives to
market all of the Company's facility services capabilities.
The Company has a broad customer base including airports, apartment
complexes, city centers, colleges and universities, financial institutions,
industrial plants, office buildings, retail stores, shopping centers and theme
parks. No customer accounted for more than 5% of its revenues during the fiscal
year ended October 31, 2001.
EMPLOYEES
The Company employs over 60,000 persons, of whom the vast majority are
service employees who perform air conditioning, elevator, engineering,
janitorial, lighting, parking and security services. Approximately 24,900 of
these employees are covered under collective bargaining agreements. There are
about 3,600 employees with executive, managerial, supervisory, administrative,
professional, sales, marketing or clerical responsibilities or other office
assignments.
ENVIRONMENTAL MATTERS
The nature of the Company's operations, primarily services, would not
ordinarily involve it in environmental contamination. However, the Company's
operations are subject to various federal, state and/or local laws regulating
the discharge of materials into the environment or otherwise relating to the
protection of the environment, such as discharge into soil, water and air, and
the generation, handling, storage, transportation and disposal of waste and
hazardous substances. These laws generally have the effect of increasing costs
and potential liabilities associated with the conduct of the Company's
operations, although historically they have not had a material adverse effect on
the Company's financial position, cash flows, or results of operations.
The Company is currently involved in three proceedings relating to
environmental matters: one involving alleged potential soil and groundwater
contamination at a Company facility in Florida; one involving alleged potential
soil contamination at a former Company facility in Arizona; and one involving
alleged potential soil and groundwater contamination at a former dry-cleaning
facility leased by the Company in Nevada. While it is difficult to predict the
ultimate outcome of these matters, based on information currently available,
management believes that none of these matters, individually or in the
aggregate, are reasonably likely to have a material adverse effect on the
Company's financial position, cash flows, or results of operations. As any
liability related to these claims is neither probable nor estimable, no accruals
have been made related to these matters.
5
<PAGE>
EXECUTIVE OFFICERS OF ABM
The executive officers of ABM as of October 31, 2001 were as follows:
<TABLE>
<CAPTION>
NAME AGE PRINCIPAL OCCUPATIONS AND BUSINESS EXPERIENCE DURING PAST FIVE YEARS
- ------------------------------------------------------------------------------------------------
<S> <C> <C>
Henrik C. Slipsager 46 President & Chief Executive Officer since November 2000; Executive
Vice President of ABM, and President of the Janitorial Services
Division, from November 1999 through October 2000; Senior Vice
President of ABM from March 1998 through October 1999; Executive
Vice President of the Janitorial Services Division from January 1997
through October 1999
Martinn H. Mandles 61 Chairman of the Board since December 1997; Chief Administrative
Officer since November 1991; Executive Vice President from November
1991 through November 1997
Jess E. Benton III 61 Chief Operating Officer since November 2000; Executive Vice
President since November 1999; Senior Vice President from July 1994
through October 1999
Donna M. Dell 53 Senior Vice President of Human Resources since November 1999; Chief
Employment Counsel since April 1997; Vice President of Human
Resources from July 1994 through October 1999
Harry H. Kahn 58 Senior Vice President since November 1999; General Counsel &
Corporate Secretary since November 1991; Vice President from
November 1991 through October 1999
George B. Sundby 50 Senior Vice President & Chief Financial Officer since
June 2001; Senior Vice President & Chief Financial
Officer of Transamerica Finance Corporation from
September 1999 through March 2001; also served as
Vice President of Financial Planning and Analysis of
Transamerica Corporation from January 1995 through
March 2001
Gary R. Wallace 50 Senior Vice President, Director of Business Development & Chief
Marketing Officer of ABM since November 2000; Senior Vice President
of the Janitorial Services Division from September 1995 through
October 2000
Maria de la Pena 42 Vice President & Controller since July 2001; Controller of Vectiv
Corporation from March 2001 through June 2001; Assistant Controller
of Transamerica Finance Corporation from December 1999 through March
2001; Director of Accounting of Transamerica Corporation from
December 1997 through November 1999; Accounting Manager of
Transamerica Corporation from March 1994 through November 1997
Anthony D. Lackey 38 Vice President since November 1999; Director of Electronic Services
& Chief Technology Officer since July 1996; Assistant Vice President
from July 1996 through October 1999
Terry D. McNeil 54 Vice President since November 1999; Director of Insurance Services
since October 1988; Assistant Vice President from July 1996 through
October 1999
Eleonora C. Walsh 61 Vice President since November 1999; Director of Administrative
Services since November 1991; Assistant Vice President from July
1996 through October 1999
</TABLE>
6
<PAGE>
ITEM 2. PROPERTIES
The Company has corporate, division, regional, branch, or district
offices in over 250 locations throughout the United States, and Canada. Thirteen
of these facilities are owned by the Company and the remainder are leased. At
October 31, 2001, the real estate owned by the Company had an aggregate net book
value of $3.6 million and was located in: Phoenix, Arizona; Fresno, California;
Jacksonville and Tampa, Florida; Portland, Oregon; Arlington, Houston and San
Antonio, Texas; and Kennewick, Seattle, Spokane and Tacoma, Washington.
Rental payments under long and short-term lease agreements amounted to
$103.3 million for the fiscal year ended October 31, 2001. Of this amount, $69.7
million in rental expense was attributable to public parking lots and garages
that Ampco System Parking leases and operates. The remaining expense was for the
rental or lease of office space, computers, operating equipment and motor
vehicles.
ITEM 3. LEGAL PROCEEDINGS
Not applicable.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
Not applicable.
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER
MATTERS
MARKET INFORMATION AND DIVIDENDS
ABM's common stock is listed on the New York Stock Exchange. ABM's credit
agreement places certain limitations on dividend payments based on net income
(see Note 4 of Notes to Consolidated Financial Statements contained in Item 8).
The following table sets forth the high and low prices of ABM's common stock and
quarterly cash dividends on common shares for the periods indicated:
<TABLE>
<CAPTION>
FISCAL QUARTER
------------------------------------------------------
FIRST SECOND THIRD FOURTH YEAR
--------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
2001
Price range of common stock:
High $ 32.13 $ 33.00 $ 38.20 $ 37.65 $ 38.20
Low $ 27.56 $ 28.46 $ 30.72 $ 24.96 $ 24.96
Dividends per share $ 0.165 $ 0.165 $ 0.165 $ 0.165 $ 0.66
2000
Price range of common stock:
High $ 23.88 $ 28.00 $ 26.19 $ 28.00 $ 28.00
Low $ 19.25 $ 20.25 $ 21.75 $ 23.94 $ 19.25
Dividends per share $ 0.155 $ 0.155 $ 0.155 $ 0.155 $ 0.62
</TABLE>
At November 30, 2001, there were approximately 4,735 registered holders
of ABM's common stock, in addition to stockholders in street name.
7
<PAGE>
ITEM 6. SELECTED CONSOLIDATED FINANCIAL DATA
The selected consolidated financial data presented below is derived from
the Company's consolidated financial statements for each of the years in the
five-year period ended October 31, 2001.
<TABLE>
<CAPTION>
(in thousands, except per share amounts and ratios) 2001 2000 1999 1998 1997
---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
OPERATIONS
Revenues and other income $1,950,038 $1,807,557 $1,629,716 $1,501,827 $1,252,472
---------- ---------- ---------- ---------- ----------
Expenses
Operating expenses and cost of goods sold 1,722,334 1,573,998 1,413,541 1,298,423 1,076,078
Selling, general and administrative 172,157 157,546 146,984 142,431 126,755
Interest 2,602 3,320 1,959 3,465 2,675
---------- ---------- ---------- ---------- ----------
Total expenses 1,897,093 1,734,864 1,562,484 1,444,319 1,205,508
---------- ---------- ---------- ---------- ----------
Income before income taxes 52,945 72,693 67,232 57,508 46,964
Income taxes 20,119 28,350 27,565 23,578 19,725
---------- ---------- ---------- ---------- ----------
Net income $ 32,826 $ 44,343 $ 39,667 $ 33,930 $ 27,239
========== ========== ========== ========== ==========
Net income per common share
Basic $ 1.36 $ 1.94 $ 1.77 $ 1.58 $ 1.33
Diluted $ 1.30 $ 1.85 $ 1.65 $ 1.44 $ 1.22
========== ========== ========== ========== ==========
Common and common equivalent shares
Basic 23,799 22,551 22,067 21,110 20,143
Diluted 25,010 23,709 23,748 23,161 21,872
========== ========== ========== ========== ==========
FINANCIAL STATISTICS
Dividends paid per common share $ 0.66 $ 0.62 $ 0.56 $ 0.48 $ 0.40
Stockholders' equity $ 361,177 $ 316,309 $ 276,951 $ 236,838 $ 197,278
Common shares outstanding at October 31 24,389 22,999 22,407 21,601 20,464
Stockholders' equity per common share $ 14.81 $ 13.75 $ 12.36 $ 10.96 $ 9.64
Working capital $ 229,542 $ 224,199 $ 184,279 $ 165,788 $ 137,223
Current ratio 1.97 2.05 2.01 2.05 1.89
Long-term debt (less current portion) $ 942 $ 36,811 $ 28,903 $ 33,720 $ 38,402
Redeemable cumulative preferred stock $ -- $ 6,400 $ 6,400 $ 6,400 $ 6,400
Total assets $ 683,100 $ 641,985 $ 563,384 $ 501,363 $ 464,251
Property, plant and equipment--net $ 42,936 $ 40,734 $ 35,181 $ 27,307 $ 26,584
Capital expenditures $ 16,922 $ 18,717 $ 19,451 $ 11,715 $ 13,272
Depreciation and amortization $ 26,328 $ 23,524 $ 20,698 $ 19,593 $ 16,118
Trade accounts receivable--net $ 367,201 $ 353,017 $ 290,920 $ 255,758 $ 226,093
========== ========== ========== ========== ==========
</TABLE>
Stockholders' equity per common share is calculated by dividing
stockholders' equity at the end of the fiscal year by the number of shares of
common stock outstanding at that date. The Company believes that stockholders'
equity per common share is a standard measure commonly reported and widely used
by analysts, investors and other interested persons. However, stockholders'
equity per common share as presented in this report may not be comparable to
similarly titled measures reported by other companies.
8
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
FINANCIAL CONDITION
The following discussion should be read in conjunction with the
consolidated financial statements of the Company and the notes thereto contained
in Item 8, "Financial Statements and Financial Statement Schedule." All
information in the discussion and references to the years are based on the
Company's fiscal year that ends on October 31.
Funds provided from operations and bank borrowings have historically been
the sources for meeting working capital requirements, financing capital
expenditures and acquisitions, and paying cash dividends. Management believes
that funds from these sources will remain available and adequately serve the
Company's liquidity needs. The Company has an unsecured revolving credit
agreement with a syndicate of U.S. banks that provides a $150 million line of
credit expiring July 1, 2002. At the Company's option, the credit facility
provides interest at the prime rate or IBOR+.35%. As of October 31, 2001 the
total amount outstanding was approximately $52 million, which was comprised of
loans in the amount of $10 million and standby letters of credit of $42 million.
This agreement requires the Company to meet certain financial ratios and places
some limitations on outside borrowing. In addition, the Company has a loan
agreement with a major U.S. bank with a balance of $1.8 million at October 31,
2001. This loan bears interest at a fixed rate of 6.78% with annual payments of
principal, in varying amounts, and interest due each February 15 through 2003.
On September 4, 2001, the Company redeemed 6,400 shares of Series B 8%
Senior Redeemable Cumulative Preferred Stock having a par value of $0.01 per
share and redemption price of $1,000 per share.
Operating activities generated cash flows in 2001, 2000 and 1999 of $65.8
million, $18.9 million and $35.3 million, respectively. While each year's cash
flows were impacted by higher volume in revenues, the 2000 decrease reflected
slower payments by some large customers. Cash paid for acquisitions during the
fiscal years ended October 31, 2001, 2000 and 1999, including payments pursuant
to contractual arrangements involved in prior acquisitions, were approximately
$23.4 million, $14.2 million and $11.0 million, respectively. Capital
expenditures during fiscal years 2001, 2000 and 1999 were $16.9 million, $18.7
million and $19.5 million, respectively. Cash dividends paid to stockholders of
common and redeemable preferred stock and amounts used to repurchase common
stock were approximately $16.2 million in 2001, $22.9 million in 2000, and $18.5
million in 1999. Cash from financing activities changed in 2001 compared to 2000
primarily due to repayments of nearly $26 million in debt and a reduction in the
bank overdraft (outstanding checks) of nearly $16 million .
At October 31, 2001, working capital was $229.5 million as compared to
$224.2 million at October 31, 2000. The largest component of working capital
consists of trade accounts receivable that totaled $367 million at October 31,
2001 compared to $353 million at October 31, 2000. These amounts were net of an
allowance for doubtful accounts of $9.4 million and $8.8 million at October 31,
2001 and 2000, respectively. As of October 31, 2001, accounts receivable that
were over 90 days past due had increased $6.6 million to $55.9 million (15% of
the total outstanding) from $49.3 million (14% of the total outstanding) at
October 31, 2000.
The Company self-insures, generally up to $500,000 per occurrence,
certain insurable risks such as general liability, property damage and workers'
compensation. Commercial umbrella policies are obtained to provide for $125
million of coverage above the self-insured retention limits. It is the Company's
policy to annually retain an outside actuary to review the adequacy of its
self-insurance claim reserves.
The energy crisis in the State of California has not had a material
impact on the Company.
IMPACT OF SEPTEMBER 11, 2001 TERRORIST ATTACKS
As previously reported by the Company, the World Trade Center in New York
was the Company's largest single job site with annual revenues of approximately
$65 million (3% of ABM's consolidated revenues). Nearly 800 operating engineers,
janitorial workers and lighting technicians from three divisions of the Company
worked various shifts throughout the day and night. There has been no further
information regarding the fate of seventeen employees still missing and now
presumed dead. The Company estimates that annual gross profits
9
<PAGE>
on this business approached $10 million. Additionally, the Company provided
approximately $60 million in annual services to neighboring job sites which had
various major disruptions.
The Company has commercial insurance policies covering business
interruption, property damage and other losses related to this tragic incident
and has been working with its carrier, Zurich Insurance, in providing
preliminary claim information regarding the property damage and lost business
income. Zurich has neither accepted nor denied coverage for all or any part of
the claim as of the date of this filing. However, Zurich filed for a Declaratory
Judgement Action in the Southern District of New York claiming the loss of the
business profit falls under a Contingent Business Interruption Sub-limit within
the policy of $10 million. Based on review of the policy and consultation with
coverage counsel and other claim experts, the Company believes that its business
interruption claim does not fall under the $10 million sub-limit on contingent
business interruption. Zurich's filing does not impact any other aspects of the
claim.
Under the guidance published by the Emerging Issues Task Force of the
Financial Accounting Standards Board "Accounting for the Impact of the Terrorist
Attacks of September 11, 2001", the Company has not recognized the amounts it
expects to recover from its business interruption insurance as income. Any gain
from insurance proceeds is considered a contingent gain and, under Statement of
Financial Accounting Standards No. 5, "Accounting for Contingencies," can only
be recognized as income in the period when any and all contingencies relating to
the insurance claim have been resolved. The Company has recognized income from
insurance policies to the extent of costs incurred for property damage and
direct expenditures related to the attacks.
In response to these announced developments, on September 16, 2001, the
Company's Board of Directors authorized the repurchase of up to one million
shares of its outstanding stock at any time through December 31, 2001. On
December 17, 2001, the Board of Directors extended this authorization to
repurchase until December 31, 2002. As of the filing date of this report, there
has been no repurchase by the Company of its outstanding shares.
EFFECT OF INFLATION
The low rates of inflation experienced in recent years have had no
material impact on the financial statements of the Company. The Company attempts
to recover increased costs by increasing sales prices to the extent permitted by
contracts and competition.
ACQUISITIONS
The operating results of businesses acquired have been included in the
accompanying consolidated financial statements from their respective dates of
acquisition and are more fully discussed in Note 10 to the Consolidated
Financial Statements. Acquisitions made during the three fiscal years ended
October 31, 2001, contributed approximately $119.2 million to fiscal 2001
revenues.
RESULTS OF OPERATIONS
COMPARISON OF 2001 TO 2000
The Company reported record revenues for 2001. Revenues and other income
(hereinafter called "revenues") were over $1.9 billion in 2001, up $142 million
or 8%, from $1.8 billion reported in 2000. The increase in revenues in 2001 over
2000 was attributable to new business and acquisitions made during the prior
years. Revenues generated from acquisitions during the prior year contributed
$9.4 million of the 2001 increase while the current year acquisitions added
$65.7 million. Although the Company achieved record annual revenues, net income
fell by 26% to $32.8 million ($1.30 per diluted share) in 2001 from $44.3
million ($1.85 per diluted share) in 2000 primarily due to a $20 million pre-tax
charge to strengthen the Company's self-insurance reserves reflecting the
results of the annual independent actuarial review completed in December. The
actuarial report this year revealed that while the frequency of claims is
trending favorably as expected, the severity of claims in 2000 and 2001 trended
higher than anticipated in the report received last year. The impact of these
trends on known claims and Claims Incurred But Not Reported (IBNR) called for an
increase of approximately $8.5 million for fiscal 2001 claims while
approximately $10.5 million reflects the unfavorable trend on pre-2001 claims.
Additionally, 2001 required a loss of $1.0 million in claims related to the
10
<PAGE>
World Trade Center terrorist attack. As a result of the actuarial report, the
Company has increased its self-insurance rates in 2002 by 21% over 2001. The
estimated future charge is designed to capture the recent experience and trends.
Actual results could be different. Excluding the insurance charge of $0.50 per
diluted share, net income per diluted share declined 3% to $1.80 for 2001 from
$1.85 for 2000 due to the increase in diluted average shares outstanding
resulting from option exercises.
As a percentage of revenues, operating expenses and cost of goods sold
was 88.3% for 2001, compared to 87.1% in 2000. Consequently, as a percentage of
revenues, the Company's gross profit (revenues minus operating expenses and cost
of goods sold) of 11.7% in 2001 was lower than the gross profit of 12.9% in
2000. The decrease in gross profit as a percentage of revenues was mostly due to
the $20 million insurance adjustment, higher labor and related costs and
continued competitive pressure to maintain or lower prices.
Selling, general and administrative expenses were $172 million in 2001,
an increase of 9% from $158 million in 2000. As a percentage of revenues,
selling, general and administrative expenses increased from 8.7% for 2000 to
8.8% for 2001, primarily due to an increase in bad debt expense of $3.2 million
over the prior year and to salaries and expenses associated with acquisitions
including the amortization of goodwill.
Interest expense was $2.6 million in 2001 compared to $3.3 million for
2000, a decrease of $718,000. This decrease was primarily due to lower weighted
average borrowings and interest rates in 2001.
The effective income tax rate for 2001 was 38%, compared to 39% in 2000.
The lower tax rate was due for the most part to a significant increase in the
federal work opportunity tax credits in relation to pre-tax income.
The Company is currently organized into eight separate operating
divisions as defined under Statement of Financial Accounting Standards ("SFAS")
No. 131, "Disclosures about Segments of an Enterprise and Related Information".
However, only the ABM Janitorial, Ampco System Parking, ABM Engineering, Amtech
Lighting, and Amtech Elevator Divisions are reportable using the criteria of
SFAS No. 131. Results of Easterday Janitorial Supply Division are included in
Other Segments prior to its sale on April 29, 2001. Additional information
relating to the Company's industry segments appears in Note 13 of Notes to
Consolidated Financial Statements contained in Item 8, "Financial Statements and
Financial Statement Schedule." The results of operations from the five
reportable operating divisions for 2001 as compared to 2000 are more fully
described below:
The ABM Janitorial Services Division reported revenues for 2001 of $1.2
billion, an increase of $107 million, or 10%, from 2000. This is the Company's
largest Division and accounted for nearly 60% of the Company's consolidated
revenues in 2001. ABM Janitorial Services revenues increased as a result of
acquisitions and new business, particularly in the Mid-Atlantic and Northeast
regions. Revenues generated from acquisitions during the prior year contributed
$4.8 million of the 2001 increase while the current year acquisitions added
$51.1 million. ABM Janitorial Services' operating profits increased 13% in 2001
to $59.9 million when compared to 2000. The higher percentage increase in
profits compared to revenues can be primarily attributed to the Company's fixed
price contracts on which hourly workers were paid one less workday in 2001
compared to 2000. The change in the number of workdays affects the profit margin
on this type of contract.
Ampco System Parking revenues decreased by 4% in 2001 from 2000 to $166
million, and its operating profits decreased by 53% to $4.1 million during 2001
compared to 2000. The decrease in revenues was mostly due to the loss of three
airport contracts, the conversion of lease contracts to management fee
contracts, and the effect of the terrorist attacks on September 11, 2001 on
sales at airport and hotel facilities. The decrease in operating profits
resulted from litigation expense, increased insurance costs and the decline in
sales.
The ABM Engineering Services Division increased revenues by 9% in 2001
from 2000 to $171 million, while its operating profits increased 11% to $9
million for 2001 compared to 2000. The revenue increase was due primarily to
additional business. The increase in operating profits is due to the increase in
sales and slightly higher profit margins as a result of lower administrative
costs.
11
<PAGE>
Amtech Lighting Services reported a 22% revenue increase to $144 million
in 2001 from 2000 due to acquired business from the purchase of SLI Lighting
Solutions in March 2001, and sales increases in the Northwest region. The
smaller increase in operating profits of 9% to $11 million during 2001 compared
to the prior year is attributable to lower margins in the Southeast on business
acquired in 2001.
Revenues for Amtech Elevator Services were $121 million, up by 6% for
2001 over 2000, largely due to an increased customer base. The Amtech Elevator
Division reported $4.8 million in operating profits in 2001, a 29% decrease
compared to 2000. This decrease in operating profits can be attributed primarily
to lower margins on maintenance contracts and losses on several modernization
contracts, as well as higher insurance, bad debt, communications and computer
related expenses.
The significant increase in unallocated Corporate expenses for 2001
includes the $20 million insurance adjustment mentioned previously and
centralization of marketing and sales expenses compared to the prior year.
Other Segments represent the results of the remaining divisions including
the operating results of Easterday Janitorial Supply Company prior to its sale
effective April 30, 2001, which includes a pre-tax gain on sale of $718,000. The
loss of Easterday's income in the third and fourth quarter of 2001 was more than
offset by the increase in the operating profit of the Company's American
Commercial Security Services and CommAir Mechanical Services Divisions.
COMPARISON OF 2000 TO 1999
Revenues were $1.8 billion in 2000, up $178 million or 11%, from $1.6
billion reported in 1999. The increase in revenues in 2000 over 1999 was
attributable to new business and acquisitions made during the prior years.
Acquisitions during 2000 accounted for approximately $17.4 million, or 10%, of
the total revenue increase of $178 million for 1999. Net income for 2000 was
$44.3 million, an increase of 12%, compared to net income of $39.7 million in
1999. Diluted net income per common share also rose 12% to $1.85 for 2000
compared to $1.65 for the same period in 1999. On September 22, 1999 the Company
announced a stock repurchase program for up to one million outstanding shares.
As of October 31, 2000, 603,000 shares had been reacquired.
As a percentage of revenues, operating expenses and cost of goods sold
were 87.1% for 2000, compared to 86.7% in 1999. Consequently, the Company's
gross profit as a percentage of revenues of 12.9% in 2000 was slightly lower
than the gross profit of 13.3% in 1999. The gross profit percentage declined
mostly due to higher labor and related costs, particularly workers' compensation
insurance, and continued competitive pressure to maintain or lower prices. In
addition, the Company's hourly workers were paid two additional workdays in 2000
compared to 1999. On fixed price monthly contacts, such increases are not
recovered.
Selling, general and administrative expenses increased 7.2% for 2000
compared to 1999. However, as a percentage of revenues, selling, general and
administrative expenses decreased from 9.0% for 1999, to 8.7% for 2000,
primarily due to certain costs that do not increase at the same rate as sales.
The dollar increase in selling, general and administrative expenses is primarily
due to salaries and expenses associated with acquisitions including the
amortization of goodwill, and costs associated with the implementation of a new
accounting system. The cost increases were somewhat offset by decreased profit
sharing expense.
Interest expense was $3.3 million in 2000 compared to $2.0 million for
1999, a decrease of $1.3 million. This decrease was primarily due to lower
weighted average borrowings and interest rates in 2000.
The income before income taxes (pre-tax income) for 2000 was $72.7
million compared to $67.2 million, an increase of 8% over 1999. Pre-tax income
did not increase at the same rate as revenues due to the higher operating
expenses.
The effective income tax rate for 2000 was 39%, compared to 41% in 1999.
The lower tax rate was due for the most part to a significant increase in the
federal work opportunity tax credits.
The results of operations from the Company's five reportable operating
divisions for 2000 as compared to 1999 are more fully described below:
12
<PAGE>
Revenues of the ABM Janitorial Services Division increased by 13% during
2000 to $1.1 billion over 1999, as a result of new business, particularly in the
Mid-Atlantic, Northwest and Southwest regions. Revenues generated from
acquisitions during 1999 contributed about $11.8 million of the 2000 increase
while the 2000 acquisitions added $10.8 million. Operating profits increased 8%
in 2000 to $53.1 million when compared to 1999. The lower percentage increase in
profits can be attributed to low profit margins and high startup costs on some
large contracts in this Division's Southeast region as well as the expense of
extra workdays in fiscal 2000, as discussed previously.
Ampco System Parking's revenues increased by 6% to $172.4 million, and
its operating profits also increased by 4% to $8.7 million during 2000 compared
to 1999. The increase in revenues and operating profits was mostly due to growth
in California and Texas, along with small acquisitions in Florida, Texas and
Washington.
The ABM Engineering Services Division increased revenues by 2% to $156.3
million, while its operating profits decreased by 2% to $8.2 million for 2000
compared to 1999. The large revenue increase was due primarily to additional
business obtained in New York City and Southern California. The decrease in
operating profits was due to lower profit margins and increased administrative
costs.
Amtech Lighting Services reported a 24% revenue increase to $118.4
million in 2000 from 1999 due to increased business in all its markets, except
Northern California, and an acquisition in the Southeast. Operating profits
increased by 35% to $10.1 million during 2000 compared to the prior year. Profit
margins improved due to a reduction in labor and material costs.
Revenues for Amtech Elevator Services were $114.4 million, up by 18% for
2000 over 1999, largely due to an increased customer base. The Amtech Elevator
Division reported a 3% increase in operating profits in 2000 to $6.8 million
compared to 1999. The smaller increase in operating profits can be attributed
primarily to increased labor, material and insurance costs as well as
computer-related expenses.
RECENT ACCOUNTING PRONOUNCEMENTS
In fiscal 1998, the Financial Accounting Standards Board (FASB) issued
Statement of Financial Accounting Standards (SFAS) No. 133, "Accounting for
Derivative Instruments and Hedging Activities" (as amended by SFAS Nos. 137 and
138). SFAS No. 133 relates to accounting for derivative instruments, including
certain derivative instruments embedded in other contracts, and hedging
activities. It requires that an entity recognizes all derivatives as either
assets or liabilities and measures those instruments at fair value. The Company
adopted SFAS No. 133 on November 1, 2000; however, the Company is not a party to
any contracts that would meet the definition of a derivative under SFAS No. 133.
