EXHIBIT 10.22 Page 1 of 13
CORPORATE EXECUTIVE EMPLOYMENT AGREEMENT
THIS CORPORATE EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made effective as
of November 1, 2003, by and between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ("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/or 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 President and Chief Executive Officer
of Company, subject to modification as mutually agreed upon by both
Company and Executive.
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 Company's Board of Directors or its
designated committee, to whom Executive shall report and be
accountable.
D. TERM OF AGREEMENT: Employment hereunder shall be deemed effective as of
November 1, 2003, for a term of two 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 in the state of California ("State of
Employment"), or such other location as shall be mutually agreed upon
by Company and Executive.
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:
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EXHIBIT 10.22 Page 2 of 13
1. SALARY: A 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.
3. FRINGE BENEFITS: Executive shall receive 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. Each of these fringe
benefits is subject to the applicable Company policy at all
times. Executive expressly agrees that should he or she
terminate employment with Company for the purpose of being
re-employed by a Company affiliate, he or she shall
"carry-over" any previously accrued but unused vacation
balance to the books of the affiliate.
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.
4. LIMIT: To the extent that any compensation to be paid to
Executive under this Agreement would be non-deductible by the
Company as a result of the $1 million compensation limit
provisions of Section 162(m) of the Internal Revenue Code of
1986, as amended (the "Code"), then such compensation shall
not be paid out to Executive at that time but shall instead be
deferred and paid without interest to Executive (subject to
applicable withholding and only to the extent that payment of
such deferred amount is fully deductible under Code Section
162(m)) in the first month of the taxable year following the
taxable year of deferral. If the subsequent payment of the
deferral is itself subject to further deferral pursuant to
this Paragraph F.4, then such further deferred amount shall
instead be paid in the first month of the next following
taxable year.
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 accordance with policies and procedures adopted by the
Audit Committee of the Board of Directors (the "Board"), upon
presentation 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 accordance with Company policy.
H. BUSINESS CONDUCT: Executive shall comply with all applicable laws
pertaining to the performance of this Agreement, and with all lawful
and ethical rules, regulations, policies, codes of conduct, 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. Executive agrees that if he or she
is approached by any person to discuss a possible acquisition
or other transaction that could result in a change of control
of the Company, Executive will immediately advise the
Company's
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EXHIBIT 10.22 Page 3 of 13
General Counsel and Chair of the Nominating, Governance and
Succession Committee of the Board.
2. BEST EFFORTS: During all full-time employment hereunder,
Executive shall devote full working time and attention to
Company. Notwithstanding any other agreement to the contrary,
Executive 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 such publicly-held
business(es), provided that Executive: (a) shall give Company
notice(s) of any such ownership exceeding two percent (2%), 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 a driver's permit
issued by Company and shall carry a valid driver's license
issued by his or her state of domicile or the State of
Employment hereunder 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.
5. CODE OF CONDUCT: Executive agrees to fully comply with and
annually execute a certification of compliance with the
Company's Code of Business Conduct and Ethics.
6. OTHER LAWS: Executive agrees to fully comply with the other
laws and regulations that govern his performance and receipt
of compensation under this Agreement, including but not
limited to the provisions of Section 304 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act of 2002.
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. Executive further represents that he or she is not bound by
any other contracts or covenants that in any way restrict or limit
Executive's activities in relation to his or her employment with
Company that have not been fully disclosed to Company prior to the
signing of 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, passwords 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 items, including
passwords and documents, are the property of Company, notwithstanding
their preparation, care, custody, control or possession by Executive at
any time(s) whatsoever.
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EXHIBIT 10.22 Page 4 of 13
K. GOODWILL & PROPRIETARY INFORMATION: In connection with Executive's
employment hereunder:
1. PROPRIETARY INFORMATION: 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 its
services and products purchased from Company, (c) any
particular needs or preferences regarding its service or
supply requirements, (d) the names, office hours, telephone
numbers and street addresses of its purchasing agents or other
buyers, (e) its billing procedures, (f) its credit limits and
payment practices, and (g) its organization structure.
2. DUTY OF LOYALTY: 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 a breach of such trust and confidence and in
violation of Executive's common law Duty of Loyalty to the
Company.
L. RESTRICTIVE COVENANTS: In recognition of Paragraph K, above, Executive
hereby agrees that during the Initial Term and the Extended Term, if
any, of this Agreement, and thereafter as specifically agreed herein:
1. NON-SOLICITATION OF EMPLOYEES: Except in the proper
performance of this Agreement, Executive shall at no time
directly or indirectly solicit or otherwise encourage or
arrange for any employee to terminate employment with Company
while employed by the Company and for a period of one (1) year
following Executive's termination of employment.
