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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 27, 1998
SODEXHO MARRIOTT SERVICES, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State of incorporation)
1-12188 52-0936594
(Commission File No.) (I.R.S. Employer Identification No.)
10400 Fernwood Road, Bethesda, Maryland 20817
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (301) 380-3100
MARRIOTT INTERNATIONAL, INC.
(Former name or former address, if changed since last report)
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Item 1. Changes in Control of Registrant.
On March 27, 1998, Marriott International, Inc. (referred to as the
"Company" prior to the consummation of the transactions mentioned herein, and as
Sodexho Marriott Services, Inc. ("SMS") after the consummation of such
transactions) consummated a series of transactions that, among other things,
resulted in:
- - A spinoff ("Spinoff") to the Company's stockholders of all businesses of
the Company other than its food service and facilities management business
that was effected through the issuance of a special dividend of all of the
outstanding shares of capital stock of a new company ("New Marriott") to
which the Company had contributed its lodging, senior living and
distribution services businesses and which will use the Marriott
International, Inc. name;
- - A merger ("Merger") pursuant to which the Company acquired the North
American operations of Sodexho Alliance, S.A., a worldwide food and
management services organization headquartered in France and listed on the
Paris Bourse ("Sodexho Alliance");
- - A new Board of Directors to manage the business and affairs of SMS;
- - An amended and restated certificate of incorporation and bylaws that
changed the name of the Company to Sodexho Marriott Services, Inc. and made
certain other revisions;
- - A one-for-four reverse stock split ("Reverse Stock Split"); and
- - A refinancing of outstanding debt.
The Common Stock of SMS began trading on a "when issued" basis on
the New York Stock Exchange ("NYSE") on March 23, 1998 and on a "regular way"
basis on March 30, 1998, under the ticker symbol "SDH."
The Company's stockholders approved all of the transactions and events
listed above (other than the listing on the NYSE), as well as certain ancillary
items, at a Special Meeting of Stockholders ("Special Meeting") commenced on
March 17, 1998 and adjourned to March 20, 1998. (See Item 5 of this report for
the voting results on the matters considered at the Special Meeting.) The
Special Meeting was preceded by a definitive proxy statement dated February 12,
1998 (the "Proxy Statement") that explained in detail the various transactions
and events scheduled for action by stockholders. The Proxy Statement is
incorporated by reference into this report, as are news releases issued by the
Company on February 24, March 10, 17, 20, 27, 27 and 30, 1998 that are attached
hereto as exhibits.
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The documents referred to in the preceding paragraph provide a complete
explanation of the transactions and events mentioned above, and should be
examined by persons desiring full information regarding them. With respect to
possible changes in control that may have resulted from these transactions and
events, the following information may be relevant:
The Board of Directors. At the Special Meeting, the Company's
stockholders ratified the election of a new eight-person Board of Directors of
SMS, only one of whose members (William J. Shaw) had previously served on the
Company's Board. Each of the new members will hold office until the 1998 annual
meeting of SMS, at which time directors will be elected for a one-year term,
expiring on the date of the next annual meeting of stockholders. The persons who
now comprise the Board of Directors of SMS are named below, and their background
is described on pages 94-96 of the Proxy Statement:
William J. Shaw, Chairman
Charles D. O'Dell
Pierre Bellon
Bernard Carton
Edouard de Royere
John W. Marriott III
Doctor R. Crants
Daniel J. Altobello
Executive Officers. The persons who serve as executive officers of SMS
and their positions are listed below. A description of their background appears
on pages 97-98 of the Proxy Statement.
Charles D. O'Dell, President and Chief Executive Officer
Michel Landel, Executive Vice President
Anthony F. Alibrio, President, Health Care Services
Stephen J. Brady, Senior Vice President, Corporate Communications
Robert Drury, Corporate Treasurer
William W. Hamman, President, Higher Education Services
Randall C. Harris, Senior Vice President and Chief Human Resources
Officer
Lawrence E. Hyatt, Senior Vice President and Chief Financial Officer
Robert J. Jantzen, President, Corporate Services
David R. Smail, Senior Vice President and Chief Information Officer
Robert A. Stern, Senior Vice President and General Counsel
Anthony J. Wilson, Senior Vice President, Marketing and Procurement
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Principal Stockholders. Sodexho Alliance transferred to SMS in the
Merger its North American operations having a value of approximately $275
million and made a cash payment of $304 million at the same time in exchange for
30,020,673 shares of SMS Common Stock (48.2% of the shares outstanding), after
giving effect to the Reverse Stock Split. Pierre Bellon, Chairman and Chief
Executive Officer of Sodexho Alliance, and a director of SMS, may be deemed to
share beneficial ownership of the stock held by Sodexho Alliance. The Company's
restated certificate of incorporation generally prohibits any person or group of
related persons from owning 50% or more of the SMS Common Stock for three years
after the Spin-Off and Merger.
Other significant stockholders of SMS as of February 28, 1998 are J. W.
Marriott, Jr., the beneficial owner of 3,352,427 shares of Common Stock
(approximately 5.4% of the shares outstanding), and Richard E. Marriott, the
beneficial owner of 3,237,088 shares of Common Stock (approximately 5.2% of the
shares outstanding), after giving effect to the Reverse Stock Split. For more
information on the beneficial ownership of the above persons and members of the
Board of Directors of SMS, see page 127 of the Proxy Statement.
Item 2. Acquisition or Disposition of Assets.
On March 27, 1998, the Company consummated a significant disposition of
assets in the Spinoff and a significant acquisition of assets in the Merger, as
described briefly in Item 1. For full information regarding these transactions,
including pro forma financial information, see the Proxy Statement.
Item 4. Changes in Registrant's Certifying Accountant.
In accordance with the terms of the agreement that resulted in the
Merger, the Board of Directors of the Company appointed Price Waterhouse LLP
("Price Waterhouse"), a firm of independent public accountants, as independent
auditors, effective March 27, 1998. Price Waterhouse replaced Arthur Andersen
LLP ("Arthur Andersen"), which served as the Company's independent auditors for
fiscal 1996 and 1997 and was dismissed, effective March 27, 1998. Arthur
Andersen has been appointed to serve as New Marriott's independent auditors for
fiscal 1998.
