EX-10.1






Exhibit 10.1




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”).





	1.	 	EMPLOYMENT.In consideration of the terms and commitments contained in this agreement, Executive
agrees to and acknowledges the following:
	 
	2.	 	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”).
	 
	3.	 	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.
	 
	4.	 	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). ]
	 
	5.	 	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:






	 	5.1	 	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 




 









 






	 	 	 	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.






	 	5.2	 	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.






	 	5.3	 	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.
	 
	 	5.4	 	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].
	 
	 	5.5	 	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.
	 
	 	5.6	 	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.






	 	5.7	 	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 not provide adequate relief. Accordingly, in the event of any actual or threatened
breach of this Section by Executive, Company and Executive agree that Company shall be
entitled to all appropriate remedies, including temporary restraining orders and
injunctions enjoining or restraining such actual or threatened breach. Executive
hereby consents to the issuance thereof forthwith by any court of competent
jurisdiction.
	 
	 	5.8	 	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.






	6.	 	EXTENSION OF EMPLOYMENT.






	 	6.1	 	RENEWAL. Absent at least 60 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,




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	 	 	 	employment
hereunder shall continue for an Extended Term (or another Extended Term, as applicable)
of one year.


	 	6.2	 	NOTICE OF NON-RENEWAL. In the event that notice of non-renewal is given 60
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 terminate Executive’s employment, position or compensation. Executive shall
remain eligible for Severance Benefits pursuant to ABM’s Severance Policy.






	7.	 	TERMINATION OF EMPLOYMENT.






	 	7.1	 	TERMINATION FOR CAUSE. Company may terminate Executive’s employment hereunder
at any time without notice subject only to a good faith determination by the Board of
Cause. “Cause” means the occurrence of one of the following: (i) serious misconduct,
dishonesty, disloyalty, or insubordination; (ii) Executive’s conviction (or entry of a
plea bargain admitting criminal guilt) of any felony or a misdemeanor involving moral
turpitude; (iii) drug or alcohol abuse, that has a material or potentially material
effect on the Company’s reputation and/or on the performance of Executive’s duties and
responsibilities under this Agreement; (iv) failure to substantially perform
Executive’s duties and responsibilities under this Agreement for reasons other than
death or Disability, as defined below; (v) repeated inattention to duty for reasons
other than death or Disability; and, (vi) any other material breach of this Agreement
by Executive. In the event of a termination following the Board’s good faith
determination of Cause, employee shall receive no Severance Benefits.
	 
	 	7.2	 	VOLUNTARY TERMINATION BY EXECUTIVE. At any time, Executive may terminate
employment hereunder by giving Company 60 days prior written notice. Executive may
terminate employment upon such shorter period of notice as may be reasonable under the
circumstances. For a voluntary termination for reasons other than the Executive’s
Disability, Executive will not receive any prorated Bonus.
	 
	 	7.3	 	DISABILITY OR DEATH. Employment hereunder shall automatically terminate upon
the death of Executive and may be terminated at the Company’s discretion
as a result of Executive’s Disability. “Disability” means Executive’s substantial
inability to perform Executive’s essential duties and responsibilities under this
Agreement for either 90 consecutive days or a total of 120 days out of 365
consecutive days as a result of a physical or mental illness, injury or impairment,
all as determined in good faith by the Company. Upon termination due to death or
Disability, Company shall pay when due to Executive, or, upon death, 




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	 	 	 	Executive’s
designated beneficiary or estate, as applicable, any and all previously earned, but
as yet unpaid, salary, and reimbursement of business expenses which would have
otherwise been payable to Executive under this Agreement, through the end of the
month in which Disability or death occurs. In the event of termination due to death
or Disability, Company shall pay to Executive, or, in the event of death, to
Executive’s designated beneficiary or estate, as applicable, a prorated Bonus based
on the length of performance in the applicable performance period prior to
Disability or death. Any prorated Bonus payable under this paragraph shall be paid
at the end of the applicable performance period when such payments are made to other
participants and in accordance with the terms of the applicable plan or program.
Executive shall not be eligible for any vesting of equity compensation after the
Executive’s termination date, except as pursuant to the 1996 and 2002 Price-Vested
Stock Option plans.






