As filed with the Securities and Exchange Commission on September 21, 1998
Registration No. 333-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------------------
SODEXHO MARRIOTT SERVICES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 52-0936594
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
10400 FERNWOOD ROAD
BETHESDA, MARYLAND 20817
(Address of principal executive offices, including zip code)
-------------------------
SODEXHO SAVINGS PLUS PLAN
(Full title of the plan)
-------------------------
Robert A. Stern
Senior Vice President and General Counsel
Sodexho Marriott Services, Inc.
10400 Fernwood Road
Bethesda, Maryland 20817
(301) 380-3100
-------------------------
(Name, Address and Telephone Number, including Area Code, of Agent for Service)
Copy to:
PETER J. ROMEO, ESQ.
HOGAN & HARTSON L.L.P.
555 THIRTEENTH STREET, N.W.
WASHINGTON, D.C. 20004
(202) 637-5600
CALCULATION OF REGISTRATION FEE
===========================================================================================================================
TITLE OF EACH CLASS OF AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
SHARE(1) PRICE(1) FEE
- ---------------------------------------------------------------------------------------------------------------------------
Common Stock, $1 par 500,000 shares $28.03 $14,015,000 $4,134
value per share(2)(3)
===========================================================================================================================
[FN]
(1) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) on the basis of the average of the high and low sale
prices of the Common Stock on the New York Stock Exchange on September 15, 1998.
(2) Includes rights ("Rights") issuable pursuant to that 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.
(3) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein. Pursuant
to Rule 457(h)(2) under the Securities Act of 1933, no separate registration fee
is required with respect to the plan interests being registered hereby.
</FN>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Documents containing the information required to be provided in this
Part I will be separately sent or given to employees participating in the
Sodexho Savings Plus Plan (the "Plan") as contemplated by Rule 428(b)(1) under
the Securities Act of 1933, as amended (the "Securities Act"). In accordance
with the instructions to Part I of Form S-8, such documents will not be filed
with the Securities and Exchange Commission (the "Commission") either as part of
this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 under the Securities Act.
-2-
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
------------------------------------------------
Sodexho Marriott Services, Inc. (the "Registrant" or the "Company") hereby
incorporates by reference into this Registration Statement the following
documents:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended January 2, 1998, as amended by the Form 10-K/A
Amendment No. 1 for the fiscal year ended January 2, 1998
filed with the Commission on April 30, 1998;
(b) All reports filed by the Registrant with the Commission under
Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), since January 2, 1998;
(c) The description of the Registrant's common stock, $1.00 par
value per share ("Common Stock"), and the Rights contained in
Item 1 of the Registrant's Registration Statement on Form 8-A
filed with the Commission on September 30, 1993, as amended by
the Registrant's Registration Statement on Form 8-A/A filed
with the Commission on May 29, 1998; and
(d) All documents subsequently filed by the Registrant pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior
to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold.
The Plan hereby incorporates by reference into this Registration
Statement all documents subsequently filed by the Plan pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold.
Any statement contained in a document incorporated or deemed to be
incorporated by reference shall be deemed to be modified or superseded to the
extent that a statement contained in any other subsequently filed document which
also is or deemed to be incorporated by reference herein modifies or supersedes
such prior statement. Any such statement so modified or superseded shall not be
deemed to constitute a part of this Registration Statement, except as so
modified or superseded.
To the extent that any proxy statement is incorporated by reference
herein, such incorporation shall not include any information contained in such
proxy statement which is not, pursuant to the Commission's rules, deemed to be
"filed" with the Commission or subject to the liabilities of Section 18 of the
Exchange Act.
Item 4. DESCRIPTION OF SECURITIES.
--------------------------
Not applicable.
-3-
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
---------------------------------------
Not applicable.
Item 6. 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 ("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' 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 provisions such as are 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.
-4-
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.
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.
-5-
(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 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.
(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 7. EXEMPTION FROM REGISTRATION CLAIMED.
------------------------------------
Not applicable.
-6-
Item 8. EXHIBITS.
---------
EXHIBIT
NUMBER TITLE OF EXHIBIT
- ------- ----------------
4.1 Amended and Restated Certificate of Incorporation of the
Registrant (incorporated by reference to Exhibit No. 3(a) to 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 Form 8-K dated April 3, 1998).
4.3 Sodexho Savings Plus Plan.
4.4 Certificate of Designation, Preferences and Rights of Series A
Junior Participating Preferred Stock (incorporated by reference
to Exhibit No. 4.1 to Form 8-K dated October 25, 1993).
4.5 Rights Agreement with the Bank of New York, as Rights Agent,
dated as of October 8, 1993 (the "Rights Agreement")
(incorporated by reference to Exhibit No. 4.2 to Form 8-K dated
October 25, 1993).