The reports issued by Arthur Andersen on the Company's financial
statements for fiscal 1996 and 1997 did not contain any adverse opinion or
disclaimer of opinion, or any qualification or modification as to uncertainty,
audit scope, or accounting principles. SMS is not aware of any disagreements
with Arthur Andersen on any matter of accounting principles or practices,
financial
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statement disclosure or auditing scope of procedure, which, if not
resolved to the satisfaction of Arthur Andersen, would have caused it to make
reference to the subject matter of the disagreement in connection with its
reports.
The appointment of Price Waterhouse, which is discussed on page 159 of
the Proxy Statement, was ratified by the Company's stockholders at the Special
Meeting. SMS furnished Arthur Andersen with the disclosures contained in this
Item 4 and received a letter from it dated April 1, 1998 addressed to the
Securities and Exchange Commission indicating that it agrees with the
disclosures concerning it made in this Item.
Item 5. Other Events.
(a) Submission of Matters to a Vote of Security Holders
On March 17, 1998, the Company commenced the Special Meeting and
adjourned it to March 20, 1998. According to the report of the Inspectors of
Elections dated March 20, 1998 (a copy of which is filed as an exhibit), holders
of 104,259,918 common shares out of 125,415,165 common shares outstanding as of
the close of business on January 28, 1998 were present, either in person or by
proxy.
At the adjourned Special Meeting, the following proposals, which are
more fully described in the Proxy Statement, were voted upon by the stockholders
as indicated below. All such proposals received a sufficient number of votes for
passage. Prior to the meeting, however, the Company indicated in a press release
dated March 17, 1998 (a copy of which is filed as an exhibit) that,
notwithstanding the vote at the Special Meeting, New Marriott will include in
its proxy statement for its May 1998 annual meeting a separate and independent
ballot proposal on whether its dual classes of common stock (i.e., common stock
having one vote per share and Class A common stock having ten votes per share)
should be retained.
<TABLE>
<CAPTION>
FOR AGAINST ABSTAIN
<S> <C> <C> <C>
Proposal One
Approval of (a) the Spinoff, (b) the
acquisition of Sodexho North America,
(c) the amendment of the Company's
certificate of incorporation and bylaws,
and (d) the amendment of New Marriott's
certificate of incorporation and bylaws 89,235,072 14,637,884 386,962
</TABLE>
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<TABLE>
<CAPTION>
FOR AGAINST ABSTAIN
<S> <C> <C> <C>
Proposal Two
- ------------
Ratification of Pierre Bellon, Bernard
Carton, Edouard de Royere, William J.
Shaw, Charles D. O'Dell, John W.
Marriott III, Doctor R. Crants, and
Daniel J. Altobello as directors of SMS 102,302,028 1,272,720 685,090
Proposal Three
- --------------
Ratification of Gilbert M. Grosvenor,
Richard E. Marriott, Harry J. Pearce,
J.W. Marriott, Jr., W. Mitt Romney,
William J. Shaw, Dr. Henry Cheng
Kar-Shun, Floretta Dukes McKenzie,
Roger W. Sant, and Lawrence M. Small
as directors of New Marriott 102,516,689 1,111,057 632,092
Proposal Four
- -------------
Ratification of the New Marriott 1998
Comprehensive Stock and Cash
Incentive Plan and the reservation of
shares pursuant to such plan 67,802,066 35,712,300 745,472
Proposal Five
- -------------
Ratification of the appointment of
Price Waterhouse LLP as independent
auditors of SMS effective upon
consummation of the transactions 103,064,853 635,131 559,854
Proposal Six
- ------------
Ratification of the appointment of
Arthur Andersen LLP as independent
auditors of New Marriott 103,038,558 688,485 532,795
</TABLE>
(b) Refinancing of Debt
Upon consummation of the transactions described in Item 1 above on
March 27, 1998, SMS retained indebtedness of approximately $1.444 billion. As
part of a program to repay a portion of this debt immediately and refinance the
remainder, (i) the Company and its indirect subsidiary, RHG Finance Corporation
("RHG Finance"), tendered for a total of $720 million principal amount of their
respective outstanding publicly held debt, (ii) SMS refinanced the Company's
commercial
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paper and indebtedness outstanding under the Company's revolving
credit bank facility (the "Former Bank Facility"), and (iii) SMS paid a portion
of the outstanding debt to reduce its overall indebtedness to approximately $1.3
billion.
Tender Offers. The tender offers were completed on March 27, 1998. The
amount tendered and accepted was approximately $710 million, or approximately 99
percent of the total outstanding debt for which tenders were made. (For detailed
information about the tender offers, see the Company's News Releases dated
February 24 and March 27, 1998, which are incorporated by reference into this
report and attached hereto as exhibits.) In connection with the tender offers,
the Company also engaged in successful consent solicitations for the purpose of
eliminating or modifying most of the restrictive covenants contained in the
indentures governing the debt for which the tenders were made. Among other
things, these revisions enabled SMS to assume the obligations (approximately
$6.5 million in amount) remaining after the completion of the tenders and the
assumption of $3.5 million in debt by New Marriott following a payment of $3.5
million by SMS to it.
Refinancing of Debt Outstanding Under Former Bank Facility. To
refinance the commercial paper and indebtedness outstanding under the Former
Bank Facility, SMS entered into arrangements on March 27, 1998 for two credit
facilities for an aggregate of $1.355 billion to be provided by a syndicate of
banks. The first facility is a $735 million senior secured credit facility, and
the second is a $620 million senior unsecured guaranteed credit facility. For
detailed information about these two credit facilities, see pages 121-23 of the
Proxy Statement.
(c) Adjustment in Number of Rights Under Shareholder Rights Plan
As of March 27, 1998, the Company's Rights Agreement dated October 8,
1993 (the "Shareholder Rights Plan") was amended to reflect the Reverse Stock
Split and the number of rights was proportionately adjusted. This adjustment was
made pursuant to Section 11(p) of the Shareholder Rights Plan so that the number
of rights associated with each share of Common Stock following the Reverse Stock
Split will equal the number of rights per share prior to its occurrence.
