sv8
As filed with the Securities and Exchange Commission on September 11, 2006
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ABM INDUSTRIES INCORPORATED
(Exact Name of Registrant as Specified in Its Charter)
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| Delaware
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94-1369354 |
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(I.R.S. Employer |
| Incorporation or Organization)
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Identification No.) |
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| 160 Pacific Avenue, Suite 222 |
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| San Francisco, CA
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94111 |
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(Zip Code) |
ABM Industries Incorporated
2006 Equity Incentive Plan
(Full Title of the Plan)
Linda S. Auwers, Esq.
Senior Vice President, General Counsel and Corporate Secretary
ABM Industries Incorporated
160 Pacific Avenue, Suite 222
San Francisco, CA 94111
(Name and Address of Agent for Service)
(415) 733-4000
(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
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Amount |
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Proposed |
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Proposed |
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Amount of |
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Title of Each Class of |
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To Be |
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Maximum Offering |
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Maximum Aggregate |
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Registration |
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Securities to be Registered |
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Registered(1) |
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Price Per Share(2) |
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Offering Price(2) |
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Fee |
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Common Stock, par value $.01
per share (3) |
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2,500,000 shares(4) |
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18.13 |
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45,325,000 |
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4849.78 |
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| (1) |
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This registration statement on Form S-8 (“Registration Statement”) shall also cover any additional
shares of common stock (hereinafter, the “Common Stock”) of ABM Industries Incorporated which become
issuable under the plan being registered pursuant to this Registration Statement by reason of any stock
dividend, stock split, recapitalization or any other similar transaction effected without the receipt
of consideration which results in an increase in the number of the Registrant’s outstanding shares of
Common Stock. |
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Pursuant to Rule 457(h)(1), the proposed maximum offering price per share and the proposed maximum
aggregate offering price have been calculated on the basis of $18.13 per share, the average of the high
and low price of the Common Stock on the New York Stock Exchange on September 8, 2006. |
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Includes Preferred Stock Purchase Rights which, prior to the occurrence of certain events, will not be
exercisable or evidenced separately from the Common Stock. |
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In addition to the 2,500,000 shares of Common Stock provided in the fee table, the following additional
shares are available for award under the Registrant’s 2006 Equity Incentive Plan (the “2006 Plan”):
(i) such number of shares authorized for issuance but not yet issued as of May 2, 2006, the effective
date of the 2006 Plan, under the Registrant’s 1996 Price-Vested Performance Stock Option Plan, as
amended, which was formerly known as the ABM Industries Incorporated Long-Term Senior Executive Stock
Option Plan (the “1996 Plan”) (270,000 shares), the Registrant’s 2002 Price-Vested Performance Stock
Option Plan, as amended (the “2002 Plan”) (2,080,963 shares), the Registrant’s Time-Vested Incentive
Stock Option Plan, as amended (the “Time-Vested Plan”) (254,142 shares), (ii) such number of shares
subject to any awards granted under the 1996 Plan, the 2002 Plan and the Time-Vested Plan that have
terminated, lapsed or expired between May 2, 2006 and July 31, 2006, and (iii) such number of shares
subject to any awards granted under the 1996 Plan, the 2002 Plan and the Time-Vested Plan as of July
31, 2006 that terminate, lapse or expire for any reason. In connection with this Registration
Statement on Form S-8, the Registrant is therefore transferring 270,000 shares from the Form S-8 for
the 1996 Plan (File No. 333-48857) for which the previously paid filing fee was $1,248.29, 2,080,963
shares from the Form S-8 for the 2002 Plan (File No. 333-85390) for which the previously paid filing
fee was $9,096.51, and 278,302 shares from the Form S-8 for the Time-Vested Plan (File No. 333-78421)
for which the previously paid filing fee was $1,147.30. In each case, the transfer includes the
related Preferred Stock Purchase Rights. The Registrant is simultaneously filing a post-effective
amendment to each such Registration Statement to effect such transfer. |
PART I
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* The documents containing the information required by Part I will be sent or given
to employees, officers, directors or others as specified by Rule 428(b)(1) under the Securities Act
of 1933, as amended (the “Securities Act”). In accordance with the rules and regulations of the
Securities and Exchange Commission (the “Commission”) and the instructions to Form S-8, such
documents are not being filed with the Commission either as part of this Registration Statement or
as prospectuses or prospectus supplements pursuant to Rule 424.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by ABM Industries Incorporated (the “Company” or
“Registrant”) with the Commission are incorporated by reference into this Registration Statement:
(a) The Company’s Annual Report on Form 10-K for the fiscal year ended October 31, 2005.
(b) The Company’s Quarterly Reports on Form 10-Q for the quarters ended January 31, 2006,
April 30, 2006 and July 31, 2006.
