As filed with the Securities and Exchange Commission on May 24, 2002
Registration No. 333-
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ARAMARK CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 23-3086414
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
ARAMARK Tower
1101 Market Place
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Philadelphia, Pennsylvania 19107
(215) 238-3000
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive office)
ARAMARK 2001 Deferred Compensation Plan
(Full title of the Plan)
The Corporation Trust Company
1209 Orange Street
Wilmington, Delaware 19801
(302) 658-7581
(Name, address, including zip code, and telephone number, including area
code, of Registrant's agent for service)
Copies to:
Bart J. Colli, Esq. Arthur D. Robinson, Esq.
ARAMARK Corporation Simpson Thacher & Bartlett
ARAMARK Tower 425 Lexington Avenue
1101 Market Street New York, New York 10017
Philadelphia, Pennsylvania 19107 (212) 455-2000
(215) 238-3000
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount of
Amount to be Offering Price Aggregate Registration
Title of Securities to be Registered Registered(b) Per Unit Offering Price(b) Fee
------------------------------------------------------------- --------------- ------------------- ------------------- ------------
Deferred Compensation Obligations(a).................... $825,000.00 100% $825,000.00 $75.90
============================================================= =============== =================== =================== ============
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(a) The Deferred Compensation Obligations are unsecured obligations of ARAMARK Corporation to pay deferred compensation in the future in accordance with the terms of the ARAMARK 2001 Deferred Compensation Plan. In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended, this Registration Statement also relates to an indeterminate amount of interests to be offered or sold pursuant to the ARAMARK 2001 Deferred Compensation Plan.
(b) Estimated solely for the purpose of determining the registration fee.
PART I
All information required by Part I to be contained in the prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act of 1933, as amended (the "Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by ARAMARK Corporation (the "Company" or "Registrant") with the Securities and Exchange Commission (the "SEC") pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are hereby incorporated by reference in this Registration Statement:
1. Our Annual Report on Form 10-K for fiscal year ended September 28, 2001;
2. Our Proxy Statement for the Annual Meeting of Stockholders held on February 12, 2002, filed on January 9, 2002;
3. Our Quarterly Reports on Form 10-Q for the quarters ended December 28, 2001 and March 29, 2002; and
4. Our Current Reports on Form 8-K, filed on December 10, 2001, January 22, 2002 and April 19, 2002.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 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 indicating that all securities offered have been sold or which 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 date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein 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 document which also is or is deemed to be incorporated by reference herein 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.
Under the ARAMARK 2001 Deferred Compensation Plan (the "Plan"), the Company will provide eligible employees of the Company and its affiliates with the opportunity to elect to defer a specified percentage of their future cash compensation. The obligation of the Company under the Plan (the "Obligations") will be unsecured general obligations of the Company to pay the compensation deferred in accordance with the terms of the Plan, along with any interest deemed credited on the deferrals, and will rank equally with other unsecured and unsubordinated indebtedness of the Company from time to time outstanding. Because the Company is a holding company, the right of the Company, and hence the right of creditors of the Company (including participants in the Plan) to participate in a distribution of the assets of a subsidiary upon its liquidation or reorganization or otherwise, necessarily is subject to claims of creditors of the subsidiary, except to the extent that claims of the Company itself as a creditor may be recognized.
The amount of compensation to be deferred by each participant (the "Deferral Account") will be determined in accordance with the Plan based on elections by the participant. Each Deferral Account generally will be payable on a date selected by the participant in accordance with the terms of the Plan but, subject to limited exceptions, such date will not be earlier than three years from the date the deferral first becomes effective. The interest on the account follows Moody's Corporate Bond Rate as of the October of the immediately preceding
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calendar year. Deferrals begin earning interest as of the date they would otherwise have been paid to the participant. Interest is compounded quarterly.
A participant's right or the right of any other person to the Deferral Account cannot be assigned, pledged or alienated.
The board of directors of the Company reserves the right to amend or terminate the Plan at any time, and the committee that administers the Plan also has the right to amend the Plan's terms, except that no such amendment by the committee may decrease the balance of any deferral account or retroactively decrease the applicable rate of interest at the time of such amendment.
The Obligations are not convertible into another security of the Company. The Obligations will not have the benefit of a negative pledge or any other affirmative or negative covenant on the part of the Company. No trustee has been appointed having the authority to take action with respect to the Obligations, and each participant will be responsible for acting independently with respect to, among other things, the giving of notices, responding to any request for consent, waivers, or amendments pertaining to the Obligations, enforcing covenants, and taking action upon a default.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Delaware General Corporation Law authorizes corporations to limit or eliminate the personal liability of directors to corporations and their stockholders for monetary damages for breaches of directors' fiduciary duties. Our certificate of incorporation includes a provision that eliminates the personal liability of directors for monetary damages for actions taken as a director, except for liability:
o for breach of duty of loyalty;
o for acts or omissions not in good faith or involving intentional misconduct or knowing violation of law;
o under Section 174 of the Delaware General Corporation Law (unlawful dividends); or
o for transactions from which the director derived improper personal benefit.
