As filed with the Securities and Exchange Commission on May 28, 2004
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
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The ServiceMaster Company
(Exact Name of Registrant as Specified in its Charter)
Delaware 36-3858106
(State or Other Jurisdiction of Incorporation or (I.R.S. Employer Identification No.)
Organization)
3250 Lacey Road, Suite 600
Downers Grove, Illinois 60515-1700
(630) 663-2000
(Address and Telephone Number of Principal Executive Offices)
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ServiceMaster Deferred Compensation Plan
(Full Title of the Plan)
Jim L. Kaput
Senior Vice President and General Counsel
The ServiceMaster Company
3250 Lacey Road, Suite 600, Downers Grove, Illinois 60515-1700
(630) 663-2000
(Name, Address and Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
================================ ====================== ======================= ====================== ======================
Proposed Maximum Proposed Maximum
Title of Each Class Amount to be Offering Price Aggregate Offering Amount of
of Securities to be Registered Registered Per Unit Price Registration Fee
-------------------------------- ---------------------- ----------------------- ---------------------- ----------------------
-------------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Deferred Compensation
Obligations.................. $20,000,000 (1) N/A (1) (1) $2,534
================================ ====================== ======================= ====================== ======================
(1) The Deferred Compensation Obligations are unsecured obligations of The
ServiceMaster Company to pay deferred compensation in the future in
accordance with the terms of the ServiceMaster Deferred Compensation Plan.
Participants in the Plan may elect from among various investment options.
These investments will accrue earnings (or losses) on the obligations based
on their respective performance.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents heretofore filed (File No. 1-14762) with the
Securities and Exchange Commission (the "Commission") by The ServiceMaster
Company ("ServiceMaster") are incorporated herein by reference:
1. Annual Report on Form 10-K for the year ended December 31, 2003; and
2. Quarterly Report on Form 10-Q for the quarter ended March 31, 2004.
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"), it being understood that any documents filed by
ServiceMaster with the Commission pursuant to Item 9 or Item 12 of Form 8-K
shall not be deemed to be incorporated by reference into this registration
statement.
Any statement contained in an incorporated document shall be deemed to
be modified or superseded for purposes of this registration statement to the
extent that a statement contained herein or in any other subsequently filed
incorporated document 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 registration statement.
Item 4. Description of Securities.
The $20,000,000 of deferred compensation obligations (the
"Obligations") being registered under this registration statement may be offered
to certain eligible employees of ServiceMaster and its subsidiaries pursuant to
the ServiceMaster Deferred Compensation Plan (the "Deferred Compensation Plan").
The Obligations are general unsecured obligations of ServiceMaster to pay
deferred compensation in the future in accordance with the terms of the Deferred
Compensation Plan from the general assets of ServiceMaster. The Obligations,
which are credited to a bookkeeping account, rank pari passu with other
unsecured and unsubordinated indebtedness of ServiceMaster from time to time
outstanding. While ServiceMaster has established a trust to hold assets
contributed under the Deferred Compensation Plan, these assets remain subject to
claims of any unsecured creditor or holder of unsubordinated indebtedness of
ServiceMaster from time to time outstanding.
The amount of compensation deferred by each participant is determined
in accordance with such participant's deferral election and the provisions of
the Deferred Compensation Plan. The Deferred Compensation Plan provides for the
investment of each participant's deferral account in such investments as the
participant may have elected from among various investment options in each
Deferred Compensation Plan year. A participant's deferral account is indexed to
the investment elections made by such participant in accordance with the
Deferred Compensation Plan. Participants cannot sell, assign, transfer, pledge
or otherwise encumber Obligations. All deferral accounts together with earnings
thereon will be payable upon the termination of the deferral period, retirement,
death, disability or termination of
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employment in a single lump sum or, at the
election of the participant, in annual installments in accordance with the terms
of the Deferred Compensation Plan.
ServiceMaster reserves the right to amend or terminate the Deferred
Compensation Plan at any time, subject to any stockholder approval required by
applicable law, provided, that no amendment or termination may adversely affect
the rights of any participant with respect to amounts that have been credited to
such participant's account prior to the date of amendment or termination.
The Obligations are not convertible into any other security of
ServiceMaster. The Obligations will not have the benefit of a negative pledge or
any other affirmative or negative covenant of ServiceMaster.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
ServiceMaster is incorporated under the laws of the State of Delaware.