Pursuant to Section 12 of the Shareholder Rights Plan, the Company (i) intends
to file shortly with the Rights Agent and with the transfer agent for the
Common Stock a certificate setting forth the adjustment and a brief statement of
the facts accounting for the adjustment, and (ii) intends to mail a brief
summary of the information contained in the certificate to each holder of a
Rights Certificate (i.e., each stockholder).
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Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(a) Financial Statements of Business Acquired
See pages F-22 through F-39 of the Proxy Statement for the financial
statements of Sodexho North America, the business described in Item 2 that was
acquired by the Company in the Merger.
(b) Pro Forma Financial Information
See pages 69-77 of the Proxy Statement for pro forma financial
information required to be included with respect to the acquisition of the
business of Sodexho North America described in Item 2.
(c) Exhibits
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
<S> <C>
3(a) Amended and Restated Certificate of Incorporation
3(b) Amended and Restated Bylaws
**4(a) Supplemental Indenture for Series A Senior Notes, as amended
**4(b) Supplemental Indenture for Series B Senior Notes, as amended
**4(c) Supplemental Indenture for Series C Senior Notes, as amended
**4(d) Supplemental Indenture for Series D Senior Notes, as amended
**10(a) Senior Secured Credit Facility Agreement
**10(b) Unsecured Guaranteed Credit Facility Agreement
*20 Definitive Proxy Statement dated February 12, 1998 for Special
Meeting of Stockholders Scheduled for March 17, 1998
21 Subsidiaries of the Registrant
22 Report of Inspectors of Election for Special Meeting of
Stockholders held on March 20, 1998
99(a) News Release dated February 24, 1998
99(b) News Release dated March 10, 1998
99(c) News Release dated March 17, 1998
99(d) News Release dated March 20, 1998
</TABLE>
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<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
<S> <C>
99(e) News Release dated March 27, 1998
99(f) News Release dated March 27, 1998
99(g) News Release dated March 30, 1998
99(h) Letter from Arthur Andersen dated April 1, 1998.
</TABLE>
* Previously filed and incorporated by reference
** To be filed by amendment
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
SODEXHO MARRIOTT SERVICES, INC.
Date April 3, 1998 By: /s/ Robert A. Stern
----------------------- ------------------------------
Robert A. Stern
Senior Vice President and
General Counsel
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Exhibit No. 3(a)
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
MARRIOTT INTERNATIONAL, INC.
Marriott International, Inc., a corporation organized and existing under
the laws of the State of Delaware (the "Corporation"), hereby certifies as
follows:
1. The present name of the Corporation is "Marriott International,
Inc." The name under which the Corporation was originally incorporated is
"Marriott Hotel Productions, Inc." The original Certificate of Incorporation
was filed with the Secretary of State of the State of Delaware on July 2, 1971.
2. This Amended and Restated Certificate of Incorpation has been duly
adopted and proposed to the stockholders of the Corporation by the Board of
Directors of the Corporation, and has been approved and adopted by the
stockholders of the Corporation, in accordance with Sections 242 and 245 of
the General Corpation Law of the State of Delaware.
3. Pursuant to Sections 242 and 245 of the General Corporation Law of
the State of Delaware, this Amended and Restated Certificate of Incorporation
restates and integrates and further amends the provisions of the Certificate
of Incorporation of the Corporation.
4. The text of the Certificate of Incorporation as heretofore amended
is hereby restated and further amended to read in its entirety as hereinafter
set forth:
ARTICLE 1
NAME
The name of the Corporation is Sodexho Marriott Services, Inc.
ARTICLE 2
REGISTERED OFFICE
The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street in the City of
Wilmington, County of New Castle, Delaware 19801. The name of the
Corporation's registered agent at such address is The Corporation Trust
Company.
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ARTICLE 3
Purpose
The purpose of the Corporation shall be to engage in any lawful act or
activity for which corporations may be organized and incorporated under the
General Corporation Law of the State of Delaware.
ARTICLE 4
Capitalization
The total number of shares of stock which the Corporation shall have
authority to issue is 301,000,000, consisting of 1,000,000 shares of
Preferred Stock, without par value (hereinafter referred to as "Preferred
Stock"), and 300,000,000 shares of Common Stock, par value $1.00 per share
(hereinafter referred to as "Common Stock"). Of the Preferred Stock shares,
300,000 shall be designated as Series A Junior Participating Preferred
Stock, without par value, having the designations, powers, preferences and
rights, and subject to the qualifications, limitations and restrictions, set
forth in Appendix A hereto.
Effective as of the date of filing of this Certificate of Incorporation
(the "Effective Time"), each four issued and outstanding shares of Common
Stock shall be combined into one share of validly issued, fully paid and
nonassessable Common Stock. The number of authorized shares, the number of
shares of treasury stock and the par value of the Common Stock shall not be
affected by the foregoing combination of shares. Each stock certificate that
prior to the Effective Time represented shares of Common Stock shall,
following the Effective Time, represent the number of shares of Common Stock
into which the shares of Common Stock represented by such certificate shall
be combined. The Corporation shall not issue fractional shares or scrip as a
result of the combination of shares, but shall arrange for the disposition of
fractional shares on behalf of those record holders of Common Stock at the
Effective Time who would otherwise be entitled to fractional shares as a
result of the combination of shares.
The Preferred Stock may be issued from time to time in one or more series.
The Board of Directors is hereby authorized to provide for the issuance of
shares of Preferred Stock in series and, by filing a certificate pursuant to
the applicable law of the State of Delaware (hereinafter referred to as a
"Preferred Stock Designation"), to establish from time to time the number
of shares to be included in each such series, and to fix the designations,
powers, preferences and rights of the shares of each such series and the
qualifications, limitations and restrictions thereof. The authority of the
Board of Directors with respect to each series shall include, but not be
limited to, determination of the following:
(1) The designation of the series, which may be by distinguishing
number, letter or title.
