As filed with the Securities and Exchange Commission on July 31, 2000.
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
--------------------
The ServiceMaster Company
(Exact name of registrant as specified in its charter)
Delaware 36-3858106
(State or other jurisdiction of I.R.S. Employer
incorporation or organization) (Identification No.)
One ServiceMaster Way
Downers Grove, Illinois 60515-1700
(630) 271-1300
(Address and telephone number of principal executive offices)
------------------------------
ServiceMaster 1998 Equity Incentive Plan
ServiceMaster 2000 Equity Incentive Plan
(Full titles of the plans)
Jim L. Kaput
Senior Vice President and General Counsel
The ServiceMaster Company
One ServiceMaster Way
Downers Grove, Illinois 60515
(630) 271-1300
(Name, address including zip code, and telephone number,
including area code, of agent for service)
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<TABLE>
<CAPTION>
CALCULATION OF THE REGISTRATION FEE
Proposed Proposed
Titles of maximum maximum Amount of
securities Amount to be offering aggregate registration
to be registered price offering fee
registered Per unit price
---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common stock 3,197,187 (1) $18.2583(2) $58,375,199 (2) $15,411 (2)
Common stock 141,200 (1) $22.7734(2) $3,215,604 (2) $849 (2)
Common stock 3,337,370 (1) $18.0750(2) $60,322,962 (2) $15,925 (2)
Common stock 629,650 (1) $17.8875(2) $11,262,864 (2) $2,973 (2)
Common stock 2,044,185 (1)(4) $11.5000(2) $23,508,127 (2) $6,206 (2)
Common stock 1,540,700 (1) $11.4125(2) $17,583,238 (2) $4,642 (2)
Common stock 359,708 (1) $8.6875(3) $3,124,963 (3) $825 (3)
Common stock 15,000,000 (1) $8.6875(3) $130,312,500 (3) $34,403 (3)
-------
Total Fee $81,234
</TABLE>
(1) With respect to the 1998 Plan, this registration statement also
reflects the 3 for 2 stock split paid on August 26, 1998 to
stockholders of record on August 12, 1998. This registration statement
shall be deemed to cover any additional shares issuable pursuant to the
antidilution provisions of the 1998 Plan and the 2000 Plan by reason of
share splits, share dividends, mergers and other capital changes.
(2) Calculated pursuant to Rule 457(h) under the Securities Act of 1933.
(3) Calculated pursuant to Rule 457(c) under the Securities Act of 1933
based upon the average high and low sale prices of the common stock
reported on the New York Stock Exchange on July 26, 2000.
(4) Reflects the cancellation of 403,886 options granted under the 1998
Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
ServiceMaster has filed the following documents with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Exchange Act
of 1934 (the "Exchange Act") and such documents are incorporated herein by
reference:
1. ServiceMaster's Annual Report on Form 10-K for the year ended
December 31, 1999;
2. ServiceMaster's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2000; and
3. The description of the Common Stock that is contained in
ServiceMaster's Registration Statement filed with the
Commission under Section 12 of the Exchange Act, including any
subsequent amendment or any report filed for the purpose of
updating such description.
All documents filed by ServiceMaster with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, after the date of this
registration statement and prior to the filing of a post-effective amendment to
this registration statement that indicates that all securities offered hereby
have been sold or that deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference into this registration statement and
to be a part hereof from the respective dates of filing of such documents (such
documents, and the documents enumerated above, being hereinafter referred to as
"incorporated documents").
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
ServiceMaster is incorporated under the laws of the State of Delaware.
Section 145 of the DGCL ("Section 145"), inter alia, provides that a Delaware
corporation may indemnify any person who was, is or is threatened to be made, a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of such corporation), by reason of the fact that such person
is or was an officer, director, employee or agent of such corporation, or is or
was serving at the request of such corporation as a director, officer, employee
or agent of another corporation or enterprise. The indemnity may include
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding, provided such person acted in good faith and in
a manner he reasonably believed to be in or not opposed to the corporation's
best interests and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that his conduct was illegal. A Delaware corporation
may indemnify any person who was, is or is threatened to be made, a party to any
threatened, pending or completed action or suit by or in the right of the
corporation by reason of the fact that such person was a director, officer,
employee or agent of such corporation, or is or was serving at the request of
such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
with the defense or settlement of such action or suit, provided such person
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the corporation's best interests, provided that no indemnification is
permitted without judicial approval if the officer, director, employee or agent
is adjudged to be liable to the corporation. Where an officer, director,
employee or agent is successful on the merits or otherwise in the defense of any
action referred to above, the corporation must indemnify him against the
expenses that such officer or director has actually and reasonably incurred.
