EXHIBIT 10.23 Page 1 of 11
CORPORATE EXECUTIVE EMPLOYMENT AGREEMENT
THIS CORPORATE EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made effective as
of November 1, 2003, by and between XXXX X. XXXXXX, III ("Executive") and ABM
INDUSTRIES INCORPORATED ("Company") 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, 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, 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 this Agreement;
NOW THEREFORE, Executive and Company agree as follows:
A. EMPLOYMENT: Company hereby agrees to employ Executive, and Executive
hereby accepts such employment, on the terms and conditions set forth
in this Agreement.
B. TITLE: Executive's title shall be Executive Vice President and Chief
Operations Officer, subject to modification as mutually agreed upon by
both Company and Executive.
C. DUTIES & RESPONSIBILITIES: Executive shall be expected to assume and
perform such executive or managerial duties and responsibilities as are
assigned from time-to-time by the Company's Chief Executive Officer or
his or her designee, to whom Executive shall report and be accountable.
D. TERM OF AGREEMENT: Employment hereunder shall be deemed effective as of
November 1, 2003, for a term of fifteen (15) months, through January
31, 2005 ("Initial Term"), unless sooner terminated pursuant to
Paragraph O hereof, or later extended pursuant to Paragraph N hereof
("Extended Term").
E. 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 San Francisco in the state of California ("State of
Employment"), or such other location as shall be mutually agreed upon
by Company and Executive.
F. 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:
1. SALARY: A salary paid in equal installments of no less
frequently than semi-monthly at the annual rate set forth in
Paragraph X.1 hereof.
2. BONUS: A bonus or other incentive or contingent compensation,
if any, pursuant to Paragraph X.2 hereof.
3. FRINGE BENEFITS: Executive shall receive the then current
fringe benefits generally provided by Company to all of its
Executives. Such benefits may include but not be limited to
the use of a
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Company-leased car or a car allowance, group health benefits,
long-term disability benefits, group life insurance, sick
leave and vacation. Each of these fringe benefits is subject
to the applicable Company policy at all times. Executive
expressly agrees that should he or she terminate employment
with Company for the purpose of being re-employed by a Company
affiliate, he or she 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 fringe benefit at any time, but no such benefit
or benefits shall be reduced or eliminated as to Executive
unless generally reduced or eliminated as to comparable
executives within the Company.
4. LIMIT: To the extent that any compensation to be paid to
Executive under this Agreement would be non-deductible by the
Company as a result of the $1 million compensation limit
provisions of Section 162(m) of the Internal Revenue Code of
1986, as amended (the "Code"), then such compensation shall
not be paid out to Executive at that time but shall instead be
deferred and paid without interest to Executive (subject to
applicable withholding and only to the extent that payment of
such deferred amount is fully deductible under Code Section
162(m)) in the first month of the taxable year following the
taxable year of deferral. If the subsequent payment of the
deferral is itself subject to further deferral pursuant to
this Paragraph F.4, then such further deferred amount shall
instead be paid in the first month of the next following
taxable year.
G. 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, and
approved in writing by the person(s) to whom Executive reports pursuant
to Paragraph C hereof, upon presentation to such person(s) by Executive
within sixty (60) days after incurring such expense of an itemized
request for payment including the date, nature, recipient, purpose and
amount of each such expense, accompanied by receipts for all such
expenses in accordance with Company policy.
H. 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:
1. GOOD FAITH: Executive shall not act in any way contrary to the
best interest of Company. Executive agrees that if he or she
is approached by any person to discuss a possible acquisition
or other transaction that could result in a change of control
of the Company, Executive will immediately advise the
Company's General Counsel and Chair of the Nominating,
Governance and Succession Committee of the Board of Directors.
