AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 5, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ABM INDUSTRIES INCORPORATED
(Exact name of registrant as specified in its charter)
DELAWARE 94-1369354
(State of incorporation) (I.R.S. Employer Identification No.)
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50 FREMONT STREET, 26TH FLOOR, SAN FRANCISCO, CALIFORNIA, 94105
(415) 597-4500
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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HARRY H. KAHN, ESQ.
VICE PRESIDENT, GENERAL COUNSEL
AND SECRETARY
ABM INDUSTRIES INCORPORATED
50 FREMONT STREET, 26TH FLOOR
SAN FRANCISCO, CALIFORNIA 94105
(415) 597-4500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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COPIES TO:
RICHARD V. SMITH, ESQ.
ORRICK, HERRINGTON & SUTCLIFFE LLP
OLD FEDERAL RESERVE BANK BUILDING
400 SANSOME STREET
SAN FRANCISCO, CALIFORNIA 94111
(415) 392-1122
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, check the following box.
/ /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
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CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED BE REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE
Common Stock, $.01 par value per share (2)..... 39,158 shares $18.4375 $721,976 $219
(1) Estimated in accordance with Rule 457(c) solely for the purpose of
calculating the amount of the registration fee based on the average of the
high and low prices of the Registrant's Common Stock as reported on the New
York Stock Exchange on February 3, 1997.
(2) Associated with the Common Stock are Preferred Stock Purchase Rights that
will not be exercisable or evidenced separately from the Common Stock prior
to the occurrence of certain events.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
PROSPECTUS (SUBJECT TO COMPLETION)
ISSUED FEBRUARY 5, 1997
39,158 SHARES
ABM INDUSTRIES INCORPORATED
COMMON STOCK
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All of the 39,158 shares of Common Stock being offered hereby (the "Stock")
are being disposed of for the account of certain stockholders and/or their
respective donees, transferees or successors in interest (the "Selling
Stockholders") of ABM Industries Incorporated (the "Company"). The Company will
not receive any of the proceeds from the sale of the Stock. The last sale price
of the Common Stock of the Company as reported on the New York Stock Exchange on
February 4, 1997 was $18 3/8 per share.
The Company has been advised by the Selling Stockholders that all or a
portion of the Stock may be disposed of hereunder from time to time through
brokers, acting as agents and charging usual and customary brokerage
commissions, on the New York Stock Exchange, in the over-the-counter market or
in private negotiations, at market prices prevailing at the time of sale or at
negotiated prices. See "Plan of Distribution."
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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February , 1997
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy material and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
material and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, as well as at Suite 1400, Citicorp Center,
500 West Madison Street, Chicago Illinois 60661-2511; and Suite 1300, 7 World
Trade Center, New York, New York 10048; and copies can be obtained by mail from
the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. Such material may also be accessed
electronically by means of the Commission's home page on the Internet at http://
www.sec.gov. In addition, such reports, proxy statements and other information
concerning the Company can be inspected at the offices of the New York Stock
Exchange, 20 Broad Street, New York, New York 10005.
This Prospectus, which constitutes part of a Registration Statement on Form
S-3 filed by the Company with the Commission under the Securities Act of 1933,
omits certain of the information contained in the Registration Statement.
Reference is hereby made to the Registration Statement and to the exhibits
relating thereto for further information with respect to the Company and the
securities offered hereby. Statements contained herein concerning the provisions
of documents filed herewith as exhibits are necessarily summaries of such
documents, and each such statement is qualified in its entirety by reference to
the copy of the applicable document filed with the Commission.
DOCUMENTS INCORPORATED BY REFERENCE
The Company's Annual Report on Form 10-K, for the fiscal year ended October
31, 1996 and its description of Capital Stock set forth in the Registration
Statement on Form 8-A, all as filed by the Company with the Commission pursuant
to the Exchange Act, are hereby incorporated in this Prospectus by reference.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the securities offered hereby shall be deemed
to be incorporated by reference in this Prospectus. Any statement contained
herein or in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus and the Registration Statement to the extent that a statement
contained in any subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person to
whom a copy of this Prospectus has been delivered, upon the written or oral
request of such person, a copy of any or all of the documents referred to above
which have been or may be incorporated in this Prospectus by reference, other
than exhibits to such documents which are not specifically incorporated by
reference into the information that this Prospectus incorporates. Requests for
such copies should be directed to: ABM Industries Incorporated, 50 Fremont
Street, 26th Floor, San Francisco, California 94105, Attn: Corporate Secretary,
telephone (415) 597-4500.
2
THE COMPANY
The Company is the largest U.S.-based facility services contractor listed on
the New York Stock Exchange. With annual revenues exceeding $1 billion and more
than 47,000 employees, the Company and its subsidiaries provide air
conditioning, elevator, engineering, janitorial, lighting, parking and security
services to thousands of commercial, industrial and institutional customers who
outsource the services in hundreds of cities across North America.
The Company was reincorporated in Delaware on March 19, 1985, as the
successor to a business founded in California in 1909. By vote of the
stockholders on March 16, 1994, the Company's name was changed from American
Building Maintenance Industries, Inc., to ABM Industries Incorporated. The
corporate headquarters of the Company is located at 50 Fremont Street, 26th
Floor, San Francisco, California 94105, and its telephone number is (415)
597-4500.
SELLING STOCKHOLDERS
The Stock being offered hereby by the Selling Stockholders was acquired in
connection with the acquisition (the "Acquisition") by the Company, effective
November 20, 1996, of substantially all of the assets of each of SICA Electrical
& Maintenance Corp., a New York corporation, and Ozone Lighting Distributors,
Inc., a New York corporation (collectively, the "Target Companies"), each
located in New York.
The stockholders of the Target Companies, received in the Acquisition
348,323 shares of the Company's Common Stock plus up to a maximum of 348,323
additional shares to be issued, if at all, pursuant to an earnout provision
contained in the transaction agreement relating to the Acquisition
(collectively, the "Registrable Shares"). Pursuant to a Registration Rights
Agreement among the Company and the stockholders of the Target Companies (the
"Registration Rights Agreement"), the Company agreed to register for resale,
upon the request of the holders of at least a majority of the Registrable
Shares, not less than that number of Registrable Shares, the reasonably
anticipated aggregate price to the public of which, net of underwriting
discounts and commissions, would exceed $100,000. The Registration Rights
Agreement requires the Company to pay the expenses of such registration.
The following table sets forth certain information with respect to the
Selling Stockholders.
TO BE OWNED AFTER
OWNED PRIOR TO OFFERING OFFERING
------------------------ NUMBER ------------------------
NUMBER SHARES NUMBER
NAME SHARES PERCENT OFFERED SHARES PERCENT
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Diane Sica De Maio........................... 27,866 * 13,933 13,933 *
Ann Sica De Nicola........................... 10,450 * 5,225 5,225 *
Michael A. Sica.............................. 27,866 * 20,000 7,866 *
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* Less than 1%
PLAN OF DISTRIBUTION
Resales of the shares by the Selling Stockholders may be made on the New
York Stock Exchange, in the over-the-counter market or in private transactions.
The shares will be offered for sale on terms to be determined when the agreement
to sell is made or at the time of sale, as the case may be. The Selling
Stockholders may sell some or all of the shares in transactions involving
broker-dealers who may act solely as agent and/or may acquire shares as
principal. Broker-dealers participating in such transactions as agent may
receive commissions from the Selling Stockholders (and, if they act as agent for
the purchaser of such shares, from such purchaser), such commissions computed in
appropriate cases in accordance with the applicable rules of the New York Stock
Exchange, which commissions may be at negotiated rates where
3
permissible under such rules. Participating broker-dealers may agree with the
Selling Stockholders to sell a specific number of shares at a stipulated price
per share and, to the extent such broker-dealer is unable to do so acting as
agent, for the Selling Stockholder to purchase as principal any unsold shares at
the price required to fulfill the broker-dealer's commitment to the Selling
Stockholders. Any such sales may be by block trade.
DESCRIPTION OF CAPITAL STOCK
As of the date of this Prospectus, the authorized capital stock of the
Company consists of 28,000,000 shares of Common Stock ("Common Stock") and
500,000 shares of Preferred Stock ("Preferred Stock"). As of January 28, 1997,
there were 19,976,873 shares of Common Stock and 6,400 shares of Preferred Stock
issued and outstanding.
The following summary description of the Company's capital stock does not
purport to be complete and is subject to and is qualified in its entirety by the
description of the Company's capital stock contained in the Certificate of
Incorporation, a copy of which is filed as an exhibit to this Registration
Statement of which this Prospectus is a part. Reference is made to such exhibit
for a detailed description of the provisions thereof summarized below.
COMMON STOCK
The stockholders are not entitled to vote cumulatively for the election of
directors.
Each share of Common Stock is entitled to receive dividends if, as and when
declared by the Board of Directors of the Company out of funds legally available
therefor. The Common Stock shares equally, on a share-for-share basis, in any
cash dividends declared by the Board of Directors.
Stockholders of the Company have no preemptive or other rights to subscribe
for additional shares, except pursuant to the Stockholder Rights Plan discussed
below. Subject to any right of holders of any Preferred Stock, all holders of
Common Stock are entitled to share equally on a share-for-share basis in any
assets available for distribution to stockholders on liquidation, dissolution or
winding up of the Company. No Common Stock is subject to redemption or a sinking
fund. All shares of Common Stock offered hereby (all of which were previously
issued and sold) are fully paid and nonassessable.
PREFERRED STOCK
The Board of Directors has the authority to cause the Company to issue up to
500,000 shares of Preferred Stock in one or more series and to fix the rights,
preferences, privileges and restrictions thereof, including dividend rights,
conversion rights, voting rights, terms of redemption, liquidation preferences
and the number of shares constituting any series or the designation of such
series, without any further vote or action by the stockholders. The issuance of
Preferred Stock may have the effect of delaying, deferring or preventing a
change in control of the Company without further action by the stockholders. The
issuance of Preferred Stock with voting and conversion rights may adversely
affect the voting power of the holders of the Common Stock.
Pursuant to the foregoing authority, the Board of Directors has authorized
shares of the Company's Series A Junior Preferred Stock ("Series A Preferred
Stock") to be issued in connection with the Stockholder Rights Plan discussed
below. There are currently no issued or outstanding shares of Series A Preferred
Stock.
Also pursuant to the authority set forth above, the Board of Directors has
authorized the issuance of 6,400 shares of the Company's Series B 8% Senior
Redeemable Cumulative Preferred Stock ("Series B Preferred Stock"). The Series B
Preferred Stock is redeemable by the Company under certain circumstances and is
entitled to a liquidation preference of $1,000 per share. Dividends of 8% of
such liquidation preference accrue and are cumulative from the date of issuance,
and are payable (when and as declared by
4
the Board of Directors) on November 1, February 1, May 1 and August 1 of each
year, commencing on November 1, 1993 in equal installments. The Series B
Preferred Stock restricts the Company from paying dividends on the Series A
Preferred Stock and the Common Stock unless all dividends accrued on, and any
redemption payments owing with respect to, the Series B Preferred Stock shall
have been paid. The Series B Preferred Stock is entitled to one vote per share
and votes together with the Common Stock (not as a separate class) on all
matters on which holders of the Common Stock are entitled to vote. The rights,
preferences, privileges and restrictions of the Series B Preferred Stock are set
forth in greater detail in the Company's Certificate of Incorporation, which has
been filed as an exhibit to the Registration Statement of which this Prospectus
is a part, and which is incorporated herein by this reference.
SPECIAL PROVISIONS
CERTAIN BUSINESS COMBINATIONS. The Company's Certificate of Incorporation
requires that certain business combination transactions between the Company and
a "Related Person" (beneficial owner of 10% or more of the Company's voting
stock) be approved by the affirmative vote of holders of not less than 70% of
the then outstanding shares of voting stock unless certain specified conditions
are met. If the conditions are met, then the transaction would require only such
affirmative vote as is required by law, any national securities exchange or
otherwise. Business combinations subject to this provision include a merger or
consolidation of the Company with, or a sale or transfer of all or substantially
all of the Company's assets to, a Related Person. The "fair price" provision
could make it more difficult, and may therefore discourage, an attempt by
another company or group, through the acquisition of a substantial block of the
Company's Common Stock, to acquire control of the Company with a view to
imposing a merger, consolidation or sale of the Company's assets which may not
be in the best interest of all of the stockholders.
