As filed with the Securities and Exchange Commission on May 28, 2004
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 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)
--------------------
ServiceMaster 2004 Employee Stock Purchase 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
-------------------------------- ---------------------- ----------------------- ---------------------- ----------------------
-------------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Common Stock, par value $0.01
per share.................... 3,000,000 shares $11.59 (1) $34,770,000 (1) $4,405
-------------------------------- ---------------------- ----------------------- ---------------------- ----------------------
-------------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Preferred Stock Purchase Rights
3,000,000 rights (2) (2) (2) (2)
================================ ====================== ======================= ====================== ======================
(1) Estimated solely for the purpose of calculating the registration fee and,
pursuant to Rule 457(h) under the Securities Act of 1933, based upon the
average of the high and low prices of the Common Stock as reported on the
New York Stock Exchange on May 25, 2004.
(2) The Preferred Stock Purchase Rights initially are attached to and trade with
the shares of Common Stock being registered hereby. Value attributable to
such Rights, if any, is reflected in the market price of the Common Stock.
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;
2. Quarterly Report on Form 10-Q for the quarter ended March 31,
2004; and
3. The descriptions of the common stock, $.01 par value, of
ServiceMaster ("Common Stock") and the associated preferred
stock purchase rights ("Preferred Stock Purchase Rights") that
are contained in registration statements filed by
ServiceMaster with the Commission under Section 12 of the
Securities Exchange Act of 1934 (the "Exchange Act"),
including any subsequent amendment or any report filed for the
purpose of updating either 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"), 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.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
The legality of the securities being registered hereby has been passed on
by Jim L. Kaput, Esq., Senior Vice President and General Counsel of
ServiceMaster. Mr. Kaput owns shares of Common Stock, and options to purchase
shares of Common Stock and stock appreciation rights with respect to shares of
Common Stock.
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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 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
----------- -----------
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 Shareholder Rights Agreement between ServiceMaster and Harris Trust and Savings Bank, as rights
agent, as adopted on December 12, 1997, is incorporated by reference to Exhibit 3 to the Current
Report on Form 8-K filed by ServiceMaster Limited Partnership on December 23, 1997 (File No.
1-9378) (the "1997 8-K").
4.4 Certificate of Designation, Preferences and Rights of Junior Participating Preferred Stock, Series
A, of ServiceMaster, is incorporated by reference to Exhibit 4 to the 1997 8-K.
4.5* ServiceMaster 2004 Employee Stock Purchase Plan.
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.
II-2
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) 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,
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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
--------- ----- ----
/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 March 5, 2004
------------------------------------
Paul W. Berezny
------------------------------------ Director
John L. Carl
------------------------------------ Director
Brian Griffiths
* Director March 5, 2004
------------------------------------
Sidney E. Harris
* Director March 5, 2004
------------------------------------
Roberto R. Herencia
* Director March 5, 2004
------------------------------------
Herbert P. Hess
* Director March 5, 2004
------------------------------------
James D. McLennan
* Director March 5, 2004
------------------------------------
Dallen W. Peterson
* Director March 5, 2004
------------------------------------
Betty Jane Scheihing
* Director March 5, 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
----------- -----------
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 Shareholder Rights Agreement between ServiceMaster and Harris Trust and Savings Bank, as rights
agent, as adopted on December 12, 1997, is incorporated by reference to Exhibit 3 to the Current
Report on Form 8-K filed by ServiceMaster Limited Partnership on December 23, 1997 (File No.
1-9378) (the "1997 8-K").
4.4 Certificate of Designation, Preferences and Rights of Junior Participating Preferred Stock, Series
A, of ServiceMaster, is incorporated by reference to Exhibit 4 to the 1997 8-K.
4.5* ServiceMaster 2004 Employee Stock Purchase Plan.
