EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT
(“Agreement”) is effective (date) , by and
between (Executive name) (“Executive”) and
(Legal Company name) (“Company”) Corporate
language: 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
, 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
Executive’s duties and responsibilities as (title) and
under this Agreement; 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 in connection with
Executive’s employment;
NOW THEREFORE
, Executive and Company agree as follows:
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1.
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EMPLOYMENT. Company hereby agrees to employ
Executive, and Executive hereby accepts such employment, on the
terms and conditions set forth in this Agreement.
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2.
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TITLE. Executive’s title shall be
(title) of Company, subject to modification as determined by
the Company’s Board of Directors.
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3.
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DEFINITIONS. The capitalized terms used in this
agreement shall have the following definitions:
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A.
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“AAA” means the American
Arbitration Association.
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B.
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“ABM” means ABM
Industries Incorporated, its subsidiaries, successors, and
assigns.
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C.
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“Company” means
(Company legal name) and its successors and
assigns.
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D.
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“Base Salary” means the
salary paid under Paragraph 7A for the applicable Fiscal
Year.
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E.
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“Board” means the Board
of Directors of Company.
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F.
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“Bonus” means a
performance-based bonus payable under Paragraph 7B of this
Agreement.
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G.
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“Chief Executive
Officer” means the Chief Executive Officer of
Company.
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H.
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“Executive” means
(Executive name) .
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I.
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“Extended Term” means
the period for which this agreement is extended under
Paragraph 15 of this Agreement.
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J.
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“Fiscal Year” means the
period beginning on November 1 of a calendar year and ending on
October 31 of the following calendar year or such other period
as shall be designated by the Board as ABM’s fiscal
year.
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K.
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“Initial Term” is the
period beginning on (start date of term ) and ending (end
date of term ), unless sooner terminated under
Paragraph 16 of this Agreement.
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L.
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“Insurance Contribution”
means Company’s contribution to provide group health and life
insurance for Executive and excludes any payment by Executive for
such coverage.
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M.
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“Just Cause” means
(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 Executive’s employment duties;
(vi) material and willful breach of this Agreement;
(vii) other misconduct, unethical or unlawful activity;
(viii) a conviction of or plea of “guilty” or
“no contest” to a felony under the laws of the United
States or any state thereof; or (ix) a conviction of or plea
of “guilty” or “no contest” to a
misdemeanor involving a crime of moral turpitude under the laws of
the United States or any state thereof.
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N.
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“Managing Officer” means
the officer designated by the Company to whom Executive shall
report and be accountable.
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O.
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“Modification Period”
means the remainder of the Initial or the then current Extended
Term, as applicable, of this Agreement, following the change in
Executive’s employment status from that of a full-time
employee to that of a part-time employee under Paragraph 14 of
this Agreement.
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P.
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“Performance Assessment”
means the Managing Officer’s annual assessment of
Executive’s performance against the Performance
Criteria.
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Q.
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“Performance Objectives”
means the performance goals for Executive established annually by
the Managing Officer and approved by the Chief Executive Officer of
Company or designee, in accordance with Paragraph 7B of this
Agreement.
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R.
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“Proprietary
Information” means Company’s proprietary trade secrets
and other confidential information not in the public domain,
including but not limited to specific customer data such as:
(i) the identity of Company’s customers and sales
prospects; (ii) the nature, extent, frequency, methodology,
cost, price and profit associated with services and products
purchased from Company; (iii) any particular needs or
preferences regarding its service or supply requirements;
(iv) the names, office hours, telephone numbers and street
addresses of its purchasing agents or other buyers; (v) its
billing procedures; (vi) its credit limits and payment
practices; and (vii) its organization structure.
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S.
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“Significant
Transaction” means ABM Industries Incorporated’s
acquisition or disposition of a business or assets which ABM
Industries Incorporated is required to report under Item 2.01
of Form 8-K under the rules and regulations issued by the
Securities and Exchange Commission.
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T.
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“State of Employment”
means (State) .
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U.
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“Target Bonus” means
(___)% of Executive’s Base Salary.
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V.
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“Total Disability” means
Executive’s inability to perform Executive’s duties
under this Agreement and shall be deemed to occur on the 91st
consecutive or non-consecutive calendar day within any
12 month period that Executive is unable to perform
Executive’s duties under this Agreement because of any
physical or mental illness or disability.
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4.
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DUTIES &
RESPONSIBILITIES. Executive shall assume and perform
such executive or managerial duties and responsibilities as are
assigned from time-to-time by the Managing Officer or such other
officer designated by the Managing Officer, to whom Executive shall
report and be accountable.