4.6 Amendment No. 1 to the Rights Agreement (incorporated by
reference to Exhibit No. 1 to Form 8-A/A filed on October 15,
1997).
4.7 Amendment No. 2 to the Rights Agreement (incorporated by
reference to Exhibit No. 1 to Form 8-A/A filed on May 29, 1998).
23.1 Consent of Arthur Andersen LLP.
24.1 Power of Attorney (included on signature page).
99.1 Trust Agreement between the Registrant and C G Trust Company, as
trustee of the Plan.
The undersigned Registrant hereby undertakes to submit the Plan and any
amendments thereto to the Internal Revenue Service in an timely manner and to
make all changes required by the Internal Revenue Service in order to qualify
the Plan under the applicable provisions of the Internal Revenue Code of 1986,
as amended.
Item 9. UNDERTAKINGS.
-------------
(a) The undersigned Registrant hereby undertakes:
-7-
(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 this 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,
and (iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement; PROVIDED,
HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) shall 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 the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, 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; and
(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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 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 herein, 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 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 Commission such
indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
-8-
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 City of Bethesda, State of Maryland, on the 18th day of
September, 1998.
SODEXHO MARRIOTT SERVICES, INC.
BY: /s/ ROBERT A. STERN
----------------------------
Name: ROBERT A. STERN
Title: Senior Vice President and
General Counsel
Pursuant to the requirements of the Securities Act of 1933, the Sodexho
Savings Plus Plan has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized in the City of
Hartford, State of Connecticut, on the 18th day of September, 1998.
SODEXHO SAVINGS PLUS PLAN
BY: /s/ MARY LOU FILIAULT
------------------------------
Name: Mary Lou Filiault
------------------------------
Title: Vice President, CG Trust Co.
------------------------------
as director trustee of the
Sodexho Savings Plus Plan
-9-
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Charles D. O'Dell and Robert A. Stern as his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for such person
and in his name, place and stead, in any and all capacities, to sign any or all
further amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing requisite and 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 attorney-in-fact and
agent, 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 AND ON THE DATES INDICATED.
SIGNATURES TITLE DATE
/s/ CHARLES D. O'DELL
- ------------------------ President and Chief September 18, 1998
CHARLES D. O'DELL Executive Officer
(Principal Executive
Officer) and Director
/s/ LAWRENCE E. HYATT
- ------------------------ Senior Vice President and September 18, 1998
LAWRENCE E. HYATT Chief Financial Officer
(Principal Financial Officer)
/s/ LOTA ZOTH
- ------------------------ Corporate Controller and September 18, 1998
LOTA ZOTH Chief Accounting Officer
(Principal Accounting
Officer)
/s/ WILLIAM J. SHAW
- ------------------------ Chairman of the Board September 18, 1998
WILLIAM J. SHAW
-10-
/s/ PIERRE BELLON
- ------------------------ Director September 18, 1998
PIERRE BELLON
- ------------------------ Director September 18, 1998
BERNARD CARTON
- ------------------------ Director September 18, 1998
EDOUARD DE ROYERE
/s/ JOHN W. MARRIOTT III
- ------------------------ Director September 18, 1998
JOHN W. MARRIOTT III
/s/ DOCTOR R. CRANTS
- ------------------------ Director September 18, 1998
DOCTOR R. CRANTS
/s/ DANIEL J. ALTOBELLO
- ------------------------ Director September 18, 1998
DANIEL J. ALTOBELLO
-11-
EXHIBIT INDEX
EXHIBIT
NUMBER TITLE OF EXHIBIT PAGES
4.1 Amended and Restated Certificate of Incorporation of *
the Registrant (incorporated by reference to Exhibit
No. 3(a) to 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
Form 8-K dated April 3, 1998).
4.3 Sodexho Savings Plus Plan. 1 - 56
4.4 Certificate of Designation, Preferences and Rights of *
Series A Junior Participating Preferred Stock
(incorporated by reference to Exhibit No. 4.1 to Form
8-K dated October 25, 1993).
4.5 Rights Agreement with the Bank of New York, as Rights *
Agent, dated as of October 8, 1993 (the "Rights
Agreement") (incorporated by reference to Exhibit No.
4.2 to Form 8-K dated October 25, 1993).
4.6 Amendment No. 1 to the Rights Agreement (incorporated *
by reference to Exhibit No. 1 to Form 8-A/A filed on
October 15, 1997).
4.7 Amendment No. 2 to the Rights Agreement (incorporated *
by reference to Exhibit No. 1 to Form 8-A/A filed on
May 29, 1998).
23.1 Consent of Arthur Andersen LLP. 1
24.1 Power of Attorney (included on signature page).
*incorporated by reference
-12-