Upon adoption of this standard there was no effect on the Company's financial
statements.
In July 2001, FASB issued SFAS No. 141, "Business Combinations", and SFAS
No. 142, "Goodwill and Other Intangible Assets". SFAS No. 141 requires all
business combinations initiated after June 30, 2001 to be accounted for using
the purchase method of accounting. Historically, all acquisitions by the Company
have been accounted for as purchases, thus there was no effect on the Company's
financial statements upon adoption of this standard. SFAS No. 142 becomes
effective in fiscal years beginning after December 15, 2001, with early adoption
permitted. The Company plans to early adopt the provisions of SFAS No. 142
beginning in the first quarter of fiscal 2002. In accordance with this standard,
goodwill will no longer be amortized but will be subject to annual assessment
for impairment by applying a fair-value-based test. All other intangible assets
will continue to be amortized over their estimated useful lives. Goodwill
amortization expense was $12.3 million for the twelve months ended October 31,
2001. The Company's preliminary determination has indicated no impairment of its
goodwill carrying value.
In June 2001, FASB issued SFAS No. 143, "Accounting for Asset Retirement
Obligations", which addresses the financial accounting and reporting for
obligations associated with the retirement of tangible long-lived assets and
associated retirement costs. SFAS No. 143 requires that the fair value of a
liability for an asset
13
<PAGE>
retirement obligation be recognized in the period in which it is incurred if a
reasonable estimate of fair value can be made. SFAS No. 143 is effective for
fiscal years beginning after June 15, 2002. The adoption of SFAS No. 143 is not
anticipated to have a material effect on the Company's results of operations or
financial condition.
In August 2001, FASB issued SFAS No. 144, "Accounting for the Impairment
or Disposal of Long-Lived Assets". SFAS No. 144 supercedes SFAS No. 121,
"Accounting for the Impairment of Long-Lived Assets and Long-Lived Assets to be
Disposed of", and elements of APB 30, "Reporting the Results of
Operations--Reporting the Effects on Disposal of a Segment of a Business and
Extraordinary, Unusual or Infrequently Occurring Events and Transactions". SFAS
No. 144 establishes a single-accounting model for long-lived assets to be
disposed of while maintaining many of the provisions relating to impairment
testing and valuation. SFAS No. 144 is effective for fiscal years beginning
after December 31, 2001. The adoption of SFAS No. 144 is not anticipated to have
a material effect on the Company's results of operations or financial condition.
SAFE HARBOR STATEMENT
Cautionary Safe Harbor Disclosure for Forward Looking Statements under
the Private Securities Litigation Reform Act of 1995: Because of the factors set
forth below, as well as other variables affecting the Company's operating
results, past financial performance should not be considered a reliable
indicator of future performance, and investors should not use historical trends
to anticipate results or trends in future periods. The statements contained
herein which are not historical facts are forward-looking statements that are
subject to meaningful risks and uncertainties, including but not limited to: (1)
significant decreases in commercial real estate occupancy, resulting in reduced
demand and prices for building maintenance and other facility services in the
Company's major markets, (2) loss or bankruptcy of one or more of the Company's
major customers, which could adversely affect the Company's ability to collect
its accounts receivable or recover its deferred costs, (3) major collective
bargaining issues that may cause loss of revenues or cost increases that
non-union companies can use to their advantage in gaining market share, (4)
significant shortfalls in adding additional customers in existing and new
territories and markets, (5) a protracted slowdown in the Company's acquisition
activities, (6) legislation or other governmental action that severely impacts
one or more of the Company's lines of business, such as price controls that
could restrict price increases, or the unrecovered cost of any universal
employer-paid health insurance, as well as government investigations that
adversely affect the Company, (7) reduction or revocation of the Company's line
of credit, which would increase interest expense or the cost of capital, (8)
cancellation or nonrenewal of the Company's primary insurance policies, as many
customers contract out services based on the contractor's ability to provide
adequate insurance coverage and limits, (9) catastrophic uninsured or
underinsured claims against the Company, the inability of the Company's
insurance carriers to pay otherwise insured claims, or inadequacy in the
Company's reserve for self-insured claims, (10) inability to employ entry level
personnel due to labor shortages, (11) resignation, termination, death or
disability of one or more of the Company's key executives, which could adversely
affect customer retention and day-to-day management of the Company, and (12)
other material factors that are disclosed from time to time in the Company's
public filings with the United States Securities and Exchange Commission, such
as reports on Forms 8-K, 10-K and 10-Q.
ITEM 7A. QUALITATIVE AND QUANTITATIVE DISCLOSURES ABOUT MARKET RISK
The Company does not issue or invest in financial instruments or their
derivatives for trading or speculative purposes. The operations of the Company
are conducted primarily in the United States, and, as such, are not subject to
material foreign currency exchange rate risk. Although the Company has
outstanding debt and related interest expense, market risk in interest rate
exposure in the United States is currently not material.
14
<PAGE>
ITEM 8. FINANCIAL STATEMENTS AND FINANCIAL STATEMENT SCHEDULE
INDEPENDENT AUDITORS' REPORT
To the Stockholders and Board of Directors
ABM Industries Incorporated:
We have audited the accompanying consolidated balance sheets of ABM
Industries Incorporated and subsidiaries as of October 31, 2001 and 2000, and
the related consolidated statements of income, stockholders' equity and
comprehensive income, and cash flows for each of the years in the three-year
period ended October 31, 2001. In connection with our audits of the consolidated
financial statements, we also have audited the related financial statement
schedule II. These consolidated financial statements and the financial statement
schedule are the responsibility of the Company's management. Our responsibility
is to express an opinion on these consolidated financial statements and the
financial statement schedule based on our audits.
We conducted our audits in accordance with auditing standards generally
accepted in the United States of America. Those standards require that we plan
and perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of ABM
Industries Incorporated and subsidiaries as of October 31, 2001 and 2000, and
the results of their operations and their cash flows for each of the years in
the three-year period ended October 31, 2001, in conformity with accounting
principles generally accepted in the United States of America. Also in our
opinion, the related financial statement schedule II, when considered in
relation to the basic consolidated financial statements taken as a whole,
presents fairly, in all material respects, the information set forth therein.
/s/ KPMG LLP
- -------------------------
KPMG LLP
San Francisco, California
December 17, 2001
15
<PAGE>
ABM Industries Incorporated and Subsidiaries
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
OCTOBER 31 2001 2000
(in thousands, except share amounts)
--------- ---------
<S> <C> <C>
ASSETS
Cash and cash equivalents $ 3,052 $ 2,000
Trade accounts receivable (less allowances of $9,420 and $8,825) 367,201 353,017
Inventories 25,974 25,513
Deferred income taxes 26,806 17,531
Prepaid expenses and other current assets 42,508 38,758
--------- ---------
Total current assets 465,541 436,819
Investments and long-term receivables 13,871 13,920
Property, plant and equipment (less accumulated depreciation of $65,951 and $65,753) 42,936 40,734
Goodwill (less accumulated amortization of $73,264 and $61,693) 113,199 109,407
Deferred income taxes 35,400 32,537
Other assets 12,153 8,568
--------- ---------
$ 683,100 $ 641,985
========= =========
LIABILITIES
Current portion of long-term debt $ 10,877 $ 865
Bank overdraft -- 15,952
Trade accounts payable 50,671 45,312
Income taxes payable 6,816 8,083
Accrued liabilities:
Compensation 62,854 54,901
Taxes--other than income 20,409 18,195
Insurance claims 48,193 43,361
Other 36,179 25,951
--------- ---------
Total current liabilities 235,999 212,620
Long-term debt (less current portion) 942 36,811
Retirement plans 21,483 22,386
Insurance claims 63,499 47,459
--------- ---------
Total liabilities 321,923 319,276
SERIES B 8% SENIOR REDEEMABLE CUMULATIVE PREFERRED STOCK,
6,400 shares authorized, issued and outstanding, stated at redemption value,
$1,000 per share at October 31, 2000 -- 6,400
STOCKHOLDERS' EQUITY
Preferred stock, $.01 par value; 500,000 shares authorized; none issued -- --
Common stock, $.01 par value; 100,000,000 shares authorized; 24,389,000 and
22,999,000 shares issued and outstanding at October 31, 2001 and
2000, respectively 244 230
Additional paid-in capital 131,242 102,902
Accumulated other comprehensive income (763) (653)
Retained earnings 230,454 213,830
--------- ---------
Total stockholders' equity 361,177 316,309
--------- ---------
$ 683,100 $ 641,985
========= =========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
16
<PAGE>
ABM Industries Incorporated and Subsidiaries
CONSOLIDATED STATEMENTS OF INCOME
<TABLE>
<CAPTION>
YEARS ENDED OCTOBER 31 2001 2000 1999
(in thousands, except per share amounts)
---------- ---------- ----------
<S> <C> <C> <C>
REVENUES AND OTHER INCOME $1,950,038 $1,807,557 $1,629,716
---------- ---------- ----------
EXPENSES
Operating expenses and cost of goods sold 1,722,334 1,573,998 1,413,541
Selling, general and administrative 172,157 157,546 146,984
Interest 2,602 3,320 1,959
---------- ---------- ----------
1,897,093 1,734,864 1,562,484
---------- ---------- ----------
INCOME BEFORE INCOME TAXES 52,945 72,693 67,232
Income taxes 20,119 28,350 27,565
---------- ---------- ----------
NET INCOME $ 32,826 $ 44,343 $ 39,667
========== ========== ==========
NET INCOME PER COMMON SHARE
Basic $ 1.36 $ 1.94 $ 1.77
Diluted $ 1.30 $ 1.85 $ 1.65
========== ========== ==========
COMMON AND COMMON EQUIVALENT SHARES
Basic 23,799 22,551 22,067
Diluted 25,010 23,709 23,748
========== ========== ==========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
17-A
<PAGE>
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY AND COMPREHENSIVE INCOME
<TABLE>
<CAPTION>
Accumulated
YEARS ENDED OCTOBER 31, 2001, 2000 AND 1999 Common Stock Additional Other
---------------- Paid-in Comprehensive Retained
(in thousands) Shares Amount Capital Income Earnings Total
------ ------ ---------- ------------- -------- -----
<S> <C> <C> <C> <C> <C> <C>
BALANCE OCTOBER 31, 1998 21,601 $ 216 $ 79,904 $ (696) $ 157,414 $236,838
Comprehensive income:
Net income 39,667 39,667
Other comprehensive income:
Foreign currency translation 61 61
--------
Comprehensive income 39,728
Dividends:
Common stock (12,543) (12,543)
Preferred stock (512) (512)
Tax benefit from exercise of stock options 387 387
Stock purchases (220) (2) (5,446) (5,448)
Stock issued under employees' stock purchase
and option plans and for acquisition 1,026 10 18,491 18,501
------ ----- --------- ------ --------- --------
BALANCE OCTOBER 31, 1999 22,407 224 93,336 (635) 184,026 276,951
Comprehensive income:
Net income 44,343 44,343
Other comprehensive income:
Foreign currency translation (18) (18)
--------
Comprehensive income 44,325
Dividends:
Common stock (14,027) (14,027)
Preferred stock (512) (512)
Tax benefit from exercise of stock options 480 480
Stock purchases (383) (4) (8,386) (8,390)
Stock issued under employees' stock purchase
and option plans and for acquisition 975 10 17,472 17,482
------ ----- --------- ------ --------- --------
BALANCE OCTOBER 31, 2000 22,999 230 102,902 (653) 213,830 316,309
Comprehensive income:
Net income 32,826 32,826
Other comprehensive income:
Foreign currency translation (110) (110)
--------
Comprehensive income 32,716
Dividends:
Common stock (15,770) (15,770)
Preferred stock (432) (432)
Tax benefit from exercise of stock options 3,651 3,651
Stock issued under employees' stock purchase
and option plans and for acquisition 1,390 14 24,689 24,703
------ ----- --------- ------ --------- --------
BALANCE OCTOBER 31, 2001 24,389 $ 244 $ 131,242 $ (763) $ 230,454 $361,177
====== ===== ========= ====== ========= ========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
17-B
<PAGE>
ABM Industries Incorporated and Subsidiaries
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
YEARS ENDED OCTOBER 31 2001 2000 1999
(in thousands)
----------- ----------- -----------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Cash received from customers $ 1,918,558 $ 1,739,297 $ 1,589,775
Other operating cash receipts 5,523 2,347 1,491
Interest received 859 580 870
Cash paid to suppliers and employees (1,822,629) (1,686,988) (1,522,495)
Interest paid (2,991) (3,209) (2,025)
Income taxes paid (33,524) (33,102) (32,311)
----------- ----------- -----------
Net cash provided by operating activities 65,796 18,925 35,305
----------- ----------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Additions to property, plant and equipment (16,922) (18,717) (19,451)
Proceeds from sale of assets 1,253 1,164 922
Decrease (increase) in investments and long-term receivables 49 370 (1,885)
Purchase of businesses (23,401) (14,191) (10,980)
Proceeds from sale of business 12,000 -- --
----------- ----------- -----------
Net cash used in investing activities (27,021) (31,374) (31,394)
----------- ----------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Common stock issued, including tax benefit 26,688 16,381 17,178
Common stock purchases -- (8,390) (5,448)
Preferred stock redemption (6,400) -- --
Dividends paid (16,202) (14,539) (13,055)
(Decrease) increase in bank overdraft (15,952) 10,985 2,492
Long-term borrowings 108,000 126,000 57,064
Repayments of long-term borrowings (133,857) (118,127) (61,847)
----------- ----------- -----------
Net cash (used in) provided by financing activities (37,723) 12,310 (3,616)
----------- ----------- -----------
Net increase (decrease) in cash and cash equivalents 1,052 (139) 295
Cash and cash equivalents beginning of year 2,000 2,139 1,844
----------- ----------- -----------
CASH AND CASH EQUIVALENTS END OF YEAR $ 3,052 $ 2,000 $ 2,139
=========== =========== ===========
RECONCILIATION OF NET INCOME TO NET CASH PROVIDED
BY OPERATING ACTIVITIES:
Net income $ 32,826 $ 44,343 $ 39,667
ADJUSTMENTS:
Depreciation 13,710 12,265 10,815
Amortization 12,618 11,259 9,883
Provision for bad debts 6,134 2,971 2,257
Gain on sale of assets (41) (265) (160)
Gain on sale of business (718) -- --
Increase in deferred income taxes (12,138) (5,517) (6,537)
Increase in trade accounts receivable (24,340) (65,555) (39,304)
Increase in inventories (3,223) (2,217) (331)
Increase in prepaid expenses and other current assets (3,045) (1,200) (1,950)
(Increase) decrease in other assets 40 2,475 (3,295)
(Decrease) increase in income taxes payable (1,267) 765 1,791
(Decrease) increase in retirement plans accrual (903) 3,092 3,320
Increase in insurance claims liability 18,872 7,155 4,500
Increase in trade accounts payable and other accrued liabilities 27,271 9,354 14,649
----------- ----------- -----------
Total adjustments to net income 32,970 (25,418) (4,362)
----------- ----------- -----------
NET CASH PROVIDED BY OPERATING ACTIVITIES $ 65,796 $ 18,925 $ 35,305
=========== =========== ===========
SUPPLEMENTAL DATA:
Non-cash investing activities:
Common stock issued for net assets of business acquired $ 1,666 $ 1,581 $ 1,710
=========== =========== ===========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
18
<PAGE>
ABM Industries Incorporated and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
PRINCIPLES OF CONSOLIDATION: The consolidated financial statements
include the accounts of ABM Industries Incorporated and its subsidiaries ("the
Company"). All material intercompany transactions and balances have been
eliminated. Certain reclassifications of prior year amounts have been made to
conform with the current year presentation.
USE OF ESTIMATES: The preparation of financial statements in conformity
with United States generally accepted accounting principles requires management
to make estimates and assumptions that affect the amounts reported in the
consolidated financial statements and related notes to financial statements.
Changes in such estimates may affect amounts reported in future periods.
TRADE ACCOUNTS RECEIVABLE: The Company's accounts receivable arise from
services provided to its customers and are generally due and payable on terms
varying from the receipt of invoice to net thirty days. The Company does not
believe that it has any material exposure due to either industry or regional
concentrations of credit risk.
INVENTORIES: Inventories are valued at amounts approximating the lower of
cost (first-in, first-out basis) or market.
PROPERTY, PLANT AND EQUIPMENT: Property, plant and equipment are stated
at cost less accumulated depreciation and amortization. At the time property,
plant and equipment is retired or otherwise disposed of, the cost and
accumulated depreciation are removed from the accounts and any resulting gain or
loss is reflected in income. Maintenance and repairs are charged against income.
Depreciation and amortization are calculated principally on the
straight-line method. Lives used in computing depreciation for transportation
equipment average 3 to 5 years and 2 to 20 years for machinery and other
equipment. Buildings are depreciated over periods of 20 to 40 years. Leasehold
improvements are amortized over the shorter of the terms of the respective
leases, or the assets' useful lives.
The Company is implementing an enterprise-wide information system.
External direct costs of materials and services and payroll-related costs of
employees working solely on the development of the system are capitalized.
Capitalized costs of the project are being amortized over a period of seven
years beginning on May 1, 2000. Training costs are expensed as incurred.
GOODWILL: Goodwill, which represents the excess of cost over fair value
of net tangible assets of businesses acquired, is amortized on a straight-line
basis over periods not exceeding 40 years. It is the Company's policy to carry
goodwill applicable to acquisitions prior to 1971 of $1,433,000 at cost until
such time as there may be evidence of diminution in value.
INCOME TAXES: Income tax expense is based on reported results of
operations before income taxes. In accordance with Statement of Financial
Accounting Standards No. 109, "Accounting for Income Taxes", deferred income
taxes reflect the impact of temporary differences between the amount of assets
and liabilities recognized for financial reporting purposes and such amounts
recognized for tax purposes. These deferred taxes are measured using enacted tax
rates expected to apply to taxable income in the years in which those temporary
differences are expected to be recovered or settled.
REVENUE RECOGNITION: The Company earns revenue primarily under service
contracts that are either fixed price or are time and materials based. In both
contract types, revenue is recognized as the services are performed. Under the
fixed price contacts, there are no up-front fee arrangements or
19
<PAGE>
acceptance requirements that would require deferral of revenue recognition under
Staff Accounting Bulletin No. 101.
NET INCOME PER COMMON SHARE: The Company has reported its earnings in
accordance with Statement of Financial Accounting Standards No. 128, "Earnings
per Share". Basic net income per common share, after the reduction for preferred
stock dividends, is based on the weighted average number of shares outstanding
during the period. Diluted net income per common share, after the reduction for
preferred stock dividends, is based on the weighted average number of shares
outstanding during the period, including common stock equivalents. The
calculation of these amounts is as follows:
<TABLE>
<CAPTION>
2001 2000 1999
------------ ------------ ------------
<S> <C> <C> <C>
Net income $ 32,826,000 $ 44,343,000 $ 39,667,000
Preferred stock dividends (432,000) (512,000) (512,000)
------------ ------------ ------------
$ 32,394,000 $ 43,831,000 $ 39,155,000
============ ============ ============
Common shares outstanding -- basic 23,799,000 22,551,000 22,067,000
Effect of dilutive securities:
Stock options 1,150,000 1,035,000 1,544,000
Other 61,000 123,000 137,000
------------ ------------ ------------
Common shares outstanding -- diluted 25,010,000 23,709,000 23,748,000
============ ============ ============
</TABLE>
For the purposes of computing diluted net income per common share,
weighted average common share equivalents do not include stock options with an
exercise price that exceeds the average fair market value of the Company's
common stock for the period. On October 31, 2001, 2000 and 1999, options to
purchase common shares of 874,000, 1,078,000 and 1,268,000 at a weighted
average exercise price of $32.62, $31.71 and $31.09, respectively, were
excluded from the computation.
CASH AND CASH EQUIVALENTS: The Company considers all highly liquid
instruments with original maturities of three months or less to be cash and cash
equivalents.
STOCK-BASED COMPENSATION: The Company accounts for its stock-based awards
using the intrinsic value method in accordance with Accounting Principles Board
Opinion No. 25, "Accounting for Stock Issued to Employees".
COMPREHENSIVE INCOME: Comprehensive income consists of net income and
other related gains and losses affecting shareholders' equity that, under
generally accepted accounting principles, are excluded from net income. For the
Company, such comprehensive income items consist of unrealized foreign currency
translation gains and losses.
2. INSURANCE
Certain insurable risks such as general liability, property damage and
workers' compensation are self-insured by the Company. However, the Company has
umbrella insurance coverage for certain risk exposures subject to specified
limits. Accruals for claims under the Company's self-insurance program are
recorded on a claim-incurred basis. The accrual includes any general liability,
property damage or workers' compensation claim that as of the applicable
accounting period end was incurred. The Company's method accounts for known
claims and incurred but not reported claims. The claim-incurred method includes
cost factors for inflation and the cost of litigation and administration. The
Company uses independent actuaries to annually evaluate and record the Company's
estimated claim costs and liabilities and accrues an amount that is within an
actuarial range of exposure. The estimated liability for claims incurred but
unpaid at October 31, 2001 and 2000 was $111,692,000 and $90,820,000,
respectively. In the fourth quarter of fiscal year 2001, the Company recorded a
$20,000,000 pre-tax expense to strengthen reserves as a result of the actuarial
evaluation. In connection with certain self-insurance agreements, the Company
has standby letters of credit at October 31, 2001 supporting the estimated
unpaid liability in the amount of $39,800,000.
20
<PAGE>
3. PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment at October 31, consisted of the following:
<TABLE>
<CAPTION>
(in thousands of dollars) 2001 2000
-------- --------
<S> <C> <C>
Land $ 876 $ 878
Buildings 4,120 4,334
Transportation equipment 15,546 13,127
Machinery and other equipment 73,543 73,056
Leasehold improvements 14,802 15,092
-------- --------
108,887 106,487
Less accumulated depreciation and amortization 65,951 65,753
-------- --------
$ 42,936 $ 40,734
======== ========
</TABLE>
4. LONG-TERM DEBT AND CREDIT AGREEMENT
The Company has a $150 million syndicated line of credit which will
expire July 1, 2002. The unsecured revolving credit facility provides, at the
Company's option, interest at the prime rate or IBOR+.35%. The facility calls
for a commitment fee payable quarterly, in arrears, of .12% based on the
average, daily, unused portion. For purposes of this calculation, irrevocable
standby letters of credit issued in conjunction with the Company's
self-insurance program plus cash borrowings are considered to be outstanding
amounts. As of October 31, 2001, the total outstanding amount under this
facility was $52,000,000, comprised of $10,000,000 in loans and $42,000,000 in
standby letters of credit. The interest rate at October 31, 2001, on loans
outstanding under this agreement was 2.9%. The Company is required under this
agreement to maintain certain financial ratios and has limitations on outside
borrowings.
One of the provisions of the Company's revolving credit facility required
a fixed charge ratio to be maintained at the end of each quarterly reporting
period. As a result of its fiscal 2001 fourth quarter loss, the Company's fixed
charge ratio did not meet this requirement for the quarter ended October 31,
2001. The Company received a waiver from its lenders addressing the deficiency
for the quarter ended October 31, 2001. The Company was in compliance with all
other debt covenants as of October 31, 2001.
The Company has a loan agreement with a major U.S. bank with a balance of
$1,808,000, at October 31, 2001. This loan bears interest at a fixed rate of
6.78% with annual payments of principal, in varying amounts, and interest due
February 15, 2002 and 2003.
The long-term debt and credit facility of $11,819,000 matures in the
years ending October 31 as follows: $10,877,000 in 2002 and $942,000 in 2003.
Long-term debt at October 31, is summarized as follows:
<TABLE>
<CAPTION>
(in thousands of dollars) 2001 2000
------- -------
<S> <C> <C>
Revolving credit facility with interest at 2.9 -- 9.5% $10,000 $35,000
Note payable to bank with interest at 6.78% 1,808 2,622
Other 11 54
------- -------
11,819 37,676
Less current portion 10,877 865
------- -------
$ 942 $36,811
======= =======
</TABLE>
21
<PAGE>
5. EMPLOYEE BENEFIT PLANS
All of the Company's employee benefit plans are unfunded, thus there is
no additional pension liability and hence no other comprehensive income to
disclose.
(a) RETIREMENT AGREEMENTS
The Company has unfunded retirement agreements for approximately 52
current and former directors and senior executives, many of which are fully
vested. The agreements provide for annual benefits for ten years commencing at
the later of the respective retirement dates of those executives or age 65. The
benefits are accrued over various periods based on expected retirement dates.
During 2001, 2000 and 1999, amounts accrued under these agreements were
$506,000, $684,000 and $674,000, respectively. Payments were made in 2001, 2000
and 1999 in the amounts of $242,000, $171,000 and $231,000, respectively. At
October 31, 2001, the present value of estimated future payments under these
agreements is approximately $4,400,000.
(b) 401(k) AND PROFIT SHARING PLAN
The Company has a profit sharing and 401(k) plan covering certain
qualified employees, which includes employer participation in accordance with
the provisions of Section 401(k) of the Internal Revenue Code. The plan allows
participants to make pretax contributions and the Company matches certain
percentages of employee contributions depending on the participant's length of
service. The profit sharing portion of the plan is discretionary and
noncontributory. All amounts contributed to the plan are deposited into a trust
fund administered by independent trustees.
The Company provided for profit sharing contributions of $1,643,000 for
1999. No contribution was provided for fiscal year 2001 and 2000. The Company's
matching 401(k) contributions required by the 401(k) plan for 2001, 2000 and
1999 were approximately $1,534,000, $1,191,000 and $1,210,000, respectively.
Effective January 1, 2002, the Company is amending its plan to adopt the
"safe harbor" rules of 401(k) plans. These rules contain more generous company
match provisions and cover many employees not previously included. Therefore,
the Company will incur additional future costs, which will be dependent on
increased levels of voluntary participation.
(c) SERVICE AWARD BENEFIT PLAN
In 1989, the Company adopted an unfunded service award benefit plan, with
a retroactive vesting period of five years. This plan is a "severance pay plan"
as defined by the Employee Retirement Income Security Act (ERISA) and covers
certain qualified employees. The plan provides participants, upon termination,
with a guaranteed seven days pay for each year of employment subsequent to
November 1, 1989. The Company, at its discretion, may also award additional days
each year.
Effective January 1, 2002, this plan will be amended to no longer award
any additional days to employees. The enhancement of the 401(k) plan has
replaced benefits previously provided under this plan. The Company will continue
to incur interest costs related to this plan as the value of previously earned
benefits continues to increase.
