exv10w6



 






EXHIBIT 10.6




ABM INDUSTRIES INCORPORATED

2002 PRICE-VESTED PERFORMANCE STOCK OPTION PLAN

(as amended and restated as of January 11, 2005)








		
	1. 	PURPOSE; DEFINITIONS.





     ABM Industries Incorporated hereby establishes the ABM Industries Incorporated 2002
Price-Vested Performance Stock Option Plan (the “Plan”), effective as of December 11, 2001. The
purpose of the Plan is to give ABM Industries Incorporated and its Affiliates a long-term stock
option plan to help in recruiting, retaining motivating and rewarding senior executives, and to
provide the Company and its Affiliates with the ability to provide incentives more directly linked
to the profitability of the Company’s businesses and increases in stockholder value.



     For purposes of the Plan, the following terms are defined as set forth below:




a. “Affiliate” or “Affiliates” means any and all subsidiary corporations or other entities
controlled by the Company and designated by the Committee from time to time as such.




b. “Board” or “the Board” means the board of directors (“Directors”) of the Company.




c. “Cause” means:




(1) misconduct or any other willful or knowing violation of any Company policy or
employment agreement,




(2) unsatisfactory performance such that the Company notifies the Optionee of the
Company’s intention not to renew the Optionee’s employment agreement with the
Company,




(3) a material breach by the Optionee of his or her duties as an employee which is
committed in bad faith or without reasonable belief that such reach is in the best
interests of the Company and its affiliated companies (other than a breach arising
from the failure of the Optionee to work as a result of incapacity due to physical
or mental illness) and which is not remedied in a reasonable period of time after
receipt of written notice from the Company specifying such breach, or




(4) the conviction of the Optionee of a felony that has been affirmed on appeal or
as to which the period in which an appeal can be taken has lapsed.




d. “Change in Control” and “Change in Control Price” have the meanings set forth in Sections
6b and 6c of the Plan, respectively.



 









 






e. “Code” or “the Code” means the Internal Revenue Code of 1986, as amended from time to
time, and any successor thereto.




f. “Commission” or “the Commission” means the Securities and Exchange Commission or any
successor agency.




g. “Committee” or “the Committee” means the committee referred to in Section 2 of the Plan.




h. “Company” or “the Company” means ABM Industries Incorporated, a Delaware corporation.




i. “Disability” means the inability of the Optionee to perform his or her duties as an
employee on an active fulltime basis as a result of incapacity due to mental or physical
illness which continues for more than ninety (90) days after the commencement of such
incapacity, such incapacity to be determined by a physician selected by the Company or its
insurers and acceptable to the Optionee or the Optionee’s legal representative (such
agreement as to acceptability not to be withheld unreasonably).




j. “Eligible Person” has the meaning set forth in Section 4 of the Plan.




k. “Exchange Act” or “the Exchange Act” means the Securities Exchange Act of 1934, as
amended from time to time, and any comparable successor provisions.




l. 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.




m. “Non-Employee Director” shall mean a member of the Board who qualifies as a Non-Employee
Director as defined in Rule 16b-3, and also qualifies as an “outside director” for the
purposes of Section 162(m) of the Code and the regulations promulgated thereunder.




n. “Optionee” shall mean any Eligible Person who has been granted Stock Options under the
Plan.




o. “Plan” or “the Plan” means the ABM Industries Incorporated 2002 Price-Vested Performance
Stock Option Plan, as set forth herein and as hereinafter amended from time to time.



2









 






p. “Retirement” means retirement from active full-time employment with the Company or any of
its Affiliates at or after age sixty-four (64).




q. “Rule 16b-3” means Rule 16b-3, as promulgated by the Commission under Section 16(b) of
the Exchange Act, as amended from time to time.




r. “Stock” means common stock, par value $0.01 per share, of the Company.




s. “Stock Option” or “Option” means an option granted under Section 5 of the Plan.




t. “Termination of Employment” means the termination of an Optionee’s employment with the
Company or any of its Affiliates, excluding any such termination where there is a
simultaneous reemployment by the Company or any of its Affiliates. An Optionee shall be
deemed to have terminated employment if he or she ceases to perform services for the Company
or any of its Affiliates on an active full-time basis, notwithstanding the fact that such
Optionee continues to receive compensation or benefits pursuant to an employment contract or
other agreement or arrangement with the Company or any of its Affiliates. A non-medical
leave of absence shall, unless such leave of absence is otherwise approved by the Committee,
be deemed a Termination of Employment. An Optionee employed by an Affiliate of the Company
shall also be deemed to incur a Termination of Employment if that Affiliate ceases to be an
Affiliate of the Company, as the case may be, and that Optionee does not immediately
thereafter become an employee of the Company or any other Affiliate of the Company.