2. BEST EFFORTS: During all full-time employment hereunder,
Executive shall devote full working time and attention to
Company. Notwithstanding any other agreement to the contrary,
Executive shall not at any time be directly or indirectly
employed by, own, operate, assist or otherwise be involved,
invested or associated in any business that is similar or
competitive to any business of Company; except that Executive
may own up to five percent (5%) of such publicly-held
business(es), provided that Executive: (a) shall give Company
notice(s) of any such ownership exceeding two percent (2%), in
accordance with Paragraph W hereof, and (b) shall not at any
time be directly or indirectly employed by or operate, assist,
or otherwise be involved or associated with any such
business(es).
3. 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.
4. DRIVER'S LICENSE: Executive shall have a driver's permit
issued by Company and shall carry a valid driver's license
issued by his or her state of domicile or the State of
Employment hereunder
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whenever Executive is driving any motor vehicle in connection
with Company business. Executive agrees to immediately notify
Company in writing if Executive's driver's license is lost,
expired, restricted, suspended or revoked for any reason
whatsoever.
5. CODE OF CONDUCT: Executive agrees to fully comply with and
annually execute a certification of compliance with the
Company's Code of Business Conduct and Ethics.
I. 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 he or she is not bound by
any other contracts or covenants that in any way restrict or limit
Executive's activities in relation to his or her employment with
Company that have not been fully disclosed to Company prior to the
signing of this Agreement.
J. 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 documents.
Such documents may include, but shall not be limited to customer lists,
financial statements, cost data, price lists, invoices, forms,
electronic files and media, mailing lists, contracts, reports, manuals,
personnel files or directories, correspondence, business cards, copies
or notes made from Company documents and documents compiled or prepared
by Executive for Executive's use in connection with Company business.
Executive specifically acknowledges that all such items, including
passwords and documents, are the property of Company, notwithstanding
their preparation, care, custody, control or possession by Executive at
any time(s) whatsoever.
K. GOODWILL & PROPRIETARY INFORMATION: In connection with Executive's
employment hereunder:
1. Executive agrees to utilize and further Company's goodwill
("Goodwill") among its customers, sales prospects and
employees, and acknowledges that Company may disclose to
Executive and Executive may disclose to Company, proprietary
trade secrets and other confidential information not in the
public domain ("Proprietary Information") including but not
limited to specific customer data such as: (a) the identity of
Company's customers and sales prospects, (b) the nature,
extent, frequency, methodology, cost, price and profit
associated with its services and products purchased from
Company, (c) any particular needs or preferences regarding its
service or supply requirements, (d) the names, office hours,
telephone numbers and street addresses of its purchasing
agents or other buyers, (e) its billing procedures, (f) its
credit limits and payment practices, and (g) its organization
structure.
2. Executive agrees that such Proprietary Information and
Goodwill have unique value to Company, are not generally known
or readily available to Company's competitors, and could only
be developed by others after investing significant time and
money. Company would not make such Proprietary Information and
Goodwill available to Executive unless Company is assured that
all such Proprietary Information and Goodwill will be held in
trust and confidence by Executive. Executive hereby
acknowledges that to use this Proprietary Information and
Goodwill except for the benefit of Company would be a breach
of such trust and confidence and in violation of Executive's
common law Duty of Loyalty to the Company.
L. RESTRICTIVE COVENANTS: In recognition of Paragraph K, above, Executive
hereby agrees that during the Initial Term and the Extended Term, if
any, of this Agreement, and thereafter as specifically agreed herein:
1. Except in the proper performance of this Agreement, Executive
shall at no time directly or indirectly solicit or otherwise
encourage or arrange for any employee to terminate employment
with Company while employed by the Company and for a period of
one (1) year following Executive's termination of employment.
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2. Except in the proper performance of this Agreement, Executive
shall not directly or indirectly disclose or deliver to any
other person or business, any Proprietary Information obtained
directly or indirectly by Executive from, or for, Company.
3. Executive agrees that at all times after the termination of
this Agreement, Executive shall not seek, solicit, divert,
take away, obtain or accept the patronage of any customer or
sales prospect of Company through the direct or indirect use
of any Proprietary Information of Company, or by any other
unfair or unlawful business practice.