Net cost of the plan is comprised of:
<TABLE>
<CAPTION>
(in thousands of dollars) 2001 2000 1999
------ ------ ------
<S> <C> <C> <C>
Service cost $ 427 $ 380 $ 396
Interest 358 318 255
------ ------ ------
Net cost $ 785 $ 698 $ 651
Actuarial present value of:
Vested benefit obligation $4,479 $3,895 $3,724
Accumulated benefit obligation $4,662 $4,067 $3,850
Projected benefit obligation $5,342 $4,746 $4,571
====== ====== ======
</TABLE>
22
<PAGE>
Assumptions used in accounting for the plan as of October 31 were:
<TABLE>
<CAPTION>
2001 2000 1999
---- ---- ----
<S> <C> <C> <C>
Weighted average discount rate 7.5% 7.5% 6.5%
Rate of increase in compensation level 5.0% 5.0% 5.0%
=== === ===
</TABLE>
(d) PENSION PLAN UNDER COLLECTIVE BARGAINING
Certain qualified employees of the Company are covered under
union-sponsored collectively bargained multi-employer defined benefit plans.
Contributions for these plans were approximately $30,259,000, $26,913,000 and
$25,516,000 in 2001, 2000 and 1999, respectively. These plans are not
administered by the Company and contributions are determined in accordance with
provisions of negotiated labor contracts.
6. LEASE COMMITMENTS AND RENTAL EXPENSE
The Company is obligated under noncancelable operating leases for various
facilities and equipment.
As of October 31, 2001, future minimum lease commitments under
noncancelable operating leases are as follows:
<TABLE>
<CAPTION>
Years ending (in thousands of dollars)
- ------------
<S> <C>
2002 $ 45,888
2003 36,139
2004 23,945
2005 17,613
2006 12,671
Thereafter 65,652
---------
Total minimum lease commitments $ 201,908
=========
</TABLE>
Rental expense for the years ended October 31, is summarized as follows:
<TABLE>
<CAPTION>
(in thousands of dollars) 2001 2000 1999
-------- -------- --------
<S> <C> <C> <C>
Minimum rentals under noncancelable leases $ 55,780 $ 53,387 $ 52,231
Contingent rentals 43,645 42,641 41,441
Short-term rental agreements 3,911 4,682 2,758
-------- -------- --------
$103,336 $100,710 $ 96,430
======== ======== ========
</TABLE>
Contingent rentals are applicable to leases of parking lots and garages
and are based on percentages of the gross receipts attributable to the related
facilities.
7. REDEEMABLE CUMULATIVE PREFERRED STOCK
On June 23, 1993, the Company authorized and on September 1, 1993, issued
6,400 shares of preferred stock having a par value of $0.01 per share shares in
conjunction with the acquisition of System Parking. These shares designated as
Series B 8% Senior Redeemable Cumulative Preferred Stock (Series B Preferred
Stock) were entitled to one vote per share on all matters upon which common
stockholders were entitled to vote and had a redemption price of $1,000 per
share, together with accrued
23
<PAGE>
and unpaid dividends thereon. Redemption of the Series B Preferred Stock was at
the option of the holders for any or all of the outstanding shares after
September 1, 1998 or at the option of the Company after September 1, 2001. The
total redemption value of the shares outstanding at October 31, 2000 in an
amount of $6,400,000 was classified on the Company's balance sheet as redeemable
cumulative preferred stock. In the event of any liquidation, dissolution or
winding up of the affairs of the Company, holders of the Series B Preferred
Stock would have been paid the redemption price plus all accrued dividends to
the date of liquidation, dissolution or winding up of affairs before any payment
to other stockholders.
On September 4, 2001, the Company redeemed 6,400 shares of Series B 8%
Senior Redeemable Cumulative Preferred Stock having a par value of $0.01 per
share and redemption price of $1,000 per share.
Dividends of $128,000 were due and payable each quarter on the Series B
Preferred Stock. In fiscal 2001, $128,000 was paid in each of the first three
quarters and $48,000 was paid for the remaining period at time of redemption.
The dividends were deducted from net income in determining net income per common
share.
8. CAPITAL STOCK
The Company is authorized to issue 500,000 shares of preferred stock, of
which 50,000 shares have been designated as Series A Junior Participating
Preferred Stock of $.01 par value. None of these preferred shares have been
issued.
In March 1998, the Company's Board of Directors adopted a stockholder
rights plan to replace an existing rights plan that expired on April 22, 1998.
The new plan provides for a dividend distribution of one preferred stock
purchase right (a "Right") for each outstanding share of common stock,
distributed to stockholders of record on April 22, 1998. The Rights will be
exercisable only if a person or group acquires 20% or more of the Company's
common stock (an "Acquiring Person") or announces a tender offer for 20% or more
of the common stock. Each Right will entitle stockholders to buy one-thousandth
of a share of newly created Participating Preferred Stock, par value $.01 per
share, of the Company at an initial exercise price of $175 per Right, subject to
adjustment from time to time. However, if any person becomes an Acquiring
Person, each Right will then entitle its holder (other than the Acquiring
Person) to purchase at the exercise price common stock (or, in certain
circumstances, Participating Preferred Stock) of the Company having a market
value at that time of twice the Right's exercise price. These Rightsholders
would also be entitled to purchase an equivalent number of shares at the
exercise price if the Acquiring Person were to control the Company's Board of
Directors and cause the Company to enter into certain mergers or other
transactions. In addition, if an Acquiring Person acquired between 20% and 50%
of the Company's voting stock, the Company's Board of Directors may, at its
option, exchange one share of the Company's common stock for each Right held
(other than Rights held by the Acquiring Person). Rights held by the Acquiring
Person will become void. The Rights Plan excludes from its operation The
Theodore Rosenberg Trust and The Sydney J. Rosenberg Trust, and certain related
persons, and, as a result, their holdings will not cause the Rights to become
exercisable or nonredeemable or trigger the other features of the Rights. The
Rights will expire on April 22, 2008, unless earlier redeemed by the Board at
$0.01 per Right.
As discussed in Note 1, the Company continues to account for its
stock-based awards using the intrinsic value method in accordance with
Accounting Principles Board Opinion No. 25, "Accounting for Stock Issued to
Employees", and its related interpretations. In the three-year period ended
October 31, 2001, the exercise price of all options granted to employees had
equivalent fair market values. Therefore, no compensation expense has been
recognized in the financial statements for employee stock awards.
Statement of Financial Accounting Standards (SFAS) No. 123, "Accounting
for Stock-Based Compensation", requires the disclosure of pro forma net earnings
and earnings per share had the
24
<PAGE>
Company adopted the fair value method as of the beginning of fiscal 1996. Under
SFAS 123, the fair value of stock-based awards to employees is calculated
through the use of option pricing models. The use of these models requires
subjective assumptions, including future stock price volatility and expected
time to exercise, which can have a significant effect on the calculated values.
The Company's calculations were made using the Black-Scholes option pricing
model with the following weighted average assumptions: expected life 9.2 years,
9.1 years, and 11.9 years from the date of grant in fiscal 2001, 2000, and 1999,
respectively; expected stock price volatility of 28.1%, 27.7% and 26.2%,
respectively; expected dividend yields of 2.2%, 3.1% and 1.9%, and risk free
interest rates of 5.3%, 6.7%, and 5.0% in fiscal 2001, 2000, and 1999,
respectively.
The Company's calculations are based on a single option valuation
approach and forfeitures are recognized as they occur. If the computed fair
values of the fiscal awards had been amortized to expense over the vesting
period of the awards, pro forma net earnings would have been $29,102,000 ($1.15
per diluted share) for fiscal 2001, $39,477,000 ($1.64 per diluted share) for
fiscal 2000, and $35,409,000 ($1.47 per diluted share) for fiscal 1999. The
impact of outstanding stock options granted prior to fiscal 1996 has been
excluded from the pro forma calculation; accordingly, the fiscal 2001, 2000, and
1999 pro forma adjustments are not indicative of future period pro forma
adjustments, when the calculation will apply to all future applicable stock
grants.
Under the "Price-Vested" Performance Stock Option Plan options were
granted with a ten-year term. If, during the first four years, the stock price
achieved and maintained a set price for ten out of thirty consecutive trading
days, the options associated with the price would vest. The prices established
were $25, $30, $35 and $40, with 25% of the options vesting at each price point.
If, at the end of four years, any of the stock price performance targets were
not achieved, then the remaining options would vest at the end of eight years
from the date the options were granted. SFAS 123 requires that the projected
value of the options be determined on the grant date and recognized over the
period in which the options are earned (the vesting period). For these options,
the projected value of the options was determined and that value was to be
recognized over the eight-year vesting period unless vesting occurs at an
earlier date. In fiscal 2001 ABM stock achieved and maintained for the requisite
ten-day period, the price required for the third target. As a result, 75% of all
options issued prior to the current fiscal year are now vested, and the
projected value of that 75% less any amounts previously recognized for
outstanding options is recognized in this year's pro forma calculation.
Additionally as a result of the price performance, the options awarded during
the current fiscal year will vest 75% in December 2001, the one-year anniversary
of the grant date. Of the remaining 25% of the granted options yet to be vested,
one-eighth is recognized annually from the grant date, unless vesting occurs at
an earlier date by the stock achieving a price of $40 per share and maintaining
that price for ten out of 30 consecutive trading days.
"TIME-VESTED" INCENTIVE STOCK OPTION PLAN, AS AMENDED
In 1987, the Company adopted a stock option plan under which 1,200,000
shares were reserved for grant until December 31, 1996. In March 1994, this plan
was amended to reserve an additional 1,000,000 shares. In March 1996, the plan
was amended again to reserve another 2,000,000 shares. Options which terminate
without being exercised may be reissued. At October 31, 2001, 637,850 shares
remained available for grant.
Transactions under this plan are summarized as follows:
<TABLE>
<CAPTION>
Weighted
Number Average
of Exercise
Options Price
------- --------
<S> <C> <C>
Balance October 31, 1998 2,012,000 $16.40
Granted (Weighted average fair value of $8.34) 126,000 $30.86
Exercised (296,000) $10.28
Terminated (35,000) $18.30
</TABLE>
25
<PAGE>
<TABLE>
<S> <C> <C>
--------- ------
Balance October 31, 1999 1,807,000 $18.37
Granted (Weighted average fair value of $6.18) 225,000 $21.22
Exercised (155,000) $11.29
Terminated (25,000) $24.53
--------- ------
Balance October 31, 2000 1,852,000 $19.23
Granted (Weighted average fair value of $9.50) 273,000 $30.31
Exercised (434,000) $13.76
Terminated (108,000) $24.52
--------- ------
Balance October 31, 2001 1,583,000 $22.28
========= ======
</TABLE>
<TABLE>
<CAPTION>
Outstanding Exercisable
- ------------------------------------------------------------------ -----------------------
Weighted
Average Weighted Weighted
Range Number Remaining Average Number Average
of of Contractual Exercise of Exercise
Prices Options Life (Years) Price Options Price
- --------------- ------- ------------ -------- ------- --------
<S> <C> <C> <C> <C> <C>
$ 8.49 -- 13.32 263,000 2.4 $ 9.39 263,000 $ 9.39
$17.44 -- 28.22 817,000 5.9 $20.53 572,000 $19.40
$29.41 -- 36.59 503,000 7.7 $31.85 149,000 $32.88
=============== ======= === ====== ======= ======
</TABLE>
"PRICE-VESTED" PERFORMANCE STOCK OPTION PLAN
In December 1996, the Company adopted a stock option plan under which
1,500,000 shares have been reserved. The options expire 10 years after the date
of grant and any options which terminate without being exercised may be
reissued. Each option will have a pre-defined vesting price which provides for
accelerated vesting if the fair market value of the Company's common stock is
equal to or greater than the pre-defined vesting price for 10 trading days in
any period of 30 consecutive trading days. Vested options will become
exercisable only after the first anniversary of its grant date. Any option that
has not vested prior to the fourth anniversary of its grant date will vest on
the eighth anniversary of its grant date. At October 31, 2001, 100,000 shares
remained available for grant.
Transactions under this plan are summarized as follows:
<TABLE>
<CAPTION>
Weighted
Number Average
of Exercise
Options Price
--------- --------
<S> <C> <C>
Balance October 31, 1998 1,150,000 $22.40
Exercised (15,000) $20.00
--------- ------
Balance October 31, 1999 1,135,000 $22.37
Granted (Weighted average fair value of $7.01) 160,000 $20.75
Exercised (75,000) $20.00
Terminated (75,000) $22.98
--------- ------
Balance October 31, 2000 1,145,000 $22.33
Granted (Weighted average fair value of $10.96) 180,000 $30.75
Exercised (210,000) $20.18
Terminated (85,000) $27.90
--------- ------
Balance October 31, 2001 1,030,000 $23.78
========= ======
</TABLE>
26
<PAGE>
<TABLE>
<CAPTION>
Outstanding Exercisable
- ----------------------------------------------------------- ---------------------
Weighted
Average Weighted Weighted
Range Number Remaining Average Number Average
of of Contractual Exercise of Exercise
Prices Options Life (Years) Price Options Price
- --------------- ------- ------------ -------- ------- --------
<S> <C> <C> <C> <C> <C>
$20.00 -- 25.59 750,000 5.6 $20.40 530,000 $20.42
$30.75 -- 36.59 280,000 8.2 $32.84 50,000 $36.59
=============== ======= === ====== ====== ======
</TABLE>
"AGE-VESTED" CAREER STOCK OPTION PLAN, AS AMENDED
In 1984, the Company adopted a stock option plan whereby 680,000 shares
were reserved for grant. In March of 1996, another 1,000,000 shares were
reserved for grant under the plan. As amended December 20, 1994, options which
have been granted at fair market value are 50% exercisable when the option
holders reach their 61st birthday and the remaining 50% will vest on their 64th
birthday. To the extent vested, the options may be exercised at any time prior
to one year after termination of employment. Options which terminate without
being exercised may be reissued. At October 31, 2001, 418,000 shares remained
available for grant.
Transactions under this plan are summarized as follows:
<TABLE>
<CAPTION>
Weighted
Number Average
of Exercise
Options Price
--------- -------
<S> <C> <C>
Balance October 31, 1998 1,184,000 $ 18.29
Granted (Weighted average fair value of $14.59) 75,000 $ 31.88
Exercised (56,000) $ 6.22
Terminated (16,000) $ 9.31
--------- -------
Balance October 31, 1999 1,187,000 $ 19.86
Granted (Weighted average fair value of $7.54) 75,000 $ 20.75
Exercised (56,000) $ 5.92
Terminated (105,000) $ 19.80
--------- -------
Balance October 31, 2000 1,101,000 $ 20.96
Granted (Weighted average fair value of $12.84) 73,000 $ 30.75
Exercised (211,000) $ 11.30
Terminated (46,000) $ 20.57
--------- -------
Balance October 31, 2001 917,000 $ 23.00
========= =======
</TABLE>
<TABLE>
<CAPTION>
Outstanding Exercisable
- ---------------------------------------------------------- --------------------
Weighted
Average Weighted Weighted
Range Number Remaining Average Number Average
of of Contractual Exercise Of Exercise
Prices Options Life (Years) Price Options Price
- --------------- ------- ------------ -------- ------- --------
<S> <C> <C> <C> <C> <C>
$ 5.72 154,000 4.6 $ 5.72 6,000 $ 5.72
$11.25 -- 19.44 130,000 6.4 $11.72 25,000 $11.25
$20.75 60,000 15.3 $20.75 -- --
$29.41 -- 36.59 573,000 11.7 $30.45 89,000 $30.62
=============== ======= ==== ====== ====== ======
</TABLE>
27
<PAGE>
EMPLOYEE STOCK PURCHASE PLAN, AS AMENDED
In 1985, the Company adopted an employee stock purchase plan under which
sale of 5 million shares of its common stock has been authorized. In March of
1996 and 1999, sales of an additional 1,200,000 shares each were authorized, and
again in March of 2001, 1,200,000 additional shares were authorized under this
plan. The purchase price of the shares under the plan is the lesser of 85% of
the fair market value at the commencement of each plan year or 85% of the fair
market value on the date of purchase. Employees may designate up to 10% of their
compensation for the purchase of stock. During 2001, 2000, and 1999, 527,000,
635,000, and 602,000 shares of stock were issued under the plan for an aggregate
purchase price of $12,142,000, $12,588,000 and $13,632,000, respectively. The
weighted average fair value of those purchase rights granted in 2001, 2000, and
1999 was $7.00, $7.27, and $7.32, respectively, and were issued at a weighted
average price of $23.04, $19.84 and $23.25, respectively. At October 31, 2001,
930,000 shares remained unissued under the plan.
9. INCOME TAXES
The provision for income taxes is made up of the following components for
each of the years ended October 31:
<TABLE>
<CAPTION>
(in thousands of dollars) 2001 2000 1999
-------- -------- --------
<S> <C> <C> <C>
Current
Federal $ 28,046 $ 29,793 $ 29,807
State 4,170 4,051 4,286
Foreign 41 23 9
Deferred
Federal (11,002) (5,071) (6,022)
State (1,136) (446) (515)
-------- -------- --------
$ 20,119 $ 28,350 $ 27,565
======== ======== ========
</TABLE>
Income tax expense attributable to income from operations differs from
the amounts computed by applying the U.S. statutory rates to pretax income from
operations as a result of the following for the years ended October 31:
<TABLE>
<CAPTION>
2001 2000 1999
---- ---- ----
<S> <C> <C> <C>
Statutory rate 35.0% 35.0% 35.0%
State and local taxes on income, net of federal tax benefit 3.6 3.1 3.5
Tax credits (5.1) (3.6) (2.6)
Nondeductible expenses and other--net 4.5 4.5 5.1
---- ---- ----
38.0% 39.0% 41.0%
==== ==== ====
</TABLE>
The tax effects of temporary differences that give rise to significant
portions of the deferred tax assets and deferred tax liabilities at October 31,
are presented below:
28
<PAGE>
<TABLE>
<CAPTION>
(in thousands of dollars) 2001 2000
-------- --------
<S> <C> <C>
Deferred tax assets:
Self-insurance claims $ 43,183 $ 33,214
Bad debt allowance 3,652 2,464
Deferred and other compensation 13,579 12,063
Goodwill amortization 5,026 4,099
Other 1,952 2,967
-------- --------
Total gross deferred tax assets 67,392 54,807
-------- --------
Deferred tax liabilities:
Deferred software development cost (3,817) (2,038)
Union pension contributions (1,369) (2,701)
-------- --------
Total gross deferred tax liabilities (5,186) (4,739)
-------- --------
Net deferred tax assets $ 62,206 $ 50,068
======== ========
</TABLE>
Management has determined that it is more likely than not that the total
net deferred tax asset will be realized.
10. ACQUISITIONS AND DIVESTITURES
All acquisitions have been accounted for using the purchase method of
accounting; operations of the companies and businesses acquired have been
included in the accompanying consolidated financial statements from their
respective dates of acquisition. The excess of the purchase price over fair
value of the net assets acquired is generally included in goodwill. Most
purchase agreements provide for contingent payments based on the annual pretax
income for subsequent periods ranging generally from three to five years. Any
such future payments are generally capitalized as goodwill when paid. Cash paid
for acquisitions, including any contingent amounts based on subsequent earnings,
was $23,401,000 in 2001. In addition, common shares, with a fair market value of
$1,666,000 at the date of issuance, were issued in 2001 under the contingent
payment provisions of a prior year acquisition. As these acquisitions were not
significant, pro forma information is not included in these financial
statements.
Acquisitions and dispositions made during the fiscal year 2001 are
discussed below:
Effective February 1, 2001, the Company acquired the operations and
selected assets of Arcade Cleaning L.P., a janitorial services company, with
customers located in the Northeast and Midwest regions. The terms included a
cash payment made at closing plus annual contingent payments based on operating
profits to be made over five years. This acquisition contributed $47,141,000 in
revenues in fiscal year 2001.
Effective March 26, 2001, the Company acquired selected customer
contracts and certain assets of SLI Lighting Solutions, a lighting services
company, with customers in the Mid-Atlantic and Southeastern regions. The terms
included a cash payment made at closing plus semi-annual contingent payments
based on gross profits to be made over three years. This acquisition contributed
$13,455,000 in revenues in fiscal year 2001.
Effective April 1, 2001, the Company acquired the operations and selected
assets of CarpetMaster Cleaning, a provider of janitorial and related services
in Albany and the surrounding capital district of New York. The terms included a
cash payment, of which 51% was made at closing and 49% paid in May 2001, plus
annual contingent payments based on operating profits to be made over five
years. This acquisition contributed $3,946,000 in revenues in fiscal year 2001.
Effective June 11, 2001, the Company acquired the operations and selected
assets of Sundown Security, Inc., a security services company, with customers
located in the Sacramento, California area. The terms included a cash payment
made at closing plus annual contingent payments based on
29
<PAGE>
operating profits to be made over five years. This acquisition contributed
$1,130,000 in revenues in fiscal year 2001.
The aggregate consideration paid for these acquisitions was $11,749,000
including $7,222,000 allocated to goodwill.
Effective April 30, 2001, the Company sold its Easterday Janitorial
Supply Division to AmSan West, Inc. In fiscal 2000, this Division had annual
revenues of $43,868,000, of which 27% were intercompany sales, and assets of
$11,574,000. In 2001, this Division contributed $15,054,000 in revenues after
intercompany sales elimination. The sale of Easterday will allow the Company to
focus on its building maintenance and other operational services. The sale does
not have a material effect on the Company's consolidated net assets, financial
position or results of operations. The sales price for Easterday was
$12,000,000, which was received on May 1, 2001. Included in operating profits
for the fiscal year ended October 31, 2001, is a pre-tax gain of $718,000.
11. DISCLOSURES ABOUT FAIR VALUE OF FINANCIAL INSTRUMENTS
The carrying amounts reported in the balance sheet for cash and cash
equivalents approximate fair value due to the short-maturity of these
instruments.
Financial instruments included in investments and long-term receivables
have no quoted market prices and, accordingly, a reasonable estimate of fair
market value could not be made without incurring excessive costs. However, the
Company believes by reference to stated interest rates and security held that
the fair value of the assets would not differ significantly from the carrying
value.
The fair value of the Company's long-term debt approximates carrying
value based on the quoted market prices for the same or similar issues or on the
current rates offered to the Company for debt of the same remaining maturities.
12. COMMITMENTS AND CONTINGENCIES
The Company and certain of its subsidiaries have been named defendants in
certain litigation arising in the ordinary course of business. In the opinion of
management, based on advice of legal counsel, such matters should have no
material effect on the Company's financial position, results of operations or
cash flows.
13. SEGMENT INFORMATION
Under Statements of Financial Accounting Standards (SFAS) No. 131,
"Disclosures about Segments of an Enterprise and Related Information" segment
information is presented under the management approach. The management approach
designates the internal organization that is used by management for making
operating decisions and assessing performance as the source of the Company's
reportable segments. SFAS 131 also requires disclosures about products and
services, geographic areas and major customers. The Company is organized into
nine separate operating segments as defined under SFAS 131. However, only the
ABM Janitorial, Amtech Elevator, ABM Engineering, Amtech Lighting and Ampco
System Parking operating segments are reportable using the quantitative
threshold criteria under SFAS 131. Included in other segments are ABM Service
Network, American Commercial Security, CommAir Mechanical Services, and
Easterday Janitorial Supply Company that was sold, as previously reported,
during the second quarter of fiscal year 2001. In addition, the corporate
expenses are not allocated. The significant increase in unallocated Corporate
expenses for 2001 includes the $20 million insurance adjustment mentioned
previously and centralization of marketing and sales expenses compared to the
prior year. All of these segments are distinct business units. They are managed
separately because of their unique services, technology and marketing
requirements. Nearly 100% of the operations and related revenues are within the
United States and no single customer accounts for more than 10% of sales.
