<PAGE>
As filed with the Securities and Exchange Commission on June 1, 2000
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SODEXHO MARRIOTT SERVICES, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 52-0936594
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
9801 WASHINGTONIAN BOULEVARD
GAITHERSBURG, MARYLAND 20878
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(Address of principal executive offices)
SODEXHO MARRIOTT SERVICES EMPLOYEE STOCK PURCHASE PLAN
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(Full title of plan)
ROBERT A. STERN, ESQ.
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
SODEXHO MARRIOTT SERVICES, INC.
9801 WASHINGTONIAN BOULEVARD
GAITHERSBURG, MARYLAND 20878
(301) 987-4480
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(Name, address and telephone number of agent for service)
(Copy to:)
LINDA MAROTTA THOMAS, ESQ.
PIPER MARBURY RUDNICK & WOLFE LLP
6225 SMITH AVENUE
BALTIMORE, MARYLAND 21209-3600
(410) 580-4271
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<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TO BE OFFERING AGGREGATE REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PRICE PER UNIT (3) OFFERING PRICE (3) FEE (3)
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<S> <C> <C> <C> <C>
Common Stock, $1.00 par value(1) 1,800,000(2) $14.00 $25,200,000 $6,653
====================================================================================================================
<FN>
(1) Includes rights ("Rights") issuable pursuant to certain Rights Agreement
between the Registrant and Bank of New York dated as of October 8, 1993, as
amended, which Rights are currently carried and traded with shares of the
Registrant's Common Stock (including shares registered hereunder). The value
attributable to the Rights, if any, is reflected in the value of the
Registrant's Common Stock.
(2) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended, this
Registration Statement also covers an indeterminate number of shares of Common
Stock that may be offered or issued by reason of stock splits, stock dividends
or similar transactions and an indeterminate number of plan participation
interests to be offered or sold pursuant to the Sodexho Marriott Services
Employee Stock Purchase Plan.
(3) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457. The proposed maximum offering price per share, proposed maximum
aggregate offering price and the amount of the registration fee are based on the
average of the high and low prices of Sodexho Marriott Services, Inc. Common
Stock reported on the New York Stock Exchange on May 30, 2000 (i.e., $14.00).
Pursuant to Rule 457(h)(2), no separate registration fee is provided for the
participation interests in the Sodexho Marriott Services Employee Stock Purchase
Plan.
</FN>
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Not required to be included in this Form S-8 Registration Statement pursuant to
introductory Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been filed by the Registrant with
the Securities and Exchange Commission (the "Commission") are incorporated
herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended September 3, 1999 filed pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act") (File No. 001-12188);
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of
the Exchange Act, since the end of the fiscal year covered by
the document referred to in (a) above; and
(c) Description of Common Stock of the Registrant contained or
incorporated in the registration statements filed by the
Registrant under the Exchange Act, including any amendments or
reports filed for the purpose of updating such description.
All documents subsequently filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities remaining unsold,
shall be deemed to be incorporated by reference into this Registration Statement
and to be a part of this Registration Statement from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 8 of the Company's Amended and Restated Certificate of
Incorporation (the "Certificate") and Section 6.09 of the Company's Amended and
Restated Bylaws (the "Bylaws") define the rights of individuals, including
directors and officers of the Company, to indemnification by the Company in the
event of personal liability or expenses incurred by them as a result of pending
or threatened claims against them. Article 9 of the Certificate limits the
personal liability of directors to the Company and its stockholders for monetary
damages for breach of fiduciary duty. These provisions of the Certificate and
Bylaws are collectively referred to herein as the "Director Liability and
Indemnification Provisions."
The Director Liability and Indemnification Provisions are consistent
with Section 102(b)(7) of the Delaware General Corporation Law ("Delaware Law"),
which is designed, among other things, to encourage qualified individuals to
serve as directors of Delaware corporations by permitting Delaware corporations
to include in their certificates of incorporation a provision limiting or
eliminating directors'
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liability for monetary damages and with other existing Delaware Law provisions
permitting indemnification of certain individuals, including directors and
officers.
In performing their duties, directors of a Delaware corporation are
obligated as fiduciaries to exercise their business judgment and act in what
they reasonably determine in good faith, after appropriate consideration, to be
the best interests of the corporation and its stockholders. Decisions made on
that basis are protected by the so-called "business judgment rule." However, the
expense of defending lawsuits means that, as a practical matter, adequate
insurance and indemnity provisions are often a condition of an individual's
willingness to serve as director of a Delaware corporation. Delaware Law has for
some time specifically permitted corporations to provide indemnity and procure
insurance for its directors and officers.
Set forth below is a description of the Director Liability and
Indemnification Provisions. Such description is intended as a summary only and
is qualified in its entirety by reference to the Certificate and the Bylaws.