In addition, certain other terms have definitions given to them as they are used herein.




		
	2. 	ADMINISTRATION.





     The Plan shall be administered by the Executive Officer Compensation & Stock Option Committee
of the Board or such other committee of the Board, composed solely of not less than two
Non-Employee Directors, each of whom shall be appointed by and serve at the pleasure of the Board.
If at any time no such committee(s) shall be in office, the functions of the Committee specified in
the Plan shall be exercised by the Board.



     The Committee shall have all discretionary authority to administer the Plan and to grant Stock
Options pursuant to the terms of the Plan to senior executives of the Company and any of its
Affiliates.



     Among other things, the Committee shall have the discretionary authority, subject to the terms
of the Plan:




a. to select the Eligible Persons to whom Stock Options may from time to time be granted;



3









 






b. to determine the number of shares of Stock to be covered by each Stock Option granted
hereunder; and




c. to determine the terms and conditions of any Stock Option granted hereunder including,
but not limited to, the option price (subject to Section 5a of the Plan) and any vesting
condition, restriction or limitation based on such factors as the Committee shall determine.



     The Committee shall have the authority to adopt, alter and repeal such administrative rules,
guidelines and practices governing the Plan as it shall, from time to time, deem advisable, to
interpret the terms and provisions of the Plan and any Stock Option issued under the Plan (and any
agreement relating thereto) and to otherwise supervise the administration of the Plan.



     The Committee may act only by a majority of its members then in office, except that the
members thereof may authorize any one or more of their number or any officer of the Company to
execute and deliver documents on behalf of the Committee.



     Any determination made by the Committee or pursuant to delegated authority pursuant to the
provisions of the Plan with respect to any Stock Option shall be made in the sole discretion of the
Committee or such delegate at the time of the grant of the Stock Option or, unless in contravention
of any express term of the Plan, at any time thereafter. All decisions made by the Committee or any
appropriately delegated officer pursuant to the provisions of the Plan shall be final and binding
on all persons, including the Company and plan participants, and shall be given the maximum
deference permitted by law.




		
	3. 	STOCK SUBJECT TO PLAN.





     Subject to adjustment as provided herein, the total number of shares of Stock available for
grant under the Plan shall be four million (4,000,000). No individual shall be eligible to receive
Stock Options to purchase more than 200,000 shares of Stock under the Plan. Shares subject to a
Stock Option under the Plan may be authorized and unissued shares or may be treasury shares.



     If any Stock Option terminates without being exercised, shares subject to such Stock Option
shall be available for further grants under the Plan.



     In the event of any merger, reorganization, consolidation, recapitalization, stock dividend,
stock split, or extraordinary distribution with respect to the Stock or other change in corporate
structure affecting the Stock, the Committee or the Board may make such substitution or adjustments
in the number, kind and option price of shares authorized or outstanding as Stock Options, and/or
such other equitable substitution or adjustments as its may determine to be appropriate in its sole
discretion; provided, however, that the number of shares subject to any Stock Option shall always
be a whole number.



4









 






		
	4. 	ELIGIBILITY.





     Senior executives who are actively employed on a full-time basis by the Company or any of its
Affiliates, and who are responsible for or contribute to the management, growth and
profitability of the business of the Company or any of Affiliates, are eligible to be granted
Stock Options under the Plan (“Eligible Persons”).




		
	5. 	STOCK OPTIONS.





     Any Stock Option granted under the Plan shall be in the form attached hereto as Annex “A”,
which is incorporated herein and made a part of the Plan, with such changes as the Committee may
from time to time approve which are consistent with the Plan. None of the Stock Options granted
under the Plan shall be “incentive stock options” within the meaning of Section 422 of the Code.



     The grant of a Stock Option shall occur on the date the Committee selects a Senior Executive
of the Company or any of its Affiliates to receive any grant of a Stock Option, determines the
number of shares of Stock to be subject to such Stock Option to be granted to such Senior
Executive, and specifies the terms and provisions of said Stock Option. Such selection shall be
evidenced in the records of the Company whether in the minutes of the meetings of the Committee or
by their consent in writing. The Company shall notify an Optionee of any grant of a Stock Option,
and a written option agreement or agreements shall be duly executed and delivered by the Company to
the Optionee.