30
<PAGE>
SEGMENT INFORMATION
(in thousands)
<TABLE>
<CAPTION>
Ampco
ABM System ABM Amtech Amtech
Janitorial Parking Engineering Lighting Elevator
----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
FOR THE YEAR ENDED OCTOBER 31, 2001
Revenues and other income $ 1,159,914 $ 165,940 $ 171,008 $ 144,319 $ 121,371
Intersegment revenues $ 572 $ -- $ -- $ 217 $ --
----------- ----------- ----------- ----------- -----------
Total Revenues $ 1,160,486 $ 165,940 $ 171,008 $ 144,536 $ 121,371
=========== =========== =========== =========== ===========
Operating profit $ 59,862 $ 4,050 $ 9,035 $ 11,038 $ 4,820
Interest, expense $ (917) $ -- $ (7) $ -- $ (2)
----------- ----------- ----------- ----------- -----------
Income before income taxes $ 58,945 $ 4,050 $ 9,028 $ 11,038 $ 4,818
=========== =========== =========== =========== ===========
Identifiable assets $ 285,979 $ 86,837 $ 47,948 $ 82,528 $ 42,127
=========== =========== =========== =========== ===========
Depreciation expense $ 4,980 $ 1,980 $ 79 $ 1,542 $ 248
=========== =========== =========== =========== ===========
Amortization expense $ 7,909 $ 2,749 $ 369 $ 945 $ 192
=========== =========== =========== =========== ===========
Capital expenditures $ 3,659 $ 1,612 $ 79 $ 2,572 $ 255
=========== =========== =========== =========== ===========
FOR THE YEAR ENDED OCTOBER 31, 2000
----------- ----------- ----------- ----------- -----------
Revenues and other income $ 1,052,865 $ 172,427 $ 156,314 $ 118,054 $ 114,409
Intersegment revenues $ 546 $ -- $ -- $ 302 $ --
----------- ----------- ----------- ----------- -----------
Total Revenues $ 1,053,411 $ 172,427 $ 156,314 $ 118,356 $ 114,409
=========== =========== =========== =========== ===========
Operating profit $ 53,050 $ 8,726 $ 8,164 $ 10,088 $ 6,832
Interest, expense $ (9) $ -- $ -- $ -- $ (1)
----------- ----------- ----------- ----------- -----------
Income before income taxes $ 53,041 $ 8,726 $ 8,164 $ 10,088 $ 6,831
=========== =========== =========== =========== ===========
Identifiable assets $ 274,704 $ 92,401 $ 45,459 $ 65,160 $ 37,356
=========== =========== =========== =========== ===========
Depreciation expense $ 4,962 $ 1,834 $ 80 $ 1,260 $ 316
=========== =========== =========== =========== ===========
Amortization expense $ 6,817 $ 2,742 $ 366 $ 735 $ 192
=========== =========== =========== =========== ===========
Capital expenditures $ 4,568 $ 1,521 $ 524 $ 1,469 $ 390
=========== =========== =========== =========== ===========
FOR THE YEAR ENDED OCTOBER 31, 1999
----------- ----------- ----------- ----------- -----------
Revenues and other income $ 933,293 $ 162,358 $ 153,758 $ 95,521 $ 96,618
Intersegment revenues $ 374 $ -- $ 188 $ 270 $ --
----------- ----------- ----------- ----------- -----------
Total Revenues $ 933,667 $ 162,358 $ 153,946 $ 95,791 $ 96,618
=========== =========== =========== =========== ===========
Operating profit $ 49,017 $ 8,385 $ 8,352 $ 7,457 $ 6,651
Interest, expense $ (13) $ -- $ -- $ -- $ --
----------- ----------- ----------- ----------- -----------
Income before income taxes $ 49,004 $ 8,385 $ 8,352 $ 7,457 $ 6,651
=========== =========== =========== =========== ===========
Identifiable assets $ 242,117 $ 84,360 $ 34,864 $ 59,921 $ 32,411
=========== =========== =========== =========== ===========
Depreciation expense $ 4,575 $ 1,998 $ 101 $ 1,454 $ 381
=========== =========== =========== =========== ===========
Amortization expense $ 5,866 $ 2,568 $ 368 $ 531 $ 192
=========== =========== =========== =========== ===========
Capital expenditures $ 6,632 $ 1,763 $ 168 $ 1,506 $ 354
=========== =========== =========== =========== ===========
</TABLE>
<TABLE>
<CAPTION>
Other Consolidated
Segments Corporate Eliminations Totals
----------- ----------- ------------ ------------
<S> <C> <C> <C> <C>
FOR THE YEAR ENDED OCTOBER 31, 2001
Revenues and other income $ 186,168 $ 1,318 $ -- $ 1,950,038
Intersegment revenues $ 5,813 $ -- $ (6,602) $ --
----------- ----------- ----------- -----------
Total Revenues $ 191,981 $ 1,318 $ (6,602) $ 1,950,038
=========== =========== =========== ===========
Operating profit $ 8,000 $ (41,258) $ -- $ 55,547
Interest, expense $ (9) $ (1,667) $ -- $ (2,602)
----------- ----------- ----------- -----------
Income before income taxes $ 7,991 $ (42,925) $ -- $ 52,945
=========== =========== =========== ===========
Identifiable assets $ 38,371 $ 99,310 $ -- $ 683,100
=========== =========== =========== ===========
Depreciation expense $ 726 $ 4,155 $ -- $ 13,710
=========== =========== =========== ===========
Amortization expense $ 454 $ -- $ -- $ 12,618
=========== =========== =========== ===========
Capital expenditures $ 1,606 $ 7,139 $ -- $ 16,922
=========== =========== =========== ===========
FOR THE YEAR ENDED OCTOBER 31, 2000
----------- ----------- ----------- -----------
Revenues and other income $ 193,073 $ 415 $ -- $ 1,807,557
Intersegment revenues $ 11,954 $ -- $ (12,802) $ --
----------- ----------- ----------- -----------
Total Revenues $ 205,027 $ 415 $ (12,802) $ 1,807,557
=========== =========== =========== ===========
Operating profit $ 6,362 $ (17,209) $ -- $ 76,013
Interest, expense $ (10) $ (3,300) $ -- $ (3,320)
----------- ----------- ----------- -----------
Income before income taxes $ 6,352 $ (20,509) $ -- $ 72,693
=========== =========== =========== ===========
Identifiable assets $ 56,120 $ 70,785 $ -- $ 641,985
=========== =========== =========== ===========
Depreciation expense $ 959 $ 2,854 $ -- $ 12,265
=========== =========== =========== ===========
Amortization expense $ 407 $ -- $ -- $ 11,259
=========== =========== =========== ===========
Capital expenditures $ 692 $ 9,553 $ -- $ 18,717
=========== =========== =========== ===========
FOR THE YEAR ENDED OCTOBER 31, 1999
----------- ----------- ----------- -----------
Revenues and other income $ 187,306 $ 862 $ -- $ 1,629,716
Intersegment revenues $ 12,567 $ -- $ (13,399) $ --
----------- ----------- ----------- -----------
Total Revenues $ 199,873 $ 862 $ (13,399) $ 1,629,716
=========== =========== =========== ===========
Operating profit $ 7,128 $ (17,799) $ -- $ 69,191
Interest, expense $ (10) $ (1,936) $ -- $ (1,959)
----------- ----------- ----------- -----------
Income before income taxes $ 7,118 $ (19,735) $ -- $ 67,232
=========== =========== =========== ===========
Identifiable assets $ 52,798 $ 56,913 $ -- $ 563,384
=========== =========== =========== ===========
Depreciation expense $ 1,032 $ 1,274 $ -- $ 10,815
=========== =========== =========== ===========
Amortization expense $ 358 $ -- $ -- $ 9,883
=========== =========== =========== ===========
Capital expenditures $ 1,468 $ 7,560 $ -- $ 19,451
=========== =========== =========== ===========
</TABLE>
Intersegment revenues are recorded at prices negotiated between the entities.
Certain prior year amounts have been restated to conform to the current year's
presentation.
31
<PAGE>
14. QUARTERLY INFORMATION (UNAUDITED)
(in thousands, except per share amounts)
<TABLE>
<CAPTION>
Fiscal Quarter
----------------------------------------------------------
First Second Third Fourth Year
---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
2001
Revenues and other income $ 470,419 $ 490,494 $ 492,454 $ 496,671 $1,950,038
Gross profit 57,338 64,436 62,679 43,251 227,704
Net income (loss) 8,404 12,054 13,233 (865) 32,826
Net income (loss) per common share:
Basic 0.36 0.50 0.55 (0.04) 1.36
Diluted 0.34 0.48 0.52 (0.04) 1.30
---------- ---------- ---------- ---------- ----------
2000
Revenues and other income $ 428,581 $ 439,988 $ 461,890 $ 477,098 $1,807,557
Gross profit 52,883 56,684 60,136 63,856 233,559
Net income 7,527 9,880 12,445 14,491 44,343
Net income per common share:
Basic 0.33 0.43 0.54 0.64 1.94
Diluted 0.32 0.41 0.52 0.60 1.85
---------- ---------- ---------- ---------- ----------
</TABLE>
SCHEDULE II
CONSOLIDATED VALUATION ACCOUNTS
Years ended October 31, 2001, 2000 and 1999
(in thousands)
<TABLE>
<CAPTION>
Balance Charges to Deductions Other Balance
Beginning Costs and Net of Additions End of
of Year Expenses Recoveries (Reductions) Year
--------- ---------- ---------- ------------ -------
<S> <C> <C> <C> <C> <C>
ALLOWANCE FOR DOUBTFUL ACCOUNTS
Years ended October 31,
2001 $ 8,825 $ 6,134 $ (5,539) $ -- $ 9,420
2000 7,490 2,971 (1,636) -- 8,825
1999 6,761 2,257 (1,528) -- 7,490
------- ------- -------- ---- -------
</TABLE>
32
<PAGE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Not applicable.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information required by this item regarding the Company's directors
and executive officers not included in Part I under "Executive Officers" is
incorporated by reference to the information set forth under the captions
"Election of Directors" and "Section 16(a) Beneficial Ownership Compliance
Reporting" contained in the Proxy Statement to be used by the Company in
connection with its 2002 Annual Meeting of Stockholders.
ITEM 11. EXECUTIVE COMPENSATION
The information required by this item is incorporated by reference to the
information set forth under the caption "Executive Compensation" contained in
the Proxy Statement to be used by the Company in connection with its 2002 Annual
Meeting of Stockholders.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required by this item is incorporated by reference to the
information set forth under the caption "Principal Stockholders" contained in
the Proxy Statement to be used by the Company in connection with its 2002 Annual
Meeting of Stockholders.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by this item is incorporated by reference to the
information set forth under the captions "Executive Compensation" and "Further
Information Concerning the Board of Directors" contained in the Proxy Statement
to be used by the Company in connection with the 2002 Annual Meeting of
Stockholders.
PART IV
ITEM 14. EXHIBITS, CONSOLIDATED FINANCIAL STATEMENT SCHEDULES AND REPORTS ON
FORM 8-K
(a) The following documents are filed as part of this Form 10-K:
1. Consolidated Financial Statements of ABM Industries
Incorporated and Subsidiaries (see Item 8):
Independent Auditors' Report
Consolidated Balance Sheets -- October 31, 2001 and 2000
Consolidated Statements of Income -- Years ended October
31, 2001, 2000 and 1999
33
<PAGE>
Consolidated Statements of Stockholders' Equity and
Comprehensive Income -- Years ended October 31, 2001, 2000
and 1999
Consolidated Statements of Cash Flows -- Years ended
October 31, 2001, 2000 and 1999
Notes to Consolidated Financial Statements.
2. Consolidated Financial Statement Schedule of ABM Industries
Incorporated and Subsidiaries (see Item 8):
Schedule II -- Consolidated Valuation Accounts -- Years
ended October 31, 2001, 2000 and 1999
All other schedules are omitted because they are not
applicable or because the required information is included
in the consolidated financial statements or the notes
thereto.
The individual financial statements of the registrant's
subsidiaries have been omitted since the registrant is
primarily an operating company and all subsidiaries
included in the consolidated financial statements are
wholly owned subsidiaries.
3. Exhibits:
See Exhibit Index.
(b) Reports on Form 8-K:
No reports on Form 8-K were filed during the fourth quarter of
fiscal year 2001.
34
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
ABM INDUSTRIES INCORPORATED
By: /s/ Henrik C. Slipsager
-----------------------------------------
Henrik C. Slipsager
President, Chief Executive Officer and Director
December 21, 2001
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
<TABLE>
<S> <C>
/s/ Henrik C. Slipsager /s/ Martinn H. Mandles
- -------------------------------------------- ---------------------------------------------
Henrik C. Slipsager, President, Martinn H. Mandles
Chief Executive Officer and Director Chairman of the Board,
(Principal Executive Officer) Chief Administrative Officer and Director
December 21, 2001 December 21, 2001
/s/ George B. Sundby /s/ Maria de la Pena
- -------------------------------------------- ---------------------------------------------
George B. Sundby Maria de la Pena
Senior Vice President and Vice President, Controller and
Chief Financial Officer Chief Accounting Officer
(Principal Financial Officer) (Principal Accounting Officer)
December 21, 2001 December 21, 2001
/s/ Maryellen C. Herringer /s/ Linda Chavez
- -------------------------------------------- ---------------------------------------------
Maryellen C. Herringer, Director Linda Chavez, Director
December 21, 2001 December 21, 2001
/s/ Luke S. Helms /s/ Charles T. Horngren
- -------------------------------------------- ---------------------------------------------
Luke S. Helms, Director Charles T. Horngren, Director
December 21, 2001 December 21, 2001
/s/ Henry L. Kotkins, Jr. /s/ Theodore Rosenberg
- -------------------------------------------- ---------------------------------------------
Henry L. Kotkins, Jr., Director Theodore Rosenberg, Vice Chairman of the
December 21, 2001 Executive Committee and Director
December 21, 2001
/s/ William W. Steele /s/ William E. Walsh
- -------------------------------------------- ---------------------------------------------
William W. Steele, Chairman of the William E. Walsh, Director
Executive Committee and Director December 21, 2001
December 21, 2001
</TABLE>
35
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- ------------------------------------------------------------------------------------------------
<S> <C>
3.1 [a] Restated Certificate of Incorporation of ABM Industries Incorporated, dated March 22, 2000
3.2 [u] By-laws, as amended July 23, 2001
4.1 [k] Credit Agreement, dated June 25, 1997, between Bank of America National
Trust and Savings Association and the Company
4.2 [q] First Amendment to Credit Agreement dated as of October 31, 1997
4.3 [t] Second Amendment to Credit Agreement dated as of September 22, 1999
4.5 [c] Business Loan Agreement dated February 13, 1996
10.3 [b]* Supplemental Medical and Dental Plan
10.4 [j]* 1984 Executive Stock Option Plan as amended effective December 19, 1995 (now known as
"Age-Vested" Career Stock Option Plan)
10.13 [j]* 1987 Stock Option Plan as amended effective December 19, 1995 (now known as "Time-Vested"
Incentive Stock Option Plan)
10.16 [d] Rights Agreement, dated as of March 17, 1998, between the Company and ChaseMellon Shareholder
Services, L.L.C., as Rights Agent
10.19 [e]* Service Award Plan
10.21 [f]* Amended and Restated Retirement Plan for Outside Directors
10.22 [f]* Amendment No. 1 to Service Award Plan
10.23 [g]* Form of Outside Director Retirement Agreement (dated June 16, 1992)
10.27 [h] Guaranty of American Building Maintenance Industries, Inc.
10.28 [i]* Deferred Compensation Plan
10.29 [i]* Form of Existing Executive Employment Agreement Other Than Those Specifically Named
10.30 [l]* Executive Employment Agreement with Martinn H. Mandles, as amended by Amendments
One and Two
10.35 [l]* Form of Amendments of Corporate Executive Employment Agreements with Other Than
Those Named
10.36 [m]* Form of Indemnification for Directors
10.39 [n]* Third Amendment of Corporate Executive Employment Agreement with Martinn H. Mandles
10.40 [p]* 1996 ABM Industries Incorporated Long-Term Senior Executive Stock Option Plan (now known as
"Price-Vested" Performance Stock Option Plan)
10.40 [o]* Fourth Amendment of Corporate Executive Employment Agreement with Martinn H. Mandles
10.47 [t]* Amendment No. 1 to the 1987 Incentive Stock Option Plan
10.48 [t]* Amendment No. 2 to the ABM Industries Incorporated 1987 Incentive Stock Option Plan
(December 19, 1994 Restatement)
10.49 [t]* Amendment No. 3 to the "Time-Vested" Incentive Stock Option Plan
10.50 [t]* Amendment No. 4 to the ABM Industries Incorporated "Time-Vested" Incentive Stock Option Plan
(December 19, 1994 Restatement)
10.51 [t]* Amendment No. 1 to the 1984 Executive Stock Option Plan
10.52 [t]* Amendment No. 2 to the 1984 Executive Stock Option Plan (December 1994 Restatement)
10.53 [t]* Amendment No. 3 to the ABM Industries Incorporated "Age-Vested" Career Stock Option Plan
(December 19, 1995 Restatement)
10.54 [t]* Amendment No. 1 to the Long-Term Senior Executive Incentive Stock Option Plan Adopted
December 1996
10.55 [t]* Amendment No. 2 to the "Price-Vested" Performance Stock Option Plan
10.56 [t]* Amendment No. 3 to the ABM Industries Incorporated "Price-Vested" Performance Stock Option Plan
10.58 [r]* Corporate Executive Employment Agreement with Henrik C. Slipsager
10.59 [r]* Employee Stock Purchase Plan (as amended through May 1, 2000)
10.60 [s]* Amendment No. 1 to Employee Stock Purchase Plan (May 2000 Restatement)
10.61 * Amendment of Division Executive Employment Agreement -- Increase in Supplemental Executive
Retirement Pension ("SERP") -- with Martinn H. Mandles
10.62 * Corporate Executive Employment Agreement with Harry H. Kahn
10.63 * Corporate Executive Employment Agreement with Jess E. Benton
</TABLE>
36
<PAGE>
<TABLE>
<S> <C>
10.65 * First Amendment of Division Executive Employment Agreement dated November 1, 2000 with
Henrik C. Slipsager
10.66 * Corporate Executive Employment Agreement with George B. Sundby
10.67 * Corporate Executive Employment Agreement with Donna M. Dell
10.68 * First Amendment of Corporate Executive Employment Agreement dated November 1, 1999 with Donna M. Dell
21.1 Subsidiaries of the Registrant
23.1 Consent of Independent Certified Public Accountants
</TABLE>
- --------------------------------------------------------------------------------
[a] Incorporated by reference to the exhibit bearing the same numeric
description which was filed as an exhibit to the Company's quarterly
report on Form 10-Q for the fiscal quarter ended April 30, 2000.
[b] Incorporated by reference to the exhibit bearing the same numeric
description which was filed as an exhibit to the Company's annual report
on Form 10-K for the fiscal year ended October 31, 1984.
[c] Incorporated by reference to the exhibit bearing the same numeric
description, which was filed as an exhibit to the Company's quarterly
report on Form 10-Q for the fiscal quarter ended January 31, 1996.
[d] Incorporated by reference to exhibit 4.1 to the Company's report on Form
8-K dated March 17, 1998.
[e] Incorporated by reference to the exhibit bearing the same numeric
description which was filed as an exhibit to the Company's annual report
on Form 10-K for the fiscal year ended October 31, 1990.
[f] Incorporated by reference to the exhibit bearing the same numeric
description which was filed as an exhibit to the Company's annual report
on Form 10-K for the fiscal year ended October 31, 1991.
[g] Incorporated by reference to the exhibit bearing the same numeric
description which was filed as an exhibit to the Company's quarterly
report on Form 10-Q for the fiscal quarter ended July 31, 1992.
[h] Incorporated by reference to the exhibit bearing the same numeric
reference which was filed as an exhibit to the Company's quarterly report
on Form 10-Q for the fiscal quarter ended July 31, 1993.
[i] Incorporated by reference to the exhibit bearing the same numeric
description which was filed as an exhibit to the Company's annual report
on Form 10-K for the fiscal year ended October 31, 1993.
[j] Incorporated by reference to the exhibit bearing the same numeric
description which was filed as an exhibit to the Company's quarterly
report on Form 10-Q for the fiscal quarter ended April 30, 1996.
[k] Incorporated by reference to the exhibit bearing the same numeric
description which was filed as an exhibit to the Company's quarterly
report on Form 10-Q for the fiscal quarter ended July 31, 1997.
[l] Incorporated by reference to the exhibit bearing the same numeric
description which was filed as an exhibit to the Company's annual report
on Form 10-K for the fiscal year ended October 31, 1994.
[m] Incorporated by reference to exhibit 10.20 which was filed as an exhibit
to the Company's quarterly report on Form 10-Q for the fiscal quarter
ended April 30, 1991.
[n] Incorporated by reference to the exhibit bearing the same numeric
description which was filed as an exhibit to the Company's annual report
on Form 10-K for the fiscal year ended October 31, 1996.
[o] Incorporated by reference to the exhibit bearing the same numeric
description which was filed as an exhibit to the Company's quarterly
report on Form 10-Q for the fiscal quarter ended July 31, 1998.
37
<PAGE>
[p] Incorporated by reference to the exhibit bearing the same numeric
description which was filed as an exhibit to the Company's quarterly
report on Form 10-Q for the fiscal quarter ended April 30, 1997.
[q] Incorporated by reference to the exhibit bearing the same numeric
description which was filed as an exhibit to the Company's annual report
on Form 10-K for the fiscal year ended October 31, 1997.
[r] Incorporated by reference to the exhibit bearing the same numeric
description which was filed as an exhibit to the Company's quarter report
on Form 10-Q for the fiscal quarter ended January 31, 2001.
[s] Incorporated by reference to the exhibit bearing the same numeric
description which was filed as an exhibit to the Company's quarter report
on Form 10-Q for the fiscal quarter ended April 30, 2001.
[t] Incorporated by reference to the exhibit bearing the same numeric
description which was filed as an exhibit to the Company's annual report
on Form 10-K for the fiscal year ended October 31, 1999.
[u] Incorporated by reference to the exhibit bearing the same numeric
description which was filed as an exhibit to the Company's quarterly
report on Form 10-Q for the fiscal quarter ended July 31, 2001.
* Management contract, compensatory plan or arrangement.
38
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.61
<SEQUENCE>3
<FILENAME>f77849ex10-61.txt
<DESCRIPTION>EXHIBIT 10.61
<TEXT>
<PAGE>
EXHIBIT 10.61
[ABM INDUSTRIES INCORPORATED LETTERHEAD]
June 30, 1998
Mr. Martinn H. Mandles
ABM Industries Incorporated
160 Pacific Avenue, Suite 222
San Francisco, CA 94111
RE: AMENDMENT OF DIVISION EXECUTIVE EMPLOYMENT AGREEMENT --
INCREASE IN SUPPLEMENTAL EXECUTIVE RETIREMENT PENSION ("SERP")
Dear Martinn:
I am pleased to inform you that the Executive Officer Compensation and Stock
Option Committee of ABM's Board of Directors has approved an increase in the
monthly benefit payable to you to $4,167.00 under this plan. Accordingly, the
maximum benefit payable to you shall increase to $500,000.
This letter shall, in this regard, amend your Executive Employment Agreement, as
follows:
The monthly Consulting Fees benefit set forth in paragraph X.5
CONSULTANCY shall be $4,167.00.
Please sign and date all three (3) originals and return two (2) of them to me.
Very truly yours
/s/ WILLIAM W. STEELE
- ----------------------------------
William W. Steele
I hereby agree to the foregoing amendment.
/s/ MARTINN H. MANDLES Dated: June 30, 1998.
- ----------------------------------- ---------------------------------
Martinn H. Mandles
New York Stock Exchange Symbol: ABM
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.62
<SEQUENCE>4
<FILENAME>f77849ex10-62.txt
<DESCRIPTION>EXHIBIT 10.62
<TEXT>
<PAGE>
EXHIBIT 10.62
1
CORPORATE EXECUTIVE EMPLOYMENT AGREEMENT
THIS CORPORATE EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made as of
November 1, 1999, by and between Harry H. Kahn ("Executive"), and ABM Industries
Incorporated ("Company") for itself and on behalf of its subsidiary corporations
as applicable herein.
WHEREAS, Company is engaged in the building maintenance and related service
businesses, and
WHEREAS, Executive is experienced in the administration, finance, marketing, and
operation of such services, and
WHEREAS, Company has invested significant time and money to develop proprietary
trade secrets and other confidential business information, as well as invaluable
goodwill among its customers, sales prospects and employees, and
WHEREAS, Executive wishes to, or has been and desires to remain employed by
Company, and to utilize such proprietary trade secrets, other confidential
business information and goodwill, and
WHEREAS, Company has disclosed or will disclose to Executive such proprietary
trade secrets and other confidential business information which Executive will
utilize in the performance of this Agreement;
NOW THEREFORE, Executive and Company agree as follows:
A. EMPLOYMENT: Company hereby agrees to employ Executive, and Executive
hereby accepts such employment, on the terms and conditions set forth in
this Agreement.
B. TITLE: Executive's title shall be Senior Vice President, General Counsel
& Corporate Secretary of Company.
C. DUTIES & RESPONSIBILITIES: Executive shall be expected to assume and
perform such executive or managerial duties and responsibilities as are
assigned from time-to-time by the Chairman of the Board and Chief
Administrative Officer of Company, to whom Executive shall report and be
accountable.
D. TERM OF AGREEMENT: Employment hereunder shall commence on November 1,
1999, for a term of two (2) years ("Initial Term"), unless sooner
terminated pursuant to Paragraph O hereof, or later extended pursuant to
Paragraph N hereof ("Extended Term").
E. PRINCIPAL OFFICE: During the Initial Term and any Extended Term, as
applicable, of this Agreement, Executive shall be based at a Company
office located in San Francisco ("County of Employment"), California
("State of Employment).
F. COMPENSATION: Company agrees to compensate Executive, and Executive
agrees to accept as compensation in full, for Executive's assumption and
performance of duties and responsibilities pursuant to this Agreement:
1. SALARY: A base salary paid in equal installments of no less
frequently than semi-monthly at the annual rate set forth in
Paragraph X.l hereof.
2. BONUS: A bonus or other incentive or contingent compensation, if
any, pursuant to Paragraph X.2 hereof, and the bonus set forth
in Paragraph X.4, hereof.
3. FRINGE BENEFITS: The then current fringe benefits generally
provided by Company to all of its Executives. Such benefits may
include but not be limited to the use of a Company-leased car or
a car allowance, group health benefits, long-term disability
benefits, group life
<PAGE>
2
insurance, sick leave and vacation, and a Service Award Benefit
Plan. Each of these fringe benefits is subject to the applicable
Company policy at all times. Company reserves the right to add,
increase, reduce or eliminate any fringe benefit at any time,
but no such benefit or benefits shall be reduced or eliminated
as to Executive unless generally reduced or eliminated as to
comparable executives within the Company.
G. PAYMENT OR REIMBURSEMENT OF BUSINESS EXPENSES: Company shall pay
directly or reimburse Executive for reasonable business expenses of
Company incurred by Executive in connection with Company business, and
approved in writing by the person(s) with the title set forth in
Paragraph C hereof, upon presentation to such person(s) by Executive
within sixty (60) days after incurring such expense of an itemized
request for payment including the date, nature, recipient, purpose and
amount of each such expense, accompanied by receipts for all such
expenses in excess of Twenty-Five Dollars ($25) each.
H. BUSINESS CONDUCT: Executive shall make reasonable best efforts to comply
with all applicable laws pertaining to the performance of this
Agreement, and with all lawful and ethical rules, regulations, policies,
procedures and instructions of Company, including but not limited to the
following:
1. GOOD FAITH: Executive shall not act in any way contrary to the
best interests of Company.
2. BEST EFFORTS: During all full-time employment hereunder,
Executive shall devote full working time and attention to
Company, and shall not at any time be directly or indirectly
employed by, own, operate, assist or otherwise be involved,
invested or associated in any business that is similar or
competitive to any business of Company; except that Executive
may own up to five percent (5%) of any such publicly-held
business(es), provided that Executive: (a) shall give Company
notice(s) of such ownership in accordance with Paragraph W
hereof, and (b) shall not at any time be directly or indirectly
employed by or operate, assist, or otherwise be involved or
associated with any such business(es).
3. VERACITY: Executive shall make no claims or promises to any
employee, supplier, contractor, customer or sales prospect of
Company that are unauthorized by Company or are in any way
untrue.
4. DRIVER'S LICENSE: Executive shall have and carry a valid
driver's license issued by the State of Employment hereunder and
a driver's permit issued by the Company whenever Executive is
driving any motor vehicle in connection with Company business.
Executive agrees to immediately notify Company in writing if
Executive's driver's license is lost, expired, restricted,
suspended or revoked for any reason whatsoever.
I. NO CONFLICT: Executive represents to Company that Executive is not bound
by any contract with a previous employer or with any other business that
might prevent Executive from entering into this Agreement or disclosing
information about any previous employer or any other business to
Company, or might otherwise interfere with Executive's employment
hereunder.
J. COMPANY PROPERTY: Company shall, from time to time, entrust to the care,
custody and control of Executive certain of Company's property, such as
motor vehicles, equipment, supplies and documents. Such documents may
include, but shall not be limited to customer lists, financial
statements, cost data, price lists, invoices, forms, electronic files
and media, mailing lists, contracts, reports, manuals, personnel files
or directories, correspondence, business cards, copies or notes made
from Company documents and documents compiled or prepared by Executive
for Executive's use in connection with Company business. Executive
specifically acknowledges that all such documents are the property of
Company, notwithstanding their preparation, care, custody, control or
possession by Executive at any time(s) whatsoever.
<PAGE>
3
K. GOODWILL & PROPRIETARY INFORMATION: In connection with Executive's
employment hereunder:
1. Executive agrees to utilize and further Company's goodwill
("Goodwill") among its customers, sales prospects and employees,
and acknowledges that Company may disclose to Executive and
Executive may disclose to Company, proprietary trade secrets and
other confidential information not in the public domain
("Proprietary Information") including but not limited to
specific customer data such as: (a) the identity of Company's
customers and sales prospects, (b) the nature, extent,
frequency, methodology, cost, price and profit associated with
their services and products purchased from Company, (c) any
particular needs or preferences regarding their service or
supply requirements, (d) the names, office hours, telephone
numbers and street addresses of their purchasing agents or other
buyers, (e) their billing procedures, (f) their credit limits
and payment practices, and (g) their organization structure.