Our certificate of incorporation provides that we must indemnify our directors and officers to the fullest extent authorized by the Delaware General Corporation Law. We will also pay expenses incurred in defending any such proceeding in advance of its final disposition upon delivery to us of an undertaking, by or on behalf of an indemnified person, to repay all amounts so advanced if it should be determined ultimately that such person is not entitled to be indemnified under this section or otherwise.
The indemnification rights set forth above shall not be exclusive of any other right which an indemnified person may have or hereafter acquire under any statute, provision of our certificate of incorporation, our by laws, agreement, vote of stockholders or disinterested directors or otherwise.
We maintain insurance to protect ourselves and our directors, officers and representatives against any such expense, liability or loss, whether or not we would have the power to indemnify him against such expense, liability or loss under the Delaware General Corporation Law.
Item 7. Exemption from Registration Claimed.
None.
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Item 8. Exhibits
5 Opinion of Morgan, Lewis & Bockius LLP (consent included therein).
10.1 ARAMARK 2001 Deferred Compensation Plan.
23 Consent of Arthur Andersen LLP.
24 Powers of Attorney (included on page II-4).
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(a) (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 (the "Act");
(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and
(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) 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 Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the 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.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered hereby which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the 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 this 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 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 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, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-8 and has duly caused this registration statement on Form S-8 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Philadelphia, Commonwealth of Pennsylvania, on May 24, 2002.
ARAMARK CORPORATION
By /s/ L. Frederick Sutherland
---------------------------------
Name: L. Frederick Sutherland
Title: Executive Vice President and
Chief Financial Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose name appears below hereby appoints Joseph Neubauer, L. Frederick Sutherland, Bart J. Colli and Susan Goldy, and each of them, as his true and lawful agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to execute any and all amendments to the within registration statement, including post-effective amendments, and to sign any and all registration statements relating to the same offering of securities as this registration statement that are filed pursuant to Rule 462(b) of the Securities Act of 1933, as amended, and to file the same, together with all exhibits thereto, with the Securities and Exchange Commission, granting unto each 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 each said attorney-in-fact and agent may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement on Form S-8 has been signed below by the following persons in the capacities and on the dates indicated.
Name Title Date
---- ----- ----
/s/ Joseph Neubauer Chairman and Director May 24, 2002
----------------------------- (Principal Executive
Joseph Neubauer Officer)
/s/ L. Frederick Sutherland Executive Vice President, May 24, 2002
----------------------------- Chief Financial Officer
L. Frederick Sutherland (Principal Financial
Officer)
/s/ John M. Lafferty Senior Vice President, May 24, 2002
----------------------------- Controller and Chief
John M. Lafferty Accounting Officer
(Principal Accounting
Officer)
/s/ Lawrence T. Babbio, Jr. Director May 24, 2002
-----------------------------
Lawrence T. Babbio, Jr.
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Name Title Date
---- ----- ----
/s/ Patricia C. Barron Director May 24, 2002
-----------------------------
Patricia C. Barron
/s/ Robert J. Callander Director May 24, 2002
-----------------------------
Robert J. Callander
/s/ Leonard S. Coleman, Jr. Director May 24, 2002
-----------------------------
Leonard S. Coleman, Jr.
/s/ Ronald R. Davenport Director May 24, 2002
-----------------------------
Ronald R. Davenport
/s/ Thomas H. Kean Director May 24, 2002
-----------------------------
Thomas H. Kean
/s/ James E. Ksansnak Director May 24, 2002
-----------------------------
James E. Ksansnak
/s/ James E. Preston Director May 24, 2002
-----------------------------
James E. Preston
/s/ Karl M. von der Heyden Director May 24, 2002
-----------------------------
Karl M. von der Heyden
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Pursuant to the requirements of the Securities Act of 1933, as amended, the ARAMARK 2001 Deferred Compensation Plan has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Philadelphia, Commonwealth of Pennsylvania, on May 24, 2002.
ARAMARK 2001 DEFERRED COMPENSATION PLAN
By /s/ L. Frederick Sutherland ------------------------------------ L. Frederick Sutherland, on behalf of the Plan Administrative Committee |
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INDEX TO EXHIBITS
Exhibit
Number Description
5 Opinion of Morgan, Lewis & Bockius LLP (consent included
therein).