	 	7.4	 	TERMINATION WITHOUT CAUSE. Company may terminate Executive’s employment
hereunder without Cause at any time during the then-current Initial or Extended Term of
this Agreement, as applicable, by giving Executive 90 days written notice. Upon such
termination without Cause, Executive’s right to severance benefits, if any, shall be
governed by the terms of the ABM Severance Policy or any policy or plan of the Company
as in effect from time to time that provides for payment of severance amounts upon such
a termination of employment (“Severance Benefits”). Executive must execute a full
release of all claims within 60 days following termination of employment in order to be
eligible for Severance Benefits.
	 
	 	7.5	 	CONDITIONS TO PAYMENT AND ACCELERATION; CODE SECTION 409A. Notwithstanding
anything contained herein to the contrary, Executive shall not be considered to have
terminated employment with the Company for purposes of this Agreement and no payments
shall be due to Executive under this Agreement or any policy or plan of the Company as
in effect from time to time, providing for payment of amounts on termination of
employment unless Executive would be considered to have incurred a “separation from
service” from the Company within the meaning of Section 409A. To the extent required
in order to avoid accelerated taxation and/or tax penalties under Section 409A, amounts
that would otherwise be payable and benefits that would otherwise be provided pursuant
to this Agreement during the six-month period immediately following Executive’s
termination of employment shall instead be paid on the first business day after the
date that is six months following Executive’s termination of employment (or upon
Executive’s death, if earlier).
	 
	 	7.6	 	EXCESS PARACHUTE PAYMENTS. Subject to a Severance Agreement between Executive
and the Company approved by the Board of Directors or the Compensation Committee of ABM
Industries Incorporated, if any amount or benefit to be paid or provided under the ABM
Severance Policy, an equity award, 




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	 	 	 	and/or any other agreement between Executive and the
Company would be an Excess Parachute Payment but for the application of this sentence,
then the payments and benefits to be paid or provided under the Severance Program,
equity award, and/or any other agreement will be reduced to the minimum extent
necessary (but in no event to less than zero) so that no portion of any such payment or
benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however,
that the foregoing reduction will not be made if such reduction would result in
Executive receiving an amount determined on an after-tax basis, taking into account the
excise tax imposed pursuant to Section 4999 of the Code, or any successor provision
thereto, any tax imposed by any comparable provision of state law and any applicable
federal, state and local income and employment taxes (the “After-Tax Amount”) less than
90% of the After-Tax Amount of the severance payments Executive would have received
under the Company’s Severance Policy or under any other agreement without regard to
this clause. Whether requested by the Executive or the Company, the determination of
whether any reduction in such payments or benefits to be provided under this Agreement
or otherwise is required pursuant to the preceding sentence, and the value to be
assigned to the Executive’s covenants in Section 5 hereof for purposes of determining
the amount, if any, of the “excess parachute payment” under Section 280G of the Code
will be made at the expense of the Company by the Company’s independent accountants or
benefits consultant. The fact that Executive’s right to payments or benefits may be
reduced by reason of the limitations contained in this paragraph will not of itself
limit or otherwise affect any other rights of Executive under any other agreement. In
the event that any payment or benefit intended to be provided is required to be reduced
pursuant to this paragraph, Executive will be entitled to designate the payments and/or
benefits to be so reduced in order to give effect to this paragraph, provided, however,
that payments that do not constitute deferred compensation within the meaning of
Section 409A will be reduced first. The Company will provide Executive with all
information reasonably requested by Executive to permit Executive to make such
designation. In the event that Executive fails to make such designation within 10
business days after receiving notice from the Company of a reduction under this
paragraph, the Company may effect such reduction in any manner it deems appropriate.
The term “Excess Parachute Payment” as used in this paragraph means a payment that
creates an obligation for Executive to pay excise taxes under Section 280G of the
Internal Revenue Code of 1986, as amended, or any successor statute.






	 	7.7	 	ACTIONS UPON TERMINATION. Upon termination of employment hereunder, Executive
shall immediately resign as an officer and/or director of Company and of any Company
subsidiaries or affiliates, including any LLCs or joint ventures, as applicable. At
Company’s request, Executive also agrees to resign from the
board of any Taft-Hartley trust fund joined during Executive’s employment with
Company. Executive shall promptly return and release all Company property and
Proprietary Information, in all forms, in Executive’s possession to Company.
Company shall pay Executive when due any and all previously earned, but as yet




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	 	 	 	unpaid, salary and reimbursement of business expenses submitted in accordance with
Company policy as in effect. Except as provided in Sections 7.3 and 7.4, Executive
must be employed by the Company at the end of the Fiscal Year to earn a Bonus.






