EXHIBIT 10.34 FIRST AND SECOND AMENDMENT OF CORPORATE EXECUTIVE EMPLOYMENT
AGREEMENT WITH JESS E. BENTON, III
November 1, 1993
Mr. Jess E. Benton, III
American Building Maintenance Industries, Inc.
50 Fremont Street
Suite 2600
San Francisco CA 94105
RE: AMENDMENT OF EMPLOYMENT AGREEMENT
Dear Jay:
This letter of amendment ("Letter") is being sent as a follow up to the letter
sent to you by Sydney J. Rosenberg wherein you were given formal notice that
your Corporate Executive Employment Agreement dated as of November 1, 1991
("Agreement") would not be automatically renewed.
As you are aware, Sydney's letter was sent to you upon the authority of ABM's
Board of Directors and its Executive Compensation Committee, which is in the
process, with the assistance of its compensation consultants, of re-evaluating
the Company's program for compensating its senior corporate executives in light
of: (1) changes which have been made in the manner in which public companies
must report executive compensation to their stockholders and (2) increased
emphasis being placed upon financial performance as a determining factor in
setting executive compensation.
Because of the complexities of this examination, the Board of Directors has
authorized the Company to extend your Agreement on the identical terms and
conditions for the period of November 1, 1993 through October 31, 1994 at the
annual salary in effect on October 31, 1993, as set forth in Paragraph X.1 of
the Agreement plus an increase of five (5%) per cent. Your bonus for the fiscal
year ending October 31, 1994 will be the same percentage as set forth in
Paragraph X.2 of the Agreement.
All other items and conditions of your Agreement will remain unchanged with the
following exceptions. Please note that these following changes were approved by
the Board of Directors to be retroactive to November 1, 1991:
Mr. Jess E. Benton, III
November 1, 1993
Page Two
(A) PARAGRAPHS X.2(b)(5) AND (7) SPECIAL PROVISIONS: BONUS: shall be
rewritten to read as follows ( Note: Paragraphs X.2(a), (b) (1) (2)
(3), (4) and (6) remain unchanged:
(5) THE PRIOR-YEAR PORTION OF ANY YEAR-END INSURANCE RESERVE
ADJUSTMENTS,
(7) THE DISCRETIONARY PORTION OF ANY COMPANY CONTRIBUTION MADE TO ANY
PROFIT SHARING, SERVICE AWARD OR SIMILAR PLANS.
(B) PARAGRAPH X.5 AND X.5(b) CONSULTANCY: shall be rewritten as follows
(Note: Paragraph X.4(a) shall remain unchanged):
CONSULTANCY: UPON EXECUTIVE'S RESIGNATION FROM EMPLOYMENT WITH
COMPANY, COMPANY SHALL PAY TO EXECUTIVE NO EARLIER THAN EXECUTIVE'S
SIXTY-FIFTH (65TH) BIRTHDAY, CONSULTING FEES ("CONSULTING FEES") IN
EQUAL INSTALLMENTS OF ONE THOUSAND DOLLARS ($1,000.00) PER MONTH FOR A
PERIOD OF TEN (10) YEARS ("CONSULTANCY").
(b) IF EXECUTIVE DIES BEFORE RECEIVING ANY OR ALL PAYMENTS TO
EXECUTIVE OF SUCH CONSULTING FEES, ALL UNPAID CONSULTING FEES
SHALL BE PAID MONTHLY TO EXECUTIVE'S ESTATE COMMENCING WITH THE
MONTH AFTER DEATH OR WITH THE MONTH IN WHICH EXECUTIVE WOULD HAVE
REACHED EXECUTIVE'S SIXTY-FIFTH (65TH) BIRTHDAY, WHICHEVER IS
LATER.
Please sign and date all three (3) originals of this Letter and return two (2)
of them to me. If you have any questions, please do not hesitate to call.
Very truly yours,
William W. Steele
WWS/dar
Enclosures
I hereby agree to the foregoing amendments of the Agreement.
__________________________________ Dated: _______________, 1993
November 14, 1994
Mr. Jess E. Benton III
ABM Industries Incorporated
50 Fremont Street
San Francisco CA 94105
RE: SECOND AMENDMENT OF CORPORATE EXECUTIVE EMPLOYMENT AGREEMENT
Dear Jay:
As you are aware, your Corporate Executive Employment Agreement ("Agreement") in
effect for the fiscal year ending October 31, 1994 did not automatically renew
pending further action by the Company's Executive Compensation Committee
("Committee") and Board of Directors. On October 25, 1994 the Board of
Directors accepted the recommendations of the Committee, and it is the purpose
of this letter to amend that Agreement effective November 1, 1994 in accordance
with the Committee's recommendations as follows:
The name of the Company as set forth in the first paragraph of the Agreement
shall be amended to: ABM Industries Incorporated.