Article Ten of ServiceMaster's Certificate of Incorporation ("Article
Ten") provides that no person shall have any liability of any kind by reason of
a Relevant Loss (defined below) caused in whole or in part by any act or
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failure to act which occurred while such person was an officer or director of
ServiceMaster except: (i) obligations arising under the express terms of any
written contract to which such person is a party; (ii) the obligation to return
to ServiceMaster an amount up to the value actually realized by such person by
stealing or by any other action which constitutes a criminal felony; (iii) any
liability imposed by contract or applicable law which is founded on, arises from
or is related to activities by such person (or such person's agents or
affiliates) which are in competition with any business of ServiceMaster or any
of its affiliates; and (iv) any other liability from which it shall not be
possible to exempt such person under applicable law either as constituted on the
date on which the Certificate of Incorporation was filed with the Secretary of
State of Delaware (the "Filing Date") or at any time thereafter. The term
"Relevant Loss" designates and includes any loss, damage or expense of any kind
(i) experienced for any reason by ServiceMaster or by any entity controlled by
ServiceMaster; (ii) which any person may experience by reason of any purchase
(or failure to purchase), maintenance of an interest in, sale (or failure to
sell) or failure to obtain payment of any amount due on any note, debenture,
preferred stock, common stock or other security issued or issuable by
ServiceMaster; or (iii) which shall otherwise be caused in whole or in part by
or arise in connection with (or would not have occurred but for) such person's
service as a director or officer of ServiceMaster. In addition, Article Ten
provides that every director of ServiceMaster shall be exempt (except to the
extent expressly set forth therein) from any personal liability to ServiceMaster
or any of its stockholders for monetary damages for breach of fiduciary duty as
a director to the fullest extent permitted by (i) Section 102(b)(7) of the DGCL
as constituted on the Filing Date or (ii) any provision of the law of the State
of Delaware as constituted at any time after December 11, 1991.
Except as otherwise provided in the Certificate of Incorporation,
Article Eleven of the Certificate of Incorporation ("Article Eleven") provides
that ServiceMaster shall indemnify any person against, and shall reimburse such
person for any amount which such person shall pay to satisfy, settle or
otherwise deal with, any attempt to impose any liability or obligation of any
kind upon such person if such attempt or such liability or obligation or both
shall arise in connection with or by reason of, or would not have arisen but
for, Covered Service (defined below) by such person (or any
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agreement by such person to serve as a director or officer of ServiceMaster or
to provide other Covered Service) including, but not limited to: (i) any claim
resulting from any loss, injury, damage, harm or other disadvantage which
ServiceMaster, any affiliate, any employee plan or any person who acquires,
holds, or disposes of any interest in any security issued by ServiceMaster
suffers or is alleged to have suffered; (ii) any claim resulting from any act or
failure to act by any person which is (or is alleged to be) beyond the scope of
his or her authority, contrary to instructions or orders or contrary to his or
her duties or applicable law; and (iii) any attempt by any governmental
authority or other person to impose any fine or penalty or to obtain any other
recovery by reason of any actual or alleged breach of any law or other
governmental requirement.
The term "Covered Service" designates and includes: (a) service as a
director or officer of ServiceMaster; (b) service by a person while he or she is
an officer or director of ServiceMaster (i) as an agent or representative of
ServiceMaster, (ii) in any other capacity with ServiceMaster, (iii) as a
director, officer, employee, agent or representative of, or in any other
capacity with, any affiliate, (iv) in any capacity with any Employee Plan (as
defined therein), and (v) in any other capacity in which such person shall have
been asked to serve by ServiceMaster's Board of Directors or Chief Executive
Officer; (c) any services which constituted "Covered Service" under the Amended
and Restated Agreement of Limited Partnership for ServiceMaster Limited
Partnership; and (d) any other service of any kind by any person with any
organization or entity of any kind (whether or not affiliated with
ServiceMaster) which shall be designated in writing as Covered Service by a
majority of the members of ServiceMaster's Board of Directors or by
ServiceMaster's Chief Executive Officer. Service is deemed to constitute
"Covered Service" if it is so designated by the terms in the preceding sentence
regardless of whether it shall have been performed prior to, at, or after the
time Article Eleven became part of ServiceMaster's Certificate of Incorporation.
Any person is entitled to rely upon any written confirmation provided by
ServiceMaster's Chief Executive Officer or by ServiceMaster's Board of Directors
that service by such person in any capacity specified in such confirmation will
constitute Covered Service and to rely upon the protection afforded by Article
Eleven in connection with such service.