4. Executive agrees that for a reasonable time after the
termination of this Agreement, which Executive and Company
hereby agree to be one (1) year, Executive shall not directly
or indirectly, for Executive or for any other person or
business, seek, solicit, divert, take away, obtain or accept
any customer account or sales prospect with which Executive
had direct business involvement on behalf of Company within
the one (1) year period prior to termination of this
Agreement.
5. 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.
M. MODIFICATION OF EMPLOYMENT: At any time during the then current Initial
or Extended Term, as applicable, of this Agreement, a majority of the
Board of Directors of Company shall have the absolute right, with or
without cause and without terminating this Agreement or Executive's
employment hereunder, to modify the nature of Executive's employment
for the remainder of the then current Initial or Extended Term, as
applicable, of this Agreement, from that of a full-time employee to
that of a part-time employee ("Modification Period"). The Modification
Period shall commence immediately upon Company giving Executive written
notice of such change.
1. Upon commencement of the Modification Period: (a) Executive
shall immediately resign as a full-time employee of Company
and as an officer and/or director of Company and of any
Company subsidiaries, as applicable, (b) Executive shall
promptly return all Company property in Executive's possession
to Company, including but not limited to any motor vehicles,
equipment, supplies and documents set forth in Paragraph J
hereof, and (c) Company shall pay Executive when due all
previously earned and vested but as yet unpaid, salary,
prorated Target Bonus as determined pursuant to Paragraph X.2
or other contingent compensation, reimbursement of business
expenses and fringe benefits.
2. During the Modification Period: (a) Company shall continue to
pay Executive's monthly salary pursuant to Paragraph F.1
hereof, and to the extent available under the Company's group
insurance policies, continue to provide Executive with the
same group health and life insurance (subject to Executive
continuing to pay the employee portion of any such premium) to
which Executive would be entitled as a full-time employee,
with the understanding and agreement that such monthly salary
and group insurance, if available, shall constitute the full
extent of Company's obligation to compensate Executive, (b)
Executive shall not be eligible or entitled to receive or
participate in any bonus or fringe benefits other than the
aforementioned group insurance, if available, (c) in the
alternative, Executive may exercise rights under COBRA to
obtain medical insurance coverage as may be available to
Executive, (d) Executive shall be deemed a part-time employee
and not a full-time employee of Company, (e) Executive shall
provide Company with such occasional executive or managerial
services as reasonably requested by the person(s) to whom
Executive reports pursuant to Paragraph C hereof, except that
failure to render such services by reason of any physical or
mental illness or disability other than Total Disability or
death as set forth in Paragraph O.2 hereof, or unavailability
because of absence from the State of Employment hereunder,
shall not affect Executive's right to receive such salary and
(f) Company shall pay directly or reimburse Executive in
accordance with the provisions of Paragraph G hereof for
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reasonable business expenses of Company incurred by Executive
in connection with such services requested by the person(s) to
whom Executive reports pursuant to Paragraph C hereof.
3. The Modification Period shall continue until the earlier of:
(a) Total Disability or death as set forth in Paragraph O.2
hereof, (b) termination of this Agreement by Company for "just
cause" as hereinafter defined, (c) Executive accepting
employment or receiving any other compensation from operating,
assisting or otherwise being involved, invested or associated
with any business that is similar to or competitive with any
business in which Company is engaged on the commencement date
of the Modification Period, or (d) expiration of the then
current Term of this Agreement.
N. EXTENSION OF EMPLOYMENT:
1. Absent at least ninety (90) 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, employment
hereunder shall continue for an Extended Term (or another
Extended Term, as applicable) of one year, by which Executive
and Company intend that all terms and conditions of this
Agreement shall remain in full force and effect for another
twelve (12) months, except that the base salary specified in
Paragraph X.1.a may be increased as set forth in Paragraph
X.1.b during the Extended Term.