10.1 ARAMARK 2001 Deferred Compensation Plan.
23 Consent of Arthur Andersen LLP.
24 Powers of Attorney (included on Page II-4).
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Exhibit 5
Robert L. Abramowitz
215-963-4811
rabramowitz@morganlewis.com
May 23, 2002
ARAMARK Corporation
ARAMARK Tower
1101 Market Street
Philadelphia, PA 19107
Re: FORM S-8 REGISTRATION STATEMENT COVERING SECURITIES ISSUABLE UNDER
THE ARAMARK 2001 DEFERRED COMPENSATION PLAN
Gentlemen:
You have requested our opinion with respect to the legality of $825,000 of deferred compensation obligations ("Deferred Compensation Obligations") of ARAMARK Corporation, a Delaware corporation (the "Company"), to be registered with the Securities and Exchange Commission on a Form S-8 Registration Statement ("Registration Statement") and issuable pursuant to the ARAMARK 2001 Deferred Compensation Plan (the "Plan").
In connection with the foregoing request, I or a member of my staff, have examined the Registration Statement, the Company's Amended and Restated Certificate of Incorporation and Bylaws, as amended to date, the Plan, and such other documents and records as we deemed necessary to render the opinions contained herein. I have assumed the genuineness of all signatures and conformity to original documents of copies of such documents. As to any facts relevant to my opinion, I have relied upon information given to me by the Officers of the Company and others.
Based on the foregoing, it is my opinion that:
o The Company is in good standing under the laws of the State of Delaware.
o The authorized but unissued Deferred Compensation Obligations being registered pursuant to the Registration Statement have been duly authorized by the Company and will, upon being issued under, and in conformity with the terms of, the Plan, be validly issued, legally binding obligations of the Company, enforceable in accordance with the terms of the Plan.
I consent to the use of this opinion as an exhibit to the captioned Registration Statement.
Sincerely,
/s/ Robert L. Abramowitz |
Exhibit 10.1
ARAMARK
2001 DEFERRED COMPENSATION PLAN
(as effective on the IPO Date)
I. PURPOSE
The ARAMARK 2001 Deferred Compensation Plan (the "Plan") allows eligible executives of the Company and its subsidiaries to defer the payment of their Salary and/or Bonus until a specified date in the future.
II. DEFINITIONS
"Bonus" means amounts that are not salary or wages that are earned by the Executive from the Company or a subsidiary in the form of an incentive or performance bonus.
"Cause" means (i) the Executive's conviction of or entry of a plea of guilty or nolo contendere to a felony (or any similar crime for purposes of laws outside the United States), (ii) the Executive's fraud or dishonesty, (iii) the Executive's willful failure to perform assigned duties to the Company or an affiliate, (iv) the Executive's willful violation of the ARAMARK Business Conduct Policy, or (v) the Executive's intentionally working against the best interest of the Company or an affiliate.
"Committee" means the committee appointed by the Board of Directors of the Company to administer the Plan.
"Company" means ARAMARK Worldwide Corporation, a Delaware corporation.
"Deferral Account" means the bookkeeping account pursuant to which the Company records amounts deferred by the Executive under the Plan.
"Effective Date" means the IPO Date.
"Executive" means an employee of the Company or any subsidiary who is a member of senior management and is identified as a key employee.
"Plan" means this ARAMARK 2001 Deferred Compensation Plan.
"Plan Administrator" means the individual(s) appointed by the Committee for purposes of determining eligibility to make deferrals under the Plan and administering deferral elections under the Plan.
"Plan Year" means the fiscal year of the Company. The period commencing on the Effective Date and ending on September 3, 2001 shall be the initial Plan Year.
"Salary" means an Executive's base salary, wages and sales commissions (but excludes bonuses, overtime pay, or incentive pay) earned by the Executive from the Company or a subsidiary.
III. ELIGIBILITY
The Plan Administrator shall determine, in its sole discretion, the Executives eligible to participate in the Plan for purposes of deferring Salary and/or Bonuses. Notwithstanding the foregoing, each Executive who, immediately prior to the Effective Date, was a participating executive making deferrals under the ARAMARK Deferred Compensation Plan, shall be eligible to participate in this Plan on the Effective Date and to make deferrals of Salary and/or Bonus, as applicable, earned in respect of periods on and after the Effective Time.
IV. DEFERRAL PROVISIONS
Salary and/or Bonuses may be deferred under this Plan pursuant to rules and procedures established from time to time by the Committee. Such rules and procedures may establish, among other things: (1) deadlines for filing deferral elections under the Plan, (2) any applicable limits on the amount of Salary and Bonus that may be deferred under the Plan, (3) any applicable limits on the period or length of deferrals, (4) any conditions and limitations on changing or revoking deferral elections during a Plan Year, including applicable penalties, and (5) any conditions and limitations on withdrawals and distributions while the Executive's deferral election remains in effect. Notwithstanding the foregoing, with respect to Executives who first become eligible to participate in this Plan on the Effective Date as a result of the Executive's participation in the ARAMARK Deferred Compensation Plan, such Executive's elections under that ARAMARK Deferred Compensation Plan, as in effect immediately prior to the Effective Date, shall continue to apply under this Plan with respect to Salary and/or Bonuses, as applicable, earned in respect of periods on and after the Effective Date until changed by the Executive in accordance with the terms and conditions of this Plan.