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Except to the extent ServiceMaster shall otherwise expressly agree in
writing, ServiceMaster is not obligated under Article Eleven to reimburse any
person for or otherwise indemnify any person against: (a) any obligation the
person may have under any written contract except to the extent such obligation
arises by reason of any action taken by such person to satisfy, settle or
otherwise deal with any claim against which such person is entitled to
indemnification from ServiceMaster under Article Eleven or otherwise; (b) any
income taxes payable by reason of salary, bonus or other income or gain actually
realized by such person in connection with any Covered Service; (c) any
liability imposed by contract or applicable law which is founded on, arises from
or is related to activities by such person (or such person's agents or
affiliates) which are in competition with any business of ServiceMaster or any
of its affiliates; and (d) any obligation to pay an amount up to the value
personally realized by such person by stealing or by any other action which
constitutes a criminal felony. Except as otherwise provided in the Certificate
of Incorporation, ServiceMaster is not obligated under Article Eleven to
indemnify any person in connection with a proceeding (or part thereof) initiated
by such person unless such proceeding (or part thereof) was authorized by
ServiceMaster's Board of Directors.
Article Eleven provides that each person who was or is made a party or
is threatened to be made a party to or is otherwise involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he or she is or was a director or officer of
ServiceMaster, agreed to serve as a director or officer of ServiceMaster or is
or was providing any other Covered Service, whether the basis of such proceeding
is alleged action in an official capacity as a director or officer of
ServiceMaster or in any other Covered Service position, shall, except as
otherwise provided therein, be indemnified and held harmless by ServiceMaster to
the fullest extent authorized by Delaware law against all expense, liability and
loss (including attorneys' fees, judgments, fines, excise taxes or penalties
arising under the Employee Retirement Income Security Act, as amended from time
to time, and amounts paid in settlement) reasonably incurred or suffered by such
person in connection therewith and such indemnification shall continue as to a
person who has ceased to be a director or officer of ServiceMaster or to provide
any other Covered Service and shall inure to the heirs, executors and
administrators of such person.
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Article Eleven provides that ServiceMaster shall reimburse any Covered
Person (as defined therein) for any payment made by such person for any legal
fees or other expenses reasonably incurred by such person in order to
investigate, evaluate, defend against, pay in full, settle or otherwise deal
with (i) any Covered Claim (as defined therein) or (ii) any development or state
of facts which could give rise to a Covered Claim.
Article Eleven also provides that any officer of ServiceMaster or any
member of its Board of Directors shall have the right and power to execute on
behalf of ServiceMaster any written contract with any other person providing
indemnification or other protection to such other person in connection with
service by such other person as a director or officer of ServiceMaster or in
connection with any other Covered Service by such person, and any such contract
shall be legal, valid and binding upon ServiceMaster and shall be enforceable
against ServiceMaster in accordance with its terms to the maximum extent
permitted by Article Eleven or by applicable law, if it shall be approved by a
majority of the members of ServiceMaster's Board of Directors exclusive of the
person to whom indemnification is provided by such contract. The rights of any
person under any particular contract made in accordance with the provisions of
the preceding sentence shall not be impaired or eliminated (i) by reason of the
fact that all or any one or more of the members of the Board who approved such
contracts shall be parties to contracts affording them similar protection
(regardless of when those other contracts shall have been approved or signed) or
shall otherwise have been provided with protection similar to that provided in
the particular contract or shall be subject to the same claims against which the
particular contract is intended to protect or (ii) for any other reason
whatsoever. It is expressly intended that each person with whom ServiceMaster
shall enter into a written contract to provide indemnification or other
protection in connection with such person's service as an officer or director of
ServiceMaster or in connection with other Covered Service by such person shall
be entitled to rely upon (and shall conclusively be presumed to have relied
upon) the rights which such contract purports to provide to such person. No
separate written contract shall, however, be necessary in order for any person
to obtain any indemnification or payment to which Article Eleven purports to
entitle such person, and any Covered Person who has no separate contract of any
kind with ServiceMaster shall be
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entitled to receive all indemnification, payments and other benefits which the
provisions in Article Eleven purport to provide to such Covered Person.
The rights to indemnification and payment provided by Article Eleven
are not exclusive of any other right of any kind which any person may have or at
any time acquire under or by reason of any other provision in the Certificate of
Incorporation, ServiceMaster's By-Laws, any agreement, any law or other action
by any governmental authority, or otherwise.