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 4.5
ServiceMaster 2004 Employee Stock Purchase Plan
1. Purpose. The purpose of the ServiceMaster 2004 Employee Stock
Purchase Plan (the "Plan") is to provide employees of The ServiceMaster Company,
a Delaware corporation ("ServiceMaster"), and its subsidiaries and related
entities that with the consent of ServiceMaster adopt the Plan (collectively,
the "Participating Employers"), added incentive to promote the best interests of
such companies by permitting eligible employees to purchase shares of common
stock, par value $.01 per share, of ServiceMaster ("Common Stock") through
payroll deductions or other contributions and supplemented by contributions by
the Participating Employers. The Plan is not intended to qualify as an "employee
stock purchase plan" under Section 423 of the Internal Revenue Code of 1986, as
amended (the "Code").
2. Eligibility. Each employee of a Participating Employer who has
satisfied each of the following conditions (an "Eligible Employee") shall be
eligible to participate in the Plan:
(a) such employee has attained age 18; and
(b) such employee has been employed by a Participating Employer for at
least 90 consecutive days.
For purposes of the Plan, the term "employee" shall not include any individual
who performs services for a Participating Employer pursuant to an agreement
(written or oral) that classifies such individual's relationship with the
Participating Employer as other than a common law employee of the Participating
Employer, regardless of whether such individual is at any time determined to be
a common law employee of the Participating Employer.
3. Effective Date of Plan. The Plan shall be effective April 30, 2004
(the "Effective Date"), provided the Plan is approved by ServiceMaster's
stockholders at its 2004 annual meeting in accordance with the applicable rules
of the New York Stock Exchange (the "NYSE").
4. Basis of Participation.
(a) Enrollment. Subject to compliance with applicable rules prescribed
by the Committee, as defined in Section 14, each Eligible Employee shall be
entitled to participate in the Plan anytime on or after the date such employee
becomes an Eligible Employee.
(b) Payroll Deductions. To participate in the Plan, an Eligible
Employee may elect, at the time and in the manner prescribed by the Committee,
an amount of payroll deduction to be applied to the Compensation, as hereinafter
defined, paid to the employee by the employee's employer for each subsequent
payroll period during which the employee is a participant in the Plan. For
participants other than those employed in the United Kingdom, the amount of
payroll deduction elected for each payroll period shall be a whole percentage,
not to exceed 10%, of the participant's Compensation for such payroll period.
For participants employed in the United Kingdom, the amount of payroll deduction
elected for each payroll period shall be a specified amount, provided that the
aggregate amount of payroll deductions elected by such participant for any
calendar year shall not exceed 10% of the participant's Compensation for the
immediately preceding calendar year. Subject to compliance with applicable rules
prescribed by the Committee, a payroll deduction election shall become effective
as soon as administratively practicable after ServiceMaster or its designated
agent receives such election. Payroll deductions shall be made for each
participant in accordance with such participant's election until the
participant's participation in the Plan terminates, the participant makes a new
election which changes the amount of payroll deductions, the participant elects
to suspend his or her participation in the Plan or the Plan terminates, all as
hereinafter provided. For purposes of this Plan, an Eligible Employee's
"Compensation" shall include the base compensation, bonuses, commissions and
overtime pay paid to such Eligible Employee by a Participating Employer, but
shall exclude any other pay or reimbursements.
(c) Changes in Payroll Deductions. A participant may change the amount
of his or her payroll deduction at any time, and such change shall become
effective as soon as administratively practicable after notice of the change is
received by ServiceMaster or its designated agent in the manner specified by the
Committee.
(d) Other Methods of Contribution. Subject to the limits set forth in
Section 4(b), the Committee may, in its discretion, establish additional
procedures whereby Eligible Employees may participate in the Plan by means other
than payroll deduction, including, but not limited to, delivery of funds by
participants in a lump sum or automatic charges to participants' bank accounts.
Such other methods of participating shall be subject to such rules and
conditions as the Committee may establish.
5. Purchase Account. Payroll deductions and other contributions by each
participant shall be credited to a purchase account established on behalf of the
participant on the books of ServiceMaster or its designated agent (a "Purchase
Account"). No interest shall accrue at any time for any amount credited to a
Purchase Account of a participant.
6. Employer Contributions. As of the last day of each calendar month,
ServiceMaster shall credit to each participant's Purchase Account an amount (an
"Employer Contribution") equal to 15% (or such lesser percentage prescribed by
the Board of Directors of ServiceMaster (the "Board")) of the payroll deductions
and other contributions by the participant that were credited to such
participant's Purchase Account during such calendar month.