DIRECTOR CLASSIFICATION. The Company's Certificate of Incorporation also
provides that (i) the Company's Board of Directors is divided into three classes
so that one third of the Board of Directors stands for election each year; (ii)
any action required or permitted to be taken by the stockholders of the company
may be effected only at an annual or special meeting of the stockholders and
that stockholder action may not be by written consent in lieu of a meeting;
(iii) special meetings of stockholders may only be called by the Board of
Directors or a committee thereof; (iv) vacant directorships may only be filled
by the Board of Directors; and (v) any director may be removed from office only
pursuant to the affirmative vote of the holders of 70% of the outstanding voting
stock of the Company and only for cause.
STOCKHOLDER RIGHTS PLAN. The Company's Stockholder Rights Plan provides for
a dividend distribution of one Right for each outstanding share of Common Stock
to stockholders of record at the close of business on April 22, 1988 (the
"Record Date"). Each Right entitles the registered holder to purchase from the
Company a unit (a "Unit") consisting of one one-hundredth of a share of Series A
Junior Participating Preferred Stock (the "Preferred Stock"), at a price of $80
per Unit, subject to adjustment (the "Purchase Price"). The Rights will expire
at the close of business on April 22, 1998, unless earlier redeemed by the
Company.
The Rights are attached to all outstanding shares of Common Stock. The
Rights will be exercisable, and transferrable apart from the Common Stock, upon
the earlier to occur of (i) 10 days following a public announcement that a
person or group of affiliated or associated persons (an "Acquiring Person") has
acquired beneficial ownership of 20% or more of the outstanding shares of Common
Stock (the "Stock Acquisition Date"), or (ii) 10 business days following the
commencement of a tender offer or exchange offer that would result in a person
or group owning 30% or more of the outstanding shares of Common Stock. The
earlier of such dates is called the Distribution Date. The Rights Plan excludes
from its operation Theodore Rosenberg and Sydney J. Rosenberg, individually and
jointly as members of a group, such that their ownership of the Company's Common
Stock will not cause the Rights to become exercisable or nonredeemable or
trigger the other features of the Rights.
5
After the Record Date and until the Distribution Date (or earlier redemption
or expiration of the Rights), new Common Stock certificates issued upon transfer
or new issuance of the Common Stock will contain a notation incorporating the
Rights Plan by reference. Until the Distribution Date (or earlier redemption or
expiration of the Rights), the surrender for transfer of any certificates for
Common Stock outstanding as of the Record Date will also constitute the transfer
of the Rights associated with the Common Stock represented by such certificate.
In the event that (i) the Company is the surviving corporation in a merger
with an Acquiring Person and its Common Stock is not changed, or (ii) an
Acquiring Person engages in one or more "self-dealing" transactions set forth in
the Rights Plan, or (iii) an Acquiring Person increases his beneficial ownership
of the Company by more than 1% in a transaction involving the Company, each
holder of a Right will thereafter have the right to receive, upon exercise,
Common Stock (or, in certain circumstances, cash, preferred stock or other
securities) having a value equal to two times the exercise price of the Right.
Following the occurrence of any of the events described above, all Rights that
are, or (as specified in the Plan) were, beneficially owned by any Acquiring
Person, will be immediately null and void.
In the event that, at any time following the Distribution Date, (i) the
Company engages in a merger or other business combination transaction in which
the Company is not the surviving corporation, (ii) the Company engages in a
merger or other business combination transaction with another person in which
the Company is the surviving corporation, but in which its Common Stock is
changed or exchanged, or (iii) 50% or more of the Company's assets or earning
power (on a consolidated basis) is sold or transferred, each holder of a Right
shall thereafter have the right to receive, upon the exercise thereof at the
then current exercise price of the Right, common stock of the acquiring company
having a value equal to two times the exercise price of the Right.
The Rights may be redeemed in whole, but not in part, at a price of $.01 per
Right by the Board of Directors at any time prior to ten days after the Stock
Acquisition Date. Until a Right is exercised, the holder will have no rights as
a stockholder of the Company (beyond those as an existing stockholder),
including the right to vote or to receive dividends.
SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW
The Company is subject to the provisions of Section 203 of the Delaware
General Corporation Law. This statute generally prohibits, under certain
circumstances, a Delaware corporation whose stock is publicly traded, from
engaging in a "business combination" with an "interested stockholder" for a
period of three years after the date of the transaction in which the person
became an interested stockholder, unless (i) a corporation has elected in its
certificate of incorporation or bylaws not to be governed by this Delaware law
(the Company has not made such an election); (ii) prior to the time the
stockholder became an interested stockholder, the board of directors approved
either the business combination or the transaction which resulted in the person
becoming an interested stockholder, (iii) the stockholder owned at least 85% of
the outstanding voting stock of the corporation (excluding share held by
directors who were also officers or held in certain employee stock plans) upon
consummation of the transaction which resulted in the stockholder becoming an
interested stockholder or (iv) the business combination was approved by the
board of directors and by two-thirds of the outstanding voting stock of the
corporation (excluding shares held by the interested stockholder). An
"interested stockholder" is a person who, together with affiliates and
associates, owns (or any time within the prior three years did own) 15% or more
of the corporation's outstanding voting stock. The term "business combination"
is defined generally to include mergers, consolidations, stock sales,
asset-based transactions, and other transactions resulting in a financial
benefit to the interested stockholder.
6
TRANSFER AGENT AND REGISTRAR
Chase Mellon Shareholder Services L.L.C. has been appointed as the transfer
agent and registrar for the Company's Common Stock.
LEGAL OPINIONS
The validity of the Common Stock offered hereby will be passed upon for the
Company and the Selling Stockholders by Harry H. Kahn, Esq., Vice President,
General Counsel and Secretary of the Company.
EXPERTS
The consolidated financial statements and the related financial statement
schedule II incorporated in this prospectus by reference from the Company's
Annual Report on Form 10-K for the year ended October 31, 1996 have been audited
by KPMG Peat Marwick LLP, independent auditors, as stated in their report, which
is incorporated herein by reference, and have been so incorporated in reliance
upon the report of such firm given upon their authority as experts in accounting
and auditing.
7
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NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS IN CONNECTION WITH
THE OFFER MADE BY THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL UNDER ANY CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. THIS PROSPECTUS DOES
NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY JURISDICTION IN WHICH
THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO
ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
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TABLE OF CONTENTS
PAGE
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Available Information.......................... 2
Documents Incorporated by Reference............ 2
The Company.................................... 3
Selling Stockholders........................... 3
Plan of Distribution........................... 3
Description of Capital Stock................... 4
Legal Opinions................................. 7
Experts........................................ 7
39,158 SHARES
ABM INDUSTRIES INCORPORATED
COMMON STOCK
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PROSPECTUS
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The table sets forth the estimated expenses in connection with the issuance
and distribution of the Common Stock:
SEC registration fee.............................................. $ 225
Accountants' fees and expenses.................................... 2,000
Legal fees and expenses........................................... 10,000
Blue Sky qualification fees and expenses.......................... 0
Miscellaneous..................................................... 2,775
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Total......................................................... $ 15,000
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ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article Fourteenth of the Registrant's Certificate of Incorporation provides
that directors of the Registrant shall not be personally liable to the
Registrant or its stockholders for monetary damages for breach of fiduciary duty
as a director, except for any matter in respect of which such director shall be
liable under Section 174 of the Delaware General Corporation Law or be
personally liable by reason that, in addition to any and all other requirements
for such liability, such director (i) shall have breached his duty of loyalty,
(ii) shall not have acted in good faith, (iii) shall have acted or failed to act
in a manner involving intentional misconduct or a knowing violation of law or
(iv) shall have derived an improper personal benefit. Article VII of the
Registrant's By-laws provides for additional indemnification of officers,
directors and agents of the Registrant generally for costs and expenses
associated with defending suits and proceedings, other than suits or proceeding
by or in the right of the Registrant. Section 145 of the Delaware General
Corporation Law makes provision for such indemnification in terms sufficiently
broad to cover officers and directors under certain circumstances for
liabilities arising under the Securities Act of 1933.
The Company has entered into indemnification agreements with each director
which provide indemnification under certain circumstances for acts and omissions
which may not be covered by any directors' and officers' liability insurance.
The Registration Rights Agreement provides for the indemnification of
officers and directors of the Company under certain circumstances.
ITEM 16. EXHIBITS
1.1 Registration Rights Agreement among Registrant, Michael F. Sica, Michael
A. Sica, Ralph Sica, Diane Sica De Maio, Ann Sica De Nicola and Gloria
Sica, dated November 20, 1996.
4.1 Specimen Common Stock Certificate.
4.2 Certificate of Incorporation, as amended.
4.3 By-Laws, as amended (incorporated by reference to Exhibit 3.2(a) to the
Company's annual report on Form 10-K, filed on January 28, 1997).
5.1 Opinion and Consent of Harry H. Kahn, Esq.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Harry H. Kahn, Esq. (included in Exhibit 5.1 hereto).
24.1 Power of Attorney (included on page II-4 of this Registration Statement).
II-1
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this 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.
(2) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(3) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 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 Securities and Exchange Commission
such indemnification is against public policy as expressed in the 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 whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(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 this registration statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) immediately above
do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
II-2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 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 this 27th day
of January, 1997.
ABM INDUSTRIES INCORPORATED
By: /s/ SYDNEY J. ROSENBERG
-----------------------------------------
Sydney J. Rosenberg
CHAIRMAN OF THE BOARD AND
DIRECTOR
II-3
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Sydney J. Rosenberg and William W.
Steele, and each of them, his true and lawful attorneys-in-fact and agents, each
acting alone, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, each acting alone, full power and authority to do
and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on January 27, 1997.
/s/ DAVID H. HEBBLE
/s/ SYDNEY J. ROSENBERG ------------------------------
- ------------------------------ David H. Hebble
Sydney J. Rosenberg Corporate Vice President and
Chairman of the Board and Chief Financial Officer
Director (Principal Financial Officer)
/s/ WILLIAM W. STEELE /s/ HUSSAIN A. KHAN
- ------------------------------
------------------------------
William W. Steele, President Hussain A. Khan, Corporate
Chief Executive Officer and Controller
Director (Principal Accounting Officer)
/s/ JOHN F. EGAN
/s/ MARYELLEN B. CATTANI ------------------------------
- ------------------------------
John F. Egan
Maryellen B. Cattani, Director Corporate Vice President and
Director
/s/ CHARLES T. HORNGREN
- ------------------------------
------------------------------
Luke S. Helms, Director Charles T. Horngren, Director
/s/ MARTINN H. MANDLES
/s/ HENRY L. KOTKINS, JR. ------------------------------
- ------------------------------
Martinn H. Mandles
Henry L. Kotkins, Jr., Executive Vice President and
Director Director
/s/ THEODORE ROSENBERG
- ------------------------------
Theodore Rosenberg, Chairman /s/ WILLIAM E. WALSH
of the ------------------------------
Executive Committee and William E. Walsh, Director
Director
II-4
EXHIBIT 1.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into
as of November 20, 1996, by and among ABM Industries Incorporated, a Delaware
corporation (the "Company"), and the persons whose signatures are on the
signature page hereof (the "Securityholders").
WHEREAS, the Company and the Securityholders are parties to the
Transaction Agreement, dated as of an even date herewith (the "Transaction
Agreement"), pursuant to which the Company will exchange (i) 348,323 shares of
its Common Stock on the date hereof, and (ii) up to a maximum of 348,323
additional shares of its Common Stock over a five-year period following the date
hereof pursuant to the terms of the Earnout (as defined in the Transaction
Agreement, which term includes shares of the Company's Common Stock, if any,
issued pursuant to any equitable adjustment as set forth therein), for
substantially all of the assets of each of SICA Electrical and Maintenance
Corp., a New York corporation, and Ozone Lighting Distributors, Inc., a New York
corporation, all of which corporations' issued and outstanding capital stock is
collectively owned by the Securityholders (the shares to be exchanged pursuant
to clauses (i) and (ii) above are referred to herein collectively as the
"Shares").