2. In the event that Notice of Non-Renewal is given ninety (90)
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 change the terms and conditions of
Executive's employment, including but not limited to
Executive's position and/or compensation.
O. TERMINATION OF EMPLOYMENT:
1. a. Termination Upon Expiration Of Term. Subject to at
least ninety (90) days prior written Notice of
Termination of Employment, Executive's employment
shall terminate, with or without cause, at the
expiration of the then current Initial or Extended
Term. Company has the option, without terminating
this Agreement,of placing Executive on a leave of
absence at the full compensation set forth in
Paragraph F hereof, for any or all of such notice
period.
b. Termination For Cause. Except as provided in
Paragraph O.1.a, the Company shall have the right to
terminate Executive's employment hereunder at any
time during the then current Initial or Extended
Term, as applicable, of this Agreement, without
notice subject only to a good faith determination by
a majority of the Board of Directors of Company of
"just cause." "Just cause" includes but is not
limited to any (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 his or her employment duties, (vi)
material and willful breach of this Agreement; (vii)
other misconduct, unethical or unlawful activity, or
for (vii) a conviction of or plea of "guilty" or "no
contest" to a felony under the laws of the United
States or any state thereof.
c. Voluntary Termination By Executive. At any time
during the then current Initial or Extended Term, as
applicable, of this Agreement and with or without
cause, Executive may terminate employment hereunder
by giving Company ninety (90) days prior written
notice.
2. Employment hereunder shall automatically terminate upon the
total disability ("Total Disability") or death of Executive.
Total Disability shall be deemed to occur on the ninetieth
(90th) consecutive
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or non-consecutive calendar day within any twelve (12) month
period that Executive is unable to perform the duties set
forth in Paragraph C hereof because of any physical or mental
illness or disability. Company shall pay when due to Executive
or, upon death, Executive's designated beneficiary or estate,
as applicable, all prorated salary, prorated Target Bonus as
determined pursuant to Paragraph X.2 or other contingent
compensation, reimbursement of business expenses and fringe
benefits which would have otherwise been payable to Executive
under this Agreement, through the end of the month in which
Total Disability or death occurs.
3. Upon termination of employment hereunder, Executive shall
immediately resign as an employee of Company and as an officer
and/or director of Company and of any Company subsidiaries, as
applicable. Executive shall promptly return and release all
Company property in Executive's possession to Company,
including but not limited to, any motor vehicles, equipment,
supplies, passwords and documents set forth in Paragraph J
hereof. Company shall pay Executive, when due, all previously
earned and vested but as yet unpaid, salary, prorated Target
Bonus, as determined pursuant to Paragraph X.2 or other
contingent compensation, reimbursement of business expenses
and fringe benefits.
P. GOVERNING LAW: This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Employment hereunder.
Q. ARBITRATION CLAUSE:
1. Except for the interpretation and enforcement of injunctive
relief pursuant to Paragraph R hereof (which shall be subject
to litigation in any court having proper jurisdiction), any
claim or dispute related to or arising from this Agreement
(whether based in contract or tort, in law or equity)
including, but not limited to, claims or disputes between
Executive and Company or its directors, officers, employees
and agents regarding Executive's employment or termination of
employment hereunder, or any other business of Company, shall
be resolved by a neutral arbitrator agreed upon by both
parties, through mandatory, final, binding arbitration in
accordance with the procedural and discovery rules of the
American Arbitration Association.
2. The cost of such arbitration shall be borne by the Company.
Any such arbitration must be requested in writing within one
(1) year from the date the party initiating the arbitration
knew or should have known about the claim or dispute, or all
claims arising from that dispute are forever waived. Any such
arbitration (or court proceeding as applicable hereunder)
shall be held in the city and/or county of employment
hereunder. Judgment upon the award rendered through such
arbitration may be entered and enforced in any court having
proper jurisdiction.