2. Executive agrees that such Proprietary Information and Goodwill
have unique value to Company, are not generally known or readily
available to Company's competitors, and could only be developed
by others after investing significant time and money. Company
would not make such Proprietary Information and Goodwill
available to Executive unless Company is assured that all such
Proprietary Information and Goodwill will be held in trust and
confidence by Executive. Executive hereby acknowledges that to
use this Proprietary Information and Goodwill except for the
benefit of Company would be improper and unfair to Company.
L. RESTRICTIVE COVENANTS: In recognition of Paragraph K hereof, Executive
hereby agrees that during the Initial Term and the Extended Term, if
any, of this Agreement, and thereafter for as long as it shall be
enforceable:
1. Except in the proper performance of this Agreement, Executive
shall not directly or indirectly solicit or otherwise encourage
or arrange for any employee to terminate employment with
Company.
2. Except in the proper performance of this Agreement, Executive
shall not directly or indirectly disclose or deliver to any
other person or business, any Proprietary Information obtained
directly or indirectly by Executive from, or for, Company.
3. Executive shall not seek, solicit, divert, take away, obtain or
accept the patronage of any customer or sales prospect of
Company through the direct or indirect use of any Proprietary
Information of Company, or by any other unfair or unlawful
business practice.
4. Executive agrees that for a reasonable time after the
termination of this Agreement, which Executive and Company
hereby agree to be one (1) year, Executive shall not directly or
indirectly, for Executive or for any other person or business,
seek, solicit, divert, take away, obtain or accept any
site-specific customer account or site-specific sales prospect
with which Executive had direct business involvement on behalf
of Company within the one (1) year period prior to termination
of this Agreement.
5. Nothing in this Agreement shall be binding upon the parties to
the extent it is void or unenforceable for any reason in the
State of Employment, including, without limitation, as a result
of any law regulating competition or proscribing unlawful
business practices.
M. MODIFICATION OF EMPLOYMENT: At any time during the then current Initial
or Extended Term, as applicable, of this Agreement, a majority of the
Board of Directors of Company shall have the absolute right, with or
without cause and without terminating this Agreement or Executive's
employment hereunder, to modify the nature of Executive's employment for
the remainder of the
<PAGE>
4
then current Initial or Extended Term, as applicable, of this Agreement,
from that of a fill-time employee to that of a part-time employee
("Modification Period"). The Modification Period shall commence
immediately upon Company giving Executive written notice of such change.
1. Upon commencement of the Modification Period: (a) Executive
shall immediately resign as a full-time employee of Company and
as an officer and/or director of Company, as applicable, (b)
Executive shall promptly return all Company property in
Executive's possession to Company, including but not limited to
any motor vehicles, equipment, supplies and documents set forth
in Paragraph J hereof, and (c) Company shall pay Executive all
previously earned and vested but as yet unpaid, salary, prorated
bonus or other contingent compensation, reimbursement of
business expenses and fringe benefits.
2. During the Modification Period: (a) Company shall continue to
pay Executive's monthly salary pursuant to Paragraph F.l
hereof, and to the extent available under the Company's group
insurance policies, continue to provide Executive with the same
group health and life insurance (subject to Executive continuing
to pay the employee portion of any such premium) to which
Executive would be entitled as a full-time employee, with the
understanding and agreement that such monthly salary and group
insurance, if available, shall constitute the full extent of
Company's obligation to compensate Executive, (b) Executive
shall not be eligible or entitled to receive or participate in
any bonus or fringe benefits other than the aforementioned group
insurance, if available, (c) in the alternative, Executive may
exercise rights under COBRA to obtain medical insurance coverage
as may be available to Executive, (d) Executive shall be deemed
a part-time employee and not a full-time employee of Company,
(e) Executive shall provide Company with such occasional
executive or managerial services as reasonably requested by the
persons with the title set forth in Paragraph C hereof, except
that failure to render such services by reason of any physical
or mental illness or disability other than Total Disability or
death as set forth in Paragraph O.2 hereof, or unavailability
because of absence from the State of Employment hereunder, shall
not affect Executive's right to receive such salary and (f)
Company shall pay directly or reimburse Executive in accordance
with the provisions of Paragraph G hereof for reasonable
business expenses of Company incurred by Executive in connection
with such services requested by the persons with the title set
forth in Paragraph C hereof.
3. The Modification Period shall continue until the earlier of: (a)
Total Disability or death as set forth in Paragraph O.2 hereof,
(b) termination of this Agreement by Company for "just cause" as
hereinafter defined, (c) Executive accepting employment or
receiving any other compensation from operating, assisting or
otherwise being involved, invested or associated with any
business that is similar to or competitive with any business in
which Company is engaged on the commencement date of the
Modification Period, or (d) expiration of the then current Term
of this Agreement.
N. EXTENSION OF EMPLOYMENT: Absent at least ninety (90) days written Notice
of Termination from either party to the other party prior to expiration
of the then Initial or Extended Term, as applicable, of this Agreement,
employment hereunder shall continue for an Extended Term (or another
Extended Term, as applicable) of two (2) years, by which Executive and
Company intend that all terms and conditions of this Agreement shall
remain in full force and effect for another twenty four (24) months,
except that the highest base salary specified in Paragraph X.1.a shall
be increased annually as set forth in Paragraph X.1.b for each year of
the Extended Term. Company has the option, without terminating this
Agreement or Executive's employment hereunder, of placing Executive on a
leave of absence at the full compensation set forth in Paragraph F
hereof for any or all of such ninety (90) day period in lieu of the
aforementioned Notice of Termination.
O. TERMINATION OF EMPLOYMENT:
1. a. Termination of employment at the expiration of the then
current Initial or
<PAGE>
5
Extended Term shall be effective with or without cause.
b. Except as provided in Paragraph O.1.a, the Company
shall have the right to terminate Executive's employment
hereunder at any time during the then current Initial or
Extended Term, as applicable, of this Agreement, without
notice subject only to a good faith determination by a
majority of the Board of Directors of Company of "just
cause." "Just cause" includes but is not limited to any
theft or other dishonesty, or any material: (i) neglect
of employment duties, (ii) inability or unwillingness to
perform employment duties, (iii) insubordination, (iv)
abuse of alcohol or other drugs, (v) breach of this
Agreement; or for (vi) other misconduct, unethical or
unlawful activity.
c. At any time during the then current Initial or Extended
Term, as applicable, of this Agreement, with or without
cause, Executive may terminate employment hereunder by
giving Company ninety (90) days prior written notice.
2. Employment hereunder shall automatically terminate upon the
total disability ("Total Disability") or death of Executive.
Total Disability shall be deemed to occur on the ninetieth
(90th) consecutive or non-consecutive calendar day within any
twelve (12) month period that Executive is unable to perform the
duties set forth in Paragraph C hereof because of any physical
or mental illness or disability. Company shall pay when due to
Executive or his estate, as applicable, all prorated salary,
bonus or other contingent compensation, reimbursement of
business expenses and fringe benefits which would have otherwise
been payable to Executive under this Agreement, through the end
of the month in which Total Disability or death occurs.
3. Upon termination of employment hereunder, Executive shall
immediately resign as an employee of Company and as an officer
and/or director of Company, as applicable. Executive shall
promptly return all Company property in Executive's possession
to Company, including but not limited to, any motor vehicles,
equipment, supplies and documents set forth in Paragraph J
hereof. Company shall pay Executive, when due, all previously
earned and vested but as yet unpaid, salary, bonus or other
contingent compensation, reimbursement of business expenses and
fringe benefits.
4. Nothing contained in this Agreement shall entitle Executive to
receive a bonus or other incentive or contingent compensation
from Company based on any sales or profits made by Company after
termination of employment hereunder.
P. GOVERNING LAW: This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Employment hereunder.
Q. ARBITRATION CLAUSE:
1. Except for the interpretation and enforcement of injunctive
relief pursuant to Paragraph R hereof (which, at Company's
option, shall be subject to litigation in any court having
proper jurisdiction), any claim or dispute related to or arising
from this Agreement (whether based in contract or tort, in law
or equity) including, but not limited to, claims or disputes
between Executive and Company or its directors, officers,
employees and agents regarding Executive's employment or
termination of employment hereunder, or any other business of
Company, shall be resolved by mandatory, final, binding
arbitration in accordance with the rules of the American
Arbitration Association; provided, however, that no party shall
be entitled to an award of general or punitive damages
hereunder.
2. Any such arbitration must be requested in writing within one (1)
year from the date the
<PAGE>
6
party initiating the arbitration knew or should have known about
the claim or dispute, or all claims arising from that dispute
are forever waived. Any such arbitration (or court proceeding as
applicable hereunder) shall be held in the County of Employment.
Judgment upon the award rendered through such arbitration may be
entered and enforced in any court having proper jurisdiction.
R. REMEDIES & DAMAGES:
1. The parties agree that, in the event of a material breach or
threatened material breach of Paragraph L hereof, the damage or
imminent damage to the value of Company's business shall be
inestimable, and therefore any remedy at law or in damages shall
be inadequate. Accordingly, the parties hereto agree that
Company shall be entitled to the immediate issuance of a
restraining order or an injunction against Executive in the
event of such breach or threatened breach, in addition to any
other relief available to Company pursuant to this Agreement or
under law.
2. Executive agrees that the actual amount of damages resulting
from any material breach of any of the provisions of Paragraph L
hereof would be impractical or impossible to ascertain. It is
therefore agreed that the damages resulting from any such breach
which involves any customer of Company shall be liquidated
damages, not a penalty, in an amount equal to four (4) times the
lost monthly revenue to the Company based on the average monthly
revenue which was payable by that customer to Company during the
four (4) months immediately preceding such breach. This
provision for liquidated damages is in addition to any other
relief available to Company pursuant to this Agreement or under
law.
3. To the full extent permitted under the laws of the State of
Employment hereunder, Executive authorizes Company to withhold
from Executive's compensation and from any other funds held for
Executive's benefit by Company, any damages or losses sustained
by Company as a result of any material breach or other material
violation of this Agreement by Executive, pending arbitration
between the parties as provided for herein.
S. NO WAIVER: Failure by either party to enforce any term or condition of
this Agreement at any time shall not preclude that party from enforcing
that provision, or any other provision of this Agreement, at any later
time.
T. SEVERABILITY: The provisions of this Agreement are severable. If any
arbitrator (or court as applicable hereunder) rules that any portion of
this Agreement is invalid or unenforceable, the arbitrator's or court's
ruling shall not affect the validity and enforceability of other
provisions of this Agreement. It is the intent of the parties that if
any provision of this Agreement is ruled to be overly broad, the
arbitrator or court shall interpret such provision with as much
permissible breadth as is allowable under law rather than to consider
such provision void.
U. SURVIVAL: All terms and conditions of this Agreement which by reasonable
implication are meant to survive the termination of this Agreement,
including but not limited to, the Restrictive Covenants and Arbitration
Clause herein, shall remain in full force and effect after the
termination of this Agreement.
V. CONSTRUCTION: This Agreement was negotiated in good faith by the parties
hereto, who hereby agree to share the responsibility for any
ambiguities, uncertainties or inconsistencies herein. Paragraph headings
are used herein only for ease of reference, and shall not in any way
affect the interpretation or enforcement of this Agreement.
W. NOTICES:
1. Any notice required or permitted to be given pursuant to this
Agreement shall be in
<PAGE>
7
writing and delivered in person, or sent prepaid by certified
mail, bonded messenger or overnight express, to the party named
at the address set forth below or at such other address as
either party may hereafter designate in writing to the other
party:
EXECUTIVE: HARRY H. KAHN
2444 Leavenworth Street
San Francisco, CA 94133
COMPANY: ABM INDUSTRIES INCORPORATED
160 Pacific Avenue, Suite 222
San Francisco, CA 94111
Attention: Chairman of the Board
COPY: ABM INDUSTRIES INCORPORATED
160 Pacific Avenue, Suite 222
San Francisco, CA 94111
Attention: Chief Employment Counsel
2. Any such notice shall be assumed to have been received when
delivered in person, or forty-eight (48) hours after being sent
in the manner specified above.
X. SPECIAL PROVISIONS:
1. SALARY:
a. Two Hundred Sixty Five Thousand Eight Hundred Sixty Four
Dollars ($265,864) per year effective November 1, 1999
through October 31, 2000 at the monthly rate of $22,155
payable semi-monthly
b. Effective November 1, 2000 through October 31, 2001, and
for each year of the then current Initial or Extended
Term of this Agreement, as applicable, the Salary in
Paragraph X.1.a will be adjusted upward annually to
reflect the percentage increase change in the American
Compensation Association ("ACA"), or any successor
thereof, Index for the Western Region ("ACA Index") with
a (6%) maximum increase. The adjustment, if any, shall
be based upon the projected ACA Index as published for
the ACA fiscal year ending on the June 30th immediately
preceding the effective date of the proposed increase
hereunder. Notwithstanding the foregoing, there shall be
no annual increase in Salary for any such year unless
the Company's earning per share ("EPS") for the fiscal
year of the Company (commencing November 1, and ending
October 31st) ("Fiscal Year") then ending are equal to
or greater than the Company's EPS for the previous
Fiscal Year. There shall be no downward adjustment in
salary in the event the ACA Index shows a decrease from
the prior Fiscal Year.
2. BONUS: Subject to proration in the event of modification or
termination of employment hereunder and further subject to the
potential prospective re-set provisions set forth in Paragraph
X.2.c, Executive shall be paid a bonus ("Bonus") based on the
profit ("Profit") for each Fiscal Year, or partial Fiscal Year,
of employment hereunder during the Term, and during the Extended
Term, if any, of this Agreement:
a. Such Bonus for each Fiscal Year shall be 0.1600% of the
Company's Profit on a pro-rata basis.
b. Profit is defined as the consolidated income before
income taxes of the Company, excluding: (i) gains or
losses on sales or exchanges of real property or on
sales or exchanges of all or substantially all of the
stock or assets of a subsidiary corporation
<PAGE>
8
or any other business unit of Company, (ii) gains or
losses on the discontinuation of any business unit of
Company, and (iii) the discretionary portion of any
contributions made to any profit sharing, service award,
employee retirement or savings or similar plan.
c. Subject to proration in the event of modification or
termination of employment under this Agreement, and
further subject to a re-set in the event Executive's
Bonus for any Fiscal Year has been limited as
hereinafter provided, Executive's maximum Bonus for each
Fiscal Year shall be fifty percent (50%) the Salary for
that year set forth in Paragraph X.1 herein. If,
however, in any completed Fiscal Year, the Bonus which
might have been earned by Executive for that year
exceeds said fifty percent (50%) maximum, Executive's
Salary and Bonus for the next year shall be re-computed
as follows: (i) notwithstanding the six percent (6%)
maximum set forth hereinabove, the Salary set forth in
Paragraph X.1 shall be adjusted to equal seventy-five
percent (75%) of the prior Fiscal Year's combined Salary
and Bonus, plus an amount equal to the increase, if any,
set forth in Paragraph X.l based upon said ACA Index;
and (ii) the Bonus percentage set forth in Paragraph
X.2.a shall be adjusted by multiplying the prior Fiscal
Year's combined Salary and Bonus by twenty-five percent
(25%), and dividing that product by the actual Profit
earned in the prior Fiscal Year.
d. Executive shall have the right to obtain an advance
against such Bonus at the end of each month of each
Fiscal Year in an amount equal to fifty percent (50% of,
or 0.5 times) the projected amount of such Bonus based
on the Profit at that time.
e. The independent public accounting firm for the Company
shall determine the Profit and Bonus for each Fiscal
Year. Company shall pay Executive the Bonus for the
Fiscal Year (or the balance thereof after any advances)
when such accounting firm has made such determination,
but no later than ninety (90) days after the end of each
Fiscal Year. The Bonus for any partial Fiscal Year shall
be prorated for the fraction of the Fiscal Year for
which such Bonus is payable. Absent bad faith or
material error, the conclusions of such accounting firm
or department with respect to the amounts of the Profits
and Bonuses shall be conclusive upon Executive and
Company.
f. Notwithstanding the foregoing, no Bonus for any Fiscal
Year of the Company shall be payable unless the
Company's net income per share for the Fiscal Year then
ending is equal to or greater than eighty percent (80%)
of the Company's net income per share for the previous
Fiscal Year of the Company.
3. POST-EMPLOYMENT CONSULTANCY: After Executive's retirement,
resignation and/or termination from employment with Company, but
commencing no earlier than what is or would have been
Executive's sixty-fifth (65th) birthday and concluding no later
than ten (10) years thereafter ("Consultancy Period"), Company
shall pay to Executive consulting fees ("Consulting Fees") of:
a. 120 equal monthly installments accrued at 1/120th of
$150,000 for each month of employment completed by
Executive from November 1, 1989 through October 31,
1999, plus
b. 120 equal monthly installments accrued at 1/60th of
$100,000 for each month of employment completed by
Executive from November 1, 1999 through October 31,
2004.
c. During the Consultancy Period: (i) Executive shall
provide Company with such
<PAGE>
9
occasional executive or managerial services as
reasonably requested by the person with the title set
forth in Paragraph C hereof, except that failure to
render such services by reason of death or disability,
or unavailability because of absence from the County of
Employment, shall not effect Executive's right to
receive such Consulting fees, (ii) Company shall pay
directly or reimburse Executive for reasonable business
expenses of Company incurred by Executive in connection
with such services requested by the persons with the
title set forth in Paragraph C hereof, upon presentation
to that person by Executive within sixty (60) days after
incurring such expense of an itemized request for
payment including the date, receipts for all such
expenses in excess of Twenty-Five Dollars ($25) each,
(iii) Company shall pay Executive's Consulting Fees
pursuant to this Paragraph X.3 herein, (iv) Executive
shall not be eligible or entitled to receive or
participate in any other of the Company's then current
fringe benefits, and (v) Executive shall be deemed an
independent contractor and not an employee of the
Company.
d. If Executive dies before receiving any or all payments
to Executive of such Consulting Fees, all unpaid
Consulting Fees shall be paid monthly to Executive's
estate or trust commencing from the month in which
Executive would have reached Executive's sixty-fifth
(65th) birthday or continuing from the date of death
following such commencement.
Y. SCOPE OF CERTAIN PROVISIONS: All references to Company in Paragraphs H,
I, J, K, L, M, N, O.3, O.4, Q, R and Z in this Agreement shall include
Company, its affiliated and its subsidiary corporations.
Z. ENTIRE AGREEMENT: Unless otherwise specified herein, this Agreement sets
forth every contract, understanding and arrangement as to the employment
relationship between Executive and Company, and may only be changed by a
written amendment signed by both Executive and Company.
1. The parties intend that this Agreement speak for itself, and
that no evidence with respect to its terms and conditions other
than this Agreement itself may be introduced in any arbitration
or judicial proceeding to interpret or enforce this Agreement.
2. It is specifically understood and accepted that this Agreement
supersedes all oral and written employment agreements between
Executive and Company prior to the date hereof, as well as all
conflicting provisions of Company's Guidelines For Corporate
Approval and its Human Resources Manual, including but not
limited to, the termination, discipline and discharge provisions
contained therein. Said Guidelines and Manual are not an
Agreement between Executive and Company, nor shall they be
binding on either party. The purpose and intent of said
Guidelines and Manual are only to suggest guidance for Company
managers to apply as they see fit on a case by case basis.
ZZ. FULL KNOWLEDGE & UNDERSTANDING: Executive and Company hereby acknowledge
that they have carefully read and fully understand all terms and
conditions of this Agreement, and that they are voluntarily entering
into this Agreement with full knowledge of the benefits and burdens, and
the risks and rewards, contained herein.
<PAGE>
10
IN WITNESS WHEREOF, Executive and Company have executed this Agreement as of the
date set forth above:
EXECUTIVE: Signature: /s/ HARRY H. KAHN
-----------------------------------------------
Date: 11/30/00
-----------------------------------------------
COMPANY: By: Martinn H. Mandles
-----------------------------------------------
Date: 11/29/00
-----------------------------------------------
Signature: /s/ MARTINN H. MANDLES
-----------------------------------------------
Title: Chairman of the Board and Chief Administrative
Officer
-----------------------------------------------
ABM Industries Incorporated
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.63
<SEQUENCE>5
<FILENAME>f77849ex10-63.txt
<DESCRIPTION>EXHIBIT 10.63
<TEXT>
<PAGE>
EXHIBIT 10.63
1
CORPORATE EXECUTIVE EMPLOYMENT AGREEMENT
THIS CORPORATE EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made as of
November 1, 2000, by and between JESS E. BENTON ("Executive"), and ABM
Industries Incorporated ("Company") for itself and on behalf of its subsidiary
corporations as applicable herein.
WHEREAS, Company is engaged in the building maintenance and related service
businesses, and
WHEREAS, Executive is experienced in the administration, finance, marketing, and
operation of such services, and
WHEREAS, Company has invested significant time and money to develop proprietary
trade secrets and other confidential business information, as well as invaluable
goodwill among its customers, sales prospect and employees, and
WHEREAS, Executive wishes to, or has been and desires to remain employed by
Company, and to utilize such proprietary trade secrets, other confidential
business information and goodwill, and
WHEREAS, Company has disclosed or will disclose to Executive such proprietary
trade secrets and other confidential business information which Executive will
utilize in the performance of this Agreement;
NOW THEREFORE, Executive and Company agree as follows:
A. EMPLOYMENT: Company hereby agrees to employ Executive, and Executive
hereby accepts such employment, on the terms and conditions set forth in
this Agreement.
B. TITLE: Executive's title shall be Executive Vice President and Chief
Operating Officer of Company.
C. DUTIES & RESPONSIBILITIES: Executive shall be expected to assume and
perform such executive or managerial duties and responsibilities as are
assigned from time-to-time by the President and CEO of Company, to whom
Executive shall report and be accountable.
D. TERM OF AGREEMENT: Employment hereunder shall commence on November 1,
2000, for a term of two (2) years ("Initial Term") ending on October 31,
2002, unless sooner terminated pursuant to Paragraph O hereof, or later
extended pursuant to Paragraph N hereof ("Extended Term").
E. PRINCIPAL OFFICE: During the Initial Term and any Extended Term, as
applicable, of this Agreement, Executive shall be based at a Company
office located in San Francisco ("County of Employment"), California
("State of Employment).
F. COMPENSATION: Company agrees to compensate Executive, and Executive
agrees to accept as compensation in full, for Executive's assumption and
performance of duties and responsibilities pursuant to this Agreement:
1. SALARY: A base salary paid in equal installments of no less
frequently than semi-monthly at the annual rate set forth in
Paragraph X.l hereof.
2. BONUS: A bonus or other incentive or contingent compensation, if
any, pursuant to Paragraph X.2 hereof, and the bonus set forth
in Paragraph X.4, hereof.
<PAGE>
2
3. FRINGE BENEFITS: The then current fringe benefits generally
provided by Company to all of its Executives. Such benefits may
include but not be limited to the use of a Company-leased car or
a car allowance, group health benefits, long-term disability
benefits, group life insurance, sick leave and vacation, and a
service award benefit. Each of these fringe benefits is subject
to the applicable Company policy at all times. Company reserves
the right to add, increase, reduce or eliminate any fringe
benefit at any time, but no such benefit or benefits shall be
reduced or eliminated as to Executive unless generally reduced
or eliminated as to comparable executives within the Company.
G. PAYMENT OR REIMBURSEMENT OF BUSINESS EXPENSES: Company shall pay
directly or reimburse Executive for reasonable business expenses of
Company incurred by Executive in connection with Company business, and
approved in writing by the person(s) with the title set forth in
Paragraph C hereof, upon presentation to such person(s) by Executive
within sixty (60) days after incurring such expense of an itemized
request for payment including the date, nature, recipient, purpose and
amount of each such expense, accompanied by receipts for all such
expenses in excess of Twenty-Five Dollars ($25) each.
H. BUSINESS CONDUCT: Executive shall make reasonable best efforts to comply
with all applicable laws pertaining to the performance of this
Agreement, and with all lawful and ethical rules, regulations, policies,
procedures and instructions of Company, including but not limited to the
following:
1. GOOD FAITH: Executive shall not act in any way contrary to the
best interest of Company.
2. BEST EFFORTS: During all full-time employment hereunder,
Executive shall devote full working time and attention to
Company, and shall not at any time be directly or indirectly
employed by, own, operate, assist or otherwise be involved,
invested or associated in any business that is similar or
competitive to any business of Company; except that Executive
may own up to five percent (5%) of any such publicly-held
business(es), provided that Executive: (a) shall give Company
notice(s) of such ownership in accordance with Paragraph W
hereof, and (b) shall not at any time be directly or indirectly
employed by or operate, assist, or otherwise be involved or
associated with any such business(es).
3. VERACITY: Executive shall make no claims or promises to any
employee, supplier, contractor, customer or sales prospect of
Company that are unauthorized by Company or are in any way
untrue.
4. DRIVER'S LICENSE: Executive shall have and carry a valid
driver's license issued by the State of Employment hereunder and
a driver's permit issued by the Company whenever Executive is
driving any motor vehicle in connection with Company business.
Executive agrees to immediately notify Company in writing if
Executive's driver's license is lost, expired, restricted,
suspended or revoked for any reason whatsoever.
I. NO CONFLICT: Executive represents to Company that Executive is not bound
by any contract with a previous employer or with any other business that
might prevent Executive from entering into this Agreement or disclosing
information about any previous employer or any other business to
Company, or might otherwise interfere with Executive's employment
hereunder.
J. COMPANY PROPERTY: Company shall, from time to time, entrust to the care,
custody and control of Executive certain of Company's property, such as
motor vehicles, equipment, supplies and documents. Such documents may
include, but shall not be limited to customer lists, financial
statements, cost data, price lists, invoices, forms, electronic files
and media, mailing lists, contracts, reports, manuals, personnel files
or directories, correspondence, business cards, copies or notes
<PAGE>
3
made from Company documents and documents compiled or prepared by
Executive for Executive's use in connection with Company business.
Executive specifically acknowledges that all such documents are the
property of Company, notwithstanding their preparation, care, custody,
control or possession by Executive at any time(s) whatsoever.
K. GOODWILL & PROPRIETARY INFORMATION: In connection with Executive's
employment hereunder:
1. Executive agrees to utilize and further Company's goodwill
("Goodwill") among its customers, sales prospects and employees,
and acknowledges that Company may disclose to Executive and
Executive may disclose to Company, proprietary trade secrets and
other confidential information not in the public domain
("Proprietary Information") including but not limited to
specific customer data such as: (a) the identity of Company's
customers and sales prospects, (b) the nature, extent,
frequency, methodology, cost, price and profit associated with
their services and products purchased from Company, (c) any
particular needs or preferences regarding their service or
supply requirements, (d) the names, office hours, telephone
numbers and street addresses of their purchasing agents or other
buyers, (e) their billing procedures, (f) their credit limits
and payment practices, and (g) their organization structure.