WHEREAS, the Company wishes to grant certain registration rights to
the Securityholders with respect to the Shares.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto hereby agree as
follows:
(1) CERTAIN DEFINED TERMS. For purposes of this Agreement:
(a) The terms "register," "registered," and "registration" refer
to a registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement;
(b) The term "Registrable Securities" means the Shares issued on
or after the date hereof to any Securityholder pursuant to the Transaction
Agreement. As to any particular Registrable Securities, such securities shall
cease to be Registrable Securities when (A) such securities shall have been
registered under the Securities Act, the registration statement with respect to
the sale of such securities shall have become effective under the Securities Act
and such securities shall have been disposed of pursuant to such effective
registration statement, (B) such securities shall have been sold or distributed
or are eligible for sale pursuant to Rule 144 (or any similar provision then in
force) under the Securities Act, or (C) such securities shall cease to be
outstanding;
(c) The term "Holder" means a Securityholder;
(d) The term "Securities Act" means the Securities Act of 1933,
as amended, and any successor statute;
(e) The term "Exchange Act" means the Securities Exchange Act of
1934, as amended, and any successor statute;
(f) The term "SEC" means the Securities and Exchange Commission;
and
(g) The term "Person" means a corporation, an association, a
limited liability company, a partnership, an organization, a business, an
individual, a government or a subdivision thereof, or a governmental agency or
authority.
(2) DEMAND REGISTRATION.
(a) Except as set forth below, if any Holder or Holders who hold
in the aggregate a majority of the Shares issued and held by the Securityholders
as of the date of such request, shall request that the Company file a
registration statement with respect to the Registrable Securities, the
reasonably anticipated aggregate price to the public of which, net of
underwriting discounts and commissions, would exceed $100,000, the Company shall
(i) within 30 days of receipt of such request, file with the SEC a registration
statement covering such Registrable Securities, and (ii) use its commercially
reasonable best efforts to cause such registration statement to be declared
effective by the SEC and to be qualified under applicable state blue sky or
other securities laws; PROVIDED, HOWEVER, that the Company shall not be required
to effect more than one registration pursuant to this Section (2) in any 12
month period. The Company shall be required use its commercially reasonable
best efforts to keep such registration statement effective for a period of at
least two months (notwithstanding Section (20) hereof), after which time, the
Company shall have the right to de-register any securities so registered.
(b) Notwithstanding the foregoing, the Company shall not be
obligated to take any action pursuant to this Section (2):
(i) in any particular jurisdiction in which the Company
would be required to execute a general consent to service of process in
effecting such registration unless the Company is already subject to
service in such jurisdiction;
(ii) if the Company, within 10 days of the receipt of the
request of the Holders, gives notice of its BONA FIDE intention to effect
the filing of a registration statement with the Commission within 90 days
of receipt of such request (other than a registration statement relating to
a Rule 145 transaction, an offering solely to employees or any other
registration statement which is not appropriate for the registration of
Registrable Securities) PROVIDED THAT the Company files such registration
statement within 90 days of receipt of such request;
2
(iii) during the period starting with the date 60 days prior
to the Company's estimated date of filing of, and ending on the date six
months immediately following the effective date of, any registration
statement pertaining to securities of the Company for the Company's account
(other than a registration of securities in a Rule 145 transaction or with
respect to an employee benefit plan); PROVIDED THAT the Company is actively
applying in good faith all reasonable efforts to cause such registration
statement to become effective;
(iv) if the Company shall furnish to such Holders a
certificate signed by the President of the Company (A) stating that in the
good faith judgment of the Board of Directors it would be seriously
detrimental to the Company or its stockholders for a registration statement
to be filed at such time and (B) setting forth the factors underlying such
determination, then the Company's obligation to register under this Section
(2) shall be deferred for a period not to exceed 180 days from the date of
receipt of such written request from the Holders; or
(v) after the Company has effected seven registrations
pursuant to this Section (2) and each such registration shall have been
declared or ordered effective by the SEC.
(3) PIGGYBACK REGISTRATION. If the Company proposes to register any
of its Common Stock under the Securities Act in connection with the public
offering of such Common Stock solely for cash for its own account or for the
account of one or more securityholders exercising their respective registration
rights (other than a registration relating solely to the sale of securities to
participants in a Company stock plan (e.g., a registration of securities on Form
S-8), or a registration on any form which does not include substantially the
same information as would be required to be included in a registration statement
covering the sale of the Registrable Securities (e.g., a registration of
securities on Form S-4), the Company shall, at such time, promptly give each
Holder written notice of such registration. Upon the written request of each
Holder given within 20 days after mailing of such notice by the Company, the
Company shall, subject to the provisions of this Agreement (including, without
limitation, Sections (4) and (5) hereof), cause to be registered under the
Securities Act all of the Registrable Securities that each such Holder has
requested to be registered.
(4) UNDERWRITING REQUIREMENTS IN PIGGYBACK REGISTRATIONS. In
connection with any offering involving an underwriting covered by Section (3)
hereof, the Company shall not be required under Section (3) hereof to include
any of the Holders' Registrable Securities in such underwriting unless such
Holders accept the terms of the underwriting agreement between the Company
and the underwriters selected by it (or by other Persons entitled to select
the underwriters), and then only in such quantity as the underwriters
determine in their sole discretion will not jeopardize the success of the
offering by the Company. If the total amount of securities (including
Registrable Securities) requested by Holders and other securityholders to be
included in such offering exceeds the amount of securities sold other than by
the Company that the underwriters determine in their sole discretion is
compatible with the success of the offering, then the Company shall be
required to include in the offering only that number of such securities
(including Registrable Securities) which the underwriters determine in their
sole
3
discretion will not jeopardize the success of the offering (the securities
requested by the Holder or Holders pursuant hereto to be sold in such
offering shall be reduced prior to any reduction in the securities requested
to be sold by the Company).
(5) ALLOCATION OF SHARES IN PIGGYBACK REGISTRATION. In the event
that the underwriter's representative limits the number of shares to be included
by selling stockholders in a registration pursuant to Section (4) hereof, the
number of shares to be included in such registration shall be allocated in the
following manner: The number of shares that may be included in the registration
and underwriting by selling stockholders shall be allocated among all Holders
thereof and other holders of securities other than Registrable Securities
requesting to include shares in such registration, in proportion, as nearly as
practicable, to the respective percentages of securities (including Registrable
Securities) which such Holders and such other holders own or in such other
proportions as shall be mutually agreed to by such Holders and such other
holders. No Registrable Securities excluded from the underwriting by reason of
Section (4) hereof and this Section (5) shall be included in the Registration
Statement.
(6) REGISTRATION PROCEDURES. In the case of each registration
effected by the Company pursuant to this Agreement, the Company will keep each
Holder advised in writing as to the initiation of each registration and as to
the completion thereof. Whenever Holders have requested that any Registrable
Securities be registered pursuant to Sections (2) or (3) hereof, the Company
will at its expense and as expeditiously as possible:
(a) Cause the registration statement and related prospectus to
be supplemented by any required prospectus supplement, and as so supplemented,
to be filed pursuant to Rule 424 under the Securities Act, and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement or supplement to such prospectus;
(b) Furnish such number of prospectuses and other documents
incident thereto, including any amendment of or supplement to the prospectus as
a Holder from time to time may reasonably request;
(c) Notify each Holder of Registered Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and at the request of any such Holder, prepare and furnish to such
Holder a reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such shares, such prospectus shall not include an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances then existing;
4
(d) Cause all such Registered Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed or, if not then listed, cause such Registered Securities to be included
in a national automated quotation system;
(e) Provide a transfer agent and registrar for all Registered
Securities and a CUSIP number for all such Registered Securities, in each case
not later than the effective date of such registration;
(f) Make available for inspection during regular business hours
by any Holder of Registrable Securities covered by such registration statement,
any underwriter participating in any disposition pursuant to such registration
statement, and any attorney, accountant or other agent retained by any such
Holder or underwriter (collectively, the "Inspectors"), all financial and other
records, pertinent corporate documents and properties of the Company
(collectively the "Records") as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause the Company's officers,
directors, employees and independent accountants to supply all information
reasonably requested by such Holder, underwriter, attorney or accountant in
connection with such registration statement. Records which the Company
determines, in good faith, to be confidential and which it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors unless
(A) the disclosure of such Records is necessary to avoid or correct any
misstatement or omission in the registration statement, (B) the release of such
Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, or (C) the disclosure of such Records is required by any
governmental regulatory body with jurisdiction over any seller of Registrable
Securities. Such Holder, upon learning, that disclosure of such Records is
sought in a court of competent jurisdiction, shall notify the Company and allow
the Company, at its expense, to undertake appropriate action to prevent
disclosure of the Records deemed confidential;
(g) Cooperate with the Holders of Registered Securities covered
by such registration statement and the managing underwriter(s), if any, to
facilitate the timely preparation and delivery of certificates representing the
Registered Securities to be sold, without any restrictive legends, in such
denominations and registered in such names as the managing underwriter(s) may
request at least two business days prior to any sale thereof to the
underwriters, if applicable;
(h) Make available to its security holders, as soon as
reasonably practicable, an earnings statement covering the period of at least
twelve months, but not more than eighteen months, beginning with the first month
after the effective date of the Registration Statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act; and
(i) Use its commercially reasonable best efforts to cause such
Registrable Securities covered by such registration statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary to enable the Securityholders to consummate the disposition of such
Registrable Securities.
5
(7) RULE 144 REPORTING. With a view to making available to the
Holders the benefits of certain rules and regulations of the SEC which may
permit a Holder to sell securities of the Company to the public without
registration, the Company agrees to:
(a) Make and keep public information available as those terms
are understood and defined in Rule 144 under the Securities Act;
(b) Use its commercially reasonable best efforts to file with
the Commission in a timely manner all reports and other documents required of
the Company under the Securities Act and the Exchange Act; and
(c) So long as a Holder owns any Registrable Securities, furnish
to such Holder forthwith upon request a written statement by the Company as to
its compliance with the reporting requirements of Rule 144, the Securities Act
and the Exchange Act, a copy of the most recent annual or quarterly report of
the Company, and such other reports and documents so filed as a Holder may
reasonably request in availing itself of any rule or regulation of the SEC
allowing a Holder to sell any such securities without registration.
(8) FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities.
(9) EXPENSES OF REGISTRATION. Except as set forth below, the Company
shall bear and pay all expenses incurred in connection with any registration,
filing, listing and qualification of Registrable Securities effected pursuant to
Sections (2) and (3) hereof, including, without limitation, all registration,
filing, listing and qualification fees, printers' and accounting fees relating
or apportionable thereto, costs of appraisals and other reports, the fees and
disbursements of counsel for the Company and the reasonable fees and
disbursements of one counsel for the selling Holders selected by them, but
excluding underwriting discounts and commissions relating to Registrable
Securities.
Notwithstanding the foregoing, if one or more Holders require the
Company to include shares of Registrable Securities in a registration statement
which becomes effective and 50% or more of such shares are not sold within 60
days of effectiveness, such Holder or Holders shall bear the SEC registration
fee attributable to such shares if such Holder or Holders require the Company to
re-register such shares in a subsequent year; PROVIDED THAT the Company shall
not have caused any delay in the registration process which resulted in the
failure to sell such shares.
(10) NO DELAY OF REGISTRATION. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any registration
of the Company as the result of any controversy that might arise with respect to
the interpretation or implementation of this Agreement.
