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As filed with the Securities and Exchange Commission on April 6, 2001
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ABM INDUSTRIES INCORPORATED
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 94-1369354
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
160 PACIFIC AVENUE, SUITE 222
SAN FRANCISCO, CA 94111
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
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ABM INDUSTRIES INCORPORATED
EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLAN)
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HARRY H. KAHN, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND CORPORATE SECRETARY
ABM INDUSTRIES INCORPORATED
160 PACIFIC AVENUE, SUITE 222
SAN FRANCISCO, CA 94111
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(415) 733-4000
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPY TO:
LESLIE P. JAY, ESQ.
ORRICK, HERRINGTON & Sutcliffe LLP
OLD FEDERAL RESERVE BANK BUILDING
400 SANSOME STREET
SAN FRANCISCO, CALIFORNIA 94111-3143
(415) 392-1122
CALCULATION OF REGISTRATION FEE
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Amount Proposed Proposed Amount of
Title of Securities to be Registered To Be Maximum Offering Maximum Aggregate Registration
Registered Price Per Share(1) Offering Price(1) Fee
- -------------------------------------- -------------------- ------------------ -------------------- -------------------
Common Stock,(2)
par value $.01 per share...... 1,200,000 shares $31.175 $37,410,000 $9,352.50
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(1) Pursuant to Rule 457(h)(1), the proposed maximum offering price per share and the proposed maximum aggregate
offering price have been calculated on the basis of $31.175 per share, the average of the high and low price of
the Common Stock on the New York Stock Exchange on April 4, 2001.
(2) Includes Preferred Stock Purchase Rights which, prior to the occurrence of certain events, will not be exercisable
or evidenced separately from the Common Stock.
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PART II
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by ABM Industries Incorporated (the
"Company") with the Securities and Exchange Commission ("Commission") are
incorporated by reference into this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
October 31, 2000.
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
January 31, 2001.
(c) The description of the Company's common stock and preferred stock
purchase rights contained in registration statements filed under the Securities
Exchange Act of 1934 (the "Exchange Act") on Form 8-A, including any subsequent
amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents.
The consolidated financial statements and financial statement schedule
of the Company and its subsidiaries included in the Company's Annual Report on
Form 10-K for the fiscal year ended October 31, 2000 have been incorporated
herein by reference in reliance upon the reports, also incorporated herein by
reference, of KPMG LLP, independent certified public accountants, and upon the
authority of said firm as experts in accounting and auditing.
ITEM 4. DESCRIPTION OF SECURITIES
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As authorized by Section 145 of the Delaware Corporation Law, the
Company's Restated Certificate of Incorporation eliminates the personal
liability of its directors to the Company or its stockholders for monetary
damages for any breach of fiduciary duty as a director, except for: (i) any
breach of the duty of loyalty to the Company or its stockholders, (ii) acts or
omissions not in good faith, (iii) intentional misconduct or a knowing violation
of law, or (iv) any transaction from which the director derived an improper
personal benefit.
As authorized by Section 145 of the Delaware Corporation Law, the
Company's By-Laws provide for the indemnification of the directors, officers,
employees or agents of the Company in certain cases. Indemnification shall be
provided to directors and officers of the Company, or of other enterprises if
serving at the request of the Company, against actual and
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reasonable costs, charges, expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement in connection with pending or completed
actions, suits or proceedings, whether civil, criminal, administrative or
investigative (other than action by or in the right of the Company) if the
director or officer acted in good faith and in a manner reasonably believed to
be in or not opposed to the best interest of the Company, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe the
conduct was unlawful. Similar indemnification shall not be applicable to
employees or agents of the Company, or of other enterprises if serving at the
request of the Company (other than employees or agents who are also officers or
directors of the Company or other enterprise, as the case may be), unless and
until such indemnity is specifically approved by the Board of Directors.
If such proceeding is brought by or on the behalf of the Company, a
similar standard of care is applicable, except that no indemnification shall be
made with respect to any matter as to which such person is adjudged to be liable
to the Company unless and only to the extent that the court shall determine such
person is fairly and reasonably entitled to indemnification of such costs.
The Company's By-Laws further provide that, notwithstanding the
foregoing, directors, officers, employees and agents shall be indemnified of all
actual and reasonable costs to the extent that such persons are successful on
the merits or otherwise.
In addition to the above, the Company has entered into indemnification
agreements with its directors. The indemnification agreement provides directors
with the same indemnification by the Company as set forth in the preceding
paragraphs except that the indemnification agreement differs from the By-laws in
the following significant respects: (1) indemnification is provided to directors
in excess of that provided by any insurance coverage; and (2) no indemnification
is provided on account of any action commenced by the director in his or her
individual right against the Company, its directors, officers and stockholders
unless authorized by a majority of disinterested directors.
There exists directors' and officers' liability insurance presently
outstanding which insures directors and officers of the Company. The losses
covered by the policy are subject to certain exclusions and the policy contains
certain deductible provisions. The indemnification agreements discussed in the
preceding paragraph provide indemnification of all such exclusions and
deductibles.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
ITEM 8. EXHIBITS
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP is included in
Exhibit 5.1.
24.1 Power of Attorney
99.1 ABM Industries Employee Stock Purchase Plan
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ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by section
10(a)(3) of the Securities Act of 1933 (the "Securities Act");
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement;
(iii) to include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Francisco, State of California on the 2nd day of
April, 2001.
ABM INDUSTRIES INCORPORATED
(Registrant)
By: /s/ Henrik C. Slipsager
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Henrik C. Slipsager
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
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Principal Executive Officer:
/s/ Henrik C. Slipsager President and Chief April 2, 2001
- --------------------------- Executive Officer
Henrik C. Slipsager
Principal Financial Officer:
/s/ David H. Hebble Vice President and Chief April 2, 2001
- ------------------------------------ Financial Officer
David H. Hebble
Principal Accounting Officer:
/s/ Vernon E. Skelton Controller and Chief April 2, 2001
- ------------------------------------ Accounting Officer
Vernon E. Skelton
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Signature Title Date
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Directors:
- --------------------------- Director
Linda Chavez
* LUKE S. HELMS Director April 2, 2001
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Luke S. Helms
* MARYELLEN C. HERRINGER Director April 2, 2001
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Maryellen C. Herringer
* CHARLES T. HORNGREN Director April 2, 2001
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Charles T. Horngren
* HENRY L. KOTKINS, JR. Director April 2, 2001
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Henry L. Kotkins, Jr.
* MARTINN H. MANDLES Director April 2, 2001
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Martinn H. Mandles
* THEODORE ROSENBERG Director April 2, 2001
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Theodore Rosenberg
* HENRIK C. SLIPSAGER Director April 2, 2001
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Henrik C. Slipsager
* WILLIAM W. STEELE Director April 2, 2001
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William W. Steele
*WILLIAM E. WALSH Director April 2, 2001
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William E. Walsh
* By /s/ Harry H. Kahn
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Harry H. Kahn
Attorney-in-fact
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EXHIBIT INDEX
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP is included in Exhibit 5.1.
24.1 Power of Attorney
99.1 ABM Industries Employee Stock Purchase Plan
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