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5.
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TERM OF AGREEMENT.
This agreement shall end
on (end date of term ), unless sooner terminated pursuant to
Paragraph 16 or later extended to an Extended Term under
Paragraph 15 of this Agreement.
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6.
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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 the State of
Employment or such other location as shall be mutually agreed upon
by Company and Executive.
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7.
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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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A.
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SALARY. A salary paid in equal
installments no less frequently than semi-monthly. Executive shall
be eligible, at the sole discretion of the Company, to receive a
merit increase based on Executive’s job performance or for
any other reason deemed appropriate by the Company.
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B.
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BONUS. Subject to subparagraphs
(iii), (iv) and (v) below, Executive shall be eligible to
participate in the Company’s Bonus Plan for each Fiscal Year,
as follows:
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i.
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Executive’s Bonus may range
from 0% to 150% of the Target Bonus and shall be based on the
Performance Assessment of Executive in terms of Performance
Objectives established for the Executive for the applicable Fiscal
Year. Performance Objectives will include both Company and
individual objectives, be both qualitative and quantitative in
nature and shall be established by the Managing Officer. The actual
Bonus payout for each Fiscal Year shall be approved by the
Compensation Committee based upon the Performance
Assessment.
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ii.
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The
Company reserves the right at any time to adjust the Performance
Objectives in the event of a Significant Transaction and/or for any
unanticipated and material events that are beyond the control of
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 Company determines, in good
faith, to be appropriate.
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iii.
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Company shall pay any Bonus to
Executive for the Fiscal Year following completion of the audit of
ABM Industries Incorporated financial statements, but no later than
seventy-five (75) days after the end of each Fiscal Year. The
Company in its sole discretion may pay any prorated Target Bonus
earlier. In the event of modification of employment under
Paragraph 14 or termination of employment hereunder other than
(a) a termination under Paragraph 16B, (b) a
termination under Paragraph 16C for reasons other than
Executive’s health, or (c) Executive’s retiring at
age 65 or more with less than 10 years of employment at
Company, Company shall pay Executive, within 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.
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iv.
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Absent bad faith or material error,
any conclusions of the Managing Officer, President and/or Chief
Executive Officer with respect to the Performance Assessment,
Performance Objectives or the Bonus shall be final and binding upon
Executive and Company.
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v.
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Notwithstanding any other provision
of this Agreement, the Company 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 set forth in subparagraph
(i) above. The Company’s decision in this regard shall
be deemed final and binding on Executive. In addition, the Company
may grant a discretionary incentive bonus to Executive at any time
in its sole discretion.
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C.
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PERQUISITES. Executive shall receive
the then current perquisites generally provided by Company to its
executives. Such perquisites may include but not be limited to car
allowance, group health benefits, long-term disability benefits,
group life insurance, sick leave and vacation. Each of these
perquisites is subject to the applicable Company policy at all
times. Executive expressly agrees that should Executive terminate
employment with Company for the purpose of being re-employed by an
ABM subsidiary or affiliate, Executive 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 perquisites at any time,
but no such benefit or benefits shall be reduced or eliminated as
to Executive unless generally reduced or eliminated as to
similarly-situated executives at Company.
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8.
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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 in
accordance with the ABM Travel & Entertainment
Policy.
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9.
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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:
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A.
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GOOD FAITH. Executive shall not act
in any way contrary to the best interest of Company or
ABM.
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B.
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BEST EFFORTS. During all full-time
employment hereunder, Executive shall devote full working time and
attention to Company.
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C.
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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.
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D.
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POSSIBLE CHANGE OF CONTROL.
Executive agrees that if Executive is approached by any person to
discuss a possible acquisition or other transaction that could
result in a change of control of Company, Executive will
immediately advise the Chief Executive Officer, ABM’s General
Counsel and the Chair of the Governance Committee of the
Board.
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E.
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CODE OF BUSINESS CONDUCT. Executive
agrees to fully comply with and annually execute a certification of
compliance with ABM’s Code of Business Conduct and
Ethics.
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F.
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OTHER LAWS. Executive agrees to
fully comply with the other laws and regulations that govern
Executive’s performance and receipt of compensation under
this Agreement.
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10.
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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 Executive is
not bound by any other contracts or covenants that in any way
restrict or limit Executive’s activities in relation to
Executive’s employment with Company that have not been fully
disclosed to Company prior to the signing of this
Agreement.
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11.
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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 electronic and paper documents.
Such docu
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