6
(11) INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under this Agreement:
(a) To the extent permitted by law, the Company shall indemnify
and hold harmless each Holder, any underwriter (as defined in the Securities
Act) for such Holder and each Person, if any, who controls such Holder or
underwriter within the meaning of the Securities Act or the Exchange Act,
against any losses, claims, damages, or liabilities (joint or several) to which
they may become subject under the Securities Act, or the Exchange Act or other
federal or state law, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereof) arise out of or are based upon any of the
following statements, omissions, or violations (collectively a "Violation"):
(i) any untrue statement or alleged untrue statement of a material fact
contained in such registration statement, including any preliminary prospectus
or final prospectus contained therein or any amendments or supplements thereto,
(ii) the omission or alleged omission to state therein a material fact required
to be stated therein, or necessary to make the statements therein not
misleading, or (iii) any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any state securities law or any rule or
regulation promulgated under the Securities Act, the Exchange Act or any state
securities law; and, subject to the provisions of subsection (10)(c) below, the
Company shall pay to each such Holder, underwriter or controlling Person, as
incurred, any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability, or
action; PROVIDED, HOWEVER, that the indemnity agreement contained in this
subsection (10)(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability, or action if such settlement is effected without
the consent of the Company (which consent shall not be unreasonably withheld),
nor shall the Company be liable in any such case for any such loss, claim,
damage, liability, or action to the extent that it arises out of or is based
upon a Violation which occurs (A) in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by any such Holder, underwriter, or controlling Person or (B) as a
result of the failure of any Holder, underwriter, or controlling Person to
deliver a prospectus in connection with the offer and sale of Registrable
Securities when legally required to do so.
(b) To the extent permitted by law, each selling Holder shall
jointly and severally indemnify and hold harmless the Company, each of its
directors, each of its officers who has signed the registration statement,
each Person, if any, who controls the Company within the meaning of the
Securities Act, any underwriter, and any controlling Person of any such
underwriter, against any losses, claims, damages, or liabilities (joint or
several) to which any of the foregoing Persons may become subject under the
Securities Act, or the Exchange Act or other federal or state law, insofar as
such losses, claims, damages, or liabilities (or actions in respect thereto)
arise out of or are based upon any Violation, in each case to the extent (and
only to the extent) that such Violation occurs in reliance upon and in
conformity with written information furnished by such Holder expressly for
use in connection with such registration; and, subject to the provisions of
subsection (10)(c) below, each such Holder shall pay, any legal or other
expenses reasonably incurred by any Person intended to be indemnified
pursuant to this subsection (10)(b), in connection with investigating or
defending any such loss, claim, damage, liability, or action; PROVIDED,
HOWEVER, that the indemnity agreement contained in this subsection (10)(b)
shall not apply to amounts paid in settlement of any such loss, claim,
7
damage, liability, or action if such settlement is effected without the
consent of the Holder, which consent shall not be unreasonably withheld;
PROVIDED, FURTHER, THAT, in no event shall any indemnity under this
subsection (10)(b) exceed the gross proceeds from the offering received by
such Holder.
(c) Promptly after receipt by an indemnified party under this
Section (10) of notice of the commencement of any action (including any
governmental action), such indemnified party shall, if a claim in respect
thereof is to be made against any indemnifying party under this Section (10),
deliver to the indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; PROVIDED, HOWEVER, that an indemnified party
(together, in the case of the Holders with all other Holders and control Persons
who are indemnified parties and, in the case of an underwriter with all other
underwriters and control Persons who are indemnified parties) shall have the
right to retain one separate counsel, with the fees and expenses to be paid by
the indemnifying party, if representation of such indemnified party or parties
by the counsel retained by the indemnifying party would be inappropriate due to
actual or potential differing interests between such indemnified party or
parties and the indemnifying party. The failure to deliver written notice to
the indemnifying party within a reasonable time of the commencement of any such
action shall relieve such indemnifying party of any liability to the indemnified
party under this Section (10) to the extent such failure shall be prejudicial to
its ability to defend such action, but the omission so to deliver written notice
to the indemnifying party shall not relieve it of any liability that it may have
to any indemnified party otherwise than under this Section (10).
(d) The obligations of the Company and Holders under this
Section (10) shall survive the completion of any offering of Registrable
Securities in a registration statement under this Agreement, and otherwise.
(12) NO ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register Registrable Securities pursuant to this Agreement may not be
assigned or otherwise transferred without the prior written consent of the
Company. Any such attempted assignment or other transfer without such consent
shall be void.
(13) "MARKET STAND-OFF" AGREEMENT. During the period of duration
specified by the Company and an underwriter of Common Stock or other securities
of the Company, but not to exceed 180 days, following the effective date of a
registration statement of the Company for its own account filed under the
Securities Act, any Holder which is an executive officer, director or holder of
5% or more of the outstanding stock of the Company shall not, to the extent
requested by the Company and such underwriter, directly or indirectly, sell,
offer to sell, contract to sell (including, without limitation, any short sale),
grant any option to purchase or otherwise transfer or dispose of (other than to
donees who agree to be similarly bound) the Shares other than Shares registered
thereunder (the "Unregistered Shares"); PROVIDED THAT the executive officers,
directors and 5% stockholders of the Company enter into agreements on
substantially similar terms.
8
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions (with the Company's stock transfer agent or
otherwise) until the end of such period with respect to any Unregistered Shares
of any Holder which is an executive officer, director or holder of 5% or more of
the outstanding stock of the Company.
(14) AMENDMENT OF REGISTRATION RIGHTS. Any provision of this
Agreement may be amended and the observance thereof may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Holders of
a majority of the Registrable Securities then outstanding. Any amendment or
waiver effected in accordance with this Section (13) shall be binding upon each
Holder of any Registrable Securities then outstanding, each future holder of all
such Registrable Securities, and the Company.
(15) NOTICES. All notices, requests, demands, or other communications
which are required or may be given pursuant to the terms of this Agreement shall
be in writing and shall be deemed to have been duly given upon receipt, if
delivered by hand, by telecopy or telegram, or three days after deposit in the
U.S. mail, postage prepaid, addressed to the Securityholders at the addresses
listed on the signature page(s) hereto and to the Company as follows:
Company: ABM Industries Incorporated
50 Fremont Street, 26th Floor
San Francisco, CA 94105
Attn.: General Counsel
Facsimile: (415) 904-7490
Copy to: Orrick, Herrington & Sutcliffe LLP
Old Federal Reserve Bank Building
400 Sansome Street
San Francisco, CA 94111-3143
Attn.: Richard V. Smith, Esq.
Facsimile: (415) 773-5759
or to such other address as any party may designate for itself by notice given
as provided in this Agreement.
(16) BINDING AGREEMENT. This Agreement shall inure to the benefit of
and be binding upon and enforceable against the parties and their successors and
assigns, including administrators, executors, representatives, heirs, legatees,
and devisees of Securityholders and any pledgee holding Registrable Securities
as collateral.
(17) GOVERNING LAW. This Agreement shall be governed by and
construed, interpreted and enforced in accordance with the laws of the State of
New York (without regard to its choice of law provisions).
9
(18) ATTORNEYS' FEES. In the event of any legal action or proceeding
to enforce or interpret the provisions hereof, the prevailing party shall be
entitled to reasonable attorneys' fees, whether or not the proceeding results in
a final judgment.
(19) EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
(20) EXPIRATION OF REGISTRATION RIGHTS. Notwithstanding anything else
herein to the contrary, the Company shall have no further obligations to
register shares of any Holders under this Agreement (including, without
limitation, any obligations under Sections (2) or (3) hereof) upon the earlier
to occur of (i) the date the seventh registration effected by the Company
pursuant to Section (2) hereof shall have been declared or ordered effective by
the SEC, or (ii) 60 days after the delivery by the Company of the last Share
pursuant to the Earnout in the Fifth Annual Earnout Period (as defined in the
Transaction Agreement), UNLESS the Company shall have delayed any registration
pursuant to any clause under subsection (2)(b) hereof, in which case the
expiration of this Agreement pursuant to this clause (ii) shall be delayed for
30 days plus the number of days equal to the aggregate number of days the
Company shall have so delayed one or more registrations. Notwithstanding this
Section (20), the Company shall keep any registration statement filed pursuant
to Section (2) hereof effective for at least two months as set forth in
subsection (2)(a) hereof.
(21) COUNTERPARTS. This Agreement shall be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one instrument.
[Signature Page Next]
10
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
ABM INDUSTRIES INCORPORATED
By: /s/ J. Benton
----------------------------
Name: J. E. Benton
Title: Senior Vice President
SECURITYHOLDERS:
/s/ Michael F. Sica
----------------------------
Michael F. Sica
Address:
/s/ Michael A. Sica
----------------------------
Michael A. Sica
Address:
/s/ Ralph Sica
----------------------------
Ralph Sica
Address:
/s/ Diane Sica Demaio
----------------------------
Diane Sica DeMaio
Address:
/s/ Ann Sica DeNicola
----------------------------
Ann Sica DeNicola
Address:
/s/ Gloria Sica
----------------------------
Gloria Sica
Address:
[GRAPHIC] ABM INDUSTRIES
INCORPORATED
NUMBER SHARES
NYS
COMMON STOCK SEE REVERSE FOR
- ------------ CERTAIN DEFINITIONS
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THIS CERTIFICATE IS TRANSFERABLE IN NEW YORK OR SAN FRANCISCO
THIS CERTIFIES THAT CUSIP 000957 100
[SPECIMEN]
IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK $.01 PER SHARE PAR
VALUE OF
ABM INDUSTRIES INCORPORATED, TRANSFERABLE IN PERSON OR BY DULY AUTHORIZED
ATTORNEY UPON SURRENDER OF THIS CERTIFICATE PROPERLY ENDORSED.
THIS CERTIFICATE IS NOT VALID UNLESS COUNTERSIGNED BY THE TRANSFER AGENT AND
REGISTERED BY THE REGISTRAR.
WITNESS THE FACSIMILE SIGNATURES OF ITS DULY AUTHORIZED OFFICERS.
CERTIFICATE OF STOCK
DATED:
COUNTERSIGNED AND REGISTERED:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
TRANSFER AGENT AND REGISTRAR
/s/ Harry H. Kahn /s/ William W. Steele /s/ Sydney J. Rosenberg
BY SECRETARY PRESIDENT CHAIRMAN OF THE BOARD
AUTHORIZED SIGNATURE
THIS CERTIFICATE ALSO EVIDENCES AND ENTITLES THE HOLDER HEREOF TO CERTAIN
RIGHTS AS SET FORTH IN THE RIGHTS AGREEMENT BETWEEN ABM INDUSTRIES
INCORPORATED AND ITS TRANSFER AGENT, AS RIGHTS AGENT, DATED AS OF APRIL 11,
1988 (THE "RIGHTS AGREEMENT"), THE TERMS OF WHICH ARE HEREBY INCORPORATED
HEREIN BY REFERENCE AND A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF
ABM INDUSTRIES INCORPORATED. UNDER CERTAIN CIRCUMSTANCES, AS SET FORTH IN THE
RIGHTS AGREEMENT, SUCH RIGHTS WILL BE EVIDENCED BY SEPARATE CERTIFICATES AND
WILL NO LONGER BE EVIDENCED BY THIS CERTIFICATE. THE RIGHTS AGENT WILL MAIL
TO THE HOLDER OF THIS CERTIFICATE A COPY OF THE RIGHTS AGREEMENT WITHOUT
CHARGE PROMPTLY AFTER RECEIPT OF A WRITTEN REQUEST THEREFOR. UNDER CERTAIN
CIRCUMSTANCES SET FORTH IN THE RIGHTS AGREEMENT, RIGHTS ISSUED TO, OR HELD
BY, ANY PERSON WHO IS, WAS OR BECOMES AN ACQUIRING PERSON OR ANY AFFILIATE OR
ASSOCIATES THEREOF (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) AND
ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID.
The following abbreviations, when used in the inscription on
the face of this certificate, shall be construed as though they
were written out in full according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT MIN ACT -- Custodian
----- ------
TEN ENT -- as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to Minors
JT TEN -- as joint tenants with right of
survivorship and not as tenants Act
in common ----------------------
(State)
Additional abbreviations may also be used though not in the above list.
ABM INDUSTRIES INCORPORATED
This Corporation will furnish without charge to each stockholder who so
requests, a copy of the designations, powers, preferences and relative,
participating, optional or other special rights of each class of stock or
series thereof and the qualifications, limitations, or restrictions of such
preferences and/or rights.
FOR VALUE RECEIVED, HEREBY SELL, ASSIGN AND TRANSFER UNTO
---------
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------
- -----------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE OF ASSIGNEE.)