PARAGRAPH B. TITLE shall be amended in its entirety to read: Executive's title
shall be Senior Vice President of Company.
PARAGRAPH N. EXTENSION OF EMPLOYMENT shall be amended (except for its last
sentence which shall remain unchanged) to read: "Absent at least ninety (90)
days written notice of termination from either party to the other party prior to
the expiration of the Initial Term or any Extended Term of the Agreement,
employment hereunder shall continue for an Extended Term of two years ("Extended
Term") by which Executive and Company mean that all terms and conditions of this
Agreement during the Extended Term shall remain in full force and effect except
that the highest base Salary specified in Paragraph X1 shall be increased
annually as provided in Paragraph X.1(b) each year during the Extended Term.
PARAGRAPH X.1 SALARY shall be amended in its entirety to read:
"(a) Two Hundred Fifty-Three Thousand Eight Hundred One Dollars
($253,801.00) from 11/1/94 through 10/31/95.
Mr. Jess E. Benton III
November 14, 1994
Page Two
(b) Effective 11/1/95 through 10/31/96, and for each year of an Extended
Term of this Agreement, if any, the Salary in Paragraph X.1(a) will be
adjusted upward annually to reflect the percentage increase change in
the American Compensation Association ("ACA") Index for the Western
Region ("ACA Index") with a six per cent (6%) maximum increase. The
adjustment, if any, shall be based upon the projected ACA Index as
published for the ACA fiscal year ending on the June 30th immediately
preceding the effective date of the proposed increase hereunder.
Notwithstanding the foregoing, there shall be no annual increase in
Salary for any such year unless the Company's earnings per share
("EPS") for the fiscal year of the Company (commencing November 1 and
ending October 31) ("Fiscal Year") then ending are equal to or greater
than the Company's EPS for the previous Fiscal Year of the Company.
There shall be no downward adjustment in salary in the event the ACA
Index shows a decrease from the prior Fiscal Year.
For example: for the Company's Fiscal Year commencing November 1,
1995, there would be no Salary increase unless the Company's EPS for
the Fiscal Year of the Company ending October 31, 1995 equaled or
exceeded the Company's EPS for Fiscal Year of the Company ending
October 31, 1994;
PARAGRAPH X.2 BONUS Subparagraphs (c) through (e) remain unchanged;
Introduction, and sub-paragraphs (a), (b) and (f) shall be amended to read:
"Subject to the provisions of Paragraph X.2(f) and further subject to proration
in the event of modification or termination of employment
hereunder, Executive shall be paid a bonus ("Bonus") based on the profit
("Profit") for each Fiscal Year or partial Fiscal Year of the Company of
employment hereunder during the Initial Term and during the Extended Term, if
any, of this Agreement.
(a) Such Bonus for each Fiscal Year of the Company shall be 0.3278 per
cent of the Company's annual Profit.
(b) Profit is defined as the consolidated income before income taxes of
Company, excluding: (1) gains or losses on sales or exchanges of real
property or on sales or exchanges of all or substantially all of the
stock or assets of a subsidiary corporation or any other business unit
of Company, (2) gains or losses on the discontinuation of any business
unit of Company and, (3) the discretionary portion of any
contributions made to any profit sharing, service award or similar
plans.
(f) Notwithstanding the foregoing, no Bonus for any Fiscal Year of the
Company shall be payable: (i) unless the Company's EPS for the Fiscal
Year then ending is equal to or greater than 80% of the Company's EPS
for the previous Fiscal Year of the Company and (ii) in no event
unless the Company's EPS for any Fiscal Year of the Company is equal
to or greater than 80% of the Company's EPS for Fiscal Year ending
October 31, 1994.
Mr. Jess E. Benton III
November 14, 1994
Page Three
For example: for the Company's Fiscal Year ending October 31,1996
there would be no Bonus payable unless: (x) the Company's EPS equals
or exceeds 80% of the Company's EPS for the Company's Fiscal Year
ending October 31, 1995; and (y) the Company's EPS for the Fiscal Year
ending October 31, 1996 equals or exceeds 80% of the Company's EPS for
the Fiscal Year of the Company ending October 31, 1994.
In all other respects the Agreement, as previously amended, shall remain
unchanged.
Please sign all three (3) copies of this letter and return two (2) copies to
Harry Kahn, Vice President and General Counsel, at the ABM Legal Department.
Salary and Bonus increases will not be processed until both signed copies are
received by Harry Kahn.
Sincerely,
William W. Steele
WWS/dar
Encl.
I agree to the foregoing.
Date:
_______________________________ _________________