(2) The number of shares of the series, which number the Board of
Directors may thereafter (except where otherwise provided in the
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Preferred Stock Designation) increase or decrease (but not below the
number of shares thereof then outstanding).
(3) The amounts payable on, and the preferences, if any, of shares of
the series in respect of dividends, and whether such dividends, if any,
shall be cumulative or noncumulative.
(4) Dates at which dividends, if any, shall be payable.
(5) The redemption rights and price or prices, if any, for shares of
series.
(6) The terms and amount of any sinking fund provided for the purchase
or redemption of shares of the series.
(7) The amounts payable on, and the preferences, if any, of shares of
the series in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation.
(8) Whether the shares of the series shall be convertible into or
exchangeable for shares of any other class or series, or any other security,
of the Corporation or any other corporation, and, if so, the specification
of such other class or series of such other security, the conversion or
exchange price or prices or rate or rates, any adjustments thereof, the
date or dates at which such shares shall be convertible or exchangeable and
all other terms and conditions upon which such conversion of exchange may
be made.
(9) Restrictions on the issuance of shares of the same series or of any
other class or series.
(10) The voting rights, if any, of the holders of shares of the series.
The Common Stock shall be subject to the express terms of the Preferred
Stock and any series thereof. Except as may be provided in this Certificate
of Incorporation or in a Preferred Stock Designation or by applicable law,
the holders of shares of Common Stock shall be entitled to one vote for each
such share upon all questions presented to the stockholders, the Common Stock
shall have the exclusive right to vote for the election of directors and for
all other purposes, and holders of Preferred Stock shall not be entitled to
receive notice of any meeting of stockholders at which they are not entitled
to vote. The holders of shares of Common Stock shall at all times, except as
otherwise provided in this Certificate of Incorporation as required by law,
vote as one class, together with the holders of any other class or series of
stock of the Corporation accorded such general voting rights.
The Corporation shall be entitled to treat the person in whose name any
share of its stock is registered as the owner thereof for all purposes and
shall not be bound to recognize any equitable or other claim to, or interest
in, such share
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on the part of any person, whether or not the Corporation shall have notice
thereof, except as expressly provided by applicable law.
ARTICLE 5
BY-LAWS
In furtherance of, and not in limitation of, the powers conferred by law,
the Board of Directors is expressly authorized and empowered:
(1) to adopt, amend or repeal the Bylaws of the Corporation; provided,
that the Bylaws adopted by the Board of Directors under the powers hereby
conferred may be amended or repealed by the Board of Directors or by the
stockholders having voting power with respect thereto; and
(2) from time to time to determine whether and to what extent, and at
what times and places, and under what conditions and regulations, the
accounts and books of the Corporation, or any of them, shall be open to
inspection of stockholders; and, except as so determined or as expressly
provided in this Certificate of Incorporation or in any Preferred Stock
Designation, no stockholder shall have any right to inspect any account,
book or document of the Corporation other than such rights as may be
conferred by applicable law.
The Corporation may in its Bylaws confer powers upon the Board of Directors
in addition to the foregoing and in addition to the powers and authorities
expressly conferred upon the Board of Directors by applicable law.
ARTICLE 6
BOARD OF DIRECTORS
Subject to the rights of the holders of any series of Preferred Stock, or
any other series or class of stock as set forth in this Certificate of
Incorporation, to elect additional directors under specified circumstances,
the number of directors of the Corporation shall be fixed in such manner as
prescribed by the Bylaws of the Corporation and may be increased or decreased
from time to time in such manner as prescribed by the Bylaws.
Unless and except to the extent that the Bylaws of the Corporation shall
so require, the election of directors of the Corporation need not be by
written ballot.
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ARTICLE 7
RESTRICTIONS ON TRANSFER
(1) Restrictions on Transfer. (a) Except as provided in Section 6 of
this Article 7, during the Restricted Period no Transfer of any Equity
Securities shall be made by any Person if such Transfer would result in any
Person or Persons acting pursuant to a plan (or a series of related
transactions) having a Fifty Percent or Greater Interest. Except as provided
in Section 6 of this Article 7, any attempted or purported Transfer of shares
of Equity Securities during the Restricted Period that, if effective, would
result in any Person or Persons acting pursuant to a plan (or a series of
related transactions) having a Fifty Percent or Greater Interest shall be
void ab initio, and the intended transferee shall acquire no rights or
interest in such shares of Equity Securities.
(b) Except as otherwise provided in this Certificate of Incorporation,
the Equity Securities shall be freely transferable.
(2) Remedies for Breach. If the Board of Directors of the Corporation
shall determine in good faith that a Person has attempted to acquire, may
acquire or intends to acquire Beneficial Ownership of any shares of Equity
Securities or any interest therein in a Transfer that is or would be void
pursuant to Section 1(a) of this Article 7, the Board of Directors shall be
empowered to take any action it deems advisable to refuse to give effect to
or to prevent such purported Transfer, including, but not limited to,
refusing to give effect to such attempted or purported Transfer on the books
of the Corporation, demanding the repayment of any distributions received in
respect to shares of Equity Securities acquired in violation of Section 1(a)
of this Article 7 or instituting proceedings to enjoin or rescind such
attempted or purported Transfer.
(3) Notice of Restricted Transfer. Any Person who acquires or attempts
to acquire Equity Securities in a Transfer which may result in a violation of
Section 1(a) of this Article 7 shall immediately give written notice thereof
to the Corporation and shall provide to the Corporation such other
information as the Corporation may request in order to determine the effect,
if any, of such purported Transfer or attempted Transfer on the Tax Free
Status of the Distribution. Failure to give such notice shall not otherwise
limit the rights and remedies of the Board of Directors provided herein in
any way.
(4) Remedies Not Limited. Nothing contained in this Article 7 shall
limit the authority of the Board of Directors to take such other action as it
deems necessary or advisable to protect the Tax Free Status of the
Distribution.