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
SHARES
OF THE CAPITAL STOCK REPRESENTED BY THE WITHIN CERTIFICATE, AND DO
HEREBY IRREVOCABLY CONSTITUTE AND APPOINT
- -----------------------------------------------------------------------------
ATTORNEY
TO TRANSFER THE SAID STOCK ON THE BOOKS OF THE WITHIN NAMED
CORPORATION WITH FULL POWER OF SUBSTITUTION IN THE PREMISES.
DATED
-----------------------------
--------------------------------------------------
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND
WITH THE NAME AS WRITTEN UPON THE FACE OF THE
CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
Signature(s) Guaranteed:
By
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS
AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP
IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM),
PURSUANT TO S.E.C. RULE 17Ad-15.
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
ABM INDUSTRIES INCORPORATED
ABM INDUSTRIES INCORPORATED, a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation at a meeting
duly held, adopted a resolution proposing and declaring advisable the following
amendment to the Certificate of Incorporation of said corporation and directing
that the proposed amendment be considered at the next annual meeting of
stockholders. The resolution setting forth the proposed amendment is as
follows:
NOW, THEREFORE, BE IT RESOLVED, that subject to stockholder approval,
paragraph (a) of Article Fifth of the Company's Certificate of Incorporation
be, and it hereby is, amended to read as follows:
Fifth: (a) the corporation is authorized to issue two classes of
shares to be designated, respectively, "Preferred Stock" and "Common Stock".
The number of shares of Preferred Stock authorized to be issued is Five Hundred
Thousand (500,000) and the number of shares of Common Stock authorized to be
issued is Twenty Eight Million (28,000,000). The stock, whether Preferred Stock
or Common Stock, shall have a par value of $0.01 per share.
SECOND: That the stockholders of said corporation, at the annual
meeting of stockholders which was duly held on March 19, 1996, adopted such
amendment by casting the necessary number of shares as required by statute in
favor of such amendment to the Certificate of Incorporation.
THIRD: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Section 242 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, ABM INDUSTRIES INCORPORATED has caused this
certificate to be signed by William Steele, its President, and attested by
Harry H. Kahn, its Secretary this 4th day of June, 1996.
ABM INDUSTRIES INCORPORATED
By: /s/ William W. Steele
-------------------------------
William W. Steele, President
ATTEST:
By: /s/ Harry H. Kahn
--------------------------
Harry H. Kahn, Secretary
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
AMERICAN BUILDING MAINTENANCE INDUSTRIES, INC.
AMERICAN BUILDING MAINTENANCE INDUSTRIES, INC., a corporation
organized and existing under and by virtue of the General Corporation law of the
State of Delaware, DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, at a meeting
duly held, adopted a resolution proposing and declaring advisable the following
amendment to the Certificate of Incorporation of said corporation and directing
that the proposed amendment be considered at the next annual meeting of the
stockholders. The resolution setting forth the proposed amendment is as
follows:
RESOLVED, that the Certificate of Incorporation of AMERICAN BUILDING
MAINTENANCE INDUSTRIES, INC. be amended by deleting Article First and replacing
it in its entirety with a new Article First as follows:
First: The name of this corporation is: ABM Industries
Incorporated.
SECOND: That the stockholders of said corporation, at the annual
meeting of stockholders which was duly held on March 15, 1994, adopted such
amendment by casting the necessary number of shares as required by statute in
favor of such amendment to the Certificate of Incorporation.
THIRD: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Section 242 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, AMERICAN BUILDING MAINTENANCE INDUSTRIES, INC. has
caused this certificate to be signed by William Steele, its President, and
attested by Harry H. Kahn, its Secretary, this 16th day of March, 1994.
AMERICAN BUILDING MAINTENANCE
INDUSTRIES, INC.
By /s/ William W. Steele
------------------------------
William Steele
President
ATTEST:
By /s/ Harry H. Kahn
---------------------------------------
Harry H. Kahn
Secretary
CERTIFICATE OF DESIGNATIONS, PREFERENCES,
RELATIVE RIGHTS, QUALIFICATIONS, LIMITATIONS
AND RESTRICTIONS
OF
SERIES B 8% SENIOR REDEEMABLE CUMULATIVE
PREFERRED STOCK
OF
AMERICAN BUILDING MAINTENANCE INDUSTRIES, INC.
---------------------------
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
---------------------------
American Building Maintenance Industries, Inc., a Delaware corporation
(the "Corporation"), certifies that pursuant to the authority contained in
Article Fifth of its Certificate of Incorporation, as amended (the "Certificate
of Incorporation"), and in accordance with the provisions of Section 151 of the
General Corporation Law of the State of Delaware, the Board of Directors of the
Corporation at a meeting duly called and held on June 23, 1993 adopted the
following resolution which resolution remains in full force and effect on the
date hereof:
RESOLVED, that there is hereby established a series of authorized
preferred stock having a par value of $0.01 per share, which series shall be
designated as "Series B 8% Senior Cumulative Redeemable Preferred Stock" (the
"Series B Preferred Stock"), shall consist of 6,400 shares and shall have the
following voting powers, preferences and relative rights, qualifications,
limitations and restrictions as follows:
1. CERTAIN DEFINITIONS.
Unless the context otherwise requires, the terms defined in this
paragraph 1 shall have, for all purposes of this resolution, the meanings herein
specified (with terms defined in the singular having comparable meanings when
used in the plural).
BUSINESS DAY. The term "Business Day" shall mean a day other than a
Saturday or Sunday or any federal holiday.
COMMON STOCK. The term "Common Stock" shall mean the common stock,
par value $0.01 per share, of the Corporation.
COMMON STOCKS. The term "Common Stocks" shall mean all shares now or
hereafter authorized of any class of common stock of the Corporation, including
the Common Stock, and any other stock of the Corporation, howsoever designated,
authorized after the Initial Issue Date, which has the right (subject always to
prior rights of any class or series of preferred stock) to participate in the
distribution of the assets and earnings of the Corporation without limit as to
per share amount.
DIVIDEND PAYMENT DATE. The term "Dividend Payment Date" shall have
the meaning set forth in subparagraph 2(b) below.
DIVIDEND PERIOD. The term "Dividend Period" shall mean the period
from, and including, the Initial Issue Date to, but not including, the first
Dividend Payment Date and thereafter, each quarterly period from, and including,
the Dividend Payment Date to, but not including the next Dividend Payment Date.
INITIAL ISSUE DATE. The term "Initial Issue Date" shall mean the date
that shares of Series B Preferred Stock are first issued by the Corporation.
JUNIOR STOCKS. The term "Junior Stocks" shall mean the Common Stocks,
the authorized Series A Junior Participating Preferred Stock, $0.01 par value,
of the Corporation and any other series of preferred stock established by the
Board of Directors of the Corporation.
LIQUIDATION PREFERENCE. The term "Liquidation Preference" shall mean
$1,000 per share.
PERSON. The term "Person" shall mean any corporation, association,
partnership, joint venture, organization, individual, trust, estate or other
entity.
RECORD DATE. The term "Record Date" shall mean the date designated by
the Board of Directors of the Corporation at the time a dividend is declared on
the Series B Preferred Stock; provided, however, that such Record Date shall not
be more than thirty (30) days nor less than ten (10) days prior to the
respective Dividend Payment Date or such other date designated by the Board of
Directors for the payment of dividends on the Series B Preferred Stock.
REDEMPTION DATE. The term "Redemption Date" shall have the meaning
set forth in subparagraph 4(a) below.
REDEMPTION NOTICE. The term "Redemption Notice" shall have the
meaning set forth in paragraph 4(b) below.
REDEMPTION PRICE. The term "Redemption Price" shall mean a price per
share equal to the Liquidation Preference, together with accrued and unpaid
dividends thereon to the Redemption Date.
2. DIVIDENDS.
2
(a) The record holders of Series B Preferred Stock shall be entitled
to receive dividends, when and as declared by the Board of Directors of the
Corporation, out of funds legally available for the payment of dividends. Such
dividends shall be payable by the Corporation in cash at the rate of eight
percent (8%) per annum of the Liquidation Preference.
(b) Dividends on shares of Series B Preferred Stock shall accrue and
be cumulative from the date of issuance of such shares. Dividends when and as
declared by the Board of Directors of the Corporation shall be payable quarterly
in arrears on November 1, February 1, May 1 and August 1 of each year (a
"Dividend Payment Date"), commencing on November 1, 1993. If any Dividend
Payment Date occurs on a day that is not a Business Day, any accrued dividends
otherwise payable on such Dividend Payment Date shall be paid on the next
succeeding Business Day. The amount of dividends payable on Series B Preferred
Stock for each full Dividend Period shall be computed by dividing by four (4)
the annual rate per share set forth in subparagraph 2(a) above. Dividends shall
be paid to the holders of record of the Series B Preferred Stock as their names
shall appear on the share register of the Corporation on the Record Date for
such dividend. Dividends payable in any Dividend Period which is less than a
full Dividend Period in length will be computed on the basis of a ninety (90)
day quarterly period and actual days elapsed in such Dividend Period. Dividends
on account of arrears for any past Dividend Periods may be declared and paid at
any time to holders of record on the Record Date therefor. For any Dividend
Period in which dividends are not paid in full on the Dividend Payment Date
first succeeding the end of such Dividend Period, then on such Dividend Payment
Date such accrued and unpaid dividends shall be added (solely for the purpose of
calculating dividends payable on the Series B Preferred Stock) to the
Liquidation Preference of the Series B Preferred Stock effective at the
beginning of the Dividend Period succeeding the Dividend Period as to which such
dividends were not paid and shall thereafter accrue additional dividends in
respect thereof at the rate set forth in this subparagraph 2(b) until such
accrued and unpaid dividends have been paid in full.
(c) So long as any shares of Series B Preferred Stock shall be
outstanding, the Corporation shall not declare, pay or set apart for payment on
any Junior Stocks any dividends whatsoever, whether in cash, property or
otherwise (other than dividends payable in shares of the class or series upon
which such dividends are declared or paid, or payable in shares of Common Stock
with respect to Junior Stocks other than Common Stock, together with cash in
lieu of fractional shares), nor shall the Corporation make any distribution on
any Junior Stocks, nor shall any Junior Stocks be purchased, redeemed or
otherwise acquired by the Corporation or any of its subsidiaries of which it
owns not less than a majority of the outstanding voting power (other than
repurchases in the ordinary course of business pursuant to repurchase provisions
of an employee benefit plan of the corporation provided that all such
repurchases, in the aggregate, do not materially adversely affect the
Corporation's ability to pay dividends in arrears or redeem the Series B
Preferred Stock pursuant to subparagraph 4(b)), nor shall any monies be paid or
made available for a sinking fund for the purchase or redemption of any Junior
Stocks, unless (i) all dividends to which the holders of Series B Preferred
Stock shall have been entitled for all previous Dividend Periods shall have been
paid or declared and a sum of money sufficient for the payment thereof has been
set apart and (ii) all payments to which any holder of Series B Preferred Stock
shall have been entitled pursuant to a redemption of any such shares pursuant to
paragraph 4 hereof shall have been made.
3
(d) Subject to the provisions hereof and applicable law, the Board of
Directors (i) may declare and the Corporation may pay or set apart for payment
dividends on any Junior Stocks, (ii) may make any payment on account of or set
apart payment for a sinking fund or other similar fund or agreement for the
purchase or other acquisition, redemption, retirement or other requirement of,
or with respect to, any Junior Stocks or any warrants, rights, calls or options
exercisable or exchangeable for or convertible into any Junior Stocks, (iii) may
make any distribution in respect to any Junior Stocks or any warrants, rights,
calls or options exercisable or exchangeable for or convertible into any Junior
Stocks, whether directly or indirectly, and whether in cash, obligations or
securities of the Corporation or other property and (iv) may purchase or
otherwise acquire, redeem or retire any Junior Stocks or any warrants, rights,
calls or options exercisable or exchangeable for or convertible into any Junior
Stocks, and the holders of the shares of the Series B Preferred shall not be
entitled to share therein.
(e) In the event that full dividends are not paid or made available
to the holders of all outstanding shares of Series B Preferred Stock and funds
available for payment of dividends shall be insufficient to permit payment in
full to holders of all such stock of the full preferential amounts to which they
are then entitled, then the entire amount available for payment of dividends
shall be distributed ratably among all such holders of Series B Preferred Stock
in proportion to the full amount to which they would otherwise be respectively
entitled.
