EXECUTIVE EMPLOYMENT AGREEMENT
(with term period)
THIS
EXECUTIVE EMPLOYMENT AGREEMENT (“Agreement”) is effective (DATE),
2008, by and between (Executive) (“Executive”) and
ABM Industries Incorporated , a Delaware corporation
(“Company” or “ABM”).
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1.
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EMPLOYMENT. In consideration of the terms and
commitments contained in this agreement, Executive agrees to and
acknowledges the following:
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2.
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TERM, RESPONSIBILITIES AND
TITLE. This
agreement shall end on [Month] 31, 200_, unless sooner terminated
pursuant to Section 7 (“Initial Term”). Employment
may be extended pursuant to Section 6 (“Extended
Term”). Executive shall assume and perform such duties,
functions and responsibilities relating to Executive’s
employment with Company as may be assigned from time to time by the
Company. Executive’s title shall be (Title) of Company,
subject to modification as determined by the Company’s Board
of Directors (“Board”).
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3.
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COMPENSATION.
Company agrees to
compensate Executive, and Executive agrees to accept as
compensation in full, a base salary. Employee will also be eligible
for short-term incentive awards pursuant to the terms of the
Performance Incentive Program (“Bonus”), to participate
in the 2006 Equity Incentive Program and for such perquisites as
are from time to time received by similarly situated
executives.
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4.
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COMPLIANCE WITH LAWS AND
POLICIES. Executive shall dedicate his/her
full business time and attention to the performance of duties
hereunder, perform his/her duties in good faith and to a
professional standard, and fully comply with all laws and
regulations pertaining to the performance of this Agreement, all
ethical rules, ABM’s Code of Business Conduct and Ethics as
well as any and all of policies, procedures and instructions of
Company. [including but not limited to the provisions of
Section 304 of the Sarbanes-Oxley Act of 2002. (CFO and CEO
only). ]
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5.
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RESTRICTIVE COVENANTS.
In consideration of the
compensation, contract term, potential Severance Benefits,
continued employment provided by Company, and access to Proprietary
Information, as defined below, necessary to the performance of
Executive’s duties hereunder, Executive hereby agrees to the
following during his/her employment and thereafter as
provided:
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5.1
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NON-DISCLOSURE. Except in the proper
performance of this Agreement, Executive agrees to hold all
Proprietary Information in the strictest confidence, and to refrain
from making any unauthorized use or disclosure of such
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information
both during Executive’s employment and at all times
thereafter. Executive shall not directly or indirectly disclose,
reveal, transfer or deliver to any other person or business, any
Proprietary Information which was obtained directly or indirectly
by Executive from, or for, Company or by virtue of
Executive’s employment with Company. “Proprietary
Information” means Company’s trade secrets, ideas,
processes and other confidential information not generally known
that could have value to a third party such as plans for business
development, marketing, business plans, budgets and financial
statements of any kind, costs and suppliers, and information
regarding the skills and compensation of other employees of the
Company or employees of any company that contracts to provide
services to the Company. Proprietary Information also includes
information of third parties to which Executive had access by
virtue of employment with the Company, including, but not limited
to, information regarding customers such as: (i) the identity
of Company’s customers, customer contacts, and sales
prospects; (ii) the nature, extent, frequency, methodology,
cost, price and profit associated with services and products
purchased by customers from Company; (iii) the names, office
hours, telephone numbers and street addresses of its purchasing
agents or other buyers or customer contacts; (iv) Company and
customer billing procedures; (v) Company and customer credit
limits and payment practices; (vi) Company and customer
organizational structure; and (vii) any information related to
past, current or future acquisitions between Company or
Company-affiliated entities including Company information used or
relied upon for said acquisition.
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5.2
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NON-SOLICITATION OF EMPLOYEES.
Executive acknowledges and agrees that during the course of
Executive’s employment with Company, Executive will come into
contact with Company employees and acquire information regarding
their knowledge, skills, abilities, salaries, commissions,
benefits, and other matters that are not generally known to the
public. Executive further acknowledges and agrees that hiring,
recruiting, soliciting, or inducing the termination of such
employees will be detrimental and harmful to Company’s
business. Accordingly, Executive agrees that while employed by
Company and for a period of one year following the termination of
Executive’s employment (whether termination is voluntary or
involuntary), Executive will not directly or indirectly solicit,
hire, recruit or otherwise encourage or arrange for any executive
or employee to terminate employment with Company or any other
Company-affiliated entity except in the proper performance of this
Agreement. This prohibition against solicitation shall include but
not be limited to: (i) identifying to other employers or their
agents, recruiting or staffing firms, or other third parties the
Company employee(s) who have specialized knowledge concerning
inventions, processes, methods, or other confidential affairs or
who have contacts, experience, or relationships with particular
customers; (ii) disclosing or commenting to other employers or
their agents, recruiting or staffing firms, or other third parties
regarding the quality or quantity of work, specialized knowledge,
or personal characteristics of any person still employed by Company
or any other Company-affiliated entity; and (iii) providing
such information to
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prospective
employers or their agents, recruiting or staffing firms, or other
third parties preceding possible employment.