2. NON-DISCLOSURE: 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. NON-SOLICITATION OF CUSTOMERS BY UNFAIR PRACTICES: Executive
agrees that at all times after the termination of this
Agreement, 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. NON-SOLICITATION: 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
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EXHIBIT 10.22 Page 5 of 13
other person or business, seek, solicit, divert, take away,
obtain or accept any customer account or 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. LIMITATIONS: 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 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. MODIFICATION ACTIONS: 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 and of any Company subsidiaries, 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 when due any and all, previously earned but as yet
unpaid, salary, bonus pursuant to Paragraph X.2.c or other
contingent compensation, reimbursement of business expenses
and fringe benefits.
2. MODIFICATION OBLIGATIONS: 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 person(s) designated by the Board, 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 person(s)
designated by the Board.
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EXHIBIT 10.22 Page 6 of 13
3. MODIFICATION PERIOD: 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:
1. RENEWAL: Absent at least ninety (90) days written Notice of
Termination of Employment or Notice of Non-Renewal from
Company to Executive prior to expiration of the then current
Initial or Extended Term, as applicable, of this Agreement,
employment hereunder shall continue for an Extended Term (or
another Extended Term, as applicable) of one year, by which
Executive and Company intend that all terms and conditions of
this Agreement shall remain in full force and effect for
another twelve (12) months, except that the Base Salary as
defined in Paragraph X.1.a may be increased as set forth in
Paragraph X.1.b during the Extended Term.
2. NOTICE OF NON-RENEWAL: In the event that Notice of Non-Renewal
is given ninety (90) days prior to the expiration of the then
Initial or Extended Term, as applicable, of this Agreement,
employment shall continue on an "at will" basis following the
expiration of such Initial or Extended Term. In such event,
Company shall have the right to change the terms and
conditions of Executive's employment, including but not
limited to Executive's position and/or compensation.
O. TERMINATION OF EMPLOYMENT:
1. a. TERMINATION UPON EXPIRATION OF TERM: Subject to at
least ninety (90) days prior written Notice of
Termination of Employment, Executive's employment
shall terminate, with or without cause, at the
expiration of the then current Initial or Extended
Term. Company has the option, without terminating
this Agreement, of placing Executive on a leave of
absence at the full compensation set forth in
Paragraph F hereof, for any or all of such notice
period.
b. TERMINATION FOR CAUSE: 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 "just cause." "Just cause"
includes but is not limited to any (i) theft or
dishonesty, (ii) more than one instance of neglect or
failure to perform employment duties, (iii) more than
one instance of inability or unwillingness to perform
employment duties, (iv) insubordination, (v) abuse of
alcohol or other drugs or substances affecting
Executive's performance of his or her employment
duties, (vi) material and willful breach of this
Agreement, (vii) other misconduct, unethical or
unlawful activity, or for (vii) a conviction of or
plea of "guilty" or "no contest" to a felony under
the laws of the United States or any state thereof.
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c. VOLUNTARY TERMINATION BY EXECUTIVE: At any time
during the then current Initial or Extended Term, as
applicable, of this Agreement and with or without
cause, Executive may terminate employment hereunder
by giving Company ninety (90) days prior written
notice.
2. DISABILITY: 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, upon death, Executive's
designated beneficiary or estate, as applicable, any and all,
previously earned but as yet unpaid, salary, bonus pursuant to
Paragraph X.2.c, 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. ACTIONS UPON TERMINATION: Upon termination of employment
hereunder, Executive shall immediately resign as an employee
of Company and as an officer and/or director of Company and of
any Company subsidiaries, as applicable. Executive shall
promptly return and release all Company property in
Executive's possession to Company, including but not limited
to, any motor vehicles, equipment, supplies, passwords and
documents set forth in Paragraph J hereof. Company shall pay
Executive when due any and all, previously earned but as yet
unpaid, salary, bonus pursuant to Paragraph X.2.c, other
contingent compensation, reimbursement of business expenses
and fringe benefits.
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. ARBITRATION AGREEMENT: Except for the interpretation and
enforcement of injunctive relief pursuant to Paragraph R
hereof (which 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 a neutral
arbitrator agreed upon by both parties, through mandatory,
final, binding arbitration in accordance with the procedural
and discovery rules of the American Arbitration Association.
2. COST OF ARBITRATION: The cost of such arbitration shall be
borne by the Company. 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 city and/or county
of employment hereunder. Judgment upon the award rendered
through such arbitration may be entered and enforced in any
court having proper jurisdiction.