2. Executive agrees that such Proprietary Information and Goodwill
have unique value to Company, are not generally known or readily
available to Company's competitors, and could only be developed
by others after investing significant time and money. Company
would not make such Proprietary Information and Goodwill
available to Executive unless Company is assured that all such
Proprietary Information and Goodwill will be held in trust and
confidence by Executive. Executive hereby acknowledges that to
use this Proprietary Information and Goodwill except for the
benefit of Company would be improper and unfair to Company.
L. RESTRICTIVE COVENANTS: In recognition of Paragraph K hereof, Executive
hereby agrees that during the Initial Term and the Extended Term, if
any, of this Agreement, and thereafter for as long as it shall be
enforceable:
1. Except in the proper performance of this Agreement, Executive
shall not directly or indirectly solicit or otherwise encourage
or arrange for any employee to terminate employment with
Company.
2. Except in the proper performance of this Agreement, Executive
shall not directly or indirectly disclose or deliver to any
other person or business, any Proprietary Information obtained
directly or indirectly by Executive from, or for, Company.
3. Executive shall not seek, solicit, divert, take away, obtain or
accept the patronage of any customer or sales prospect of
Company through the direct or indirect use of any Proprietary
Information of Company, or by any other unfair or unlawful
business practice.
4. Executive agrees that for a reasonable time after the
termination of this Agreement, which Executive and Company
hereby agree to be one (1) year, Executive shall not directly or
indirectly, for Executive or for any other person or business,
seek, solicit, divert, take away, obtain or accept any
site-specific customer account or site-specific sales prospect
with which Executive had direct business involvement on behalf
of Company within the one (1) year period prior to termination
of this Agreement.
<PAGE>
4
5. Nothing in this Agreement shall be binding upon the parties to
the extent it is void or unenforceable for any reason in the
State of Employment, including, without limitation, as a result
of any law regulating competition or proscribing unlawful
business practices.
M. MODIFICATION OF EMPLOYMENT: At any time during the then current Initial
or Extended Term, as applicable, of this Agreement, a majority of the
Board of Directors of Company shall have the absolute right, with or
without cause and without terminating this Agreement or Executive's
employment hereunder, to modify the nature of Executive's employment for
the remainder of the then current Initial or Extended Term, as
applicable, of this Agreement, from that of a full-time employee to that
of a part-time employee ("Modification Period"). The Modification Period
shall commence immediately upon Company giving Executive written notice
of such change.
1. Upon commencement of the Modification Period: (a) Executive
shall immediately resign as a full-time employee of Company and
as an officer and/or director of Company, as applicable, (b)
Executive shall promptly return all Company property in
Executive's possession to Company, including but not limited to
any motor vehicles, equipment, supplies and documents set forth
in Paragraph J hereof, and (c) Company shall pay Executive all
previously earned and vested but as yet unpaid, salary, prorated
bonus or other contingent compensation, reimbursement of
business expenses and fringe benefits.
2. During the Modification Period: (a) Company shall continue to
pay Executive's monthly salary pursuant to Paragraph F.l
hereof, and to the extent available under the Company's group
insurance policies, continue to provide Executive with the same
group health and life insurance (subject to Executive continuing
to pay the employee portion of any such premium) to which
Executive would be entitled as a full-time employee, with the
understanding and agreement that such monthly salary and group
insurance, if available, shall constitute the full extent of
Company's obligation to compensate Executive, (b) Executive
shall not be eligible or entitled to receive or participate in
any bonus or fringe benefits other than the aforementioned group
insurance, if available, (c) in the alternative, Executive may
exercise rights under COBRA to obtain medical insurance coverage
as may be available to Executive, (d) Executive shall be deemed
a part-time employee and not a full-time employee of Company,
(e) Executive shall provide Company with such occasional
executive or managerial services as reasonably requested by the
persons with the title set forth in Paragraph C hereof, except
that failure to render such services by reason of any physical
or mental illness or disability other than Total Disability or
death as set forth in Paragraph O.2 hereof, or unavailability
because of absence from the State of Employment hereunder, shall
not affect Executive's right to receive such salary and (f)
Company shall pay directly or reimburse Executive in accordance
with the provisions of Paragraph G hereof for reasonable
business expenses of Company incurred by Executive in connection
with such services requested by the persons with the title set
forth in Paragraph C hereof.
3. The Modification Period shall continue until the earlier of (a)
Total Disability or death as set forth in Paragraph O.2 hereof,
(b) termination of this Agreement by Company for "just cause" as
hereinafter defined, (c) Executive accepting employment or
receiving any other compensation from operating, assisting or
otherwise being involved, invested or associated with any
business that is similar to or competitive with any business in
which Company is engaged on the commencement date of the
Modification Period, or (d) expiration of the then current Term
of this Agreement.
N. EXTENSION OF EMPLOYMENT: Absent at least ninety (90) days written Notice
of Termination from either party to the other party prior to expiration
of the then Initial or Extended Term, as applicable, of this Agreement,
employment hereunder shall continue for an Extended Term (or another
Extended Term, as applicable) of two (2) years, by which Executive and
Company intend that all terms and conditions of this Agreement shall
remain in full force and effect
<PAGE>
5
for another twenty four (24) months, except that the highest base salary
specified in Paragraph X.1.a. shall be increased annually as set forth
in Paragraph X.l.b for each year of the Extended Term. Company has the
option, without terminating this Agreement or Executive's employment
hereunder, of placing Executive on a leave of absence at the full
compensation set forth in Paragraph F hereof for any or all of such
ninety (90) day period in lieu of the aforementioned Notice of
Termination.
O. TERMINATION OF EMPLOYMENT:
1. a. Termination of employment at the expiration of the then
current Initial or Extended Term shall be effective with
or without cause.
b. Except as provided in Paragraph O.1.a, the Company shall
have the right to terminate Executive's employment
hereunder at any time during the then current Initial or
Extended Term, as applicable, of this Agreement, without
notice subject only to a good faith determination by a
majority of the Board of Directors of Company of "just
cause." "Just cause" includes but is not limited to any
theft or other dishonesty, or any material: (i) neglect
of employment duties, (ii) inability or unwillingness to
perform employment duties, (iii) insubordination, (iv)
abuse of alcohol or other drugs, (v) breach of this
Agreement; or for (vi) other misconduct, unethical or
unlawful activity.
c. At any time during the then current Initial or Extended
Term, as applicable, of this Agreement, with or without
cause, Executive may terminate employment hereunder by
giving Company ninety (90) days prior written notice.
2. Employment hereunder shall automatically terminate upon the
total disability ("Total Disability") or death of Executive.
Total Disability shall be deemed to occur on the ninetieth
(90th) consecutive or non-consecutive calendar day within any
twelve (12) month period that Executive is unable to perform the
essential job functions as set forth in Paragraph C hereof
because of any physical or mental illness or disability. Company
shall pay when due to Executive or his estate, as applicable,
all prorated salary, bonus or other contingent compensation,
reimbursement of business expenses and fringe benefits which
would have otherwise been payable to Executive under this
Agreement, through the end of the month in which Total
Disability or death occurs.
3. Upon termination of employment hereunder, Executive shall
immediately resign as an employee of Company and as an officer
and/or director of Company, as applicable. Executive shall
promptly return all Company property in Executive's possession
to Company, including but not limited to, any motor vehicles,
equipment, supplies and documents set forth in Paragraph J
hereof. Company shall pay Executive, when due, all previously
earned and vested but as yet unpaid, salary, bonus or other
contingent compensation, reimbursement of business expenses and
fringe benefits.
4. Nothing contained in this Agreement shall entitle Executive to
receive a bonus or other incentive or contingent compensation
from Company based on any sales or profits made by Company after
termination of employment hereunder.
P. GOVERNING LAW: This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Employment hereunder.
<PAGE>
6
Q. ARBITRATION CLAUSE:
1. Except for the interpretation and enforcement of injunctive
relief pursuant to Paragraph R hereof (which, at Company's
option, shall be subject to litigation in any court having
proper jurisdiction), any claim or dispute related to or arising
from this Agreement (whether based in contract or tort, in law
or equity) including, but not limited to, claims or disputes
between Executive and Company or its directors, officers,
employees and agents regarding Executive's employment or
termination of employment hereunder, or any other business of
Company, shall be resolved by mandatory, final, binding
arbitration in accordance with the rules of the American
Arbitration Association; provided, however, that no party shall
be entitled to an award of general or punitive damages
hereunder.
2. Any such arbitration must be requested in writing within one (1)
year from the date the party initiating the arbitration knew or
should have known about the claim or dispute, or all claims
arising from that dispute are forever waived. Any such
arbitration (or court proceeding as applicable hereunder) shall
be held in the County of Employment. Judgment upon the award
rendered through such arbitration may be entered and enforced in
any court having proper jurisdiction.
R. REMEDIES & DAMAGES:
1. The parties agree that, in the event of a material breach or
threatened material breach of Paragraph L hereof, the damage or
imminent damage to the value of Company's business shall be
inestimable, and therefore any remedy at law or in damages shall
be inadequate. Accordingly, the parties hereto agree that
Company shall be entitled to the immediate issuance of a
restraining order or an injunction against Executive in the
event of such breach or threatened breach, in addition to any
other relief available to Company pursuant to this Agreement or
under law.
2. Executive agrees that the actual amount of damages resulting
from any material breach of any of the provisions of Paragraph L
hereof would be impractical or impossible to ascertain. It is
therefore agreed that the damages resulting from any such breach
which involves any customer of Company shall be liquidated
damages, not a penalty, in an amount equal to four (4) times the
lost monthly revenue to the Company based on the average monthly
revenue which was payable by that customer to Company during the
four (4) months immediately preceding such breach. This
provision for liquidated damages is in addition to any other
relief available to Company pursuant to this Agreement or under
law.
3. To the full extent permitted under the laws of the State of
Employment hereunder, Executive authorizes Company to withhold
from Executive's compensation and from any other funds held for
Executive's benefit by Company, any damages or losses sustained
by Company as a result of any material breach or other material
violation of this Agreement by Executive, pending arbitration
between the parties as provided for herein.
S. NO WAIVER: Failure by either party to enforce any term or condition of
this Agreement at any time shall not preclude that party from enforcing
that provision, or any other provision of this Agreement, at any later
time.
T. SEVERABILITY: The provisions of this Agreement are severable. If any
arbitrator (or court as applicable hereunder) rules that any portion of
this Agreement is invalid or unenforceable, the arbitrator's or court's
ruling shall not affect the validity and enforceability of other
provisions of this Agreement. It is the intent of the parties that if
any provision of this Agreement is ruled to be overly broad, the
arbitrator or court shall interpret such provision with as much
permissible breadth as is allowable under law rather than to consider
such provision void.
<PAGE>
7
U. SURVIVAL: All terms and conditions of this Agreement which by reasonable
implication are meant to survive the termination of this Agreement,
including but not limited to, the Restrictive Covenants and Arbitration
Clause herein, shall remain in full force and effect after the
termination of this Agreement.
V. CONSTRUCTION: This Agreement was negotiated in good faith by the parties
hereto, who hereby agree to share the responsibility for any
ambiguities, uncertainties or inconsistencies herein. Paragraph headings
are used herein only for ease of reference, and shall not in any way
affect the interpretation or enforcement of this Agreement.
W. NOTICES:
1. Any notice required or permitted to be given pursuant to this
Agreement shall be in writing and delivered in person, or sent
prepaid by certified mail, bonded messenger or overnight
express, to the party named at the address set forth below or at
such other address as either party may hereafter designate in
writing to the other party:
EXECUTIVE: JESS E. BENTON
50 Orange Court
Hillsborough, CA 94010
COMPANY: ABM INDUSTRIES INCORPORATED
160 Pacific Avenue, Suite 222
San Francisco, CA 94111
Attention: President and Chief Executive Officer
COPY: ABM INDUSTRIES INCORPORATED
160 Pacific Avenue, Suite 222
San Francisco, CA 94111
Attention: Chief Employment Counsel
2. Any such notice shall be assumed to have been received when
delivered in person, or forty-eight (48) hours after being sent
in the manner specified above.
X. SPECIAL PROVISIONS:
1. SALARY:
a. Four Hundred Fifty Thousand Dollars ($450,000) per year
effective November 1, 2000 through October 31, 2001 at
the monthly rate of $37,500 (payable semi-monthly).
b. Effective November 1, 2001 through October 31, 2002, and
for each year of the then current Initial or Extended
Term of this Agreement, as applicable, the Salary in
Paragraph X.1.a. will be adjusted upward annually to
reflect the percentage increase change in the American
Compensation Association ("ACA"), or any successor
thereof, Index for the Western Region ("ACA Index") with
a (6%) maximum increase. The adjustment, if any, shall
be based upon the projected ACA Index as published for
the ACA fiscal year ending on the June 30th immediately
preceding the effective date of the proposed increase
hereunder. Notwithstanding the foregoing, there shall be
no annual increase in Salary for any such year unless
the Company's earning per share ("EPS") for the fiscal
year of the Company (commencing November 1, and ending
October 31st) ("Fiscal Year") then ending are equal to
or
<PAGE>
8
greater than the Company's EPS for the previous Fiscal
Year. There shall be no downward adjustment in salary in
the event the ACA Index shows a decrease from the prior
Fiscal Year.
2. BONUS: Subject to proration in the event of modification or
termination of employment hereunder and further subject to the
potential prospective re-set provisions set forth in Paragraph
X.2.c, Executive shall be paid a bonus ("Bonus") based on the
profit ("Profit") for each Fiscal Year, or partial Fiscal Year,
of employment hereunder during the Term, and during the Extended
Term, if any, of this Agreement:
a. Such Bonus for each Fiscal Year shall be (i) 0.0451%
of the Company's Profit on a pro-rata basis and
(ii) 1.0362% of the amount of any increase in the
Company's Profit over the previous Fiscal Year's
Profit, all on a pro-rata basis.
b. Profit is defined as the consolidated income before
income taxes of the Company, excluding: (i) gains or
losses on sales or exchanges of real property or on
sales or exchanges of all or substantially all of the
stock or assets of a subsidiary corporation or any other
business unit of Company, (ii) gains or losses on the
discontinuation of any business unit of Company, and
(iii) the discretionary portion of any contributions
made to any profit sharing, service award, employee
retirement or savings or similar plan.
c. Subject to proration in the event of modification or
termination of employment under this Agreement, and
further subject to a re-set in the event Executive's
Bonus for any Fiscal Year has been limited as
hereinafter provided, Executive's maximum Bonus for each
Fiscal Year shall be one hundred percent (100%) the
Salary for that year set forth in Paragraph X.l herein.
If, however, in any completed Fiscal Year, the Bonus
which might have been earned by Executive for that year
exceeds said one-hundred percent (100%) maximum,
Executive's Salary and Bonus for the next year shall be
re-computed as follows: (i) notwithstanding the six
percent (6%) maximum set forth hereinabove, the Salary
set forth in Paragraph X.l shall be adjusted to equal
seventy-five percent (75%) of the prior Fiscal Year's
combined Salary and Bonus, plus an amount equal to the
increase, if any, set forth in Paragraph X.l based upon
said ACA Index; and (ii) the Bonus percentage set forth
in Paragraph X.2.a shall be adjusted by multiplying the
prior Fiscal Year's combined Salary and Bonus by
twenty-five percent (25%), and dividing that product by
the actual Profit earned in the prior Fiscal Year.
d. Executive shall have the right to obtain an advance
against such Bonus at the end of each month of each
Fiscal Year in an amount equal to fifty percent (50% of,
or 0.5 times) the projected amount of such Bonus based
on the Profit at that time.
e. The independent public accounting firm for the Company
shall determine the Profit and Bonus for each Fiscal
Year. Company shall pay Executive the Bonus for the
Fiscal Year (or the balance thereof after any advances)
when such accounting firm has made such determination,
but no later than ninety (90) days after the end of each
Fiscal Year. The Bonus for any partial Fiscal Year shall
be prorated for the fraction of the Fiscal Year for
which such Bonus is payable. Absent bad faith or
material error, the conclusions of such accounting firm
or department with respect to the amounts of the Profits
and Bonuses shall be conclusive upon Executive and
Company.
f. Notwithstanding the foregoing, no Bonus for any Fiscal
Year of the Company shall be payable unless the
Company's net income per share for the Fiscal Year then
<PAGE>
9
ending is equal to or greater than eighty percent (80%)
of the Company's net income per share for the previous
Fiscal Year of the Company.
3. POST-EMPLOYMENT CONSULTANCY: After Executive's retirement,
resignation and/or termination from employment with Company, but
commencing no earlier than what is or would have been
Executive's sixty-fifth (65th) birthday and concluding no later
than ten (10) years after commencement ("Consultancy Period"),
Company shall pay to Executive consulting fees ("Consulting
Fees") of:
a. 120 equal monthly installments of $2,083.00 for a total
of $250,000.
b. During the Consultancy Period: (i) Executive shall
provide Company with such occasional executive or
managerial services as reasonably requested by the
person with the title set forth in Paragraph C hereof,
except that failure to render such services by reason of
death or disability, or unavailability because of
absence from the County of Employment, shall not effect
Executive's right to receive such Consulting fees, (ii)
Company shall pay directly or reimburse Executive for
reasonable business expenses of Company incurred by
Executive in connection with such services requested by
the persons with the title set forth in Paragraph C
hereof, upon presentation to that person by Executive
within sixty (60) days after incurring such expense of
an itemized request for payment including the date,
receipts for all such expenses in excess of Twenty-Five
Dollars ($25) each, (iii) Company shall pay Executive's
Consulting Fees pursuant to this Paragraph X.3 herein,
(iv) Executive shall not be eligible or entitled to
receive or participate in any other of the Company's
then current fringe benefits, and (v) Executive shall be
deemed an independent contractor and not an employee of
the Company.
c. If Executive dies before receiving any or all payments
to Executive of such Consulting Fees, all unpaid
Consulting Fees shall be paid monthly to Executive's
estate or trust commencing from the month in which
Executive would have reached Executive's sixty-fifth
(65) birthday or continuing from the date of death
following such commencement.
Y. SCOPE OF CERTAIN PROVISIONS: All references to Company in Paragraphs H,
I, J, K, L, M, N, O.3, O.4, Q, R and Z in this Agreement shall include
Company, its affiliated and its subsidiary corporations.
Z. ENTIRE AGREEMENT: Unless otherwise specified herein, this Agreement sets
forth every contract, understanding and arrangement as to the employment
relationship between Executive and Company, and may only be changed by a
written amendment signed by both Executive and Company.
1. The parties intend that this Agreement speak for itself, and
that no evidence with respect to its terms and conditions other
than this Agreement itself may be introduced in any arbitration
or judicial proceeding to interpret or enforce this Agreement.
2. It is specifically understood and accepted that this Agreement
supersedes all oral and written employment agreements between
Executive and Company prior to the date hereof, as well as all
conflicting provisions of Company's Guidelines For Corporate
Approval and its Human Resources Manual, including but not
limited to, the termination, discipline and discharge provisions
contained therein. Said Guidelines and Manual are not an
Agreement between Executive and Company, nor shall they be
binding on either party. The purpose and intent of said
Guidelines and Manual are only to suggest guidance for Company
managers to apply as they see fit on a case by case basis.
<PAGE>
10
ZZ. FULL KNOWLEDGE & UNDERSTANDING: Executive and Company hereby acknowledge
that they have carefully read and fully understand all terms and
conditions of this Agreement, and that they are voluntarily entering
into this Agreement with full knowledge of the benefits and burdens, and
the risks and rewards, contained herein.
IN WITNESS WHEREOF, Executive and Company have executed this Agreement as of the
date set forth above:
EXECUTIVE: Signature: /s/ JESS E. BENTON
-----------------------------------------------
Date: June 25, 2001
-----------------------------------------------
COMPANY: Signature: /s/ HENRIK C. SLIPSAGER
-----------------------------------------------
By: Henrik C. Slipsager
-----------------------------------------------
Title: President and Chief Executive Officer
-----------------------------------------------
Date: July 11, 2001
-----------------------------------------------
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.65
<SEQUENCE>6
<FILENAME>f77849ex10-65.txt
<DESCRIPTION>EXHIBIT 10.65
<TEXT>
<PAGE>
EXHIBIT 10.65
[ABM INDUSTRIES INCORPORATED LETTERHEAD]
March 12, 2001
Mr. Henrik Slipsager
President and Chief Executive Officer
ABM Industries, Incorporated
160 Pacific Avenue, Suite 222
San Francisco, California 94111
Re: First Amendment ("Amendment") of Division Executive
Employment Agreement dated November 1, 2000 ("Agreement")
Dear Henrik,
Your Employment Agreement effective November 1, 2000, is hereby amended as
follows, pursuant to Resolution No. 00-036 of the ABM Industries Incorporated
Board of Directors (Resolved December 19, 2000):
Paragraph X. SPECIAL PROVISIONS
2. BONUS
(a) Such Bonus for each Fiscal Year shall be: (i) 0.0649% of
the Company's Profit plus (ii) 1.8176 % of the amount of
any increase in the Company's Profit over the previous
Fiscal Year's Profit, all on a pro-rata basis.
This Amendment shall be effective as of November 1, 2000. In all other respects
the Agreement shall remain unchanged.
Please sign both original copies of this letter, returning one to me and
retaining one fully executed original for your records.
Sincerely,
/s/ DONNA M. DELL
- -----------------------------------------
Donna M. Dell, Esq.
Senior Vice President of Human Resources
and Chief Employment Counsel
I agree to the foregoing:
/s/ HENRIK C. SLIPSAGER Dated: 3/12/01
- ----------------------------------------- -------------------------
Henrik C. Slipsager
New York Stock Exchange Symbol: ABM
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.66
<SEQUENCE>7
<FILENAME>f77849ex10-66.txt
<DESCRIPTION>EXHIBIT 10.66
<TEXT>
<PAGE>
EXHIBIT 10.66
1
CORPORATE EXECUTIVE EMPLOYMENT AGREEMENT
THIS CORPORATE EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made as of June
1, 2001, by and between George B. Sundby ("Executive"), and ABM Industries
Incorporated ("Company") for itself and on behalf of its subsidiary corporations
as applicable herein.
WHEREAS, Company is engaged in the building maintenance and related service
businesses, and
WHEREAS, Executive is experienced in the financial control and reporting,
acquisitions and divestitures, information technology, risk management and board
and investor communications generally applicable to such businesses, and
WHEREAS, Company has invested significant time and money to develop proprietary
trade secrets and other confidential business information, as well as invaluable
goodwill among its customers, sales prospects and employees, and
WHEREAS, Executive wishes to, or has been and desires to remain employed by
Company, and to utilize such proprietary trade secrets, other confidential
business information and goodwill, and
WHEREAS, Company has disclosed or will disclose to Executive such proprietary
trade secrets and other confidential business information which Executive will
utilize in the performance of this Agreement;
NOW THEREFORE, Executive and Company agree as follows:
A. EMPLOYMENT: Company hereby agrees to employ Executive, and Executive
hereby accepts such employment, on the terms and conditions set forth in
this Agreement.
B. TITLE: Executive's title shall be Senior Vice President and Chief
Financial Officer of Company.
C. DUTIES & RESPONSIBILITIES: Executive shall be expected to assume and
perform such executive or managerial duties and responsibilities as are
assigned from time-to-time by the President and CEO of Company, to whom
Executive shall report and be accountable.
D. TERM OF AGREEMENT: Employment hereunder shall commence on June 1, 2001,
for a term of two (2) years and five (5) months ("Initial Term"), unless
sooner terminated pursuant to Paragraph O hereof, or later extended
pursuant to Paragraph N hereof ("Extended Term").
E. PRINCIPAL OFFICE: During the Initial Term and any Extended Term, as
applicable, of this Agreement, Executive shall be based at a Company
office located in San Francisco ("County of Employment"), California
("State of Employment).
F. COMPENSATION: Company agrees to compensate Executive, and Executive
agrees to accept as compensation in full, for Executive's assumption and
performance of duties and responsibilities pursuant to this Agreement:
1. SALARY: A base salary paid in equal installments of no less
frequently than semi-monthly at the annual rate set forth in
Paragraph X.1 hereof.
2. BONUS: A bonus or other incentive or contingent compensation, if
any, pursuant to Paragraph X.2 hereof, and the bonus set forth in
Paragraph X.4, hereof.
<PAGE>
2
3. FRINGE BENEFITS: The then current fringe benefits generally
provided by Company to all of its Executives. Such benefits may
include but not be limited to the use of a Company-leased car or
a car allowance, group health benefits, long-term disability
benefits, group life insurance, sick leave and vacation, and a
service award benefit. Company agrees to grant to Executive
vacation accrual at a rate equivalent to four (4) weeks per year.
Each of these fringe benefits is otherwise subject to the
applicable Company policy at all times. Company reserves the
right to add, increase, reduce or eliminate any fringe benefit at
any time, but no such benefit or benefits shall be reduced or
eliminated as to Executive unless generally reduced or eliminated
as to comparable executives within the Company.
G. PAYMENT OR REIMBURSEMENT OF BUSINESS EXPENSES: Company shall pay directly
or reimburse Executive for reasonable business expenses of Company
incurred by Executive in connection with Company business, and approved
in writing by the person(s) with the title set forth in Paragraph C
hereof, upon presentation to such person(s) by Executive within sixty
(60) days after incurring such expense of an itemized request for payment
including the date, nature, recipient, purpose and amount of each such
expense, accompanied by receipts for all such expenses in excess of
Twenty-Five Dollars ($25) each.
H. BUSINESS CONDUCT: Executive shall make reasonable best efforts to comply
with all applicable laws pertaining to the performance of this Agreement,
and with all lawful and ethical rules, regulations, policies, procedures
and instructions of Company, including but not limited to the following:
1. GOOD FAITH: Executive shall not act in any way contrary to the
best interest of Company.
2. BEST EFFORTS: During all full-time employment hereunder,
Executive shall devote full working time and attention to
Company, and shall not at any time be directly or indirectly
employed by, own, operate, assist or otherwise be involved,
invested or associated in any business that is similar or
competitive to any business of Company; except that Executive may
own up to five percent (5%) of any such publicly-held
business(es), provided that Executive: (a) shall give Company
notice(s) of such ownership in accordance with Paragraph W
hereof, and (b) shall not at any time be directly or indirectly
employed by or operate, assist, or otherwise be involved or
associated with any such business(es).
3. VERACITY: Executive shall make no claims or promises to any
employee, supplier, contractor, customer or sales prospect of
Company that are unauthorized by Company or are in any way
untrue.
4. DRIVER'S LICENSE: Executive shall have and carry a valid driver's
license issued by the State of Employment hereunder and a
driver's permit issued by the Company whenever Executive is
driving any motor vehicle in connection with Company business.
Executive agrees to immediately notify Company in writing if
Executive's driver's license is lost, expired, restricted,
suspended or revoked for any reason whatsoever.
I. NO CONFLICT: Executive represents to Company that Executive is not bound
by any contract with a previous employer or with any other business that
might prevent Executive from entering into this Agreement.