     Stock Options granted under the Plan shall be subject to the following terms and conditions
and shall contain such additional terms and conditions as the Committee shall deem desirable:




a. Option Price. The option price per share of Stock purchasable under a Stock Option shall
be the Fair Market Value per share of Stock on the grant date.




b. Option Term. The term of each Stock Option shall be ten (10) years from its date of
grant, unless earlier terminated.




c. Exercisability. Except as otherwise provided herein, each Stock Option shall be
exercisable during its term only if such Stock Option has vested, and only after the first
(1st) anniversary of its date of grant.




d. Vesting. Each Stock Option shall have assigned to it by the Committee a vesting price
(the “Vesting Price”) which will be used to provide for accelerated vesting so that such
Stock Option will vest immediately if, on or before the close of business on the fourth
(4th) anniversary of its date of grant, the Fair Market Value of the Common Stock shall have
been equal to or greater than the Vesting Price with respect to such Stock Option for ten
(10) trading days in any period of thirty (30) consecutive trading days. Any Stock Option
that has not vested on or before the close of business on the fourth (4th) anniversary of
its date of grant shall vest at the close of business on the business day



5









 





immediately
preceding the eighth (8th) anniversary of its date of grant, if such Option has not
previously terminated.


e. Method of Exercise. Subject to the provisions of this Section 5 of the Plan, Stock
Options may be exercised, in whole or in part, by giving written notice of exercise to the
Company specifying the number of shares of Stock subject to the Stock Option to be
purchased.



     The option price of Stock to be purchased upon exercise of any Option shall be paid in full:




(1) in cash (by certified or bank check or such other instrument as the Company may
accept),




(2) in the discretion of the Committee, in the form of unrestricted Stock already
owned by the Optionee for six (6) months or more and based on the Fair Market Value
of the Stock on the date the Stock Option is exercised,




(3) in any other form approved in the discretion of the Committee, or




(4) by any combination thereof.




     In the discretion of the Committee, payment for any shares subject to a Stock Option
may also be made by delivering a properly executed exercise notice to the Company, together
with a copy of irrevocable instructions to a broker to deliver promptly to the Company the
amount of sale or loan proceeds to pay the purchase price, and, if requested, the amount of
any federal, state, local or foreign withholding taxes. To facilitate the foregoing, the
Company may enter into agreements for coordinated procedures with one or more brokerage
firms.




     No shares of Stock shall be issued until full payment therefor has been made. The
Optionee shall have all of the rights of a stockholder of the Company holding the Stock that
is subject to such Stock Option (including, if applicable, the right to vote the share and
the right to receive dividends), only when the Optionee has given written notice of
exercise, has paid in full for such shares and, if requested, has given the representation
described in Section 9a of the Plan.




f. Non-transferability of Stock Options. No Stock Option shall be transferable by the
Optionee other than:




(1) pursuant to a beneficiary designation satisfactory to the Committee, or




(2) by will or by the laws of descent and distribution. All Stock Options shall be
exercisable, during the Optionee’s lifetime, only by the Optionee or by the guardian
or legal representative of the Optionee, it being understood that the terms



6









 






“holder” and “Optionee” include the guardian and legal representative of the Optionee named
in the option agreement and any person to whom an option is transferred by will or
the laws of descent and distribution or pursuant to a qualified domestic
relations order. The Committee may establish such procedures as it deems appropriate
for an Optionee to designate a beneficiary to whom any amounts payable in the event
of the Optionee’s death are to be paid or by whom any rights of the Optionee, after
the Optionee’s death, may be exercised.




g. Termination by Death, Disability, Retirement or by the Company Without Cause. If the
Optionee’s employment terminates by reason of death, Disability or Retirement, or if such
employment is terminated by the Company without Cause, in each case prior to the vesting of
a Stock Option held by the Optionee, the following provisions shall apply:




(1) if termination occurs by death or Disability, or by the Company without Cause,
such Stock Options shall be exercisable only within ninety (90) days of such
termination, and only if such Stock Options are then vested; and




(2) if
termination occurs by Retirement or other “voluntary quit,” such Stock Options shall terminate immediately.