(c) The Current Reports on Form 8-K filed by the Company on December 15, 2005 (excluding
information solely furnished pursuant to Item 2.02), January 13, 2006, January 17, 2006, January
23, 2006 (excluding information solely furnished pursuant to Item 2.02), January 26, 2006
(excluding information solely furnished pursuant to Item 2.02), February 17, 2006 (excluding
information solely furnished pursuant to Item 2.02), March 13, 2006 (excluding information solely
furnished pursuant to Item 2.02), March 30, 2006 (excluding information solely furnished pursuant
to Item 2.02), May 5, 2006, June 7, 2006 (excluding information solely furnished pursuant to Item
2.02), August 17, 2006 and September 7, 2006 (excluding information solely furnished pursuant to Item 2.02).
(d) The description of the Company’s common stock and preferred stock purchase rights
contained in registration statements filed under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”) on Form 8-A, including any subsequent amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14, and
15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the shares of Common Stock issuable under the 2006 Plan has been passed upon
for the Company by Linda S. Auwers, Esq., Senior Vice President, General Counsel and Corporate
Secretary of the Company. Ms. Auwers owns, directly and indirectly, less than 1% of the
outstanding shares of Common Stock, and is eligible for participation in the 2006 Plan.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
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Section 145 of the General Corporation Law of the State of Delaware authorizes a court to
award or a corporation’s board of directors to grant indemnification to directors and officers in
terms that are sufficiently broad to permit indemnification under certain circumstances for
liabilities (including reimbursement for expenses incurred) arising under the Securities Act. The
Company’s certificate of incorporation contains a provision eliminating the personal liability of
the Company’s directors to the Company or its stockholders for breach of fiduciary duty as a
director to the fullest extent permitted by applicable law. The Company’s bylaws provide for the
mandatory indemnification of our directors and officers to the fullest extent permitted by Delaware
law. Further, the Company’s bylaws give the Company the power to indemnify its employees and
agents to the fullest extent permitted by Delaware law.
In addition, the Company has entered into a separate indemnification agreement with each
director that (i) provides for mandatory indemnification to the fullest extent permitted by
Delaware law, (ii) provides for a right of contribution based on relative fault in the event that
indemnification is not permissible, and (iii) limits the obligation of the Company to provide
indemnification on account of any proceeding commenced by a director in his or her individual right
against the Company or against any officer, director, or stockholder of the Company unless
authorized in the specific case by a majority of disinterested members of our board of directors.
The Company has obtained directors’ and officers’ liability insurance which insures directors
and officers of the Company. The losses covered by the policy are subject to certain exclusions
and the policy contains certain deductible provisions.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
ITEM 8. EXHIBITS
| 5.1 |
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Opinion of Linda S. Auwers. |
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| 23.1 |
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Consent of Independent Registered Public Accounting Firm. |
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| 23.2 |
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Consent of Linda S. Auwers (included in Exhibit 5.1). |
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| 24.1 |
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Power of Attorney. |
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement:
(i) to include any prospectus required by section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the effective date of
the Registration Statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the information set forth in
the Registration Statement;
(iii) to include any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change to such information in
the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is contained in periodic
reports filed by the
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Registrant pursuant to section 13 or section 15(d) of the Exchange Act that
are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant’s annual report pursuant to
section 13(a) or section 15(d) of the Exchange Act that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the question of whether
such indemnification by it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of San Francisco, State of California on
the 11th day of September, 2006.
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ABM INDUSTRIES INCORPORATED |
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(Registrant) |
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/s/ Henrik C. Slipsager
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Henrik C. Slipsager |
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President and Chief Executive Officer |
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Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons in the capacities and on the date indicated.
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Principal Executive Officer: |
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/s/ Henrik C. Slipsager
Henrik C. Slipsager
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President and Chief Executive
Officer
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September 11, 2006 |
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Principal Financial Officer: |
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/s/ George B. Sundby
George B. Sundby
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Executive Vice President and Chief
Financial Officer
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September 11, 2006 |
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Principal Accounting Officer: |
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/s/ Maria De Martini
Maria De Martini
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Vice President, Controller and Chief
Accounting Officer
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September 11, 2006 |
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Directors: |
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*Linda Chavez
Linda Chavez
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Director
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September 11, 2006 |
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*Luke S. Helms
Luke S. Helms
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Director
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September 11, 2006 |
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*Maryellen C. Herringer
Maryellen C. Herringer
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Director
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September 11, 2006 |
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*Charles T. Horngren
Charles T. Horngren
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Director
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September 11, 2006 |
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*Henry L. Kotkins, Jr.
Henry L. Kotkins, Jr.
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Director
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September 11, 2006 |
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Director |
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Director |
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/s/ Henrik C. Slipsager
Henrik C. Slipsager
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Director
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September 11, 2006 |
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*William W. Steele
William W. Steele
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Director
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September 11, 2006 |
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* By
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/s/ Linda S. Auwers
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Linda S. Auwers |
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Attorney-in-fact |
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5
EXHIBIT INDEX
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5.1 |
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Opinion of Linda S. Auwers. |
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23.1 |
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Consent of Independent Registered Public Accounting Firm. |
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23.2 |
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Consent of Linda S. Auwers (included in Exhibit 5.1). |
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24.1 |
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Power of Attorney. |
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