3. DISTRIBUTIONS UPON LIQUIDATION, DISSOLUTION OR WINDING UP.
(a) In the event of any voluntary or involuntary liquidation,
dissolution or other winding up of the affairs of the Corporation, before any
payment or distribution shall be made to the holders of any Junior Stocks, the
holders of Series B Preferred Stock shall be entitled to be paid out of the
assets of the Corporation in cash the Liquidation Preference per share plus an
amount equal to all dividends accrued and unpaid thereon to the date of such
liquidation or dissolution or such other winding up. Except as provided in this
paragraph, holders of Series B Preferred Stock shall not be entitled to any
other distribution in the event of liquidation, dissolution or winding up of the
affairs of the Corporation.
(b) If upon any such liquidation, dissolution or other winding up of
the affairs of the Corporation the assets of the Corporation shall be
insufficient to permit the payment in full of the Liquidation Preference per
share plus an amount equal to all dividends accrued and unpaid on the Series B
Preferred Stock, then the assets of the Corporation shall be ratably distributed
among the holders of Series B Preferred Stock in proportion to the full amounts
to which they would otherwise be respectively entitled if all amounts thereon
were paid in full.
(c) Neither the consolidation or merger of the Corporation into or
with another corporation or corporations, nor the sale, lease, transfer or
conveyance of all or substantially all of the assets of the Corporation to
another corporation or any other entity shall be deemed a liquidation,
dissolution or winding up of the affairs of the Corporation within the meaning
of this paragraph 3.
4
4. REDEMPTION BY THE CORPORATION
(a) The Series B Preferred Stock may be redeemed, in whole or from
time to time in part, at any time after eight years following the Initial Issue
Date at the option of the Corporation at the Redemption Price. Each date fixed
for redemption pursuant to this subparagraph 4(a) or subparagraph 4(b) below is
called a "Redemption Date".
(b) At any time on or after five years following the Initial Issue
Date, the Corporation shall, to the extent permitted by law and from funds
legally available therefor, redeem any or all of the outstanding shares of
Series B Preferred Stock for the Redemption Price from any holder thereof, not
later than thirty (30) days after receipt of written notice (a "Redemption
Notice") from such holder that such holder desires to redeem the number of
shares of Series B Preferred Stock set forth in such Redemption Notice. Each
Redemption Notice shall be accompanied by the certificate or certificates
representing the shares of Series B Preferred Stock to be redeemed pursuant to
such Redemption Notice, and thereupon the Redemption Price for such shares shall
be payable to the order of the person whose name appears on such certificate or
certificates as the owner thereof, and each surrendered certificate shall be
canceled and retired. All shares of the Series B Preferred Stock being redeemed
will cease to accrue dividends as of the Redemption Date. In the event less
than all of the shares of Series B Preferred Stock held by a holder are redeemed
pursuant to the provisions of this subparagraph 4(b), a new certificate or
certificates shall be issued representing the unredeemed shares PROVIDED THAT,
such holder shall pay any tax which may be payable with respect to the issuance
or delivery of such new certificate and no such issuance or delivery shall be
made unless and until the holder shall have paid to the Corporation the amount
of any and all such taxes or shall have established to the satisfaction of the
Corporation that all such taxes have been paid in full. After the Redemption
Date, holders of Series B Preferred Stock shall no longer be treated as
stockholders of the Corporation with respect to the shares of Series B Preferred
Stock so redeemed. If on a Redemption Date the funds of the Corporation legally
available for such redemption shall be insufficient to redeem all shares
required to be redeemed pursuant to this subparagraph (b) on such Redemption
Date, funds to the maximum extent legally available for such purposes shall be
utilized to redeem the maximum number of outstanding shares of Series B
Preferred Stock delivered to the Corporation with a Redemption Notice on such
date, on a pro rata basis among the holders who have given a Redemption Notice
on such date, based on the number of such shares of Series B Preferred Stock
tendered pursuant to such Redemption Notices. If, because sufficient funds are
not legally available, the Corporation shall fail to redeem all shares required
to be redeemed on a Redemption Date, then the Corporation shall redeem such
shares tendered for redemption (on a pro rata basis among all shares of Series B
Preferred Stock tendered on such Redemption Date, as described in the preceding
sentence) as promptly as practicable after funds are legally available therefor.
No redemptions of any shares of Series B Preferred Stock tendered on a
Redemption Date shall be made until all such shares tendered for redemption on
an earlier Redemption Date shall have been redeemed by the Corporation. All
outstanding shares of Series B Preferred Stock shall continue to accrue
dividends as set forth in subparagraph 2(b) until redeemed by the Corporation.
(c) In case of a redemption pursuant to subparagraph 4(a) of less
than all shares of Series B Preferred Stock at the time outstanding, the shares
to be redeemed shall be
5
selected pro rata, by lot or by any other method as determined by the Board of
Directors of the Corporation to be equitable.
(d) Notice of any redemption pursuant to subparagraph 4(a) shall be
sent by or on behalf of the Corporation not more than sixty (60) days nor less
than thirty (30) days prior to the Redemption Date, by first class mail, postage
prepaid, to all holders of record of the Series B Preferred Stock at their
respective last addresses as they shall appear on the books of the Corporation;
provided, however, that no failure to give such notice or any defect therein or
in the mailing thereof shall affect the validity of the proceedings for the
redemption pursuant to subparagraph 4(a) of any shares of Series B Preferred
Stock, except as to the holder to whom the Corporation has failed to give notice
or except as to the holder to whom notice was defective. In addition to any
information required by law or by the applicable rules of any exchange upon
which Series B Preferred Stock may be listed or admitted to trading, such notice
shall state: (i) that such redemption is a mandatory redemption; (ii) the
Redemption Date; (iii) the Redemption Price; (iv) the number of shares of Series
B Preferred to be redeemed and, if less than all shares held by such holder are
to be redeemed, the number of such shares to be redeemed; (v) the place or
places where certificates for such shares are to be surrendered for payment of
the Redemption Price; and (vi) that dividends on the shares to be redeemed will
cease to accrue on the Redemption Date. Upon the mailing of any such notices of
redemption, the Corporation shall become obligated to redeem at the time of
redemption specified thereon all shares called for redemption.
(e) If notice of a redemption pursuant to subparagraph 4(a) has been
mailed in accordance with subparagraph 4(d) above and provided that on or before
the Redemption Date specified in such notice, all funds necessary for such
redemption shall have been set aside by the Corporation in accordance with
subparagraph 4(f) below, separate and apart from its other funds in trust for
the pro rata benefit of the holders of the shares so called for redemption, so
as to be, and to continue to be available therefor, then, from and after the
Redemption Date, dividends on the shares of the Series B Preferred Stock so
called for redemption shall cease to accrue, and said shares shall no longer be
deemed to be outstanding and shall not have the status of shares of Series B
Preferred Stock, and all rights of the holders thereof as stockholders of the
Corporation (except the right to receive from the Corporation the Redemption
Price) shall cease. Upon surrender, in accordance with said notice, of the
certificates for any shares so redeemed (properly endorsed or assigned for
transfer, if the Corporation shall so require and the notice shall so state),
such shares shall be redeemed by the Corporation at the Redemption Price without
additional interest. In case fewer than all the shares represented by any such
certificate are redeemed, a new certificate or certificates shall be issued
representing the unredeemed shares without cost to the holder thereof except for
any tax which may be payable in respect of any transfer involved in the issuance
or delivery of such new certificate in a name other than that which such shares
of Series B Preferred Stock were registered immediately prior to such
redemption, and no such issuance or delivery shall be made unless and until the
person requesting such issuance or delivery shall have paid to the Corporation
the amount of any and all such taxes or shall have established to the
satisfaction of the Corporation that all such taxes have been paid in full.
(f) Any funds deposited with a bank or trust company for the purpose
of redeeming Series B Preferred Stock shall be irrevocable except that:
6
(i) the Corporation shall be entitled to receive from such bank
or trust company the interest or other earnings, if any, earned on any
funds so deposited in trust, and the holders of any shares redeemed shall
have no claim to such interest or other earnings; and
(ii) any balance of funds so deposited by the Corporation and
unclaimed by the holders of the Series B Preferred Stock entitled thereto
at the expiration of two (2) years from the applicable Redemption Date
shall be repaid, together with any interest or other earnings earned
thereon, to the Corporation, and after any such repayment, the holders of
the shares entitled to the funds so repaid to the Corporation shall look
only to the Corporation for payment without interest or other earnings.
(g) No Series B Preferred Stock may be redeemed except with funds
legally available for the payment of the Redemption Price.
(h) Notwithstanding the foregoing provisions of this paragraph 4,
unless the full cumulative dividends on all outstanding shares of Series B
Preferred Stock shall have been paid or contemporaneously are declared and paid
for all past dividend periods, none of the shares of Series B Preferred Stock
shall be redeemed unless all outstanding shares of Series B Preferred Stock are
redeemed concurrently in accordance with paragraph 4.
(i) All shares of Series B Preferred Stock redeemed pursuant to this
paragraph 4 shall be retired and shall be restored to the status of authorized
and unissued shares of preferred stock, without designation as to series and may
thereafter be reissued as shares of any series of preferred stock; PROVIDED,
HOWEVER, that so long as any shares of Series B Preferred Stock remain
outstanding, any such other preferred stock that is so reissued shall be Junior
Stocks.
5. VOTING RIGHTS.
The holders of record of Series B Preferred Stock shall have no right
to vote except (i) as provided by law and (ii) such holders shall be entitled to
vote with the Common Stock (and not as a separate class) on all matters upon
which holders of the Common Stock are entitled to vote and shall be entitled to
one vote per share of Series B Preferred Stock.
6. PROHIBITION ON CREATION OF CERTAIN SECURITIES.
No preferred stock or other class of equity securities of the
Corporation ranking senior to or on parity with the Series B Preferred Stock,
whether with respect to dividends, or upon liquidation, dissolution or winding
up or otherwise, shall be created.
7. EXCLUSION OF OTHER RIGHTS.
Except as may otherwise be required by law, the shares of Series B
Preferred Stock shall not have any voting powers, preferences or other rights,
except as specifically set forth in this resolution (as such resolution may be
amended from time to time in accordance with
7
its terms) and in the Certificate of Incorporation. The shares of Series B
Preferred Stock shall have no preemptive rights, subscription rights or
conversion rights.
8. RULES AND REGULATIONS.
The Board of Directors shall have the right and authority from time to
time to prescribe rules and regulations as it may determine to be necessary or
advisable, as the Board of Directors may determine in good faith, for the
administration of the Series B Preferred Stock in accordance with the provisions
hereof and applicable law.
9. HEADINGS OF SUBDIVISIONS.
The headings of the various subdivisions hereof are for convenience of
reference only and shall not affect the interpretation of any of the provisions
hereof.
10. SEVERABILITY OF PROVISIONS.
If any voting powers, preferences or other rights of the Series B
Preferred Stock or any qualifications, limitations or restrictions thereon set
forth in this resolution (as such resolution may be amended from time to time in
accordance with its terms) is invalid, unlawful or incapable of being enforced
by reason of any rule of law or public policy, all other voting powers,
preferences and rights of Series B Preferred Stock and qualifications,
limitations and restrictions thereon set forth in this resolution (as so
amended) which can be given effect without the invalid, unlawful or
unenforceable voting powers, preferences or other rights of Series B Preferred
Stock and qualifications, limitations and restrictions thereon shall,
nevertheless, remain in full force and effect, and no voting powers, preferences
and other rights of Series B Preferred Stock and qualifications, limitations and
restrictions thereon herein set forth shall be deemed dependent upon any other
such voting powers, preferences and other rights of Series B Preferred Stock and
qualifications, limitations and restrictions thereon unless so expressed herein.
8
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
duly executed by Sydney J. Rosenberg, Chairman of the Board and Chief Executive
Officer and attested by Harry H. Kahn its Secretary, this day of August,
1993.
AMERICAN BUILDING MAINTENANCE
INDUSTRIES, INC.
By: /s/ Sydney J. Rosenberg
-------------------------------
Sydney J. Rosenberg
Chairman of the Board and
Chief Executive Officer
ATTEST:
By: /s/ Harry H. Kahn
----------------------------
Harry H. Kahn, Secretary
9
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
AMERICAN BUILDING MAINTENANCE INDUSTRIES, INC.
