ABM INDUSTRIES INCORPORATED
EXECUTIVE STOCK OPTION PLAN
(as amended and restated as of December 9, 2008)
As used herein,
the following terms have the meanings hereinafter set forth unless
the context clearly indicates to the contrary:
(a)
“Beneficiary” means a person designated as such by an
Optionee or a Beneficiary for purposes of the Plan or determined
with reference to Section 4.4.
(b)
“Board” shall mean the Board of Directors of the
Company.
(c)
“Cause” shall mean, with respect to an Optionee,
(i) the willful and continued failure to substantially perform
the Optionee’s duties and responsibilities for reasons other
than death or disability, after a written demand for substantial
performance is delivered to him/her by the Company which
specifically identifies the manner in which the Company believes
that the Optionee has not substantially performed the
Optionee’s duties; (ii) the Optionee’s conviction
(or entry of a plea bargain admitting criminal guilt) of any felony
or a misdemeanor involving moral turpitude; (iii) intentional
breach by the Optionee of his/her fiduciary obligations to the
Company or any securities laws applicable to the Company; or
(iv) intentional wrongful engagement by the Optionee in any
Competitive Activity; and, for purposes of this subsection (iv),
any such act shall have been demonstrably and materially harmful to
the Company. For purposes of the Plan, no act or failure to act on
the part of the Optionee will be deemed “intentional”
if it was due primarily to an error in judgment or negligence, but
will be deemed “intentional” only if done or omitted to
be done by the Optionee not in good faith and without reasonable
belief that the Optionee’s action or omission was in the best
interest of the Company.
(d)
“Change in Control” shall mean that any of the
following events occurs: (i) (A) any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of
the Exchange Act) (a “Person”) is or becomes the
beneficial owner (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of more than 35% of the combined voting
power of the then-outstanding voting stock of the Company or
succeeds in having nominees as directors elected in an
“election contest” within the meaning of
Rule 14a-12(c) under the Exchange Act and (B) within
18 months thereafter, individuals who were members of the
Board of Directors of the Company immediately prior to either such
event cease to constitute a majority of the members of the Board of
Directors of the Company; or (ii) a majority of the Board
ceases to be comprised of Incumbent Directors; or (iii) the
consummation of a reorganization, merger, consolidation, plan of
liquidation or dissolution, recapitalization or sale or other
disposition of all or substantially all of the assets of the
Company or the acquisition of the stock or assets of another
Company, or other transaction (each, a “Business
Transaction”), unless, in any such case, (A) no Person
(other than the Company, any entity resulting from such Business
Transaction or any employee benefit plan (or related trust)
sponsored or maintained by the Company, any Subsidiary or such
entity resulting from such Business Transaction) beneficially owns,
directly or indirectly, 35% or more of the combined voting power of
the then outstanding shares of voting stock of the entity resulting
from such Business Transaction and (B) at least one-half of
the members of the Board of Directors of the entity resulting from
such Business Transaction were Incumbent Directors at the time of
the execution of the initial agreement providing for such Business
Transaction.
(e)
“Committee” shall mean the Compensation Committee of
the Board, or such other committee as the Board may designate. The
Committee shall consist of not fewer than three members of the
Board. Each member of the Committee shall be a “disinterested
person” as defined in Rule 16b-3 under the Securities
Exchange Act of 1934.
(f)
“Company” shall mean ABM Industries
Incorporated.
(g)
“Competitive Activity” shall mean, with respect to an
Optionee, the Optionee’s participation, without the written
consent signed by an officer of the Company and authorized by the
Board, in the management of any business enterprise if
(i) such enterprise engages in substantial and direct
competition with the Company and such enterprise’s sales of
any product or service competitive with any product or service of
the Company amounted to 10% of such enterprise’s net sales
for its most recently completed fiscal year and if the
Company’s net sales of said product or service amounted to
10% of the Company’s net sales for its most recently
completed fiscal year or (ii) the primary business done or
intended to be done by such enterprise is in direct competition
with the business of providing facility services in any geographic
market in which the Company operates. “Competitive
Activity” will not include the mere ownership of securities
in any such enterprise and the exercise of rights appurtenant
thereto, if such ownership is less than 5% of the outstanding
voting securities or units of such enterprise.
(h) The
“Exchange Act” shall mean the Securities Exchange Act
of 1934, as amended.
(i) For
the purposes of this Plan, the term “fair market
value,” when used in reference to the date of grant of an
option or the date of surrender of Stock in payment for the
purchase of shares pursuant to the exercise of an option, as the
case may be, shall refer to the closing price of the Stock as
quoted in the Composite Transactions Index for the New York Stock
Exchange, on the day before such date as published in the
“Wall Street Journal,” or if no sale price was quoted
in any such Index on such date, then as of the next preceding date
on which such a sale price was quoted.
(j)
“Incumbent Directors” shall mean the individuals who,
as of December 9, 2008, are members of the Board and any
individual
becoming a
member of the Board subsequent to such date whose election,
nomination for election by the Company’s shareholders or
appointment was approved by a vote of at least two-thirds of the
then Incumbent Directors (either by a specific vote or by approval
of the proxy statement of the Company in which such person is named
as a nominee for director, without objection to such nomination);
provided, however, that an individual shall not be an Incumbent
Director if such individual’s election or appointment to the
Board occurs as a result of an actual or threatened election
contest (as described in Rule 14a-12(c) of the Exchange Act)
with respect to the election or removal of members of the Board or
other actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Board.
(k)
“Nonemployee Director” shall mean a member of the Board
who is neither an employee of the Company nor of any
Subsidiary.
(l)
“Option” shall mean an option to purchase Stock granted
to the provisions of Article VI hereof.
(m)
“Optionee” shall mean an individual to whom an Option
has been granted hereunder.
(n)
“Plan” shall mean the ABM Industries Incorporated
Executive Stock Option Plan, the terms of which are set forth
herein.
1
(o)
“Stock” shall mean the Common Stock of the Company or,
in the event that the outstanding shares of Stock are hereafter
changed into or exchanged for shares of a different stock or
securities of the Company or some other corporation, such other
stock or securities.
(p)
“Stock Option Agreement” shall mean the agreement
between the Company and the Optionee under which the Optionee may
purchase Stock hereunder.
(q)
“Subsidiary” shall mean any corporation, the majority
of the outstanding capital stock of which is owned, directly or
indirectly, by the Company.
(r)
“Vesting Date” shall mean an Optionee’s
“Initial Vesting Date” or “Final Vesting
Date”, as the case may be. An Optionee’s Initial
Vesting Date shall apply to the first fifty percent (50 %) of the
shares covered by his or her Option, and shall mean the
Optionee’s sixty-first (61st) birthday. An Optionee’s
Final Vesting Date shall apply to the remaining fifty percent (50%)
of the shares covered by such Option, and shall mean the
Optionee’s sixty fourth (64th) birthday.
2.1 Name. This
Plan shall be known as the “ABM Industries Incorporated
Executive Stock Option Plan”.
2.2 Purpose. The
purpose of the Plan is to advance the interests of the Company and
its shareholders by affording to Nonemployee Directors and to key
management employees of the Company and its Subsidiaries an
opportunity to acquire or increase their proprietary interest in
the Company by the grant to such individuals of Options under the
terms set forth herein. By thus encou
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