h. Termination by the Company for Cause. If the Optionee’s employment is terminated by the
Company for Cause prior to the vesting of a Stock Option, such Stock Options shall terminate
immediately.




i. Termination After Vesting. If the Optionee’s employment is terminated for any reason
after a Stock Option has vested, such Stock Options shall be exercisable only within ninety
(90) days of such termination,




j. Change in Control Cash Out. Notwithstanding any other provision of the Plan, upon the
occurrence of a Change of Control all outstanding Stock Options shall immediately vest and
become fully exercisable, and during the ninety (90) day period from and after such Change
in Control (the “Exercise Period”), the Optionee shall have the right, in lieu of the
payment of the exercise price for the shares of Stock being purchased under the Stock Option
and by giving notice to the Company, to elect (within the Exercise Period) to surrender all
or part of the Stock Option to the Company and to receive cash, within ninety (90) days of
such notice, in an amount equal to the amount by which the Change in Control Price per share
of Stock on the date of such election shall exceed the exercise price per share of Stock
under the Stock Option (the “Spread”), multiplied by the number of shares of Stock granted
under the Stock Option as to which the right granted under this Section 5j of the Plan shall
have been exercised.




		
	6. 	CHANGE IN CONTROL PROVISIONS.






a. Impact of Event. Notwithstanding any other provision of the Plan to the contrary, in the
event of a Change in Control, any Stock Options outstanding as of the date such Change



7









 






in Control is determined to have occurred, and not then vested and exercisable, shall become
vested and exercisable to the full extent of the original grant, provided that such
accelerated vesting shall occur only if the Optionee is an active full-time employee of the
Company or any of its Affiliates as of such date.




b. Definition of Change in Control. For purposes of the Plan, a “Change in Control” shall
mean the happening of any of the following events:




(i) the acquisition (other than by the Company or by an employee benefit plan or
related trust sponsored or maintained by the Company), directly or indirectly, in
one or more transactions, by any person or by any group of persons, within the
meaning of Section 13(d) or 14(d) of the Exchange Act of beneficial ownership
(within the meaning of Rule 13d-3 of the Exchange Act) of twenty-five percent or
more of either the outstanding shares of common stock or the combined voting power
of the Company’s outstanding voting securities entitled to vote generally, if the
acquisition was not previously approved by the existing directors;




(ii) the acquisition (other than by the Company or by an employee benefit plan or
related trust sponsored or maintained by the Company), directly or indirectly, in
one or more transactions, by any such person or by any group of persons of
beneficial ownership (within the meaning of Rule 13d-3 of the Exchange Act) of fifty
percent or more of either the outstanding shares of common stock or the combined
voting power of the Company’s outstanding voting securities entitled to vote
generally, whether or not the acquisition was approved by the existing directors,
other than an acquisition that complies with clause (x) and (y) of paragraph (iii)
below;




(iii) consummation of a reorganization, merger or consolidation of the Company or
the sale or other disposition of all or substantially all of the Company’s assets
unless, immediately following such event, (x) all or substantially all of the
stockholders of the Company immediately prior to such event own, directly or
indirectly, seventy-five percent or more of the then outstanding voting securities
entitled to vote generally of the resulting corporation (including without
limitation, a corporation which as a result of such event owns the Company or all or
substantially all of the Company’s assets either directly or their ownership of the
Company’s outstanding voting securities entitled to vote generally immediately prior
to such event and (y) the securities of the surviving or resulting corporation
received or retained by the stockholders of the Company is publicly traded;




(iv) approval by the stockholders of the complete liquidation or dissolution of the
Company; or




(v) a greater than one-third change in the composition of the Board of Directors
within 24 months if not approved by a majority of the pre-existing directors.



8









 






c. Change in Control Price. For purposes of the Plan, “Change in Control Price” means the
higher of:




(1) the highest reported sales price, regular way, of a share of Stock in any
transaction reported on the New York Stock Exchange Composite Tape or other national
securities exchange on which such shares are listed or on Nasdaq, as applicable,
during the ninety (90) day period prior to and including the date of a Change in
Control, and or




(2) if the Change in Control is the result of a tender or exchange offer or a
Business Combination, the highest price per share of Stock paid in such tender or
exchange offer or Business Combination; provided, however, that in the case of a
Stock Option which:




(a) is held by an Optionee who is an officer of the Company and is subject
to Section 16(b) of the Exchange Act, and




(b) was granted within two hundred and forty (240) days of the Change in
Control, then the Change in Control Price for such Stock Option shall be the
Fair Market Value of the Stock on the date such Stock Option is exercised or
canceled. To the extent that the consideration paid in any such transaction
described above consists all or in part of securities or other non-cash
consideration, the value of such securities or other non-cash consideration
shall be determined in the sole discretion of the Board.