R. REMEDIES & DAMAGES:
1. The parties agree that, in the event of a material breach or
threatened material breach of Paragraphs K and/or L hereof,
the damage or imminent damage to the value of Company's
business shall be impractical and/or impossible to estimate or
ascertain, and therefore any remedy at law or in damages shall
be inadequate. Accordingly, the parties hereto agree that
Company shall be entitled to the immediate issuance of a
restraining order or an injunction against Executive in the
event of such breach or threatened breach, in addition to any
other relief available to Company pursuant to this Agreement
or under law.
2. Executive agrees that damages resulting from any such breach
which involves any customer of Company shall be the actual
damages according to proof, as determined by an arbitrator
pursuant to Paragraph Q, above.
3. To the full extent permitted under the laws of the State of
Employment hereunder, Executive authorizes Company to withhold
from any severance payments otherwise due to Executive and
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from any other funds (other than wages) 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 arbitration between
the parties as provided for herein.
S. 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.
T. SEVERABILITY: The provisions of this Agreement are severable. If any
arbitrator (or court as applicable hereunder) rules that any portion of
this Agreement is invalid or unenforceable, the arbitrator's or court's
ruling shall not affect the validity and enforceability of other
provisions of this Agreement. It is the intent of the parties that if
any provision of this Agreement is ruled to be overly broad, the
arbitrator or court shall interpret such provision with as much
permissible breadth as is allowable under law rather than to consider
such provision void.
U. 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 Restrictive Covenants and
Arbitration Clause herein, shall remain in full force and effect after
the termination of this Agreement.
V. REPRESENTATIONS: Executive represents and agrees that he or she has
carefully read and fully understands all of the provisions of this
Agreement, that he or she is voluntarily entering into this Agreement
and has been given an opportunity to review all aspects of this
Agreement with an attorney, if he or she chooses to do so.
W. NOTICES:
1. 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, bonded messenger or overnight
express, 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: XXXX X. XXXXXX, III
00 Xxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
COMPANY: ABM INDUSTRIES INCORPORATED
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attention: Chief Executive Officer
COPY: ABM INDUSTRIES INCORPORATED
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attention: Chief Employment Counsel
2. Any such Notice shall be assumed to have been received when
delivered in person, or forty-eight (48) hours after being
sent in the manner specified above.
X. SPECIAL PROVISIONS:
1. BASE SALARY:
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a. Four Hundred Sixty Nine Thousand Three Hundred Fifty
Dollars ($469,350) per year effective November 1,
2003 through October 31, 2004 at the monthly rate of
$39,112.50 payable semi-monthly.
b. Effective November 1, 2004 and at the beginning of
each Fiscal Year thereafter, Executive shall be
eligible, at the sole discretion of the Company, to
receive a merit increase based on Executive's job
performance.
c. At the sole discretion of the Board of Directors of
the Company (the "Board"), the Company may grant a
salary adjustment at any time for reasons deemed
appropriate by the Board, including but not limited
to a change in Executive's duties resulting in a
material increase in responsibility.
2. BONUS: Subject to proration in the event of modification or
termination of employment hereunder and further subject to the
maximum bonus payable under Subparagraph d, below, Executive
shall be paid a bonus ("Bonus") based on the profit ("Profit")
for each Fiscal Year, or partial Fiscal Year, of employment
hereunder during the Initial Term, and during the Extended
Term, if any, of this Agreement, as follows:
a. A Target Bonus for each Fiscal Year shall be
initially calculated by multiplying Executive's bonus
percentage of .1643% times the Company's Profit.
Executive's Target Bonus shall be further subject to
an Executive Performance Bonus Modifier adjustment of
50% to 150% to determine Executive's Actual Bonus.