7. Purchase of Shares. On the second day after the last day of each
calendar month, or if shares of Common Stock are not traded on the New York
Stock Exchange on such day, the next day on which shares of Common Stock are so
traded (each such date a "Purchase Date"), the cash amount credited to a
participant's Purchase Account as of the last day of the month ending
immediately prior to such Purchase Date, including the Employer Contributions
credited to the Purchase Account as of the last day of such month, will be
applied to the purchase of the number of whole and fractional shares of Common
Stock determined by dividing such amount by the Fair Market Value of a share of
Common Stock on such Purchase Date (the "Purchase Price"). For purposes of the
Plan, the "Fair Market Value" of a share of Common Stock on any date shall be
the closing transaction price of a share of Common Stock as reported in the New
York Stock Exchange Composite Transactions on such date or, if there shall be no
reported transaction for such date, on the next preceding date for which a
transaction was reported; provided, however, that Fair Market Value may be
determined by the Committee by whatever other means or method as the Committee,
in the good faith exercise of its discretion, shall at such time deem
appropriate.
8. Share Accounts and Certificates. The Common Stock purchased by each
participant shall be posted to an account established on behalf of the
participant by ServiceMaster or its designated agent (a "Share Account") as soon
as practicable after, and credited to such participant's Share Account as of,
each Purchase Date. Dividends on shares purchased by a participant and held in
such participant's Share Account under the Plan shall be credited to such
participant's Share Account and shall be used to purchase additional shares of
Common Stock as of the next following Purchase Date. Certificates representing a
number of full shares of Common Stock held in a participant's Share Account will
be delivered to such participant as soon as administratively practicable after
the participant submits a written request to ServiceMaster or its designated
agent. Share certificates shall be delivered as specified by the participant
with any required signature guarantees. If a participant's Share Account at any
time holds only a fractional share of Common Stock, such account shall terminate
and the participant shall receive a cash payment equal to the Fair Market Value
of such fractional share. After the close of each calendar quarter, information
will be made available to each participant regarding the entries made to such
participant's Share Account, the number of shares of Common Stock purchased and
sold, the applicable Purchase Price and any dividends received on shares
allocated to the participant's Share Account.
9. Suspension or Termination of Participation.
(a) A participant may elect at any time, in the manner prescribed by
the Committee, to suspend his or her participation in the Plan. Such suspension
shall be effective as soon as administratively practicable after such election
is received by ServiceMaster or its designated agent. If a participant makes a
hardship withdrawal from any plan with a cash or deferred arrangement, whether
or not qualified under Section 401(k) of the Code, which plan is sponsored, or
participated in, by a Participating Employer, such participant shall be
suspended from making payroll deductions under the Plan for a period of six
months. After the expiration of such period of suspension, the participant may
resume his or her payroll deductions in accordance with Section 4.
(b) Upon any suspension of participation, the participant's payroll
deductions shall cease and the amount credited to such participant's Purchase
Account on the date of such suspension shall be used to purchase shares of
Common Stock on the next Purchase Date. A participant whose participation in the
Plan is suspended shall be permitted to resume participation in the Plan by
making a new request at the time and in the manner described in Section 4
hereof.
(c) If a participant dies, terminates employment with the Participating
Employers for any reason, or otherwise ceases to be an Eligible Employee, such
participant's participation in the Plan shall immediately terminate. Upon such
terminating event, the amount credited to such participant's Purchase Account on
the date of such termination shall be used to purchase shares of Common Stock on
the next Purchase Date. Pursuant to Section 8, certificates for the number of
full shares of Common Stock and the cash equivalent for any fractional share
held for such participant's benefit shall be delivered and paid upon the written
request of the participant or his or her designated beneficiary or legal
representative.