(5) Ambiguity. In the case of any ambiguity in the application of any of
the provisions of this Article 7, including any definition contained in
Section 10 of this Article 7, the Board of Directors shall have the power to
determine the application of the provisions of this Article 7 with respect to
any situation based upon its reasonable belief, understanding or knowledge
of the circumstances.
(6) Exceptions. Notwithstanding any other provision of this Article 7,
the restrictions contained in Section 1(a) of this Article 7 shall not apply
to any
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Transfer of any Equity Securities if there is provided to the Board of
Directors a ruling from the Internal Revenue Service satisfactory to the
Board of Directors in its reasonable discretion, or an opinion of counsel
satisfactory to each of the Board of Directors and New Marriott in its
reasonable discretion, to the effect that such Transfer will not adversely
affect the Tax Free Status of the Distribution. In determining the effect, if
any, of a proposed Transfer on the Tax Free Status of the Distribution, the
Board of Directors may require such representations and undertakings from
such Persons and may impose such other conditions on the effectiveness of the
Transfer as the Board deems necessary in its reasonable discretion.
(7) Severability. If any provision of this Article 7 or any application
of any such provision is determined in a final and nonappealable judgment of
a court of competent jurisdiction to be void, invalid or unenforceable, the
validity of the remaining provisions shall not be affected and other
applications of the provision so determined to be void, invalid or
unenforceable shall be affected only to the extent necessary to comply with
the determination of such court.
(8) New York Stock Exchange Transactions. Nothing in this Article 7-
shall preclude the settlement of any transaction entered into through the
facilities of the New York Stock Exchange, Inc.
(9) Amendment. During the Restricted Period, the provisions set forth in
this Article 7 may not be amended, altered, changed or repealed in any
respect, and no other provision may be adopted, amended, altered, changed or
repealed which would have the effect or modifying or permitting the
circumvention of the provisions set forth in this Article 7, unless such
action is (i) proposed to the stockholders of the Corporation with the
approval of not less than two-thirds (66 2/3%) of the total number of
directors of the Corporation and (ii) approved by the affirmative vote of the
holders of not less than two-thirds (66 2/3%) of the total voting power of
all outstanding securities of the Corporation then entitled to vote generally
in the election of directors, voting together as a single class.
(10) Definitions. For purposes of this Article 7, the following terms
shall have the following meanings:
"Beneficial Ownership" means, with respect to any Person, ownership of
Equity Securities equal to the sum (without duplication) of (i) the amount of
Equity Securities directly owned by such Person, (ii) the amount of Equity
Securities held by all Persons related to such Person (within the meaning of
Sections 267(b) or 707(b)(1) of the Code) and (iii) the amount of Equity
Securities which are attributable to such Person taking into account
constructive ownership rules of Section 318(a)(2) of the Code, as modified by
Section 355(e)(4)(c)(ii) of the Code. The terms "Beneficial Owner",
"Beneficially Own", "Beneficially Owns" and "Beneficially Owned" shall have
correlative meanings.
"Code" means the Internal Revenue Code of 1986, as amended.
"Distribution" means the distribution of 100% of the capital stock of
New Marriott by the Corporation to the Corporation's stockholders pursuant to
the
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Distribution Agreement dated as of September 30, 1997, as amended, between
the Corporation and New Marriott.
"Equity Securities" means any stock of the Corporation or other equity
securities treated as stock for tax purposes, or options, warrants, rights,
convertible debt, or any other instrument or security that affords any Person
the right, whether conditional or otherwise, to acquire stock of the
Corporation.
"Fifty Percent or Greater Interest" means Beneficial Ownership of 50% or
more (by value or by voting power) of the Equity Securities of the
Corporation.
"Governmental Entity" means any court, agency, authority, board, bureau,
commission, department, regulatory or administrative body, office or
instrumentality of any nature whatsoever of any governmental or
quasi-governmental unit (including the New York Stock Exchange or any other
national stock exchange), whether federal, state, parish, county, district,
municipality, city, political subdivision or otherwise, domestic or foreign,
or an other entity exercising executive, legislative, judicial regulatory or
administrative functions of or pertaining to government, whether now or
hereafter in effect.
"Person" means an individual, corporation, limited liability company,
partnership, estate, trust, association, private foundation within the
meaning of Section 509(a) of the Code, joint stock company or other entity or
organization, including any Governmental Entity or authority.
"New Marriott" means New Marriott MI, Inc. (to be renamed Marriott
International, Inc. upon the consummation of the Distribution).
"Restricted Period" means the period ending on March 27, 2001.
"Tax Free Status" shall mean the qualification of the Distribution (i) as
a transaction described in Section 368(a)(1)(D) and Section 355(a)(1) of the
Code, (ii) as a transaction in which the stock distributed thereby is
qualified property for purposes of Section 355(c)(2) of the Code, and (iii)
as a transaction in which the Corporation recognizes no income or gain other
than intercompany items or excess loss accounts taken into account pursuant
to the Treasury Regulations promulgated pursuant to Section 1502 of the Code.
"Transfer" means any sale, transfer, gift, assignment, devise or other
disposition of a share of Equity Securities, or any interest therein
(including the granting of any option (including, but not limited to, an
option to acquire an option or any series of such options)), whether
voluntary or involuntary, whether of record or of Beneficial Ownership, and
whether by operation of law or otherwise (including, but not limited to, any
transfer of an interest in other entities which results in a change in the
Beneficial Ownership of shares of Equity Securities). The terms "Transfers"
and "Transferred" shall have correlative meanings.
7
<PAGE>
ARTICLE 8
INDEMNIFICATION
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 or officer of the
Corporation, shall be indemnified and held harmless by the Corporation to the
fullest extent permitted from time to time by the General Corporation Law of
the State of Delaware 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 Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide
prior to such amendment) or any other applicable laws as presently or
hereafter in effect. The Corporation may, by action of the Board of
Directors, provide indemnification to employees and agents (other than a
director or officer) of the Corporation, to directors, officers, employees or
agents of any subsidiary of the Corporation, and to each person serving at
the request of the Corporation or any of its subsidiaries as a director,
officer, partner, member, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust or other
enterprise, with the same scope and effect as the foregoing indemnification
of directors and officers of the Corporation. The Corporation shall be
required to indemnify any 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 Certificate of Incorporation or otherwise by the Corporation.