V. EARNINGS ON DEFERRAL ACCOUNTS
Deferral Accounts shall be credited with earnings, losses, interest, or other forms of investment return pursuant to rules and procedures adopted by the Committee, in its sole discretion. Deferrals shall be deemed to begin to accrue earnings as of the date they would otherwise have been paid to the Executive.
VI. PAYMENT PROVISIONS
Payment of deferrals shall be made pursuant to rules and procedures established from time to time by the Committee. The Company reserves the right, at any time, to accelerate the schedule according to which the Executive's deferrals will be paid. In addition, in the event the Executive's employment with the Company is terminated by the Company for Cause, the Company reserves the right to accelerate the schedule according to which the Executive's deferrals will be paid by making a lump sum payment of the Executive's deferred amounts.
VII. Hardship Withdrawals
The Committee may establish rules and procedures permitting Executives to withdraw all or a portion of the amount then credited to the Executive's Deferral Account, if the withdrawal is necessary in light of an immediate and heavy financial need of such Executive for which such funds are not reasonably available from the Executive's other resources. The Committee may
delegate responsibility for administering and reviewing hardship withdrawal requests to one or more individuals.
VIII. NO ASSIGNMENT OR ALIENTATION OF BENEFITS
Except as hereinafter provided, amounts deferred under this Plan may not be voluntarily or involuntarily assigned, pledged, or alienated. Unless required by law, no execution or attachment of any amount that becomes payable pursuant to any provision of this Plan shall be valid or recognized by the Company.
IX. NO RIGHT TO COMPANY ASSETS
Amounts credited to the Executive's Deferral Account will not be held by the Company in trust, escrow, or similar fiduciary capacity, and benefits paid under the Plan shall be paid from general funds of the Company. Neither the Executive, a beneficiary, nor any legal representative will have any right against the Company with respect to any portion of the Deferral Account or any assets of the Company or any subsidiary, except as a general, unsecured creditor of the Company.
X. ADMINISTRATION
A. The Committee shall administer the Plan and shall be the sole interpreter and arbiter of this Plan. The Committee has the right to amend the Plan's provisions at any time, provided that such amendments do not (1) decrease the balance of the Executive's Deferral Account at the time of such amendment, or (2) retroactively decrease the applicable rate of interest, earnings or other investment return prior to the time of such amendment. The individuals serving on the Committee shall be indemnified and held harmless by the Company from any and all liability, costs, and expenses, arising out of any action taken by any member with respect to the Plan to the maximum extent permitted by law.
B. The Board of Directors of the Company may at any time amend or terminate the Plan as to all or any group of Executives. If the Plan is terminated, the affected Executive's Deferral Account will be distributed over a period determined by the Board.
XI. MISCELLANEOUS
A. The rights and obligations of the Company and its subsidiaries under this Plan shall be binding on their successors and assigns.
B. This Plan shall not confer upon any person any right to be continued in the employment of the Company or any subsidiary.
C. In the event an provision of the Plan is held invalid, void or unenforceable, the same shall not affect, in any respect, the validity of the other provisions of the Plan.
D. The Company is authorized to withhold amounts necessary to satisfy any federal, state or local tax withholding requirements and social security or other employee tax requirements applicable with respect to the deferral or payment of amounts hereunder.
E. The Plan is intended to be an unfunded plan maintained primarily to provide deferred compensation benefits for a select group of management or highly compensated employees within the meaning of Sections 201, 301 and 401 of ERISA and therefore to be exempt from Parts 2, 3 and 4 of Title I of ERISA.
F. The Plan shall be governed and construed in accordance with the laws of the State of Delaware, without regard to conflicts of law provisions thereof, except to the extent pre-empted by ERISA.
Exhibit 23
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated November 14, 2001 on the financial statements and schedule of ARAMARK Corporation and subsidiaries included in ARAMARK Corporation's Form 10-K for the fiscal year ended September 28, 2001 and on the audited financial statements of ServiceMaster Management Services Business as of and for the year ended December 31, 2000, included in ARAMARK Corporation and subsidiaries' Form 8-K dated December 10, 2001, and to all references to our Firm included in or made a part of this Registration Statement.
/s/ Arthur Andersen LLP
Philadelphia, Pennsylvania
May 21, 2002
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