AMERICAN BUILDING MAINTENANCE INDUSTRIES, INC., a corporation organized
and existing under and by virtue of the General Corporation Law of the State
of Delaware, DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, at a meeting
duly held, adopted a resolution proposing and declaring advisable the
following amendment to the Certificate of Incorporation of said corporation
and directing that the proposed amendment be considered at the next annual
meeting of stockholders. The resolution setting forth the proposed amendment
is as follows:
RESOLVED, that the Certificate of Incorporation of AMERICAN BUILDING
MAINTENANCE INDUSTRIES, INC. be amended by deleting paragraph (a) of Article
Fifth and replacing it in its entirety with a new paragraph (a) of Article
Fifth as follows:
Fifth: (a) The corporation is authorized to issue two classes of shares
to be designated, respectively, "Preferred Stock" and "Common Stock."
The number of shares of Preferred Stock authorized to be issued is Five
Hundred Thousand (500,000) and the number of shares of Common Stock
authorized to the issued is Twelve Million (12,000,000). The stock,
whether Preferred Stock or Common Stock, shall have a par value of $.01
per share.
SECOND: That the stockholders of said corporation, at the annual meeting
of stockholders which was duly held on March 17, 1992, adopted such amendment
by casting the necessary number of shares as required by statute in favor of
such amendment to the Certificate of Incorporation.
THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of Section 242 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, AMERICAN BUILDING MAINTENANCE INDUSTRIES, INC. has
caused this certificate to be signed by William Steele, its President, and
attested by Harry H. Kahn, its Secretary, this 18th day of March 1992.
AMERICAN BUILDING MAINTENANCE
INDUSTRIES, INC.
By /s/ William Steele
---------------------------------
William Steele
President
ATTEST:
By /s/ Harry H. Kahn
---------------------------------
Harry H. Kahn
Secretary
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
AMERICAN BUILDING MAINTENANCE INDUSTRIES, INC.
AMERICAN BUILDING MAINTENANCE INDUSTRIES, INC., a corporation organized
and existing under and by virtue of the General Corporation Law of the State
of Delaware, DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, at a meeting
duly held, adopted a resolution proposing and declaring advisable the
following amendment to the Certificate of Incorporation of said corporation
and directing that the proposed amendment be considered at the next annual
meeting of stockholders. The resolution setting forth the proposed amendment
is as follows:
RESOLVED, that the Certificate of Incorporation of AMERICAN BUILDING
MAINTENANCE INDUSTRIES, INC. be amended by adding a new Article Fourteenth as
follows:
FOURTEENTH: No director of the corporation shall be personally liable to
the corporation or any stockholder for monetary damages for breach of
fiduciary duty as a director, except for any matter in respect of which
such director shall be liable under Section 174 of the General
Corporation Law of the State of Delaware or any amendment thereto or
shall be liable by reason that, in addition to any and all
other requirements for such liability, such director (i) shall have
breached the duty of loyalty to the corporation or its stockholders,
(ii) shall not have acted in good faith, or, in failing to act, shall
not have acted in good faith, (iii) shall have acted in a manner
involving intentional misconduct or a knowing violation of law or, in
failing to act, shall have acted in a manner involving intentional
misconduct or a knowing violation of law or (iv) shall have derived an
improper personal benefit. Neither the amendment nor repeal of this
Article Fourteenth, nor the adoption of any provision of this certificate
of incorporation inconsistent with this Article Fourteenth, shall eliminate
or reduce the effect of this Article Fourteenth in respect of any matter
occurring, or any cause of action, suit or claim that, but for this Article
Fourteenth would accrue or arise, prior to such amendment repeal or
adoption of an inconsistent provision.
SECOND: That the stockholders of said corporation, at the annual meeting
of stockholders which was duly held on March 17, 1987, adopted such amendment
by casting the necessary number of shares as required by statute in favor of
such amendment to the Certificate of Incorporation.
THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of Section 242 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, AMERICAN BUILDING MAINTENANCE INDUSTRIES, INC. has
caused this certificate to be signed by R. David Anacker, its President, and
attested
2
by Eleanor A. Elrod, its Secretary this 17th day of March, 1987.
AMERICAN BUILDING MAINTENANCE
INDUSTRIES, INC.
By /s/ R. David Anacker
------------------------------
R. David Anacker
President
ATTEST:
By /s/ Eleanor A. Elrod
------------------------------
Eleanor A. Elrod
Secretary
3
CERTIFICATE OF INCORPORATION
OF
AMERICAN BUILDING MAINTENANCE INDUSTRIES, INC.
FIRST: The name of this corporation is: AMERICAN BUILDING MAINTENANCE
INDUSTRIES, INC.
SECOND: The address of the registered office of the corporation in the
State of Delaware is Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, County of New Castle, and the name of its registered
agent at that address is The Corporation Trust Company.
THIRD: The name and mailing address of the incorporator of the
corporation is:
Eleanor A. Elrod ................. American Building Maintenance
Industries, Inc.
333 Fell Street
San Francisco, CA 94102
FOURTH: The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General
Corporation Law of Delaware.
FIFTH: (a) The corporation is authorized to issue two classes of shares
to be designated, respectively, "Preferred Stock" and "Common Stock." The
number of shares of Preferred Stock authorized to be issued is Five Hundred
Thousand (500,000) and the number of shares of Common Stock authorized to be
issued is Five Million Sixty-Two Thousand (5,062,000). The stock, whether
Preferred Stock or Common Stock, shall have a par value of $.01 per share.
(b) The shares of Preferred Stock may be issued from time to time in
one or more series. The Board of Directors is authorized, by filing a
certificate pursuant to the applicable law of the State of Delaware, to
establish from time to time the number of shares to be included in each such
series, and to fix the designation, powers, preferences and rights of the
shares of each such series and the qualifications, limitations or
restrictions thereof, including but not limited to the fixing or alteration
of the dividend rights, dividend rate, conversion rights, voting rights,
rights and terms of redemption (including sinking fund provisions), the
redemption price or prices, and the liquidation preferences of any wholly
unissued series of shares of Preferred Stock; and to increase or decrease the
number of shares of any series subsequent to the issue of shares of that
series, but not below the number of shares of such series then outstanding.
In case the number of shares of any series shall be so decreased, the shares
constituting such decrease shall resume the status which they had prior to
the adoption of the resolution originally fixing the number of shares of such
series.
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, repeal,
alter, amend and rescind form time to time any or all of the by-laws of the
corporation; including by-law amendments increasing or reducing the
authorized number of directors. In addition, new by-laws may be adopted or
the by-laws may be amended or repealed by a vote of not less than seventy
percent (70%) of the outstanding stock of the corporation entitled to vote
thereon.
SEVENTH: (a) The number of directors which shall constitute the whole
Board of Directors of this corporation shall be as specified in the by-laws
of this corporation, subject to the provisions of Article SIXTH hereof and
this Article SEVENTH.
(b) The Board of Directors shall be and is divided into three classes:
Class I, Class II and Class III, which shall be as nearly equal in number as
possible. Each director shall serve for a term ending on the date of the
third annual meeting of stockholders following the annual meeting at which
the director was elected; provided, however, that each initial director in
Class I shall hold office until the annual meeting of stockholders in 1986;
each initial director in Class II shall hold office until the annual meeting
of stockholders in 1987; and each initial director in Class III shall hold
office until the annual meeting of stockholders in 1988.
Notwithstanding the foregoing provisions of this Article, each director shall
serve until his successor is duly elected and qualified or until his death,
resignation or removal.
(c) In the event of any increase or decrease in the authorized number of
directors. (1) each director then serving as such shall nevertheless continue
as a director of the class of which he is a member until the expiration of
his current term, or his earlier resignation, removal from office or death,
and (2) the newly created or eliminated directorship resulting from such
increase or decrease shall be apportioned by the Board of Directors among the
three classes of directors so as to maintain such classes as nearly equal as
possible.
EIGHTH: No action shall be taken by the stockholders except at an annual
or special meeting of stockholders. No action shall be taken by stockholders
by written consent.
NINTH: Special meetings of the stockholders of this corporation for any
purpose or purposes may be called at any time by the Board of Directors, or
by a committee of the Board of Directors which has been duly designated by
the Board of Directors and whose powers and authority, as provided in a
resolution of the Board of Directors or in the by-laws of this corporation,
include the power to call such meetings, but such special meetings may not be
called by any other person or persons.
TENTH: 1. The affirmative vote of the holders of not less than seventy
percent (70%) of the outstanding shares of "Voting Stock" (as hereinafter
defined) shall be required for the approval or authorization of any "Business
Combination" (as hereinafter defined) of this corporation or any subsidiary
of this corporation with any "Related Person" (as hereinafter defined),
notwithstanding the fact that no vote may be required or that a lesser
percentage may be specified by law, in any agreement with any national
securities exchange or otherwise; provided, however, that the seventy
percent (70%) voting requirement shall not be applicable and such Business
Combination shall require only such affirmative vote as is required by law,
any agreement with any national securities exchange or otherwise if:
(a) The "Continuing Directors" (as hereinafter defined) of
this corporation by at least a majority vote have expressly approved
such Business Combination either in advance of or subsequent to such
Related Person becoming a Related Person; or
(b) All of the following conditions are met:
(i) The cash or "Fair Market Value" (as hereinafter defined)
as of the date of the consummation of the Business Combination (the
"Combination Date") of the property, securities or other
consideration to be received per share by holders of a particular
class or series of capital stock, as the case may be, of this
corporation in the Business Combination is not less than the
highest of:
(A) the highest per share price (including brokerage
commissions, transfer taxes and soliciting dealers' fees) paid
by or on behalf of the Related Person in acquiring beneficial
ownership of any of its holdings of such class or series of
capital stock of this corporation (i) within the two-year
period immediately prior to the Combination Date or (ii) in
the transaction or series of transactions in which the Related
Person became a Related Person, whichever is higher; or
(B) the Fair Market Value per share of the shares of
capital stock being acquired in the Business Combination (i)
as the Combination Date or (ii) the date in which the Related
Person became a Related Person, whichever is higher; or
(C) in the case of Common Stock, the per share book value
of the Common Stock as reported at the end of the fiscal
quarter immediately prior to the Combination Date, and in the
case of Preferred Stock, the highest preferential amount per
share to which the holders of shares of such class or series
of Preferred Stock would be entitled in the event of any
voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the Corporation, regardless of whether
the Business Combination to be consummated constitutes such an
event.
-2-
The provision of this paragraph 1(b)(i) shall be required to
be met with respect to every class or series of outstanding capital
stock, whether or not the Related Person has previously acquired any
shares of a particular class or series of capital stock. In all of
the above instances, appropriate adjustments shall be made for
recapitalizations and for stock dividends, stock splits and like
distributions; and
(ii) The consideration to be received by holders of a particular
class or series of capital stock shall be in cash or in the same
form as previously has been paid by or on behalf of the Related
Person in connection with its direct or indirect acquisition of
beneficial ownership of shares of such class or series of stock. If
the consideration so paid for any such share varied as to form, the
form of consideration for such shares shall be either cash or the
form used to acquire beneficial ownership of the largest number of
shares of such class or series of capital stock previously acquired
by the Related Person; and
(iii) After such Related Person has become a Related Person and
prior to the consummation of such Business Combination: (a) except
as approved by a majority of the Continuing Directors, there shall
have been no failure to declare and pay at the regular date
therefor any full quarterly dividends (whether or not cumulative)
on the outstanding Preferred Stock; (b) there shall have been (1)
no reduction in the annual rate of dividends paid on the Common
Stock (except as necessary to reflect any subdivision of the Common
Stock), except as approved by a majority of the Continuing
Directors, and (2) an increase in such annual rate of dividends as
necessary to reflect any reclassification (including any reverse
stock split), recapitalization, reorganization or any similar
transaction which has the effect of reducing the number of
outstanding shares of the Common Stock, unless the failure so to
increase such annual rate is approved by a majority of the
Continuing Directors; and (c) such Related Person shall have not
become the beneficial owner of any additional shares of Voting
Stock except as part of the transaction which results in such
Related Person becoming a Related Person; and
(iv) After such Related Person has become a Related Person,
such Related Person shall not have received the benefit, directly
or indirectly (except as proportionately as a stockholder), of any
loans, advances, guarantees, pledges or other financial assistance
or any tax credits or other tax advantages provided by the
corporation, whether in anticipation of or in connection with such
Business Combination or otherwise; and
(v) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations
thereunder (or any subsequent provisions replacing such Act, rules
or regulations) shall be mailed to public stockholders of the
corporation at least 30 days prior to the consummation of such
Business Combination (whether or not such proxy or information
statement is required to be mailed pursuant to such Act or
subsequent provisions).