Such adjustment shall be based on criteria contained
in Executive's annual Performance Rating (see copy
attached as Exhibit I) as recommended by the
person(s) to whom Executive reports and reviewed and
approved by the Executive Officer Compensation and
Stock Option Committee of the Board and the Board.
b. Profit for purposes of determining such Target Bonus,
shall be defined as the consolidated income (in
accordance with generally accepted accounting
principles) before income taxes of the Company,
excluding: (i) gains or losses on sales or exchanges
of real property or on sales or exchanges of all or
substantially all of the stock or assets of a
subsidiary corporation or any other business unit of
Company, (ii) gains or losses on the sales of any
discontinued business operations of Company, and
(iii) WTC Related Gain. At any time the Board of
Directors of the Company reserves the right to
further adjust Profit for purposes of determining a
Target Bonus in the event of a Significant
Transaction (as defined below) during a Fiscal Year
and/or for any unanticipated and material events that
are beyond the control of the 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, and/or the
New York Stock Exchange or for any other reason which
the Board determines, in good faith, to be
appropriate.
Notwithstanding the foregoing, Profit for purposes of
determining the Target Bonus in any Fiscal Year
during the Initial or Extended Term of this
Agreement, shall include WTC Related Gain and WTC
Related Carry-Over Gain in an aggregate amount not to
exceed a maximum of $10 million per Fiscal Year. For
purposes of this Agreement, the term "WTC Related
Gain" shall mean the total amount of all items of
income included in the Company's audited consolidated
financial statements for any Fiscal Year that result
from the Company's receipt of insurance proceeds or
other compensation or damages due to the Company's
loss of property, business or profits as a result of
the destruction of the World Trade Center on
September 11, 2001. Also, for purposes of this
Agreement, the term "WTC Related Carry-Over Gain"
shall mean the aggregate amount of WTC Related Gain
not previously taken into account in determining a
Target Bonus for a prior Fiscal Year. Finally, for
purposes of this Agreement, the term "Significant
Transaction" shall
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EXHIBIT 10.23 Page 9 of 11
mean the Company's acquisition or disposition of a
business or assets which the Company is required to
report under Item 2 of the SEC Form 8-K.
c. The Chief Financial Officer of the Company shall
calculate the Profit and Target Bonus for purposes of
this Agreement. Company shall pay Executive the
Actual Bonus for the Fiscal Year, or prorated Target
Bonus in the event of modification or termination of
employment hereunder, following completion of the
audit of the Company's financial statements and
approval by the Company's Executive Officer
Compensation and Stock Option Committee and the
Company's Board of Directors, but no later than
seventy-five (75) days after the end of each Fiscal
Year. The Company in its sole discretion may pay any
Actual Bonus or prorated Target Bonus earlier. The
Actual Bonus for any partial Fiscal Year shall be
prorated for the fraction of the Fiscal Year for
which such Actual Bonus is payable. Absent bad faith
or material error, any calculations of the Chief
Financial Officer and any conclusions of the Board,
with respect to the amounts of the Profit, Target
Bonus or Actual Bonus, shall be final and binding
upon Executive and Company.
d. Executive's maximum Actual Bonus for each Fiscal Year
shall be one hundred percent (100%) of the Base
Salary for that year as determined pursuant to this
Agreement. In the event of modification or
termination of employment hereunder, Executive's
prorated Target Bonus shall not exceed such percent
of prorated Base Salary.
e. Notwithstanding the foregoing, no Bonus for any
Fiscal Year of the Company shall be payable unless
the Company's EPS for the Fiscal Year then ending is
equal to or greater than eighty percent (80%) of the
Company's EPS for the previous Fiscal Year of the
Company, in each case excluding gains and losses from
sales of discontinued operations and any WTC Related
Gain.
f. Nothing contained in this Agreement shall entitle
Executive to receive a bonus or other incentive or
contingent compensation from Company based on any
sales or profits made (including but not limited to
any WTC Related Gain or WTC Related Carry-Over Gain
realized) by Company after termination of the Initial
or Extended Term of this Agreement or of employment
hereunder.
g. Notwithstanding any other provision hereof, the Board
may, prior to the beginning of any Fiscal Year,
approve and notify the Executive of a modification to
the Bonus percentage determined hereunder (either
higher or lower), based on such performance and
financial measures and other factors as the Board
shall determine in its sole discretion. The Board's
decision in this regard shall be deemed final and
binding on Executive regardless of the amount of
Target or Actual Bonus otherwise calculated pursuant
to the foregoing provisions. In addition, the Board
reserves the option at any time to grant a
discretionary incentive bonus, which shall not be
subject to the maximum Bonus provisions described in
paragraph X.2.d above.