Section 145 of the Delaware General Corporation Law allows for indemnification
of directors and officers of Delaware corporations against certain expenses,
judgments, fines and settlements in connection with litigation. ServiceMaster's
Amended and Restated Certificate of Incorporation provides for indemnification
of the directors and officers of ServiceMaster against certain liabilities. In
addition, Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of its directors and officers against certain liabilities.
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.
Exhibit No. Description
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4.1 Amended and Restated Certificate of Incorporation of ServiceMaster, as filed with the Secretary of
State, State of Delaware, on November 6, 1997, is incorporated by reference to Exhibit 1 to
ServiceMaster's Current Report on Form 8-K, No. 2 dated February 26, 1998 (File No. 1-14762).
4.2 Bylaws of ServiceMaster, as amended through April 26, 2002, are incorporated by reference to
Exhibit 3(ii) to ServiceMaster's Quarterly Report on Form 10-Q for the quarter ended March 31,
2002 (File No. 1-14762).
4.3 ServiceMaster Deferred Compensation Plan, as amended and restated effective October 24, 2002, is
incorporated by reference to Exhibit 10.29 to ServiceMaster's Annual Report on Form 10-K for the
year ended December 31, 2003 (File No. 1-14762).
5* Opinion of Counsel.
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23.1* Consent of Deloitte & Touche LLP.
23.2* Consent of Counsel (included in Exhibit 5).
24* Powers of Attorney.
* Filed herewith.
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 a 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 the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act 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)
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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
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 Village of Downers Grove, State of Illinois, on May 28, 2004.
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, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
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/s/ Jonathan P. Ward Chairman and Chief Executive Officer and May 28, 2004
------------------------------------ Director
Jonathan P. Ward
/s/ Ernest J. Mrozek President and Chief Financial Officer May 28, 2004
------------------------------------ (Principal Financial Officer and Principal
Ernest J. Mrozek Accounting Officer)
* Director April 30, 2004
------------------------------------
Paul W. Berezny
* Director April 30, 2004
------------------------------------
John L. Carl
* Director April 30, 2004
------------------------------------
Brian Griffiths
* Director April 30, 2004
------------------------------------
Sidney E. Harris
__________________________ Director
Roberto R. Herencia
* Director April 30, 2004
------------------------------------
Herbert P. Hess
* Director April 30, 2004
------------------------------------
James D. McLennan
* Director April 30, 2004
------------------------------------
Dallen W. Peterson
* Director April 30, 2004
------------------------------------
Betty Jane Scheihing
* Director April 30, 2004
------------------------------------
David K. Wessner
* 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
Senior Vice President and General Counsel
EXHIBIT INDEX
Exhibit No. Description
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4.1 Amended and Restated Certificate of Incorporation of ServiceMaster, as filed with the Secretary of
State, State of Delaware, on November 6, 1997, is incorporated by reference to Exhibit 1 to
ServiceMaster's Current Report on Form 8-K, No. 2 dated February 26, 1998 (File No. 1-14762).
4.2 Bylaws of ServiceMaster, as amended through April 26, 2002, are incorporated by reference to
Exhibit 3(ii) to ServiceMaster's Quarterly Report on Form 10-Q for the quarter ended March 31,
2002 (File No. 1-14762).
4.3 ServiceMaster Deferred Compensation Plan, as amended and restated effective October 24, 2002, is
incorporated by reference to Exhibit 10.29 to ServiceMaster's Annual Report on Form 10-K for the
year ended December 31, 2003 (File No. 1-14762).
5* Opinion of Counsel.
23.1* Consent of Deloitte & Touche LLP.
23.2* Consent of Counsel (included in Exhibit 5).
24* Powers of Attorney.
* Filed herewith
EXHIBIT 5
May 28, 2004
The ServiceMaster Company
3250 Lacey Road, Suite 600
Downers Grove, Illinois 60515-1700
Re: $20,000,000 of deferred compensation obligations under the
ServiceMaster Deferred Compensation Plan
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Ladies and Gentlemen:
I am General Counsel for The ServiceMaster Company, a Delaware
corporation ("ServiceMaster"), and have acted as counsel for ServiceMaster in
connection with the preparation and filing of a Registration Statement on Form
S-8 (the "Registration Statement") with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), relating to the registration of $20,000,000 of deferred compensation
obligations (the "Registered Obligations") to be issued under the ServiceMaster
Deferred Compensation Plan (the "Plan").