Article Eleven authorizes ServiceMaster to purchase and maintain
insurance on behalf of any person who is or was a director or officer of
ServiceMaster, or is or was serving in any other capacity with ServiceMaster,
any Employee Plan or any other organization against any expense, liability or
loss, whether or not ServiceMaster would have the power to indemnify such person
against such expense, liability or loss under the provisions of Article Eleven,
under applicable law or otherwise.
In addition, Section 145 further authorizes a corporation to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation or enterprise, against any liability asserted against him and
incurred by him in any such capacity, arising out of his status as such, whether
or not the corporation would otherwise have the power to indemnify him under
Section 145.
All of ServiceMaster's directors and officers are covered by insurance
policies maintained and held in effect by ServiceMaster against certain
liabilities for actions taken in such capacities, including liabilities under
the Securities Act of 1933.
Item 7. Exemption from Registration Claimed.
Not Applicable
Item 8. Exhibits.
See Index to Exhibits.
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Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3)of the Securities
Act 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.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, That paragraphs (a)(1)(i) and (a)(1)(ii) of this section do
not apply if the registration statement is on Form S-3, Form S-8, or Form F-3,
and the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
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
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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 that remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
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.
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Signatures
The Registrant. 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-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Downers Grove, State of Illinois on this 31st day of
July, 2000.
THE SERVICEMASTER COMPANY
By /s/ Jim L. Kaput
Jim L. Kaput
Senior Vice President
and General Counsel
Pursuant to the requirements of the Securities Act of 1933, the
following persons in the capacities indicated signed this Registration Statement
on July 20, 2000.
Signature Title
* Chairman, Chief Executive Officer
------------------------------------------- and Director
C. William Pollard
* Senior Chairman and Director
-------------------------------------------
Carlos H. Cantu
* Director
--------------------------------------------
Paul W. Berezny, Jr.
* Director
--------------------------------------------
Brian Griffiths
* Director
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Sidney E. Harris
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* Director
--------------------------------------------
Glenda A. Hatchett
* Director
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Herbert P. Hess
* Director
--------------------------------------------
Michele M. Hunt
* Director
--------------------------------------------
Gunther H. Knoedler
* Director
--------------------------------------------
James D. McLennan
* Director
--------------------------------------------
Vincent C. Nelson
* Director
--------------------------------------------
Dallen W. Peterson
* Director
--------------------------------------------
Steven S Reinemund
* Director
--------------------------------------------
Donald G. Soderquist
* Director
--------------------------------------------
Charles W. Stair
* Director
--------------------------------------------
David K. Wessner
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* The undersigned, by signing his name hereto, does sign and execute this
Registration Statement pursuant to the Powers of Attorney executed by certain of
the above-named officers and directors of The ServiceMaster Company.
By /s/ Jim L. Kaput
Jim L. Kaput
Attorney-in-Fact
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EXHIBIT INDEX
Exhibit Description
No.
4.1 ServiceMaster's Amended and Restated Certificate of Incorporation, as
filed with the Secretary of State of Delaware on November 6, 1997, is
incorporated by reference to Exhibit 1 to the Current Report on Form
8-K, dated December 18, 1997, of ServiceMaster Limited Partnership
(the SMLP 1997 8-K) (Commission File No. 1-9378).
4.2 ServiceMaster's Bylaws, as adopted on November 3, 1997, are
incorporated by reference to Exhibit 2 to the SMLP 1997 8-K
(Commission File No. 1-9378).
4.3 1998 Equity Incentive Plan is incorporated by reference to Exhibit A
to the March 25, 1998 Proxy Statement relating to The ServiceMaster
Company 1998 Annual Meeting of Shareholders held May 1, 1998
(Commission File No. 1-14762).
4.4 2000 Equity Incentive Plan is incorporated by reference to Exhibit A
to the March 24, 2000 Proxy Statement relating to The ServiceMaster
Company 2000 Annual Meeting of Shareholders held April 28, 2000
(Commission File No. 1-14762).
4.5 Form of Non-Qualifying Option Agreement is incorporated by reference
to Exhibit 10.20 to the Annual Report on Form 10-K
for the year ended 12/31/97 (the "1997 10-K").
4.6 Form of Incentive Stock Option Agreement is incorporated by reference
to Exhibit 10.21 to the 1997 10-K.
4.7* Form of Term Sheet for the Equity Incentive Plans.
5* Opinion of Counsel
23.1* Consent of Arthur Andersen LLP
23.2* Consent of Counsel (included in Exhibit 5)
24* Powers of Attorney
*Filed herewith