Without limiting the generality or the effect of the foregoing, the
Corporation may enter into one or more agreements with any person which
provide for indemnification greater or different than that provided in this
Article 8. Any amendment or repeal of this Article 8 shall not adversely
affect any right or protection existing hereunder in respect of any act or
omission occurring prior to such amendment or repeal.
ARTICLE 9
DIRECTORS' LIABILITY
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation 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 General Corporation
Law of the State of Delaware, or (iv) for any transaction from which the
director derived an improper personal benefit. Any amendment or repeal of
this Article 9 shall not adversely affect any right or protection of a
director of the Corporation existing hereunder in respect of any act or
omission occurring prior to such amendment or repeal.
8
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If the General Corporation Law of the State of Delaware shall be amended
to authorize corporate action further eliminating or limiting the liability
of directors, then a director of the Corporation, in addition to the
circumstances in which such director is not liable immediately prior to such
amendment, shall be free of liability to the fullest extent permitted by the
General Corporation Law of the State of Delaware, as so amended.
ARTICLE 10
AMENDMENTS
Except as may be expressly provided in this Certificate of
Incorporation, the Corporation reserves the right at any time and from time
to time to amend, alter, change or repeal any provision contained in this
Certificate of Incorporation or a Preferred Stock Designation, and any other
provisions authorized by the laws of the State of Delaware at the time in
force may be added or inserted, in the manner now or hereafter prescribed
herein or by applicable law, and all rights, preferences and privileges of
whatsoever nature conferred upon stockholders, directors or any other persons
whomsoever by and pursuant to this Certificate of Incorporation in its
present form or as hereafter amended are granted subject to the right
reserved in this Article 10; provided that (i) any amendment or repeal of
Article 8 or Article 9 of this Certificate of Incorporation shall not
adversely affect any right or protection existing thereunder in respect of
any act or omission occurring prior to such amendment or repeal; and (ii) no
Preferred Stock Designation shall be amended after the issuance of any shares
of the series of Preferred Stock created thereby, except in accordance with
the terms of such Preferred Stock Designation and the requirements of
applicable law.
9
<PAGE>
IN WITNESS WHEREOF, Marriott International, Inc. has caused this Amended
and Restated Certificate of Incorporation to be signed by its_________________
and attested to by its Secretary as of March 27, 1998.
MARRIOTT INTERNATIONAL, INC.
By:
-----------------------------
Name:
Title:
ATTEST:
------------------------------
Name: W. David Mann
Title: Secretary
10
<PAGE>
Appendix A
[insert Certificate of Designations for
Series A Junior Participating Preferred Stock]
[file: 18770/004/CORP.DOC/app.a]
<PAGE>
Appendix A
CERTIFICATE OF DESIGNATION, PREFERENCES AND
RIGHTS OF SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Junior Participating Preferred Stock" and the number
of shares constituting such series shall be 300,000.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of any
shares of any series of Preferred Stock ranking prior and superior to the
shares of Series A Junior Participating Preferred Stock with respect to
dividends, the holders of shares of Series A Junior Participating Preferred
Stock shall be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose, quarterly dividends
payable in cash on the last day of March, June, September and December in
each year (each such date being referred to herein as a "Quarterly Dividend
Payment Date"), commencing on the first Quarterly Dividend Payment Date after
the first issuance of a share or fraction of a share of Series A Junior
Participating Preferred Stock, in an amount per share (rounded to the nearest
cent) equal to the greater of (a) $10 or (b) subject to the provision for
adjustment hereinafter set forth, 1000 times the aggregate per share amount
of all cash dividends, and 1000 times the aggregate per share amount (payable
in kind) of all non-cash dividends or other distributions other than a
dividend payable in shares of common stock, par value $1 per share, of the
Corporation (the "Common Stock") or a subdivision of the outstanding shares
of Common Stock (by reclassification or otherwise), declared on the Common
Stock, since the immediately preceding Quarterly Dividend Payment Date, or,
with respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A Junior Participating
Preferred Stock. In the event the Corporation shall at any time after
September 27, 1993 (the "Rights Declaration Date") (i) declare any dividend
on Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common Stock into
a smaller number of shares, then in each such case the amount to which
holders of shares of Series A Junior Participating Preferred Stock were
entitled immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(B) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Junior Participating Preferred Stock from the Quarterly
<PAGE>
Dividend Payment Date next preceding the date of issue of such shares of
Series A Junior Participating Preferred Stock, unless the date of issue of
such shares is prior to the record date for the first Quarterly Dividend
Payment Date, in which case dividends on such shares shall begin to accrue
from the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A Junior Participating Preferred
Stock entitled to receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such dividends shall begin
to accrue and be cumulative from such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall not bear interest. Dividends paid on the
shares of Series A Junior Participating Preferred Stock in an amount less
than the total amount of such dividends at the time accrued and payable on
such shares shall be allocated pro rata on a share-by-share basis among all
such shares at the time outstanding. The Board of Directors may fix a record
date for the determination of holders of shares of Series A Junior
Participating Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be no more than 30
days prior to the date fixed for the payment thereof.
SECTION 3. Voting Rights. The holders of shares of Series A Junior
Participating Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Junior Participating Preferred Stock shall entitle the
holder thereof to 1000 votes on all matters submitted to a vote of the
stockholders of the Corporation. In the event the Corporation shall at any
time after the Rights Declaration Date (i) declare any dividend on Common
Stock payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock in a smaller
number of shares, then in each such case the number of votes per share to
which holders of shares of Series A Junior Participating Preferred Stock were
entitled immediately prior to such event shall be adjusted by multiplying
such number by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders of
shares of Series A Junior Participating Preferred Stock and the holders of
shares of Common Stock shall vote together as one class on all matters
submitted to a vote of stockholders of the Corporation.