J. COMPANY PROPERTY: Company shall, from time to time, entrust to the care,
custody and control of Executive certain of Company's property, such as
motor vehicles, equipment, supplies and documents. Such documents may
include, but shall not be limited to customer
<PAGE>
3
lists, financial statements, cost data, price lists, invoices, forms,
electronic files and media, mailing lists, contracts, reports, manuals,
personnel files or directories, correspondence, business cards, copies or
notes made from Company documents and documents compiled or prepared by
Executive for Executive's use in connection with Company business.
Executive specifically acknowledges that all such documents are the
property of Company, notwithstanding their preparation, care, custody,
control or possession by Executive at any time(s) whatsoever.
K. GOODWILL & PROPRIETARY INFORMATION: In connection with Executive's
employment hereunder:
1. Executive agrees to utilize and further Company's goodwill
("Goodwill") among its customers, sales prospects and employees,
and acknowledges that Company may disclose to Executive
proprietary trade secrets and other confidential information not
in the public domain ("Proprietary Information") including but
not limited to specific customer data such as: (a) the identity
of Company's customers and sales prospects, (b) the nature,
extent, frequency, methodology, cost, price and profit associated
with their services and products purchased from Company, (c) any
particular needs or preferences regarding their service or supply
requirements, (d) the names, office hours, telephone numbers and
street addresses of their purchasing agents or other buyers, (e)
their billing procedures, (f) their credit limits and payment
practices, and (g) their organization structure.
2. Executive agrees that such Proprietary Information and Goodwill
have unique value to Company, are not generally known or readily
available to Company's competitors, and could only be developed
by others after investing significant time and money. Company
would not make such Proprietary Information and Goodwill
available to Executive unless Company is assured that all such
Proprietary Information and Goodwill will be held in trust and
confidence by Executive. Executive hereby acknowledges that to
use this Proprietary Information and Goodwill except for the
benefit of Company would be improper and unfair to Company.
L. RESTRICTIVE COVENANTS: In recognition of Paragraph K hereof, Executive
hereby agrees that during the Initial Term and the Extended Term, if any,
of this Agreement, and thereafter for as long as it shall be enforceable:
1. Except in the proper performance of this Agreement, Executive
shall not directly or indirectly solicit or otherwise encourage
or arrange for any employee to terminate employment with Company.
2. Except in the proper performance of this Agreement, Executive
shall not directly or indirectly disclose or deliver to any other
person or business, any Proprietary Information obtained directly
or indirectly by Executive from, or for, Company.
3. Executive shall not seek, solicit, divert, take away, obtain or
accept the patronage of any customer or sales prospect of Company
through the direct or indirect use of any Proprietary Information
of Company, or by any other unfair or unlawful business practice.
4. Executive agrees that for a reasonable time after the termination
of this Agreement, which Executive and Company hereby agree to be
one (1) year, Executive shall not directly or indirectly, for
Executive or for any other person or business, seek, solicit,
divert, take away, obtain or accept any site-specific customer
account or site-specific sales prospect with which Executive had
direct business involvement on behalf of Company within the one
(1) year period prior to termination of this Agreement.
<PAGE>
4
5. Nothing in this Agreement shall be binding upon the parties to
the extent it is void or unenforceable for any reason in the
State of Employment, including, without limitation, as a result
of any law regulating competition or proscribing unlawful
business practices.
M. MODIFICATION OF EMPLOYMENT: At any time during the then current Initial
or Extended Term, as applicable, of this Agreement, a majority of the
Board of Directors of Company shall have the absolute right, with or
without cause and without terminating this Agreement or Executive's
employment hereunder, to modify the nature of Executive's employment for
the remainder of the then current Initial or Extended Term, as
applicable, of this Agreement, from that of a full-time employee to that
of a part-time employee ("Modification Period"). The Modification Period
shall commence immediately upon Company giving Executive written notice
of such change.
1. Upon commencement of the Modification Period: (a) Executive shall
immediately resign as an officer and/or director of Company, as
applicable, (b) Executive shall promptly return all Company
property in Executive's possession to Company, including but not
limited to any motor vehicles, equipment, supplies and documents
set forth in Paragraph J hereof, and (c) Company shall pay
Executive all previously earned and vested but as yet unpaid,
salary, prorated bonus or other contingent compensation,
reimbursement of business expenses and fringe benefits.
2. During the Modification Period: (a) Company shall continue to pay
Executive's monthly salary pursuant to Paragraph F.1 hereof, and
to the extent available under the Company's group insurance
policies, continue to provide Executive with the same group
health and life insurance (subject to Executive continuing to pay
the employee portion of any such premium) to which Executive
would be entitled as a full-time employee, with the understanding
and agreement that such monthly salary and group insurance, if
available, shall constitute the full extent of Company's
obligation to compensate Executive, (b) Executive shall not be
eligible or entitled to receive or participate in any bonus or
fringe benefits other than the aforementioned group insurance, if
available, (c) in the alternative, Executive may exercise rights
under COBRA to obtain medical insurance coverage as may be
available to Executive, (d) Executive shall be deemed a part-time
employee and not a full-time employee of Company, (e) Executive
shall provide Company with such occasional executive or
managerial services as reasonably requested by the persons with
the title set forth in Paragraph C hereof, except that failure to
render such services by reason of any physical or mental illness
or disability other than Total Disability or death as set forth
in Paragraph O.2 hereof, or unavailability because of absence
from the State of Employment hereunder, shall not affect
Executive's right to receive such salary and (f) Company shall
pay directly or reimburse Executive in accordance with the
provisions of Paragraph G hereof for reasonable business expenses
of Company incurred by Executive in connection with such services
requested by the persons with the title set forth in Paragraph C
hereof.
3. The Modification Period shall continue until the earlier of: (a)
Total Disability or death as set forth in Paragraph O.2 hereof,
(b) termination of this Agreement by Company for "just cause" as
hereinafter defined, (c) Executive accepting employment or
receiving any other compensation from operating, assisting or
otherwise being involved, invested or associated with any
business that is similar to or competitive with any business in
which Company is engaged on the commencement date of the
Modification Period, or (d) expiration of the then current Term
of this Agreement.
<PAGE>
5
N. EXTENSION OF EMPLOYMENT: Absent at least ninety (90) days written Notice
of Termination from either party to the other party prior to expiration
of the then Initial or Extended Term, as applicable, of this Agreement,
employment hereunder shall continue for an Extended Term (or another
Extended Term, as applicable) of two (2) years, by which Executive and
Company intend that all terms and conditions of this Agreement shall
remain in full force and effect for another twenty four (24) months,
except that the highest base salary specified in Paragraph X.1.a shall be
increased annually as set forth in Paragraph X.1.b for each year of the
Extended Term. Company has the option, without terminating this Agreement
or Executive's employment hereunder, of placing Executive on a leave of
absence at the full compensation set forth in Paragraph F hereof for any
or all of such ninety (90) day period in lieu of the aforementioned
Notice of Termination.
O. TERMINATION OF EMPLOYMENT:
1. a. Termination of employment at the expiration of the then
current Initial or Extended Term shall be effective with or
without cause.
b. Except as provided in Paragraph O.1.a, the Company shall
have the right to terminate Executive's employment
hereunder at any time during the then current Initial or
Extended Term, as applicable, of this Agreement, without
notice subject only to a good faith determination by a
majority of the Board of Directors of Company of "just
cause." "Just cause" includes but is not limited to any
theft or other dishonesty, or any material: (i) neglect of
employment duties, (ii) inability or unwillingness to
perform employment duties, (iii) insubordination, (iv)
abuse of alcohol or other drugs, (v) breach of this
Agreement; or for (vi) other misconduct, unethical or
unlawful activity.
c. At any time during the then current Initial or Extended
Term, as applicable, of this Agreement, with or without
cause, Executive may terminate employment hereunder by
giving Company ninety (90) days prior written notice.
2. Employment hereunder shall automatically terminate upon the total
disability ("Total Disability") or death of Executive. Total
Disability shall be deemed to occur on the ninetieth (90th)
consecutive or non-consecutive calendar day within any twelve
(12) month period that Executive is unable to perform the
essential job functions set forth in Paragraph C hereof because
of any physical or mental illness or disability. Company shall
pay when due to Executive or his estate, as applicable, all
prorated salary, bonus or other contingent compensation,
reimbursement of business expenses and fringe benefits which
would have otherwise been payable to Executive under this
Agreement, through the end of the month in which Total Disability
or death occurs.
3. Upon termination of employment hereunder, Executive shall
immediately resign as an employee of Company and as an officer
and/or director of Company, as applicable. Executive shall
promptly return all Company property in Executive's possession to
Company, including but not limited to, any motor vehicles,
equipment, supplies and documents set forth in Paragraph J
hereof. Company shall pay Executive, when due, all previously
earned and vested but as yet unpaid, salary, bonus or other
contingent compensation, reimbursement of business expenses and
fringe benefits.
4. Nothing contained in this Agreement shall entitle Executive to
receive a bonus or other incentive or contingent compensation
from Company based on any sales or profits made by Company after
termination of employment hereunder.
<PAGE>
6
P. GOVERNING LAW: This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Employment hereunder.
Q. ARBITRATION CLAUSE:
1. Except for the interpretation and enforcement of injunctive
relief pursuant to Paragraph R hereof (which, at Company's
option, shall be subject to litigation in any court having proper
jurisdiction), any claim or dispute related to or arising from
this Agreement (whether based in contract or tort, in law or
equity) including, but not limited to, claims or disputes between
Executive and Company or its directors, officers, employees and
agents regarding Executive's employment or termination of
employment hereunder, or any other business of Company, shall be
resolved by mandatory, final, binding arbitration in accordance
with the rules of the American Arbitration Association; provided,
however, that no party shall be entitled to an award of general
or punitive damages hereunder.
2. Any such arbitration must be requested in writing within one (1)
year from the date the party initiating the arbitration knew or
should have known about the claim or dispute, or all claims
arising from that dispute are forever waived. Any such
arbitration (or court proceeding as applicable hereunder) shall
be held in the County of Employment. Judgment upon the award
rendered through such arbitration may be entered and enforced in
any court having proper jurisdiction.
R. REMEDIES & DAMAGES:
1. The parties agree that, in the event of a material breach or
threatened material breach of Paragraph L hereof, the damage or
imminent damage to the value of Company's business shall be
inestimable, and therefore any remedy at law or in damages shall
be inadequate. Accordingly, the parties hereto agree that Company
shall be entitled to the immediate issuance of a restraining
order or an injunction against Executive in the event of such
breach or threatened breach, in addition to any other relief
available to Company pursuant to this Agreement or under law.
2. Executive agrees that the actual amount of damages resulting from
any material breach of any of the provisions of Paragraph L
hereof would be impractical or impossible to ascertain. It is
therefore agreed that the damages resulting from any such breach
which involves any customer of Company shall be liquidated
damages, not a penalty, in an amount equal to four (4) times the
lost monthly revenue to the Company based on the average monthly
revenue which was payable by that customer to Company during the
four (4) months immediately preceding such breach. This provision
for liquidated damages is in addition to any other relief
available to Company pursuant to this Agreement or under law.
3. To the full extent permitted under the laws of the State of
Employment hereunder, Executive authorizes Company to withhold
from Executive's compensation and from any other funds held for
Executive's benefit by Company, any damages or losses sustained
by Company as a result of any material breach or other material
violation of this Agreement by Executive, pending arbitration
between the parties as provided for herein.
S. NO WAIVER: Failure by either party to enforce any term or condition of
this Agreement at any time shall not preclude that party from enforcing
that provision, or any other provision of this Agreement, at any later
time.
<PAGE>
7
T. SEVERABILITY: The provisions of this Agreement are severable. If any
arbitrator (or court as applicable hereunder) rules that any portion of
this Agreement is invalid or unenforceable, the arbitrator's or court's
ruling shall not affect the validity and enforceability of other
provisions of this Agreement. It is the intent of the parties that if any
provision of this Agreement is ruled to be overly broad, the arbitrator
or court shall interpret such provision with as much permissible breadth
as is allowable under law rather than to consider such provision void.
U. SURVIVAL: All terms and conditions of this Agreement which by reasonable
implication are meant to survive the termination of this Agreement,
including but not limited to, the Restrictive Covenants and Arbitration
Clause herein, shall remain in full force and effect after the
termination of this Agreement.
V. CONSTRUCTION: This Agreement was negotiated in good faith by the parties
hereto, who hereby agree to share the responsibility for any ambiguities,
uncertainties or inconsistencies herein. Paragraph headings are used
herein only for ease of reference, and shall not in any way affect the
interpretation or enforcement of this Agreement.
W. NOTICES:
1. Any notice required or permitted to be given pursuant to this
Agreement shall be in writing and delivered in person, or sent
prepaid by certified mail, bonded messenger or overnight express,
to the party named at the address set forth below or at such
other address as either party may hereafter designate in writing
to the other party:
EXECUTIVE: GEORGE B. SUNDBY
90 Cedro Avenue
San Francisco, CA 94124
COMPANY: ABM INDUSTRIES INCORPORATED
160 Pacific Avenue, Suite 222
San Francisco, CA 94111
Attention: President and Chief Executive Officer
COPY: ABM INDUSTRIES INCORPORATED
160 Pacific Avenue, Suite 222
San Francisco, CA 94111
Attention: Chief Employment Counsel
2. Any such notice shall be assumed to have been received when delivered in
person, or forty-eight (48) hours after being sent in the manner
specified above.
X. SPECIAL PROVISIONS:
1. SALARY:
a. Three Hundred Thousand Dollars ($300,000) per year
effective June 1, 2001 through October 31, 2001 at the
monthly rate of $25,000 payable semi-monthly.
b. Effective November 1, 2001 through October 31, 2002, and
for each year of the then current Initial or Extended Term
of this Agreement, as applicable, the Salary in Paragraph
X.1a will be adjusted upward annually to reflect the
percentage increase change in the American Compensation
Association ("ACA"), or any successor thereof, Index for
the Western Region ("ACA Index") with a (6%) maximum
increase. The adjustment, if any, shall be based upon the
projected
<PAGE>
8
ACA Index as published for the ACA fiscal year ending on
the June 30th immediately preceding the effective date of
the proposed increase hereunder. Notwithstanding the
foregoing, there shall be no annual increase in Salary for
any such year unless the Company's earning per share
("EPS") for the fiscal year of the Company (commencing
November 1, and ending October 31st) ("Fiscal Year") then
ending are equal to or greater than the Company's EPS for
the previous Fiscal Year. There shall be no downward
adjustment in salary in the event the ACA Index shows a
decrease from the prior Fiscal Year.
2. BONUS: Subject to proration in the event of modification or
termination of employment hereunder and further subject to the
potential prospective re-set provisions set forth in Paragraph
X.2.c, Executive shall be paid a bonus ("Bonus") based on the
profit ("Profit") for each Fiscal Year, or partial Fiscal Year,
of employment hereunder during the Term, and during the Extended
Term, if any, of this Agreement:
a. Such Bonus for each Fiscal Year shall be 0.1204% of the
Company's Profit which shall be pro-rated for any partial
year of employment, excepting Fiscal Year 2001 for which
said bonus will be paid in full..
b. Profit is defined as the consolidated income before income
taxes of the Company, excluding: (i) gains or losses on
sales or exchanges of real property or on sales or
exchanges of all or substantially all of the stock or
assets of a subsidiary corporation or any other business
unit of Company, (ii) gains or losses on the
discontinuation of any business unit of Company, and (iii)
the discretionary portion of any contributions made to any
profit sharing, service award, employee retirement or
savings or similar plan.
c. Subject to proration in the event of modification or
termination of employment under this Agreement, and further
subject to a re-set in the event Executive's Bonus for any
Fiscal Year has been limited as hereinafter provided,
Executive's maximum Bonus for each Fiscal Year shall be
fifty percent (50%) the Salary for that year set forth in
Paragraph X.1 herein. If, however, in any completed Fiscal
Year, the Bonus which might have been earned by Executive
for that year exceeds said fifty percent (50%) maximum,
Executive's Salary and Bonus for the next year shall be
re-computed as follows: (i) notwithstanding the six percent
(6%) maximum set forth hereinabove, the Salary set forth in
Paragraph X.1 shall be adjusted to equal seventy-five
percent (75%) of the prior Fiscal Year's combined Salary
and Bonus, plus an amount equal to the increase, if any,
set forth in Paragraph X.1 based upon said ACA Index; and
(ii) the Bonus percentage set forth in Paragraph X.2.a
shall be adjusted by multiplying the prior Fiscal Year's
combined Salary and Bonus by twenty-five percent (25%), and
dividing that product by the actual Profit earned in the
prior Fiscal Year.
d. Executive shall have the right to obtain an advance against
such Bonus at the end of each month of each Fiscal Year in
an amount equal to fifty percent (50% of, or 0.5 times) the
projected amount of such Bonus based on the Profit at that
time.
e. The independent public accounting firm for the Company
shall determine the Profit and Bonus for each Fiscal Year.
Company shall pay Executive the Bonus for the Fiscal Year
(or the balance thereof after any advances) when such
accounting firm has made such determination, but no later
than ninety (90) days after the end of each Fiscal Year.
The Bonus for any partial Fiscal Year shall be prorated for
the fraction of the Fiscal Year for which such Bonus is
payable. Absent bad faith or material error, the
conclusions of such accounting firm or
<PAGE>
9
department with respect to the amounts of the Profits and
Bonuses shall be conclusive upon Executive and Company.
f. Notwithstanding the foregoing, no Bonus for any Fiscal Year
of the Company shall be payable unless the Company's net
income per share for the Fiscal Year then ending is equal
to or greater than eighty percent (80%) of the Company's
net income per share for the previous Fiscal Year of the
Company.
3. POST-EMPLOYMENT CONSULTANCY: After Executive's retirement,
resignation and/or termination from employment with Company, but
commencing no earlier than what is or would have been Executive's
sixty-fifth (65th) birthday and concluding no later than ten (10)
years thereafter ("Consultancy Period"), Company shall pay to
Executive consulting fees ("Consulting Fees") of:
a. 120 equal monthly installments accrued at 1/120th of
$150,000 for each month of employment completed by
Executive from June 1, 2001 through May 31, 2011.
b. During the Consultancy Period: (i) Executive shall provide
Company with such occasional executive or managerial
services as reasonably requested by the person with the
title set forth in Paragraph C hereof, except that failure
to render such services by reason of death or disability,
or unavailability because of absence from the County of
Employment, shall not effect Executive's right to receive
such Consulting fees, (ii) Company shall pay directly or
reimburse Executive for reasonable business expenses of
Company incurred by Executive in connection with such
services requested by the persons with the title set forth
in Paragraph C hereof, upon presentation to that person by
Executive within sixty (60) days after incurring such
expense of an itemized request for payment including the
date, receipts for all such expenses in excess of
Twenty-Five Dollars ($25) each, (iii) Company shall pay
Executive's Consulting Fees pursuant to this Paragraph X.3
herein, (iv) Executive shall not be eligible or entitled to
receive or participate in any other of the Company's then
current fringe benefits, and (v) Executive shall be deemed
an independent contractor and not an employee of the
Company.
c. If Executive dies before receiving any or all payments to
Executive of such Consulting Fees, all unpaid Consulting
Fees shall be paid monthly to Executive's estate or trust
commencing from the month in which Executive would have
reached Executive's sixty-fifth (65th) birthday or
continuing from the date of death following such
commencement.
Y. SCOPE OF CERTAIN PROVISIONS: All references to Company in Paragraphs H,
I, J, K, L, M, N, O.3, O.4, Q, R and Z in this Agreement shall include
Company, its affiliated and its subsidiary corporations.
Z. ENTIRE AGREEMENT: Unless otherwise specified herein, this Agreement sets
forth every contract, understanding and arrangement as to the employment
relationship between Executive and Company, and may only be changed by a
written amendment signed by both Executive and Company.
1. The parties intend that this Agreement speak for itself, and that
no evidence with respect to its terms and conditions other than
this Agreement itself may be introduced in any arbitration or
judicial proceeding to interpret or enforce this Agreement.
2. It is specifically understood and accepted that this Agreement
supersedes all oral and
<PAGE>
10
written employment agreements between Executive and Company prior
to the date hereof, as well as all conflicting provisions of
Company's Guidelines For Corporate Approval and its Human
Resources Manual, including but not limited to, the termination,
discipline and discharge provisions contained therein. Said
Guidelines and Manual are not an Agreement between Executive and
Company, nor shall they be binding on either party. The purpose
and intent of said Guidelines and Manual are only to suggest
guidance for Company managers to apply as they see fit on a case
by case basis.
ZZ. FULL KNOWLEDGE & UNDERSTANDING: Executive and Company hereby acknowledge
that they have carefully read and fully understand all terms and
conditions of this Agreement, and that they are voluntarily entering into
this Agreement with full knowledge of the benefits and burdens, and the
risks and rewards, contained herein.
IN WITNESS WHEREOF, Executive and Company have executed this Agreement as of the
date set forth above:
EXECUTIVE: Signature: /s/ GEORGE B. SUNDBY
-----------------------------------------
Date: May 15, 2001
-----------------------------------------
COMPANY: By: ABM Industries Incorporated
-----------------------------------------
Date: May 15, 2001
-----------------------------------------
Signature: /s/ HENRIK SLIPSAGER
-----------------------------------------
Henrik Slipsager
Title: President and Chief Executive Officer
-----------------------------------------
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.67
<SEQUENCE>8
<FILENAME>f77849ex10-67.txt
<DESCRIPTION>EXHIBIT 10.67
<TEXT>
<PAGE>
EXHIBIT 10.67
1
CORPORATE EXECUTIVE EMPLOYMENT AGREEMENT
THIS CORPORATE EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made as of
November 1, 1999, by and between Donna M. Dell ("Executive"), and ABM Industries
Incorporated ("Company") for itself and on behalf of its subsidiary corporations
as applicable herein.
WHEREAS, Company is engaged in the building maintenance and related service
businesses, and
WHEREAS, Executive is experienced in the administration, finance, marketing, and
operation of such services, and
WHEREAS, Company has invested significant time and money to develop proprietary
trade secrets and other confidential business information, as well as invaluable
goodwill among its customers, sales prospects and employees, and
WHEREAS, Executive wishes to, or has been and desires to remain employed by
Company, and to utilize such proprietary trade secrets, other confidential
business information and goodwill, and
WHEREAS, Company has disclosed or will disclose to Executive such proprietary
trade secrets and other confidential business information which Executive will
utilize in the performance of this Agreement;
NOW THEREFORE, Executive and Company agree as follows:
A. EMPLOYMENT: Company hereby agrees to employ Executive, and Executive
hereby accepts such employment, on the terms and conditions set forth in
this Agreement.
B. TITLE: Executive's title shall be Senior Vice President of Human
Resources and Chief Employment Counsel of Company.
C. DUTIES & RESPONSIBILITIES: Executive shall be expected to assume and
perform such executive or managerial duties and responsibilities as are
assigned from time-to-time by the Chairman of the Board and Chief
Administrative Officer of Company, to whom Executive shall report and be
accountable.
D. TERM OF AGREEMENT: Employment hereunder shall commence on November 1,
1999, for a term of two (2) years ("Initial Term"), unless sooner
terminated pursuant to Paragraph O hereof, or later extended pursuant to
Paragraph N hereof ("Extended Term").
E. PRINCIPAL OFFICE: During the Initial Term and any Extended Term, as
applicable, of this Agreement, Executive shall be based at a Company
office located in San Francisco ("County of Employment"), California
("State of Employment).
F. COMPENSATION: Company agrees to compensate Executive, and Executive
agrees to accept as compensation in full, for Executive's assumption and
performance of duties and responsibilities pursuant to this Agreement:
1. SALARY: A base salary paid in equal installments of no less
frequently than semi-monthly at the annual rate set forth in
Paragraph X.1 hereof.
2. BONUS: A bonus or other incentive or contingent compensation, if
any, pursuant to Paragraph X.2 hereof, and the bonus set forth in
Paragraph X.4, hereof.
3. FRINGE BENEFITS: The then current fringe benefits generally
provided by Company to all of its Executives. Such benefits may
include but not be limited to the use of a Company-leased car or
a car allowance, group health benefits, long-term disability
benefits, group life
<PAGE>
2
insurance, sick leave and vacation, and a Service Award Benefit
Plan. Each of these fringe benefits is subject to the applicable
Company policy at all times. Company reserves the right to add,
increase, reduce or eliminate any fringe benefit at any time, but
no such benefit or benefits shall be reduced or eliminated as to
Executive unless generally reduced or eliminated as to comparable
executives within the Company.
G. PAYMENT OR REIMBURSEMENT OF BUSINESS EXPENSES: Company shall pay directly
or reimburse Executive for reasonable business expenses of Company
incurred by Executive in connection with Company business, and approved
in writing by the person(s) with the title set forth in Paragraph C
hereof, upon presentation to such person(s) by Executive within sixty
(60) days after incurring such expense of an itemized request for payment
including the date, nature, recipient, purpose and amount of each such
expense, accompanied by receipts for all such expenses in excess of
Twenty-Five Dollars ($25) each.
H. BUSINESS CONDUCT: Executive shall make reasonable best efforts to comply
with all applicable laws pertaining to the performance of this Agreement,
and with all lawful and ethical rules, regulations, policies, procedures
and instructions of Company, including but not limited to the following:
1. GOOD FAITH: Executive shall not act in any way contrary to the
best interest of Company.
2. BEST EFFORTS: During all full-time employment hereunder,
Executive shall devote full working time and attention to
Company, and shall not at any time be directly or indirectly
employed by, own, operate, assist or otherwise be involved,
invested or associated in any business that is similar or
competitive to any business of Company; except that Executive may
own up to five percent (5%) of any such publicly-held
business(es), provided that Executive: (a) shall give Company
notice(s) of such ownership in accordance with Paragraph W
hereof, and (b) shall not at any time be directly or indirectly
employed by or operate, assist, or otherwise be involved or
associated with any such business(es).
3. VERACITY: Executive shall make no claims or promises to any
employee, supplier, contractor, customer or sales prospect of
Company that are unauthorized by Company or are in any way
untrue.
4. DRIVER'S LICENSE: Executive shall have and carry a valid driver's
license issued by the State of Employment hereunder and a
driver's permit issued by the Company whenever Executive is
driving any motor vehicle in connection with Company business.
Executive agrees to immediately notify Company in writing if
Executive's driver's license is lost, expired, restricted,
suspended or revoked for any reason whatsoever.
I. NO CONFLICT: Executive represents to Company that Executive is not bound
by any contract with a previous employer or with any other business that
might prevent Executive from entering into this Agreement or disclosing
information about any previous employer or any other business to Company,
or might otherwise interfere with Executive's employment hereunder.
J. COMPANY PROPERTY: Company shall, from time to time, entrust to the care,
custody and control of Executive certain of Company's property, such as
motor vehicles, equipment, supplies and documents. Such documents may
include, but shall not be limited to customer lists, financial
statements, cost data, price lists, invoices, forms, electronic files and
media, mailing lists, contracts, reports, manuals, personnel files or
directories, correspondence, business cards, copies or notes made from
Company documents and documents compiled or prepared by Executive for
Executive's use in connection with Company business. Executive
specifically acknowledges that all such documents are the property of
Company, notwithstanding their preparation, care, custody, control or
possession by Executive at any time(s) whatsoever.