Elimination of Liability in Certain Circumstances. Article 9 of the
Certificate protects each director against monetary damages for breach of
fiduciary duty, except for liability (i) for any breach of the director's duty
of loyalty to the Company or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware Law or (iv) for any transaction
from which the director derived an improper personal benefit. Under Delaware
Law, absent these provisions in Article 9, directors could generally be held
liable for gross negligence for decisions made in the performance of their duty
of care. Article 9 eliminates such liability. Under Section 174 of Delaware Law,
however, directors remain personally liable for unlawful dividends or unlawful
stock repurchases or redemptions and a negligence standard applies to such
liability.
While the Director Liability and Indemnification Provisions provide
directors with protection from liability for monetary damages for breaches of
the duty of care, they do not eliminate a director's duty of care. Accordingly,
these provisions will have no effect on the availability of equitable remedies
such as an injunction or rescission based upon a director's breach of the duty
of care. Article 9 will apply to officers of the Company only if they are
directors of the Company and are acting in their capacity as directors, and will
not apply to officers of the Company who are not directors. The elimination of
liability of directors for monetary damages in the circumstances described above
may deter persons from bringing third-party or derivative actions against
directors to the extent such actions seek monetary damages.
Indemnification and Insurance. Under Section 145 of Delaware Law,
directors and officers as well as other employees and individuals may be
indemnified against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement in connection with specified actions, suits or
proceedings, whether civil, criminal, administrative or investigative, other
than an action by or in the right of the corporation (a "derivative action"), if
they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the company, and with respect to any
criminal action or proceeding, had no reasonable cause to believe their conduct
was unlawful. A similar standard of care is applicable in the case of the
derivative actions, except that indemnification only extends to expenses
(including attorneys' fees) incurred in connection with defense or settlement of
such an action, and Delaware Law requires court approval before there can be any
indemnification where the person seeking indemnification has been found liable
to the Company.
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Section 6.09 of the Bylaws provides as follows:
(a) Each person who was or is a party or is threatened to be made a
party to, or is involved in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of the fact that he or she or a person of whom he or
she is the legal representative, is or was a director, officer, employee or
agent of the Company or a Subsidiary, or is or was serving at the request of the
Company or a Subsidiary as a director, officer, partner, member, employee or
agent of another corporation, partnership, limited liability company, joint
venture, trust or other enterprise, shall be indemnified and held harmless by
the Company to the fullest extent permitted from time to time by Delaware Law as
the same exists or may hereafter be amended (but, if permitted by applicable
law, in the case of any such amendment, only to the extent that such amendment
permits the Company to provide broader indemnification rights than said law
permitted the Company to provide prior to such amendment) or any other
applicable laws as presently or hereafter in effect, and such indemnification
shall continue to a person who has ceased to be such a director, officer,
employee or agent and shall inure to the benefit of his or her heirs, executors
and administrators; provided, that the Company shall indemnify any such person
seeking indemnification in connection with a Proceeding (or part thereof)
initiated by such person only if such Proceeding (or part thereof) was
authorized by the Board of Directors or is a Proceeding to enforce such person's
claim to indemnification pursuant to the rights granted by this Bylaw. The
Company shall pay the expenses incurred by such person in defending any such
Proceeding in advance of its final disposition upon receipt (unless the Company
upon authorization of the Board of Directors waives such requirement to the
extent permitted by applicable law) of an undertaking by or on behalf of such
person to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the Company as authorized by this
Bylaw or otherwise.
(b) The indemnification and the advancement of expenses incurred in
defending a Proceeding prior to its final disposition provided by, or granted
pursuant to this Bylaw shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, other provision of these bylaws, agreement, vote
of stockholders or Disinterested Directors (see (e)(i) of this section) or
otherwise. No repeal, modification or amendment of, or adoption of any provision
inconsistent with, this Section 6.09, nor to the fullest extent permitted by
applicable law, any modification of law, shall adversely affect any right or
protection of any person granted pursuant hereto existing at or with respect to
any events that occurred prior to, the time of such repeal, amendment, adoption
or modification.
(c) The Company may maintain insurance, at its expense, to protect
itself and any person who is or was a director, officer, partner, member,
employee, or agent of the Company or a Subsidiary or of another corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss, whether or not the Company would have the power to indemnify
such person against such expense, liability or loss under Delaware Law.
(d) If any provision or provisions of this Bylaw shall be held to be
invalid, illegal or unenforceable for any reason whatsoever: (i) the validity,
legality and enforceability of the remaining provisions of this Bylaw
(including, without limitation, each portion of any paragraph of this Bylaw
containing any such provision held to be invalid, illegal or unenforceable, that
is not itself held to be invalid, illegal or unenforceable) shall not in any way
be affected or impaired thereby; and (ii) to the fullest extent possible, the
provisions of this Bylaw (including, without limitation, each such portion of
any paragraph of this Bylaw containing any such provision held to be invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
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(e) For purposes of these Bylaws:
(i) "Disinterested Director" means a director of the Company who is not
and was not a party to the proceeding or matter in respect of which
indemnification is sought by the claimant.