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5.3
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NON-SOLICITATION OF CUSTOMERS.
Executive agrees that during and for one year following the
termination of Executive’s employment with Company (whether
such termination is voluntary or involuntary), Executive shall not,
directly or indirectly, for the benefit of any person or entity
other than the Company, seek, solicit, divert, take away, obtain or
accept work from any customer or prospective customer. In addition,
Executive agrees that at all times after the voluntary or
involuntary termination of Executive’s employment, Executive
shall not seek, solicit, divert, take away, obtain, or accept work
from of any customer or sales prospect of Company or any other
Company-affiliated entity through the direct or indirect use of any
Proprietary Information or by any other unfair or unlawful business
practice.
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5.4
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POST EMPLOYMENT COMPETITION.
Executive agrees that while employed by Company and, to the fullest
extent allowed by law, for a period of one year following
Executive’s termination of employment (whether such
termination is voluntary or involuntary), Executive shall not
engage in any business activity which competes directly or
indirectly with the Company or the operations of any
Company-affiliated entity regarding which Executive had information
or knowledge. The Executive acknowledges that the Company and its
subsidiaries are engaged in business in various states throughout
the U.S. and that the Company intends to expand the geographic
scope of its activities. Accordingly and in view of the nature of
Executive’s position and responsibilities, the Executive
agrees that the provisions of this Section shall be applicable to
each state and each foreign country in which the Company may be
engaged in business within the twelve-month period preceding the
effective date of Executive’s termination of employment.
[This Section 5.4 shall not apply if the State of Employment
is California].
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5.5
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NON-DISPARAGEMENT. During
Executive’s employment with Company and thereafter, Executive
agrees not to make any statement or take any action which
disparages, defames, or places in a negative light Company,
Company-affiliated entities, or its or their reputation, goodwill,
commercial interests or past and present officers, directors and
employees.
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5.6
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COOPERATION WITH LEGAL MATTERS.
During Executive’s employment with Company and thereafter,
Executive shall cooperate with Company and any Company-affiliated
entity in its or their investigation, defense or prosecution of any
potential, current or future legal matter in any forum, including
but not limited to lawsuits, administrative charges, audits,
arbitrations, and internal and external investigations.
Executive’s cooperation shall include, but is not limited to,
reviewing and preparing documents and reports, meeting with
attorneys
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representing
any Company-affiliated entity, providing truthful testimony, and
communicating Executive’s knowledge of relevant facts to any
attorneys, experts, consultants, investigators, employees or other
representatives working on behalf of an Company-affiliated entity.
Except as required by law, Executive agrees to treat all
information regarding any such actual or potential investigation or
claim as confidential. Executive also agrees not to discuss or
assist in any litigation, potential litigation, claim, or potential
claim with any individual (or their attorney or investigator) who
is pursuing, or considering pursuing, any claims against the
Company or an Company-affiliated entity unless required by law. In
performing the tasks outlined in this Section 5.6, Executive
shall be bound by the covenants of good faith and veracity set
forth in ABM’s Code of Business Conduct and Ethics and by all
legal obligations. Nothing herein is intended to prevent Executive
from complying in good faith with any subpoena or other affirmative
legal obligation. Executive agrees to notify the Company
immediately in the event there is a request for information or
inquiry pertaining to the Company, any Company-affiliated entity,
or Executive’s knowledge of or employment with the Company.
In performing responsibilities under this Section, Executive shall
be compensated for Executive’s time at an hourly rate of $250
per hour. However, during any period in which Executive is an
employee of ABM or is receiving payments pursuant to this Agreement
or pursuant to the terms of any other ABM plan, Executive shall not
be so compensated.
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5.7
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REMEDIES AND DAMAGES. The parties
agree that compliance with Sections 5.1 – 5.6 of the
Agreement is necessary to protect the business and goodwill of
Company, that the restrictions contained herein are reasonable and
that any breach of this Section will result in irreparable and
continuing harm to Company, for which monetary damages
may
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