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R. REMEDIES & DAMAGES:
1. INJUNCTIVE RELIEF: The parties agree that, in the event of a
material breach or threatened material breach of Paragraphs K
and/or L hereof, the damage or imminent damage to the value of
Company's business shall be impractical and/or impossible to
estimate or ascertain, 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. DAMAGES: Executive agrees that damages resulting from any such
breach which involves any customer of Company shall be the
actual damages according to proof, as determined by an
arbitrator pursuant to Paragraph Q, above.
3. WITHHOLDING AUTHORIZATION: To the full extent permitted under
the laws of the State of Employment hereunder, Executive
authorizes Company to withhold from any severance payments
otherwise due to Executive and from any other funds (other
than wages) 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 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. REPRESENTATIONS: Executive represents and agrees that he or she has
carefully read and fully understands all of the provisions of this
Agreement, that he or she is voluntarily entering into this Agreement
and has been given an opportunity to review all aspects of this
Agreement with an attorney, if he or she chooses to do so.
W. NOTICES:
1. ADDRESSES: 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:
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EXECUTIVE: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
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COMPANY: ABM INDUSTRIES INCORPORATED
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Board of Directors
COPY: ABM INDUSTRIES INCORPORATED
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
2. RECEIPT. 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. BASE SALARY:
a. Executive's base salary ("Base Salary") for the
Fiscal Year that began November 1, 2003, shall be Six
Hundred Seventy Seven Thousand Nine Hundred Fifty
dollars ($677,950), subject to the provisions
contained in Subparagraph b, below. The capitalized
term "Fiscal Year" used in this agreement means the
period beginning on November 1 and ending on October
31 of the following calendar year or such other
period as shall be designated by the Board as the
Company's fiscal year.
b. Effective November 1, 2004, and at the beginning of
each Fiscal Year thereafter, Executive shall be
eligible, at the sole discretion of a majority of the
members of the Board determined by the Board to be
"independent directors" (the "Independent
Directors"), to receive a merit increase based on
Executive's job performance.
c. At the sole discretion of the Independent Directors,
the Company may grant a salary adjustment at any time
for reasons deemed appropriate by the Independent
Directors, including but not limited to a change in
Executive's duties resulting in a material increase
in responsibility.
2. BONUS: Subject to pro-ration in the event of modification or
termination of employment hereunder and further subject to the
requirement set forth under Subparagraph d, below, Executive
shall be entitled to participate in the Company's incentive
compensation plan which provides for a performance-based bonus
("Bonus") contingent on the achievement of corporate
objectives for each Fiscal Year, or partial Fiscal Year, of
employment hereunder during the Initial Term, and during the
Extended Term, if any, of this Agreement, as follows:
a. A target Bonus for each Fiscal Year ("Target Bonus")
shall be established equal to 50% of Executive's Base
Salary for the Fiscal Year.. Executive's Actual Bonus
may range from zero percent (0%) to seventy-five
percent (75%) of Base Salary (the "Bonus Range") with
the amount earned determined based on an assessment
of performance against criteria (the "Performance
Criteria") established annually by the Executive
Compensation and Stock Option Committee of the Board
(the
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EXHIBIT 10.22 Page 11 of 13
"Committee"). Performance Criteria may include both
Company and individual objectives, may be both
qualitative and quantitative in nature and shall be
established and communicated to Executive no later
than thirty (30) days after the beginning of the
Fiscal Year to which they apply. The assessment of
Executive's performance (the "Performance
Assessment") for each Fiscal Year shall be the
responsibility of the Committee. The determination of
the Actual Bonus for each Fiscal Year shall be the
responsibility of the Independent Directors.
b. The Committee reserves the right at any time to
adjust the Performance Criteria in the event of a
Significant Transaction (as defined below) during a
Fiscal Year and/or for any unanticipated and material
events that are beyond the control of the Company,
including but not limited to acts of god, nature, war
or terrorism, or changes in the rules for financial
reporting set forth by the Financial Accounting
Standards Board, the Securities and Exchange
Commission, rules of the New York Stock Exchange
and/or for any other reason which the Committee
determines, in good faith, to be appropriate. For
purposes of this Agreement, the term "Significant
Transaction" shall mean the Company's acquisition or
disposition of a business or assets which the Company
is required to report under Item 2 of the SEC Form
8-K.
c. The Company shall pay Executive the Actual Bonus for
each Fiscal Year following completion of the audit of
the Company's financial statements and determination
of the Actual Bonus by the Independent Directors, but
not later than seventy-five (75) days after the end
of the Fiscal Year. The Company in its sole
discretion may pay any Actual Bonus earlier. In the
event of modification or termination of employment
hereunder, the Company shall pay Executive, within
seventy-five (75) days thereafter, a prorated portion
of the Target Bonus based on the fraction of the
Fiscal Year that has been completed prior to the date
of modification or termination.