	 	7.8	 	WITHHOLDING AUTHORIZATION. To the fullest extent permitted under the laws of
the State of Employment hereunder, Executive authorizes Company to withhold from any
Severance Benefits otherwise due to Executive and from any other funds 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 resolution of any underlying dispute.






	8.	 	NOTICES.






	 	8.1	 	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, overnight express, or electronically 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:





	 	 	 	 	 
	 

	 	Executive:
	 	(Executive Name)
	 

	 	 	 	(Home Address)
	 

	 	 	 	(City, ST Zip)
	 

	 	 	 	Email: (email)
	 
	 	 	 	 
	 

	 	Company:
	 	(Legal Company Name)
	 

	 	 	 	551 Fifth Avenue, Suite 300
	 

	 	 	 	New York, New York 10176
	 

	 	 	 	Attention: Chief Executive Officer
	 
	 	 	 	 
	 

	 	Copy:
	 	ABM Industries Incorporated
	 

	 	 	 	160 Pacific Avenue, Suite 222
	 

	 	 	 	San Francisco, CA 94111
	 

	 	 	 	Attention: Senior Vice President of Human Resources







	 	8.2	 	RECEIPT. Any such notice shall be assumed to have been received when delivered
in person or 48 hours after being sent in the manner specified above.




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	9.	 	GENERAL PROVISIONS.






	 	9.1	 	GOVERNING LAW. This Agreement shall be interpreted and enforced in accordance
with the laws of the State of Employment, which, for purposes of this Agreement, shall
mean the state where Executive is regularly and customarily employed and where
Executive’s primary office is located.
	 
	 	9.2	 	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.
	 
	 	9.3	 	SEVERABILITY. It is the desire and intent of the parties that the provisions
of this Agreement be enforced to the fullest extent permissible under the law and
public policies applied in each jurisdiction in which enforcement is sought.
Accordingly, in the event that any provision of this Agreement would be held in any
jurisdiction to be invalid, prohibited or unenforceable for any reason, such provision,
as to such jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction. Notwithstanding the foregoing, if such provision
could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in
such jurisdiction, it shall, as to such jurisdiction, be either automatically deemed so
narrowly drawn, or any court of competent jurisdiction is hereby expressly authorized
to redraw it in that manner, without invalidating the remaining provisions of this
Agreement or affecting the validity or enforceability of such provision in any other
jurisdiction.
	 
	 	9.4	 	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 provisions of Sections 5.1 – 5.6 of this Agreement, shall remain in
full force and effect after the termination of this Agreement.
	 
	 	9.5	 	REPRESENTATIONS BY EXECUTIVE. Executive represents and agrees that Executive
has carefully read and fully understands all of the provisions of this Agreement, that
Executive is voluntarily entering into this Agreement and has been given an opportunity
to review all aspects of this Agreement with an attorney, if Executive chooses to do
so. Executive understands he/she is also now eligible for Severance Benefits to which
Executive was not previously entitled and acknowledges the value of such benefits.
Executive also represents that he/she will not make any unauthorized use of any
confidential or Proprietary Information of any third party in the performance of
his/her duties under this Agreement and that Executive is under no obligation to any
prior employer or other entity that would preclude or interfere with the full and good
faith performance of Executive’s obligations hereunder.




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	 	9.6	 	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.






	 	9.6.a 	 	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.
	 
	 	9.6.b 	 	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 of this Agreement. However, it
is expressly understood that, notwithstanding any provision to the contrary
contained in this Agreement (whether explicit or implicit), the terms and
restrictions set forth in any Asset Purchase Agreement, Merger Agreement, Stock
Purchase Agreement or any agreement ancillary thereto, entered into by and
between Executive and any Company-affiliated entity setting forth Executive’s
duties under a Covenant Not To Compete in connection with the sale of such
assets, shall remain in full force and effect during employment and thereafter.
	 
	 	9.6.c 	 	 AMENDMENTS. This Agreement may not be amended except in a
writing approved by the Board and signed by the Executive and the President or
Chief Executive of Company.




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IN WITNESS WHEREOF, Executive and Company have executed this Agreement as of the date set forth
above.




	 	 	 	 	 	 	 	 	 
	 	 	Executive:	 	(Executive Name)	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Signature:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Date:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	       Company: (Legal Company Name)	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Signature:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Date:	 	 	 	 
	 

	 	 	 	 	 	 	 	 






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