10. Termination or Amendment of the Plan.
(a) ServiceMaster, by action of the Board or the Committee, may
terminate the Plan at any time and for any reason. Without any action being
required, the Plan shall terminate in any event when the maximum number of
shares of Common Stock to be sold under the Plan (as provided in Section 15) has
been purchased. If at any time the number of shares of Common Stock remaining
available for purchase under the Plan are not sufficient to satisfy all
then-outstanding purchase rights, the Board or Committee may determine an
equitable basis of apportioning available shares of Common Stock among all
participants. Upon termination of the Plan, certificates representing the number
of full shares of Common Stock held for each participant's benefit shall be
delivered upon the written request of such participant, pursuant to Section 8,
and the cash equivalent of any fractional share so held, and the cash, if any,
credited to such participant's Purchase Account, shall be distributed as soon as
practicable to such participant.
(b) The Board or the Committee may amend the Plan from time to time in
any respect for any reason; provided, however, that no such amendment shall
increase the maximum number of shares of Common Stock which may be purchased
under the Plan or otherwise modify the Plan in any material respect, within the
meaning of the applicable rules of the NYSE, unless such increase or
modification is approved by the shareholders of the Company to the extent
required by the applicable rules of the NYSE.
11. Non-Transferability. No rights under the Plan shall be transferable
other than by will or the laws of descent and distribution or pursuant to
beneficiary designation procedures approved by ServiceMaster. Except to the
extent permitted by the foregoing sentence, shares of Common Stock may be
purchased during a participant's lifetime only by the participant or the
participant's legal representative or similar person. Except as permitted by the
second preceding sentence, no rights hereunder shall be sold, transferred,
assigned, pledged, hypothecated, encumbered or otherwise disposed of (whether by
operation of law or otherwise) or be subject to execution, attachment or similar
process. Any attempt to so sell, transfer, assign, pledge, hypothecate, encumber
or otherwise dispose of any rights hereunder shall be null and void.
12. Tax Withholding. A Participating Employer shall have the right to
require, prior to the issuance or delivery of any shares of Common Stock,
payment by the participant of any Federal, state, local or other taxes which may
be required to be withheld or paid in connection with a purchase hereunder. The
Company either shall (i) withhold such taxes from the participant's Compensation
or (ii) withhold shares of Common Stock which would otherwise be purchased as of
a Purchase Date having an aggregate Fair Market Value determined as of the date
the obligation to withhold or pay taxes arises in connection with the purchase
of shares hereunder in the amount necessary to satisfy any such obligation.
13. Shareholder's Rights. No Eligible Employee or participant shall by
reason of the Plan have any rights of a shareholder of ServiceMaster until he or
she shall acquire Common Stock as herein provided.
14. Administration of the Plan. The Plan shall be administered by the
Compensation and Leadership Development Committee of the Board (the
"Committee"). In addition to the power to amend or terminate the Plan pursuant
to Section 10, the Committee shall have full power and authority to: (i)
interpret and administer the Plan and any instrument or agreement entered into
under the Plan; (ii) establish such rules and regulations and appoint such
agents as it shall deem appropriate for the proper administration of the Plan;
and (iii) make any other determination and take any other action that the
Committee deems necessary or desirable for administration of the Plan. Decisions
of the Committee shall be final, conclusive and binding upon all persons,
including any participant and any other employee of a Participating Employer.
The day-to-day administration of the Plan under (i), (ii) and (iii) above shall
be overseen by an internal Plan Committee that is appointed by the Chairman and
Chief Executive Office and ratified by the Committee.
15. Maximum Number of Shares. The maximum number of shares of Common
Stock which may be purchased under the Plan is 3,000,000, subject to adjustment
as hereinafter set forth. Common Stock sold hereunder may be purchased by
ServiceMaster in the open market (on an exchange or in negotiated transactions)
or may be previously acquired treasury shares, authorized and unissued shares,
or any combination of shares purchased in the open market, previously acquired
treasury shares or authorized and unissued shares.
16. Adjustment. In the event of any stock split, reverse stock split,
stock dividend, recapitalization, reorganization, merger, consolidation,
combination, exchange of shares, liquidation, spin-off or other similar change
in capitalization or event, or any distribution to holders of Common Stock other
than a regular cash dividend, the maximum number and class of securities
available under this Plan and the number and class of securities credited to
each participant's Share Account shall be appropriately adjusted by the
Committee. The decision of the Committee regarding any such adjustment shall be
final, binding and conclusive.