(ii) "Subsidiary" means a corporation, a majority of the capital stock
of which is owned directly or indirectly by the Company.
Article 8 of the Company Certificate provides that a person who was or
is made a party to, or is involved in, any action, suit or proceeding by reason
of the fact that he or she is or was a director or officer of the Company will
be indemnified by the Company to the fullest extent provided by Delaware Law.
Article 8 also provides that the Company may enter into one or more agreements
with any person which provide for indemnification greater or different than that
provided in Article 8.
ITEM 6. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 7. EXHIBITS.
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<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
4.1 Amended and Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit No. 3(a) to Report on Form 8-K, dated
April 3, 1998).
4.2 Amended and Restated By-Laws of the Registrant (incorporated by reference to
Exhibit No. 3(b) to Report on Form 8-K, dated April 3, 1998).
4.3 Rights Agreement between the Registrant and the Bank of New York
(incorporated by reference to Exhibit 4.2 to Report on Form 8-K, dated
October 25, 1993).
4.4 Amendment No. 1 to Rights Agreement between the Registrant and the Bank of
New York (incorporated by reference to Exhibit 1 to Form 8-A/A, dated
October 15, 1997).
4.5 Amendment No. 2 to Rights Agreement between the Registrant and the Bank of
New York (incorporated by reference to Post-Effective Amendment No. 2 to
Form S-8, dated April 15, 1998).
4.6 Sodexho Marriott Services Employee Stock Purchase Plan (incorporated
by reference to Appendix A of Definitive Proxy Statement, Form 14A, dated
December 3, 1999).
23.1 Consent of Arthur Andersen LLP (filed herewith).
23.2 Consent of PricewaterhouseCoopers LLP (filed herewith).
24.1 Power of Attorney (filed herewith).
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ITEM 8. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a) 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 this 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.
Paragraphs (a)(i) and (a)(ii) 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 Exchange Act that are incorporated by reference in this
Registration Statement.
(b) 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.
(c) 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.
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 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial BONA FIDE offering
thereof.
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
Securities Act of 1933 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
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Gaithersburg, State of Maryland, on the first
day of June 2000.
SODEXHO MARRIOTT SERVICES, INC.
By:/S/ MICHEL LANDEL
----------------------------
Michel Landel
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
the administrator of the Employee Stock Purchase Plan has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Gaithersburg, State of Maryland, on the first
day of June 2000.
SODEXHO MARRIOTT SERVICES
EMPLOYEE STOCK PURCHASE PLAN
By: /S/OLLIE LAWRENCE, JR.
----------------------------
Ollie Lawrence, Jr.
Plan Administrator
Pursuant to the requirements of the Securities Act of 1933, this Form
S-8 Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/S/ MICHEL LANDEL President and Chief Executive Officer June 1, 2000
--------------------------------- (Principal Executive Officer)
Michel Landel
/S/ JOHN BUSH Senior Vice President and June 1, 2000
--------------------------------- Chief Financial Officer and
John Bush Acting Chief Accounting Officer
(Principal Financial Officer)
</TABLE>
A majority of the Board of Directors (Michel Landel, Daniel J.
Altobello, Pierre Bellon, Bernard Carton, Edouard de Royere, John W. Marriott
III and William J. Shaw).
Date: June 1, 2000 By: /S/ ROBERT A. STERN
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Robert A. Stern, Attorney-In-Fact
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
4.1 Amended and Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit No. 3(a) to Report on Form 8-K, dated
April 3, 1998).
4.2 Amended and Restated By-Laws of the Registrant (incorporated by reference to
Exhibit No. 3(b) to Report on Form 8-K, dated April 3, 1998).
4.3 Rights Agreement between the Registrant and the Bank of New York
(incorporated by reference to Exhibit 4.2 to Report on Form 8-K, dated
October 25, 1993).
4.4 Amendment No. 1 to Rights Agreement between the Registrant and the Bank of
New York (incorporated by reference to Exhibit 1 to Form 8-A/A, dated
October 15, 1997).
4.5 Amendment No. 2 to Rights Agreement between the Registrant and the Bank of
New York (incorporated by reference to Post-Effective Amendment No. 2 to
Form S-8, dated April 15, 1998).
4.6 Sodexho Marriott Services Employee Stock Purchase Plan (incorporated
by reference to Appendix A of Definitive Proxy Statement, Form 14A, dated
December 3, 1999).
23.1 Consent of Arthur Andersen LLP (filed herewith).
23.2 Consent of PricewaterhouseCoopers LLP (filed herewith).
24.1 Power of Attorney (filed herewith).
</TABLE>