<PAGE>
3
K. GOODWILL & PROPRIETARY INFORMATION: In connection with Executive's
employment hereunder:
1. Executive agrees to utilize and further Company's goodwill
("Goodwill") among its customers, sales prospects and employees,
and acknowledges that Company may disclose to Executive and
Executive may disclose to Company, proprietary trade secrets and
other confidential information not in the public domain
("Proprietary Information") including but not limited to specific
customer data such as: (a) the identity of Company's customers
and sales prospects, (b) the nature, extent, frequency,
methodology, cost, price and profit associated with their
services and products purchased from Company, (c) any particular
needs or preferences regarding their service or supply
requirements, (d) the names, office hours, telephone numbers and
street addresses of their purchasing agents or other buyers, (e)
their billing procedures, (f) their credit limits and payment
practices, and (g) their organization structure.
2. Executive agrees that such Proprietary Information and Goodwill
have unique value to Company, are not generally known or readily
available to Company's competitors, and could only be developed
by others after investing significant time and money. Company
would not make such Proprietary Information and Goodwill
available to Executive unless Company is assured that all such
Proprietary Information and Goodwill will be held in trust and
confidence by Executive. Executive hereby acknowledges that to
use this Proprietary Information and Goodwill except for the
benefit of Company would be improper and unfair to Company.
L. RESTRICTIVE COVENANTS: In recognition of Paragraph K hereof, Executive
hereby agrees that during the Initial Term and the Extended Term, if any,
of this Agreement, and thereafter for as long as it shall be enforceable:
1. Except in the proper performance of this Agreement, Executive
shall not directly or indirectly solicit or otherwise encourage
or arrange for any employee to terminate employment with Company.
2. Except in the proper performance of this Agreement, Executive
shall not directly or indirectly disclose or deliver to any other
person or business, any Proprietary Information obtained directly
or indirectly by Executive from, or for, Company.
3. Executive shall not seek, solicit, divert, take away, obtain or
accept the patronage of any customer or sales prospect of Company
through the direct or indirect use of any Proprietary Information
of Company, or by any other unfair or unlawful business practice.
4. Executive agrees that for a reasonable time after the termination
of this Agreement, which Executive and Company hereby agree to be
one (1) year, Executive shall not directly or indirectly, for
Executive or for any other person or business, seek, solicit,
divert, take away, obtain or accept any site-specific customer
account or site-specific sales prospect with which Executive had
direct business involvement on behalf of Company within the one
(1) year period prior to termination of this Agreement.
5. Nothing in this Agreement shall be binding upon the parties to
the extent it is void or unenforceable for any reason in the
State of Employment, including, without limitation, as a result
of any law regulating competition or proscribing unlawful
business practices.
M. MODIFICATION OF EMPLOYMENT: At any time during the then current Initial
or Extended Term, as applicable, of this Agreement, a majority of the
Board of Directors of Company shall have the absolute right, with or
without cause and without terminating this Agreement or Executive's
employment hereunder, to modify the nature of Executive's employment for
the remainder of the
<PAGE>
4
then current Initial or Extended Term, as applicable, of this Agreement,
from that of a full-time employee to that of a part-time employee
("Modification Period"). The Modification Period shall commence
immediately upon Company giving Executive written notice of such change.
1. Upon commencement of the Modification Period: (a) Executive shall
immediately resign as a full-time employee of Company and as an
officer and/or director of Company, as applicable, (b) Executive
shall promptly return all Company property in Executive's
possession to Company, including but not limited to any motor
vehicles, equipment, supplies and documents set forth in
Paragraph J hereof, and (c) Company shall pay Executive all
previously earned and vested but as yet unpaid, salary, prorated
bonus or other contingent compensation, reimbursement of business
expenses and fringe benefits.
2. During the Modification Period: (a) Company shall continue to pay
Executive's monthly salary pursuant to Paragraph F.1 hereof, and
to the extent available under the Company's group insurance
policies, continue to provide Executive with the same group
health and life insurance (subject to Executive continuing to pay
the employee portion of any such premium) to which Executive
would be entitled as a full-time employee, with the understanding
and agreement that such monthly salary and group insurance, if
available, shall constitute the full extent of Company's
obligation to compensate Executive, (b) Executive shall not be
eligible or entitled to receive or participate in any bonus or
fringe benefits other than the aforementioned group insurance, if
available, (c) in the alternative, Executive may exercise rights
under COBRA to obtain medical insurance coverage as may be
available to Executive, (d) Executive shall be deemed a part-time
employee and not a full-time employee of Company, (e) Executive
shall provide Company with such occasional executive or
managerial services as reasonably requested by the persons with
the title set forth in Paragraph C hereof, except that failure to
render such services by reason of any physical or mental illness
or disability other than Total Disability or death as set forth
in Paragraph O.2 hereof, or unavailability because of absence
from the State of Employment hereunder, shall not affect
Executive's right to receive such salary and (f) Company shall
pay directly or reimburse Executive in accordance with the
provisions of Paragraph G hereof for reasonable business expenses
of Company incurred by Executive in connection with such services
requested by the persons with the title set forth in Paragraph C
hereof.
3. The Modification Period shall continue until the earlier of: (a)
Total Disability or death as set forth in Paragraph O.2 hereof,
(b) termination of this Agreement by Company for "just cause" as
hereinafter defined, (c) Executive accepting employment or
receiving any other compensation from operating, assisting or
otherwise being involved, invested or associated with any
business that is similar to or competitive with any business in
which Company is engaged on the commencement date of the
Modification Period, or (d) expiration of the then current Term
of this Agreement.
N. EXTENSION OF EMPLOYMENT: Absent at least ninety (90) days written Notice
of Termination from either party to the other party prior to expiration
of the then Initial or Extended Term, as applicable, of this Agreement,
employment hereunder shall continue for an Extended Term (or another
Extended Term, as applicable) of two (2) years, by which Executive and
Company intend that all terms and conditions of this Agreement shall
remain in full force and effect for another twenty four (24) months,
except that the highest base salary specified in Paragraph X.l.a shall
be increased annually as set forth in Paragraph X.1.b for each year of
the Extended Term. Company has the option, without terminating this
Agreement or Executive's employment hereunder, of placing Executive on a
leave of absence at the full compensation set forth in Paragraph F hereof
for any or all of such ninety (90) day period in lieu of the
aforementioned Notice of Termination.
O. TERMINATION OF EMPLOYMENT:
1. a. Termination of employment at the expiration of the then
current Initial or
<PAGE>
5
Extended Term shall be effective with or without cause.
b. Except as provided in Paragraph O.1.a, the Company shall
have the right to terminate Executive's employment
hereunder at any time during the then current Initial or
Extended Term, as applicable, of this Agreement, without
notice subject only to a good faith determination by a
majority of the Board of Directors of Company of "just
cause." "Just cause" includes but is not limited to any
theft or other dishonesty, or any material: (i) neglect of
employment duties, (ii) inability or unwillingness to
perform employment duties, (iii) insubordination, (iv)
abuse of alcohol or other drugs, (v) breach of this
Agreement; or for (vi) other misconduct, unethical or
unlawful activity.
c. At any time during the then current Initial or Extended
Term, as applicable, of this Agreement, with or without
cause, Executive may terminate employment hereunder by
giving Company ninety (90) days prior written notice.
2. Employment hereunder shall automatically terminate upon the total
disability ("Total Disability") or death of Executive. Total
Disability shall be deemed to occur on the ninetieth (90th)
consecutive or non-consecutive calendar day within any twelve
(12) month period that Executive is unable to perform the duties
set forth in Paragraph C hereof because of any physical or mental
illness or disability. Company shall pay when due to Executive or
his estate, as applicable, all prorated salary, bonus or other
contingent compensation, reimbursement of business expenses and
fringe benefits which would have otherwise been payable to
Executive under this Agreement, through the end of the month in
which Total Disability or death occurs.
3. Upon termination of employment hereunder, Executive shall
immediately resign as an employee of Company and as an officer
and/or director of Company, as applicable. Executive shall
promptly return all Company property in Executive's possession to
Company, including but not limited to, any motor vehicles,
equipment, supplies and documents set forth in Paragraph J
hereof. Company shall pay Executive, when due, all previously
earned and vested but as yet unpaid, salary, bonus or other
contingent compensation, reimbursement of business expenses and
fringe benefits.
4. Nothing contained in this Agreement shall entitle Executive to
receive a bonus or other incentive or contingent compensation
from Company based on any sales or profits made by Company after
termination of employment hereunder.
P. GOVERNING LAW: This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Employment hereunder.
Q. ARBITRATION CLAUSE:
1. Except for the interpretation and enforcement of injunctive
relief pursuant to Paragraph R hereof (which, at Company's
option, shall be subject to litigation in any court having proper
jurisdiction), any claim or dispute related to or arising from
this Agreement (whether based in contract or tort, in law or
equity) including, but not limited to, claims or disputes between
Executive and Company or its directors, officers, employees and
agents regarding Executive's employment or termination of
employment hereunder, or any other business of Company, shall
be resolved by mandatory, final, binding arbitration in
accordance with the rules of the American Arbitration
Association; provided, however, that no party shall be entitled
to an award of general or punitive damages hereunder.
2. Any such arbitration must be requested in writing within one (1)
year from the date the
<PAGE>
6
party initiating the arbitration knew or should have known about
the claim or dispute, or all claims arising from that dispute are
forever waived. Any such arbitration (or court proceeding as
applicable hereunder) shall be held in the County of Employment.
Judgment upon the award rendered through such arbitration may be
entered and enforced in any court having proper jurisdiction.
R. REMEDIES & DAMAGES:
1. The parties agree that, in the event of a material breach or
threatened material breach of Paragraph L hereof, the damage or
imminent damage to the value of Company's business shall be
inestimable, and therefore any remedy at law or in damages shall
be inadequate. Accordingly, the parties hereto agree that Company
shall be entitled to the immediate issuance of a restraining
order or an injunction against Executive in the event of such
breach or threatened breach, in addition to any other relief
available to Company pursuant to this Agreement or under law.
2. Executive agrees that the actual amount of damages resulting from
any material breach of any of the provisions of Paragraph L
hereof would be impractical or impossible to ascertain. It is
therefore agreed that the damages resulting from any such breach
which involves any customer of Company shall be liquidated
damages, not a penalty, in an amount equal to four (4) times the
lost monthly revenue to the Company based on the average monthly
revenue which was payable by that customer to Company during the
four (4) months immediately preceding such breach. This provision
for liquidated damages is in addition to any other relief
available to Company pursuant to this Agreement or under law.
3. To the full extent permitted under the laws of the State of
Employment hereunder, Executive authorizes Company to withhold
from Executive's compensation and from any other funds held for
Executive's benefit by Company, any damages or losses sustained
by Company as a result of any material breach or other material
violation of this Agreement by Executive, pending arbitration
between the parties as provided for herein.
S. NO WAIVER: Failure by either party to enforce any term or condition of
this Agreement at any time shall not preclude that party from enforcing
that provision, or any other provision of this Agreement, at any later
time.
T. SEVERABILITY: The provisions of this Agreement are severable. If any
arbitrator (or court as applicable hereunder) rules that any portion of
this Agreement is invalid or unenforceable, the arbitrator's or court's
ruling shall not affect the validity and enforceability of other
provisions of this Agreement. It is the intent of the parties that if any
provision of this Agreement is ruled to be overly broad, the arbitrator
or court shall interpret such provision with as much permissible breadth
as is allowable under law rather than to consider such provision void.
U. SURVIVAL: All terms and conditions of this Agreement which by reasonable
implication are meant to survive the termination of this Agreement,
including but not limited to, the Restrictive Covenants and Arbitration
Clause herein, shall remain in full force and effect after the
termination of this Agreement.
V. CONSTRUCTION: This Agreement was negotiated in good faith by the parties
hereto, who hereby agree to share the responsibility for any ambiguities,
uncertainties or inconsistencies herein. Paragraph headings are used
herein only for ease of reference, and shall not in any way affect the
interpretation or enforcement of this Agreement.
W. NOTICES:
1. Any notice required or permitted to be given pursuant to this
Agreement shall be in
<PAGE>
7
writing and delivered in person, or sent prepaid by certified
mail, bonded messenger or overnight express, to the party named
at the address set forth below or at such other address as either
party may hereafter designate in writing to the other party:
EXECUTIVE: DONNA M. DELL
40 Mulberry Lane
Walnut Creek, CA 94596
COMPANY: ABM INDUSTRIES INCORPORATED
160 Pacific Avenue, Suite 222
San Francisco, CA 94111
Attention: Chairman of the Board
COPY: ABM INDUSTRIES INCORPORATED
160 Pacific Avenue, Suite 222
San Francisco, CA 94111
Attention: General Counsel
2. Any such notice shall be assumed to have been received when
delivered in person, or forty-eight (48) hours after being sent
in the manner specified above.
X. SPECIAL PROVISIONS:
1. SALARY:
a. One Hundred Ninety Six Thousand, Six Hundred Thirty Eight
Dollars ($196,638) per year effective November 1, 1999
through October 31, 2000 at the monthly rate of $16,387
payable semi-monthly.
b. Effective November 1, 2000 through October 31, 2001, and
for each year of the then current Initial or Extended Term
of this Agreement, as applicable, the Salary in Paragraph
X.1.a will be adjusted upward annually to reflect the
percentage increase change in the American Compensation
Association ("ACA"), or any successor thereof, Index for
the Western Region ("ACA Index") with a (6%) maximum
increase. The adjustment, if any, shall be based upon the
projected ACA Index as published for the ACA fiscal year
ending on the June 30th immediately preceding the effective
date of the proposed increase hereunder. Notwithstanding
the foregoing, there shall be no annual increase in Salary
for any such year unless the Company's earning per share
("EPS") for the fiscal year of the Company (commencing
November 1, and ending October 31st) ("Fiscal Year") then
ending are equal to or greater than the Company's EPS for
the previous Fiscal Year. There shall be no downward
adjustment in salary in the event the ACA Index shows a
decrease from the prior Fiscal Year.
2. BONUS: Subject to proration in the event of modification or
termination of employment hereunder and further subject to the
potential prospective re-set provisions set forth in Paragraph
X.2.c, Executive shall be paid a bonus ("Bonus") based on the
profit ("Profit") for each Fiscal Year, or partial Fiscal Year,
of employment hereunder during the Term, and during the Extended
Term, if any, of this Agreement:
a. Such Bonus for each Fiscal Year shall be 0.0511% of the
Company's Profit on a pro-rata basis.
b. Profit is defined as the consolidated income before income
taxes of the Company, excluding: (i) gains or losses on
sales or exchanges of real property or on sales or
<PAGE>
8
exchanges of all or substantially all of the stock or
assets of a subsidiary corporation or any other business
unit of Company, (ii) gains or losses on the
discontinuation of any business unit of Company, and (iii)
the discretionary portion of any contributions made to any
profit sharing, service award, employee retirement or
savings or similar plan.
c. Subject to proration in the event of modification or
termination of employment under this Agreement, and further
subject to a re-set in the event Executive's Bonus for any
Fiscal Year has been limited as hereinafter provided,
Executive's maximum Bonus for each Fiscal Year shall be
fifty percent (50%) the Salary for that year set forth in
Paragraph X.l herein. If, however, in any completed Fiscal
Year, the Bonus which might have been earned by Executive
for that year exceeds said fifty percent (50%) maximum,
Executive's Salary and Bonus for the next year shall be re-
computed as follows: (i) notwithstanding the six percent
(6%) maximum set forth hereinabove, the Salary set forth in
Paragraph X.1 shall be adjusted to equal seventy-five
percent (75%) of the prior Fiscal Year's combined Salary
and Bonus, plus an amount equal to the increase, if any,
set forth in Paragraph X.1 based upon said ACA Index; and
(ii) the Bonus percentage set forth in Paragraph X.2.a
shall be adjusted by multiplying the prior Fiscal Year's
combined Salary and Bonus by twenty-five percent (25%), and
dividing that product by the actual Profit earned in the
prior Fiscal Year.
d. Executive shall have the right to obtain an advance against
such Bonus at the end of each month of each Fiscal Year in
an amount equal to fifty percent (50% of, or 0.5 times) the
projected amount of such Bonus based on the Profit at that
time.
e. The independent public accounting firm for the Company
shall determine the Profit and Bonus for each Fiscal Year.
Company shall pay Executive the Bonus for the Fiscal Year
(or the balance thereof after any advances) when such
accounting firm has made such determination, but no later
than ninety (90) days after the end of each Fiscal Year.
The Bonus for any partial Fiscal Year shall be prorated for
the fraction of the Fiscal Year for which such Bonus is
payable. Absent bad faith or material error, the
conclusions of such accounting firm or department with
respect to the amounts of the Profits and Bonuses shall be
conclusive upon Executive and Company.
f. Notwithstanding the foregoing, no Bonus for any Fiscal Year
of the Company shall be payable unless the Company's net
income per share for the Fiscal Year then ending is equal
to or greater than eighty percent (80%) of the Company's
net income per share for the previous Fiscal Year of the
Company.
3. POST-EMPLOYMENT CONSULTANCY: After Executive's retirement,
resignation and/or termination from employment with Company, but
commencing no earlier than what is or would have been Executive's
sixty-fifth (65th) birthday and concluding no later than ten (10)
years thereafter ("Consultancy Period"), Company shall pay to
Executive consulting fees ("Consulting Fees") of:
a. 120 equal monthly installments accrued at 1/120th of
$150,000 for each month of employment completed by
Executive from July 1, 1994 through June 30, 2004, plus
b. 120 equal monthly installments accrued at 1/60th of
$100,000 for each month of employment completed by
Executive from November 1, 1999 through October 31, 2004.
c. During the Consultancy Period: (i) Executive shall provide
Company with such
<PAGE>
9
occasional executive or managerial services as reasonably
requested by the person with the title set forth in
Paragraph C hereof, except that failure to render such
services by reason of death or disability, or
unavailability because of absence from the County of
Employment, shall not effect Executive's right to receive
such Consulting fees, (ii) Company shall pay directly or
reimburse Executive for reasonable business expenses of
Company incurred by Executive in connection with such
services requested by the persons with the title set forth
in Paragraph C hereof, upon presentation to that person by
Executive within sixty (60) days after incurring such
expense of an itemized request for payment including the
date, receipts for all such expenses in excess of
Twenty-Five Dollars ($25) each, (iii) Company shall pay
Executive's Consulting Fees pursuant to this Paragraph X.3
herein, (iv) Executive shall not be eligible or entitled to
receive or participate in any other of the Company's then
current fringe benefits, and (v) Executive shall be deemed
an independent contractor and not an employee of the
Company.
d. If Executive dies before receiving any or all payments to
Executive of such Consulting Fees, all unpaid Consulting
Fees shall be paid monthly to Executive's estate or trust
commencing from the month in which Executive would have
reached Executive's sixty-fifth (65) birthday or
continuing from the date of death following such
commencement.
Y. SCOPE OF CERTAIN PROVISIONS: All references to Company in Paragraphs H,I,
J, K, L, M, N, O.3, O.4, Q, R and Z in this Agreement shall include
Company, its affiliated and its subsidiary corporations.
Z. ENTIRE AGREEMENT: Unless otherwise specified herein, this Agreement sets
forth every contract, understanding and arrangement as to the employment
relationship between Executive and Company, and may only be changed by a
written amendment signed by both Executive and Company.
1. The parties intend that this Agreement speak for itself, and that
no evidence with respect to its terms and conditions other than
this Agreement itself may be introduced in any arbitration or
judicial proceeding to interpret or enforce this Agreement.
2. It is specifically understood and accepted that this Agreement
supersedes all oral and written employment agreements between
Executive and Company prior to the date hereof, as well as all
conflicting provisions of Company's Guidelines For Corporate
Approval and its Human Resources Manual, including but not
limited to, the termination, discipline and discharge provisions
contained therein. Said Guidelines and Manual are not an
Agreement between Executive and Company, nor shall they be
binding on either party. The purpose and intent of said
Guidelines and Manual are only to suggest guidance for Company .
managers to apply as they see fit on a case by case basis.
ZZ. FULL KNOWLEDGE & UNDERSTANDING: Executive and Company hereby acknowledge
that they have carefully read and fully understand all terms and
conditions of this Agreement, and that they are voluntarily entering into
this Agreement with full knowledge of the benefits and burdens, and the
risks and rewards, contained herein.
<PAGE>
10
IN WITNESS WHEREOF, Executive and Company have executed this Agreement as of the
date set forth above:
EXECUTIVE: Signature: /s/ Donna M. Dell
---------------------------------------------------
Date: 4/17/01
---------------------------------------------------
COMPANY: By: Martinn H. Mandles
---------------------------------------------------
Date: 11/27/00
---------------------------------------------------
Signature: /s/ MARTINN H. MANDLES
---------------------------------------------------
Title: Chairman of the Board and Chief Administrative Officer
---------------------------------------------------
ABM Industries Incorporated
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.68
<SEQUENCE>9
<FILENAME>f77849ex10-68.txt
<DESCRIPTION>EXHIBIT 10.68
<TEXT>
<PAGE>
EXHIBIT 10.68
[ABM INDUSTRIES INCORPORATED LETTERHEAD]
April 17, 2001
[ABM JANITORIAL Ms. Donna M. Dell
SERVICES LOGO] 40 Mulberry Lane
Walnut Creek, California 94596
[ABM ENGINEERING Re: First Amendment ("Amendment") of Corporate Executive
SERVICES LOGO] Employment Agreement Dated November 1, 1999
("Agreement")
Dear Donna,
[ABM FACILITY Your Employment Agreement dated November 1, 1999 is
SERVICES LOGO] hereby amended as follows:
Paragraph X. SPECIAL PROVISIONS:
[ABM SECURITY 1. SALARY:
SERVICES LOGO]
a. Two Hundred Twenty-Five Thousand
Dollars ($225,000) per year effective
[ACS AMERICAN November 1, 2000 through October 31,
COMMERCIAL 2001 at the monthly rate of $18,750,
SECURITY LOGO] payable semi-monthly.
b. (Deleted)
[AMPCO SYSTEM 2. BONUS:
PARKING LOGO]
[AMPCO SYSTEM a. Such Bonus for each Fiscal Year
AIRPORT PARKING effective November 1, 2000 and
LOGO] thereafter, shall be 0.0903% of the
Company's Profit on a pro-rata basis.
[AMTECH ELEVATOR This Amendment shall be effective as of November 1, 2000.
SERVICES LOGO] In all other respects the Agreement shall remain
unchanged.
[AMTECH LIGHTING Please sign both originals, returning one to your personnel
SERVICES LOGO] file and retaining the other fully executed original for
your records.
Sincerely,
[COMN AIR MERCHANT /s/ MARTINN H. MANDLES
SERVICES LOGO]
[EASTERDAY Martinn H. Mandles I agree to the foregoing:
JANITORIAL SUPPLY Chairman of the Board &
COMPANY LOGO] Chief Administrative Officer /s/ DONNA M. DELL
--------------------------
Donna M. Dell
cc: David Hebble
New York Stock Exchange Symbol: ABM
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-21.1
<SEQUENCE>10
<FILENAME>f77849ex21-1.txt
<DESCRIPTION>EXHIBIT 21.1
<TEXT>
<PAGE>
EXHIBIT 21.1
Subsidiaries of Registrant
as of 10/31/01
<TABLE>
<CAPTION>
Percentage
of Voting
Securities
Owned by
State of Immediate
Name Incorporation Parent
- ---- ------------- ----------
<S> <C> <C>
ABM Industries Incorporated Delaware Registrant
(*) ABM Co. of Boston California 100%
ABM Engineering Services Company California 100%
ABM Facility Services Company California 100%
ABM Global Facility Services + California 100%
ABM Janitorial Services - Northern California California 100%
ABM Janitorial Services Co., Ltd. British Columbia 100%
ABM Supply Company + California 100%
Accurate Janitor Service, Inc. + California 100%
American Building Maintenance Co. California 100%
American Building Maintenance Co. of Georgia California 100%
American Building Maintenance Co. of Hawaii + California 100%
Allied Maintenance Services, Inc. California 100%
American Building Maintenance Co. of Illinois California 100%
American Building Maintenance Co. of Kentucky + California 100%
American Building Maintenance Co. of New York California 100%
American Building Maintenance Co. of Utah + California 100%
American Building Maintenance Co. - West California 100%
American Public Services California 100%
American Security and Investigative Services, Inc. + California 100%
ABMI Investigative Services + California 100%
ABMI Security Services, Inc. California 100%
American Commercial Security Services, Inc. California 100%
Ampco System Parking California 100%
Amtech Elevator Services California 100%
Amtech Energy Services + California 100%
Amtech Lighting & Electrical Services California 100%
Amtech Lighting Services California 100%
Amtech Lighting Services of the Midwest California 100%
Amtech Reliable Elevator Company of Texas + Texas 100%
Beehive Parking, Inc. + Utah 100%
Bonded Maintenance Company Texas 100%
Bradford Building Services, Inc. California 100%
California Janitorial and Supply Co. + California 100%
Canadian Building Maintenance Co., Ltd. + British Columbia 100%
CommAir Mechanical Services California 100%
Commercial Air Conditioning of Northern California, Inc. + California 100%
Commercial Property Services, Inc. + California 100%
Servall Services, Inc. Texas 100%
Supreme Building Maintenance, Ltd. British Columbia 100%
System Parking, Inc. + California 100%
Towel and Linen Service, Inc.+ California 100%
</TABLE>
(*) Subsidiary relationship to registrant or to subsidiary parents shown by
progressive indentation.
+ Inactive companies.
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-23.1
<SEQUENCE>11
<FILENAME>f77849ex23-1.txt
<DESCRIPTION>EXHIBIT 23.1
<TEXT>
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
To the Stockholders and Board of Directors
ABM Industries Incorporated:
We consent to incorporation by reference in the following Registration
Statements on Form S-8 of ABM Industries Incorporated of our report dated
December 17, 2001, relating to the consolidated balance sheets of ABM Industries
Incorporated and subsidiaries as of October 31, 2001 and 2000, and the related
consolidated statements of income, stockholders' equity and comprehensive
income, and cash flows for each of the years in the three-year period ended
October 31, 2001, and related financial statement schedule II, which report
appears in the October 31, 2001, annual report on Form 10-K of ABM Industries
Incorporated.
<TABLE>
<CAPTION>
Registration No. Form Plan
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
333-78423 S-8 "Age-Vested" Career Stock Option Plan
333-58408 S-8 Employee Stock Purchase Plan
333-78421 S-8 "Time-Vested" Incentive Stock Option Plan
333-48857 S-8 Long-Term Senior Executive Stock Option Plan
</TABLE>
/s/ KPMG LLP
- ------------------
KPMG LLP
San Francisco, California
December 21, 2001
</TEXT>
</DOCUMENT>
</SEC-DOCUMENT>
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