17. Expenses. ServiceMaster shall bear the costs of administering the
Plan and purchasing shares of Common Stock thereunder. Participants shall pay
all costs incurred in selling or disposing of any shares of Common Stock
acquired under the Plan.
18. Miscellaneous. Except as otherwise expressly provided herein, (i)
any request, election or notice under the Plan from an Eligible Employee or
participant shall be transmitted or delivered to ServiceMaster or its designated
agent and, subject to any limitations specified in the Plan, shall be effective
when received by ServiceMaster or its designated agent and (ii) any request,
notice or other communication from ServiceMaster or its designated agent that is
transmitted or delivered to Eligible Employees or participants shall be
effective when so transmitted or delivered to the address set forth in the
records of ServiceMaster or a Participating Employer. The Plan, and
ServiceMaster's obligation to sell and deliver Common Stock hereunder, shall be
subject to all applicable federal and state laws, rules and regulations, and to
such approval by any regulatory or governmental agency as may, in the opinion of
counsel for ServiceMaster, be required.
19. Governing Law. The Plan and all determinations made hereunder and
actions taken pursuant hereto, to the extent not otherwise governed by the Code
or the laws of the United States, shall be governed by the laws of the State of
Delaware and construed in accordance therewith without giving effect to
principles of conflicts of laws.
20. Foreign Employees. Without the amendment of this Plan, the
Committee may provide for the participation in the Plan by Eligible Employees
who are subject to the laws of foreign countries or jurisdictions on such terms
and conditions different from those specified in this Plan as may in the
judgment of the Committee be necessary or desirable to foster and promote
achievement of the purposes of this Plan and, in furtherance of such purposes
the Committee may make such modifications, amendments, procedures, subplans and
the like as may be necessary or advisable to comply with provisions of laws of
other countries or jurisdictions in which Participating Employers operate or
have employees.
EXHIBIT 5
May 28, 2004
The ServiceMaster Company
3250 Lacey Road, Suite 600
Downers Grove, Illinois 60515-1700
Re: 3,000,000 shares of Common Stock, $.01 par value
3,000,000 Preferred Stock Purchase Rights
-----------------------------------------
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 3,000,000 shares of common stock, $.01
par value (the "Registered Common Stock"), together with 3,000,000 Preferred
Stock Purchase Rights of ServiceMaster (the "Registered Rights") associated
therewith, to be issued under the ServiceMaster 2004 Employee Stock Purchase
Plan (the "Plan"). The terms of the Registered Rights are set forth in the
Shareholder Rights Agreement, dated as of December 15, 1997 (the "Rights
Agreement"), between ServiceMaster and Harris Trust and Savings Bank, as Rights
Agent.
I am familiar with the Plan, the Rights Agreement 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 share of Registered Common Stock which is newly issued pursuant
to any of the Plans will be legally issued, fully paid and non-assessable when
(i) the Registration Statement shall have become effective under the Securities
Act; (ii) ServiceMaster's Board of Directors or a duly authorized committee
thereof shall have authorized the issuance of such share for the consideration
provided in the applicable Plan; and (iii) a certificate representing such share
shall have been duly executed, countersigned and registered and duly delivered
against the receipt by ServiceMaster of the consideration provided in the
applicable Plan.
3. The Registered Right associated with each share of Registered Common
Stock referred to in paragraph 2 will be validly issued when (i) such Registered
Right shall have been duly issued in accordance with the terms of the Rights
Agreement and (ii) such associated share shall have been duly issued and paid
for in paragraph 2.
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 or sale of shares
of Registered Common Stock or the Registered Rights.
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 common stock and preferred stock purchase rights to be offered
and sold pursuant to the ServiceMaster 2004 Employee Stock Purchase 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: March 5, 2004
/s/ Paul W. Berezny /s/ James D. McLennan
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Paul W. Berezny James D. McLennan
/s/ Dallen W. Peterson
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John L. Carl Dallen W. Peterson
/s/ Betty Jane Scheihing
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Brian Griffiths Betty Jane Scheihing
/s/ Sidney E. Harris /s/ David K. Wessner
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Sidney E. Harris David K. Wessner
/s/ Roberto R. Herencia
----------------------------------------
Roberto R. Herencia
/s/ Herbert P. Hess
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Herbert P. Hess