d. Absent bad faith or material error, any conclusions
of the Committee or the Independent Directors with
respect to the Performance Criteria, the Performance
Assessment, or the Actual Bonus shall be final and
binding upon Executive and Company.
e. Notwithstanding the foregoing Paragraphs X.2.a,
X.2.b, and X.2.c, except as authorized under
Paragraph X.2.e no Bonus for any Fiscal Year of the
Company shall be payable unless the Company's
Earnings Per Share ("EPS") for the Fiscal Year then
ending is equal to or greater than eighty percent
(80%) of the Company's EPS for the previous Fiscal
Year of the Company, in each case excluding any gains
and losses from sales of discontinued operations and
any WTC Related Gain. For purposes of this Agreement,
the term "WTC Related Gain" shall mean the total
amount of all items of income included in the
Company's audited consolidated financial statements
for any Fiscal Year that result from the Company's
receipt of insurance proceeds or other compensation
or damages due to the Company's loss of property,
business or profits as a result of the destruction of
the World Trade Center on September 11, 2001.
INITIALS: EXECUTIVE /s/HCS COMPANY /s/MCH
EXHIBIT 10.22 Page 12 of 13
f. Notwithstanding any other provision hereof, the
Independent Directors may, prior to the beginning of
any Fiscal Year, approve and notify the Executive of
a modification to the Target Bonus or the Bonus
Range. The Independent Directors' decision in this
regard shall be deemed final and binding on
Executive. In addition, the Independent Directors
reserve the right at any time to grant a
discretionary incentive bonus, which shall not be
subject to any maximum Bonus provisions or
limitations.
3. POST RETIREMENT HEALTH INSURANCE ASSISTANCE: If and only after
Executive retires from employment with Company at age
sixty-five (65) or later and concluding no later than ten (10)
years thereafter ("Consultancy Period"), the Company shall
provide Executive and his spouse with reimbursement for dental
coverage comparable to that provided to other Company
executive officers together with coverage commonly known as
Medicare Supplement or Medigap Insurance to supplement
Medicare coverage furnished by the federal government to
retirees; provided, however, that Executive and his spouse
shall pay Company the then current premium contribution
charged by Company to its executive officers for their medical
and dental coverage, and Company's cost of such reimbursement
shall not exceed a combined amount of $10,000 in any Fiscal
Year for Executive and his spouse, or $5,000 in the event of
the death of either. In the event that Executive retires,
dies, or otherwise terminates employment prior to age 65,
Company shall have no obligations under this subparagraph 3.
In consideration of the above, during the Consultancy Period:
(a) Executive shall provide Company with such occasional
executive or managerial services as reasonably requested by
the Company, (b) Company shall pay directly or reimburse
Executive for previously approved reasonable business expenses
incurred by Executive in connection with such services upon
presentation to Company by Executive within sixty (60) days
after incurring such expenses, of an itemized request for
payment including the date(s) and receipt(s) for all such
expenses in excess of twenty-five dollars ($25) each, (c)
Executive shall not be eligible or entitled to receive or
participate in any other of the Company's then current fringe
benefits and (d) Executive shall be deemed an independent
contractor and not an employee of the Company.
Y. SCOPE OF CERTAIN PROVISIONS: All references to Company in Paragraphs H,
J, K, L, O.3 and R in this Agreement shall include Company, and its
subsidiary corporations and other Company affiliates.
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. NO EXTERNAL EVIDENCE: 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. SUPERSEDES OTHER AGREEMENTS: 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
INITIALS: EXECUTIVE /s/HCS COMPANY /s/MCH
EXHIBIT 10.22 Page 13 of 13
Human Resources Manual, including but not limited to the
termination, discipline and discharge provisions contained
therein.
1. AMENDMENTS: This Agreement may not be amended except in a
writing approved by the Board and signed by the Executive and
two (2) Independent Directors.
FULL KNOWLEDGE & UNDERSTANDING: Executive and Company hereby acknowledge that
they have carefully read and fully understand all terms and conditions of this
Agreement, that they have been given an opportunity to review all aspects of
this Agreement with an attorney if they so choose, 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 two (2) Independent Directors have executed
this Agreement as of the date set forth above:
EXECUTIVE: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Signature: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Date: December 2, 2003
COMPANY: ABM INDUSTRIES INCORPORATED
Signature: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chair of the Compensation Committee
Board of Directors
Date: December 2, 2003
Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chair of the Audit Committee
Board of Directors
Date: December 2, 2003
INITIALS: EXECUTIVE /s/HCS COMPANY /s/MCH