I am familiar with the Plan and the Registration Statement. I have also
examined originals, or copies of originals certified or otherwise identified to
my satisfaction, of ServiceMaster's corporate records. I have examined such
questions of law and have satisfied myself to such matters of fact as I have
deemed relevant and necessary as a basis for the opinions expressed herein. I
have assumed the authenticity of all documents submitted to me as originals, the
genuineness of all signatures, the legal capacity of all natural persons and the
conformity with the original documents of any copies thereof submitted to me for
my examination.
Based upon the foregoing, I am of the opinion that:
1. ServiceMaster is duly incorporated and validly existing under the
laws of the State of Delaware.
2. Each of the Registered Obligations will be validly issued and
binding obligations of ServiceMaster when (i) such Registration Statement shall
have become effective under the Securities Act; and (ii) such Registered
Obligations shall have been duly issued in accordance with the terms of the
Plan.
This opinion letter is limited to the General Corporation Law of the
State of Delaware and the federal laws of the United States of America. I
express no opinion as to the application of the securities or blue sky laws of
the various states or the District of Columbia to the issuance of the Registered
Obligations.
I hereby consent to the filing of this opinion letter as an exhibit to
the Registration Statement. In giving such consent, I do not thereby admit that
I am within the category of persons whose consent is required by Section 7 of
the Securities Act or the related rules and regulations promulgated by the
Commission.
Very truly yours,
/s/ Jim L. Kaput
---------------------------
Jim L. Kaput
Senior Vice President and
General Counsel
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement of
The ServiceMaster Company on Form S-8 of our reports dated March 15, 2004 (which
report on the financial statements expresses an unqualified opinion and includes
an explanatory paragraph relating to the adoption of Statement of Financial
Accounting Standards ("SFAS") No. 145, "Rescission of FASB Statements No. 4, 44,
and 64, Amendment of Statement No. 13 and Technical Corrections," and the
adoption of SFAS No. 142, "Goodwill and Other Intangible Assets"), appearing in
and incorporated by reference in the Annual Report on Form 10-K of The
ServiceMaster Company for the year ended December 31, 2003.
/s/ Deloitte & Touche LLP
Chicago, Illinois
May 26, 2004
EXHIBIT 24
POWER OF ATTORNEY
I hereby appoint each of Jonathan P. Ward, Ernest J. Mrozek and Jim L.
Kaput, any of them, or any other person occupying the office of Chairman, Chief
Executive Officer, Chief Financial Officer or General Counsel with The
ServiceMaster Company ("ServiceMaster") at the time any action hereby authorized
shall be taken to act as my attorney-in-fact and agent for all purposes
specified in this Power of Attorney. I hereby authorize each person identified
by name or office in the preceding sentence (each of whom is herein called my
"authorized representative") acting alone to sign and file on my behalf in all
capacities I may at any time have with ServiceMaster (including but not limited
to the position of director or any officer position) the Registration Statement
prepared under the Securities Act of 1933 identified in this Power of Attorney
and any amendment to any such Registration Statement. I hereby authorize each
authorized representative in my name and on my behalf to execute every document
and take every other action which such authorized representative deems necessary
or desirable in connection with the Registration Statement identified in this
Power of Attorney and any sale of securities or other transaction accomplished
by means of any such Registration Statement.
This Power of Attorney applies to a Registration Statement on Form S-8
that registers deferred compensation obligations to be offered and sold pursuant
to the ServiceMaster Deferred Compensation Plan.
This instrument shall remain in effect until the earlier to occur of
(i) my cessation of service as a director or officer of ServiceMaster and (ii)
my giving written notice to ServiceMaster's Chairman, Chief Executive Officer,
Chief Financial Officer or General Counsel of my election to revoke this
instrument. No such revocation shall be effective to revoke the authority for
any action taken pursuant to this Power of Attorney prior to such cessation of
service or delivery of such revocation.
The law of the State of Illinois shall govern this instrument.
Dated: April 30, 2004
/s/ Paul W. Berezny /s/ James D. McLennan
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Paul W. Berezny James D. McLennan
/s/ John L. Carl /s/ Dallen W. Peterson
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John L. Carl Dallen W. Peterson
/s/ Brian Griffiths /s/ Betty Jane Scheihing
---------------------------------------- -----------------------
Brian Griffiths Betty Jane Scheihing
/s/ Sidney E. Harris /s/ David K. Wessner
---------------------------------------- ---------------------
Sidney E. Harris David K. Wessner
----------------------------------------
Roberto R. Herencia
/s/ Herbert P. Hess
----------------------------------------
Herbert P. Hess