Y. SCOPE OF CERTAIN PROVISIONS: All references to Company in Paragraphs H,
J, K, L, O.3 and R in this Agreement shall include Company, and its
subsidiary corporations and other Company affiliates.
Z. 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.
1. 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.
Corp Exec Officer INITIALS: EXECUTIVE /s/XXX COMPANY /s/DMD
EXHIBIT 10.23 Page 10 of 11
2. It is specifically understood and accepted that this Agreement
supersedes all oral and written employment agreements between
Executive and Company prior to the date hereof, as well as all
conflicting provisions of Company's Guidelines for Corporate
Approval and its Human Resources Manual, including but not
limited to the termination, discipline and discharge
provisions contained therein.
3. This Agreement may not be amended except in a writing signed
by the Executive and Chief Executive Officer and approved by
the Company's Board of Directors.
FULL KNOWLEDGE & UNDERSTANDING: Executive and Company hereby acknowledge that
they have carefully read and fully understand all terms and conditions of this
Agreement, that they have been given an opportunity to review all aspects of
this Agreement with an attorney if they so choose, and that they are voluntarily
entering into this Agreement with full knowledge of the benefits and burdens,
and the risks and rewards, contained herein.
IN WITNESS WHEREOF, Executive and an officer and Director of the Company have
executed this Agreement as of the date set forth above:
EXECUTIVE: Signature: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Date: December 17, 2003
COMPANY: ABM INDUSTRIES INCORPORATED
Date: December 8, 2003
Signature: /s/ Xxxxx X. Dell
-----------------------------------------
Title: Sr. V.P. of Human Resources
Signature: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------
Title: President & CEO
Corp Exec Officer INITIALS: EXECUTIVE /s/XXX COMPANY /s/DMD
EXHIBIT 10.23 Page 11 of 11
EXHIBIT I
NAME OF EXECUTIVE: Xxxx X. Xxxxxx, III
2004 EXECUTIVE PERFORMANCE BONUS MODIFIERS
RATINGS AND CALCULATION SHEET
ABM EXECUTIVE OFFICERS
NEEDS MEETS EXCEEDS SUPERIOR
UNSATISFACTORY IMPROVEMENTS REQUIREMENTS REQUIREMENTS PERFORMANCE
CIRCLE ONE RATING IN EACH CATEGORY
I. STRATEGIC LEADERSHIP 1 2 3 4 5 6 7 8 9
II. FINANCIAL LEADERSHIP 1 2 3 4 5 6 7 8 9
III. PERFORMANCE AGAINST BUDGET 1 2 3 4 5 6 7 8 9
IV. EMPLOYEE LEADERSHIP 1 2 3 4 5 6 7 8 9
Employee Relations
Staff Development
Recruitment, Retention, Motivation
Teamwork
V. COMPLIANCE & ADMINISTRATION 1 2 3 4 5 6 7 8 9
TOTAL RATING SCORE: [_]
43 - 45 points = 150% of Profit Bonus
40 - 42 points = 140% of Profit Bonus
36 - 39 points = 130% of Profit Bonus
31 - 35 points = 120% of Profit Bonus
28 - 30 points = 110% of Profit Bonus
25 - 27 points = 100% of Profit Bonus
23 - 24 points = 90% of Profit Bonus
21 - 22 points = 80% of Profit Bonus
19 - 20 points = 70% of Profit Bonus
16 - 18 points = 60% of Profit Bonus
>15 points = 50% of Profit Bonus
__________________________________
Reviewer's Signature
Corp Exec Officer INITIALS: EXECUTIVE /s/XXX COMPANY /s/DMD