(C) (i) If at any time dividends on any Series A Junior Participating
Preferred Stock shall be in arrears in an amount equal to six (6)
quarterly dividends thereon, the occurrence of such contingency shall
mark the beginning of a period (herein called a "default period") which
shall extend until such time when all accrued and unpaid dividends for
all previous quarterly dividend periods and for the current quarterly
dividend period on all shares of Series A Junior Participating Preferred
Stock then outstanding shall have been declared and paid or set apart
for payment. During each default period, all holders of Preferred Stock
(including
2
<PAGE>
holders of the Series A Junior Participating Preferred Stock) with
dividends in arrears in an amount equal to six (6) quarterly dividends
thereon, voting as a class, irrespective of series, shall have the right
to elect two (2) Directors.
(ii) During any default period, such voting rights of the
holders of Series A Junior Participating Preferred Stock may be exercised
initially at a special meeting called pursuant to subparagraph (iii) of
this Section 3(C) or at any annual meeting of stockholders, and thereafter
at annual meetings of stockholders, provided that neither such voting
right nor the right of the holders of any other series of Preferred Stock,
if any, to increase, in certain cases, the authorized number of Directors
shall be exercised unless the holders of one-third in number of shares of
Preferred Stock outstanding shall be present in person or by proxy. The
absence of a quorum of the holders of Common Stock shall not affect the
exercise by the holders of Preferred Stock of such voting right. At any
meeting at which the holders of Preferred Stock shall exercise such voting
right initially during an existing default period, they shall have the
right, voting as a class, to elect Directors to fill such vacancies, if
any, in the Board of Directors as may then exist up to two (2) Directors
or, if such right is exercised at an annual meeting, to elect two (2)
Directors. If the number which may be so elected at any special meeting
does not amount to the required number, the holders of the Preferred Stock
shall have the right to make such increase in the number of Directors as
shall be necessary to permit the election by them of the required number.
After the holders of the Preferred Stock shall have exercised their right
to elect Directors in any default period and during the continuance of
such period, the number of Directors shall not be increased or decreased
except by vote of the holders of Preferred Stock as herein provided or
pursuant to the rights of any equity securities ranking senior to or
pari passu with the Series A Junior Participating Preferred
Stock.
(iii) Unless the holders of Preferred Stock shall, during an
existing default period, have previously exercised their right to elect
Directors, the Board of Directors may order, or any stockholder or
stockholders owning in the aggregate not less than ten percent (10%) of
the total number of shares of Preferred Stock outstanding, irrespective
of series, may request, the calling of special meeting of the holders of
Preferred Stock, which meeting shall thereupon be called by the President,
a Vice President or the Secretary of the Corporation. Notice of such
meeting and of any annual meeting at which holders of Preferred Stock are
entitled to vote pursuant to this paragraph (c)(iii) shall be given to
each holder of record of Preferred Stock by mailing a copy of such notice
to him at his last address as the same appears on the books of the
Corporation. Such meeting shall be called for a time not earlier than 20
days and not later than 60 days after such order or request or in default
of the calling of such meeting within 60 days after such order or request,
such meeting may be called on similar notice by any stockholder or
stockholders owning in the aggregate not less than ten percent (10%) of
the total number of shares of Preferred Stock outstanding.
3
<PAGE>
Notwithstanding the provisions of this paragraph (C)(iii), no such
special meeting shall be called during the period within 60 days
immediately preceding the date fixed for the next annual meeting of
the stockholders.
(iv) In any default period, the holders of Common Stock, and
other classes of stock of the Corporation if applicable, shall
continue to be entitled to elect the whole number of Directors until
the holders of Preferred Stock shall have exercised their right to
elect two (2) Directors voting as a class, after the exercise of which
right (x) the directors so elected by the holders of Preferred Stock
shall continue in office until the successors shall have been elected
by such holders or until the expiration of the default period, and (y)
any vacancy in the Board of Directors may (except as provided in
paragraph (C)(ii) of this Section 3) be filled by vote of a majority of
the remaining Directors theretofore elected by the holders of the
class of stock which elected the Director whose office shall have
become vacant. References in this paragraph (C) to Directors elected by
the holders of a particular class of stock shall include Directors
elected by such Directors to fill vacancies as provided in clause (y)
of the foregoing sentence.
(v) Immediately upon the expiration of a default period, (x)
the right of the holders of Preferred Stock as a class to elect
Directors shall cease, (y) the term of any Directors elected by the
holders of Preferred Stock as a class shall terminate, and (z) the
number of Directors shall be such number as may be provided for in the
certificate of incorporation or by-laws irrespective of any increase
made pursuant to the provisions of paragraph (C)(ii) of this Section 3
(such number being subject, however, to change thereafter in any
manner provided by law or in the certificate of incorporation or
by-laws). Any vacancies in the Board of Directors effected by the
provisions of clauses (y) and (z) in the preceding sentence may be
filled by a majority of the remaining Directors.
(d) Except as set forth herein, holders of Series A Junior
Participating Preferred Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for taking any corporate
action.
SECTION 4. Certain Restrictions
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Junior Participating Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of Series A
Junior Participating Preferred Stock outstanding shall have been paid in
full, the Corporation shall not
(i) declare or pay dividends on, make any other distributions
on, or redeem or purchase or otherwise acquire for consideration any
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Junior
Participating Preferred Stock;
4
<PAGE>
(ii) declare or pay dividends on or make any other distributions on
any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Junior
Participating Preferred Stock, except dividends paid ratably on the Series A
Junior Participating Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts to
which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Junior
Participating Preferred Stock, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any such parity stock in
exchange for shares of any stock of the Corporation ranking junior (either as
to dividends or upon dissolution, liquidation or winding up) to the Series A
Junior Participating Preferred Stock;
(iv) purchase or otherwise acquire for consideration any shares of
Series A Junior Participating Preferred Stock, or any share of stock ranking
on a parity with the Series A Junior Participating Preferred Stock, except in
accordance with a purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of such shares upon such
terms as the Board of Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of the respective
series and classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(b) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of the
corporation unless the Corporation could, under paragraph (A) of this Section
4, purchase or otherwise acquire such shares at such time and in such manner.