		
	7. 	TERM, AMENDMENT AND TERMINATION.





     The Plan will terminate on December 11, 2011. Stock Options outstanding as of December 11,
2011 shall not be affected or impaired by the termination of the Plan.



     The Committee shall have authority to amend the Plan without the approval of the Company’s
stockholders to take into account changes in law and tax and accounting rules, including Rule 16b-3
and Section 162(m) of the Code; provided that no amendment shall be made without the Optionee’s
consent which would impair the rights of an Optionee under a Stock Option theretofore granted.




		
	8. 	UNFUNDED STATUS OF PLAN.





     It is presently intended that the Plan constitute an “unfunded” plan for incentive and
deferred compensation. The Committee may authorize the creation of trusts or other arrangements to
meet the obligations created under the Plan to deliver Stock or make payments; provided, however,
that, unless the Committee otherwise determines, the existence of such trusts or other arrangements
is consistent with the “unfunded” status of the Plan.



9









 






		
	9. 	GENERAL PROVISIONS.





     a. The Committee may require each person purchasing shares pursuant to a Stock Option to
represent to and agree with the Company in writing that such person is acquiring the shares
without a view to the distribution thereof. The certificates for such shares may include any
legend which the Committee deems appropriate to reflect any restrictions on transfer.



     Notwithstanding any other provision of the Plan or agreements made pursuant thereto,
the Company shall not be required to issue or deliver any certificate or certificates for
shares of Stock under the Plan prior to fulfillment of all of the following conditions:




(1) the listing or approval for listing





(2) any
registration or other qualification




(3) the obtaining of any other consent, approval, or permit from any state or
federal governmental agency which the Committee shall, in its absolute discretion
after receiving the advice of counsel, determine to be necessary or
advisable.





b. Nothing contained in the Plan shall prevent the Company or any of its Affiliates from
adopting other or additional compensation arrangements for any Optionee.




c. The adoption of the Plan shall not confer upon any Optionee any right to continued
employment, nor shall it interfere in any way with the right of the Company or any of its
Affiliates to terminate the employment of any Optionee with or without cause at any time
whatsoever absent a written employment contract to the contrary.




d. No later than the date as of which an amount first becomes includable in the gross income
of the Optionee for federal income tax purposes with respect to any Stock Option under the
Plan, and prior to the delivery of any shares of Stock to any Optionee, the Optionee shall
pay to the Company, or make arrangements satisfactory to the Company regarding the payment
of, any federal, state, local or foreign taxes of any kind required by law to be withheld by
the Company with respect to such amount. In the discretion of the Committee, withholding
obligations may be settled with Stock in an amount having a Fair Market Value not exceeding
the minimum withholding tax payable by the Optionee with respect to the income recognized,
including Stock that is subject to the Stock Option that gives rise to the withholding
requirement. The obligations of the Company under the Plan shall be conditional on such
payment or arrangements, and the Company and any of its Affiliates shall, to the extent
permitted by law, have the right to deduct any such taxes from any payment otherwise due to
the Optionee. The Committee shall establish such procedures as it deems appropriate,
including the making of irrevocable elections, for the settlement of withholding obligations
with Stock.



10









 






e. In the case of a grant of a Stock Option to any employee of a Company Affiliate, the
Company, may, if the Committee so directs, issue or transfer the shares of Stock covered by
the Stock Option to the Affiliate, for such lawful consideration as the Committee may
specify, upon the condition or understanding that the Affiliate will transfer the shares of
Stock to that Optionee in accordance with the terms of the Stock Option specified by the
Committee pursuant to the provisions of the Plan.




f. The Plan and all Stock Options made and actions taken thereunder shall be governed by and
construed in accordance with the laws of the State of California, without reference to
principles of conflict of law.




		
	10. 	EFFECTIVE DATE OF PLAN.





     Subject to approval by the stockholders of the Company, the Plan shall be effective on
December 11, 2001.




11