2. For purposes of this Article Tenth:
(a) The term "Business Combination" shall mean any (i) merger or
consolidation of this corporation or a Subsidiary (as hereinafter defined)
of this corporation with a Related Person or any other corporation which is
or after such merger or consolidation would be an "Affiliate" or "Associate"
(as hereafter defined) of a Related Person, (ii) sale, lease, exchange,
mortgage, pledge, transfer or other disposition (in one transaction or a
series of transactions) with any Related Person or any Affiliate or
Associate of any Related Person, of all or any "Substantial Part" (as
hereinafter defined) of the assets of this corporation or of a Subsidiary
of this corporation to a Related Person or any Affiliate or Associate of
any Related Person, (iii) adoption of any plan or proposal for the
liquidation or dissolution of this corporation proposed by or on behalf
of a Related Person or any Affiliate or Associate of any Related Person,
(iv) sale, lease, exchange or other disposition, including without
limitation a mortgage or other security device, of all or any Substantial
Part of the assets of a Related Person or any Affiliate or Associate of any
Related Person to this corporation or a Subsidiary of this corporation, (v)
issuance or pledge of securities of this corporation or a Subsidiary of this
corporation to or with a Related Person or any
-3-
Affiliate or Associate of any Related Person, (vi) reclassification of
securities (including any reverse stock split) or recapitalization of this
corporation or any other transaction that would have the effect, either
directly or indirectly, of increasing the proportionate share of any class
of equity or convertible securities of this corporation or any subsidiary
of this corporation which is directly or indirectly beneficially owned by
any Related Person or any Affiliate or Associate of any Related Person,
and (vii) agreement, contract or other arrangement providing for any of the
transactions described in this definition of Business Combination.
(b) The term "person" shall mean any individual, firm, corporation or
other entity and shall include any group comprised of any person and any
other person with whom such person or any Affiliate or Associate of such
person has any agreement, arrangement or understanding, directly or
indirectly, for the purpose of acquiring, holding, voting or disposing of
Voting Stock of this corporation.
(c) The term "Related Person" shall mean any person (other than this
corporation, or any Subsidiary and other than any profit-sharing, employee
stock ownership or other employee benefit plan of this corporation or any
Subsidiary or any trustee of or fiduciary with respect to any such plan
when acting in such capacity) who or which:
(i) is the beneficial owner (as hereinafter defined) of ten
percent (10%) or more of the Voting Stock;
(ii) is an Affiliate or Associate of this corporation and at any
time within the two-year period immediately prior to the date in
question was the beneficial owner of ten percent (10%) or more of the
Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to the
beneficial ownership of any shares of Voting Stock which were at any
time within the two-year period immediately prior to such time
beneficially owned by any Related Person, if such assignment or
succession shall have occurred in the course of a transaction or
series of transactions not involving a public offering within the
meaning of the Securities Act of 1933.
(d) A person shall be a "beneficial owner" of any Voting Stock:
(i) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly;
(ii) which such person or any of its Affiliates or Associates
has, directly or indirectly, (a) the right to acquire (whether such
right is exercisable immediately or only after the passage of time),
pursuant to any agreement arrangement or understanding or upon the
exercise of conversion rights, exchange rights, warrants or options,
or otherwise, or (b) the right to vote pursuant to any agreement,
arrangement or understanding; or
(iii) which are beneficially owned, directly or indirectly, by
any other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any shares of
Voting Stock.
(e) For the purposes of determining whether a person is a Related
Person pursuant to sub-paragraph (c) of this paragraph 2, the number of
shares of Voting Stock deemed to be outstanding shall include shares deemed
owned through application of sub-paragraph (d) of this paragraph 2 but shall
not include any other shares of Voting Stock which may be issuable pursuant
to any agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or option, or otherwise.
(f) The terms "Affiliate" or "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on
January 1, 1985.
(g) The term "Subsidiary" means any corporation of which a majority of
any class of equity securities is owned, directly or indirectly, by this
corporation; PROVIDED, HOWEVER, that for the purposes of the definition of
Related Person set forth in sub-paragraph (c) of this paragraph 2, the term
-4-
"Subsidiary" shall mean only a corporation of which a majority of each class
of equity securities is owned, directly or indirectly, by this corporation.
(h) The term "Continuing Director" means any member of the Board of
Directors, while such person is a member of the Board of Directors, who is
not an Affiliate, Associate or a representative of the Related Person
involved in a proposed Business Combination and was a member of the Board
of Directors prior to the time that the Related Person became a Related
Person, and any successor of a Continuing Director, while such successor
is a member of the Board of Directors, who is not an Affiliate, Associate
or a representative of the Related Person and is recommended or elected to
succeed a Continuing Director by a majority of Continuing Directors.
Each initial director of this corporation elected by the incorporator of
this corporation shall be a Continuing Director for purposes of this Article
Tenth.
(i) The term "Substantial Part" shall mean more than twenty percent
(20%) of the Fair Market Value, as determined by a majority of the
Continuing Directors, of the total consolidated assets of this corporation
and its Subsidiaries taken as a whole as of the end of its most recent
fiscal year ended prior to the time the determination is being made.
(j) For the purposes of paragraph 1(b)(i) of this Article Tenth, the
term "other consideration to be received" shall include, without limitation,
capital stock retained by the shareholders.
(k) The term "Voting Stock" shall mean all of the outstanding shares
of Common Stock and the outstanding shares of Preferred Stock entitled to
vote on each matter on which the holders of record of Common Stock shall be
entitled to vote, and each reference to a proportion of shares of Voting
Stock shall refer to such proportion of the votes entitled to be cast by
such shares voting as one class.
(l) The term "Fair Market Value" means: (i) in case of capital stock,
the highest closing sale price during the 30-day period immediately
preceding the date in question of a share of such stock on the Composite
Tape for the New York Stock Exchange Listed Stocks, or, if such stock is
not quoted on the Composite Tape, on the New York Stock Exchange, or if
such stock is not listed on such Exchange, on the principal United States
securities exchange registered under the Securities Exchange Act of 1934
on which such stock is listed, or, if such stock is not listed on any such
stock exchange, the highest closing bid quotation with respect to a share
of such stock during the 30-day period preceding the date in question on
the National Association of Securities Dealers, Inc. Automated Quotations
System or any successor system then in use, or if no such quotations are
available, the fair market value on the date in question of a share of such
stock as determined in good faith by a majority of the Continuing Directors;
and (ii) in the case of property other than cash or stock, the fair market
value of such property on the date in question as determined in good faith
by a majority of the Continuing Directors.
(m) A Related Person shall be deemed to have acquired a share of the
Voting Stock of this corporation at the time when such Related Person became
the beneficial owner thereof. If a majority of the Continuing Directors is
not able to determine the price at which a Related Person has acquired a
share of Voting Stock of this corporation, such price shall be deemed to be
the Fair Market Value of the shares in question at the time when the Related
Person becomes the beneficial owner thereof. With respect to shares owned
by Affiliates, Associates or other persons whose ownership is attributed to
a Related Person under the foregoing definition of Related Person, the price
deemed to be paid therefor by such Related Person shall be the price paid
upon the acquisition thereof by such Affiliate, Associate or other person,
or, if such price is not determinable by a majority of the Continuing
Directors, the Fair Market Value of the shares in question at the time when
the Affiliate, Associate, or other such person became the beneficial owner
thereof.
3. The fact that any Business Combination complies with the provisions of
paragraph 1(b) of this Article Tenth shall not be construed to impose any
fiduciary duty, obligation or responsibility on the Board of Directors, or any
member thereof, to approve such Business Combination or recommend its adoption
or approval to the shareholders of this corporation, nor shall such compliance
limit, prohibit or otherwise restrict
-5-
in any manner the Board of Directors, or any member thereof, with respect to
evaluations of or actions and responses taken with respect to such Business
Combination.
4. A majority of the Continuing Directors of the corporation shall have
the power and duty to determine for the purposes of this Article Tenth, on the
basis of information known to them after reasonable inquiry, (A) whether a
person is a Related Party, (B) the number of shares of Voting Stock beneficially
owned by any person, and (C) whether a person is an Affiliate or Associate of
another. A majority of the Continuing Directors of the corporation shall have
the further power to interpret all of the terms and provisions of this Article
Tenth.
ELEVENTH: Advance notice of stockholder nominations for the election of
directors shall be given in the manner provided in the by-laws of this
corporation.
TWELFTH: (a) Newly created directorships resulting from any increase in
the number of directors and any vacancies on the Board of Directors resulting
from death, resignation, disqualification, removal or other cause shall be
filled by the affirmative vote of a majority of the remaining directors then in
office (and not by Stockholders), even though less than a quorum of the Board of
Directors. Any Director elected in accordance with the preceding sentence shall
hold office until the next election of directors by the stockholders and until
such director's successor shall have been elected and qualified. No decrease in
the number of Directors constituting the Board of Directors shall shorten the
term of any incumbent director.
(b) Any director may be removed from office by the affirmative vote of the
holders of 70% of the outstanding stock of the corporation entitled to vote
generally in the election of directors, provided that such removal is for cause.
THIRTEENTH: The corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred on
stockholders herein are granted subject to this reservation. Notwithstanding
the foregoing, the provisions set forth in Articles SIXTH, SEVENTH, EIGHTH,
NINTH, TENTH, ELEVENTH, TWELFTH and this Article THIRTEENTH may not be repealed
or amended in any respect unless such repeal or amendment is approved by the
affirmative vote if not less than seventy percent (70%) of the total voting
power of all outstanding shares of stock in this corporation entitled to vote
thereon.
THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose
of forming a corporation to do business both within and without the State of
Delaware, and in pursuance of the Delaware Corporation Law, does hereby make and
file this Certificate.
/s/ Eleanor A. Elrod
-----------------------------------
Eleanor A. Elrod
-6-
Exhibit 5.1
January 31, 1997
ABM Industries Incorporated
50 Fremont Street
San Francisco, CA 94105
Re: ABM Industries Incorporated
Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
At your request, I am rendering this opinion in connection with a
proposed sale by certain stockholders of ABM Industries Incorporated, a Delaware
corporation (the "Company") of up to 39,158 shares (the "Shares") of common
stock, $0.01 par value (the "Common Stock") pursuant to a Registration Statement
on Form S-3.
I have examined instruments, documents, and records which I deemed
relevant and necessary for the basis of my opinion hereinafter expressed. In
such examination, I have assumed the following: (a) the authenticity of
original documents and the genuineness of all signatures; (b) the conformity to
the originals of all documents submitted to us as copies; and (c) the truth,
accuracy, and completeness of the information, representations, and warranties
contained in the records, documents, instruments, and certificates we have
reviewed.
Based on such examination, I am of the opinion that the currently
issued and outstanding Shares covered by the Registration Statement are legally
issued, fully paid, and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the
above-referenced Registration Statement and to the use of my name wherever it
appears in said Registration Statement, including the Prospectus constituting a
part thereof, as originally filed or as subsequently amended or supplemented.
In giving such consent, I do not consider that I am an "expert" within the
meaning of such term as used in the Securities Act of 1933, as amended, or the
rules and regulations of the Securities and Exchange Commission issued
ABM Industries Incorporated
January 31, 1997
Page 2
thereunder, with respect to any part of the Registration Statement, including
this opinion as an exhibit or otherwise.
Very truly yours,
/s/ Harry H. Kahn
Harry H. Kahn
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
To the Stockholders and Board of Directors
ABM Industries Incorporated:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
KPMG Peat Marwick LLP
San Francisco, California
January 28, 1997