SECTION 5. Reacquired Shares. Any shares of Series A Junior
Participating Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and cancelled promptly
after the acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued shares of Preferred Stock and may be reissued
as part of a new series of Preferred Stock to be created by resolution or
resolutions of the Board of Directors, subject to the conditions and
restrictions on issuance set forth herein.
SECTION 6. Liquidation, Dissolution or Winding up.
(A) Upon any liquidation (voluntary or otherwise), dissolution or
winding up of the corporation, no distribution shall be made to the holders
of shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Junior Participating
Preferred Stock unless, prior thereto, the holders of shares of Series A
Junior Participating Preferred Stock
5
<PAGE>
shall have received $1000 per share, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not declared, to the
date of such payment (the "Series A Liquidation Preference"). Following the
payment of the full amount of Series A Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series A Junior
Participating Preferred Stock unless, prior thereto, the holders of shares of
Common Stock shall have received an amount per share (the "Common
Adjustment") equal to the quotient obtained by dividing (i) the Series A
Liquidation Preference by (ii) 1000 (as appropriately adjusted as set forth
in subparagraph C below to reflect such events as stock splits, stock
dividends and recapitalizations with respect to the Common Stock) (such
number in clause (ii) immediately above being referred to as the "Adjustment
Number"). Following the payment of the full amount of the Series A
Liquidation Preference and the Common Adjustment in respect of all
outstanding shares of Series A Junior Participating Preferred Stock and
Common Stock, respectively, holders of Series A Junior Participating
Preferred Stock and holders of shares of Common Stock shall receive their
ratable and proportionate share of the remaining assets to be distributed in
the ratio of the Adjustment Number to one (1) with respect to such Preferred
Stock and Common Stock, on a per share basis, respectively.
(B) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference
and the liquidation preferences of all other series of Preferred Stock, if
any, which rank on a parity with the Series A Junior Participating Preferred
Stock, then such remaining assets shall be distributed ratably to the holders
of such parity shares in proportion to their respective liquidation
preferences. In the event, however, that there are not sufficient assets
available to permit payment in full of the Common Adjustment, then such
remaining assets shall be distributed ratably to the holders of Common Stock.
(C) In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares
of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii)
combine the outstanding Common Stock into a smaller number of shares, then in
each such case the Adjustment Number in effect immediately prior to such
event shall be adjusted by multiplying such Adjustment Number by a fraction
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding prior to such event.
SECTION 7. Consolidation, Merger, Etc. In case the Corporation shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchange for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares
of Series A Junior Participating Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share (subject to the
provision for adjustment hereinafter set forth) equal to 1000 times the
aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each share of
Common Stock is changed or exchanged. In the event the Corporation shall at
any time after the Rights
6
<PAGE>
Declaration Date (i) declare any dividend on Common Stock payable in shares
of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii)
combine the outstanding Common Stock into a smaller number of shares, then in
each such case the amount set forth in the preceding sentence with respect to
the exchange or change of shares of Series A Junior Participating Preferred
Stock shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
SECTION 8. No Redemption. The shares of Series A Junior Participating
Preferred Stock shall not be redeemable.
SECTION 9. Ranking. The Series A Junior Participating Preferred Stock
shall rank junior to all other series of the Corporation's Preferred Stock as
to the payment of dividends and the distribution of assets, unless the terms
of any such series shall provide otherwise.
SECTION 10. Amendment. The Certificate of Incorporation of the
Corporation shall not be further amended in any manner which would materially
alter or change the powers, preferences or special rights of the Series A
Junior Participating Preferred Stock so as to affect them adversely without
the affirmative vote of the holders of a majority or more of the outstanding
shares of Series A Junior Participating Preferred Stock, voting separately as
a class.
SECTION 11. Fractional Shares. Series A Junior Participating
Preferred Stock may be issued in fractions of a share but no such fraction
shall be less than one one-thousandth of a share which shall entitle the
holder, in proportion to such holders fractional shares, to exercise voting
rights, receive dividends, participate in distributions and to have the
benefit of all other rights of holders of Series A Junior Participating
Preferred Stock.
7
<PAGE>
Exhibit No. 3(b)
AMENDED AND RESTATED
BYLAWS
OF
SODEXHO MARRIOTT SERVICES, INC.
*****
ARTICLE 1
Offices
Section 1.01. Registered Office. The registered office shall be in the
City of Wilmington, County of New Castle, State of Delaware.
Section 1.02. Other Offices. The Corporation may also have offices at
such other places both within and without the State of Delaware as the Board
of Directors may from time to time determine or the business of the
Corporation may require.
Section 1.03. Books and Records. The books and records of the
Corporation may be kept within or without of the State of Delaware as the
Board of Directors may from time to time determine or the business of the
Corporation may require.
ARTICLE 2
Meetings of Stockholders
Section 2.01. Time and Place of Meetings. All meetings of stockholders
shall be held at such place, either within or without the State of Delaware,
on such date and at such time as may be determined from time to time by the
Board of Directors (or the Chairman in the absence of a designation by the
Board of Directors).
Section 2.02. Annual Meetings. Annual meetings of stockholders shall be
held to elect the Board of Directors and transact such other business as may
properly be brought before the meeting.
Section 2.03. Special Meetings. Special meetings of stockholders may be
called by the Board of Directors or the Chairman of the Board and shall be
called by the Secretary at the request in writing of holders of record of a
majority of the outstanding capital stock of the Corporation entitled to
vote. Such request shall state the purpose or purposes of the proposed
meeting.
Section 2.04. Notice of Meetings and Adjourned Meetings; Waivers of
Notice. (a) Whenever stockholders are required or permitted to take any
action at
<PAGE>
a meeting, a written notice of the meeting shall be given which shall state
the place, date and hour of the meeting, and, in the case of a special
meeting, the purpose or purposes for which the meeting is called. Unless
otherwise provided by the General Corporation Law of the State of Delaware as
the same exists or may hereafter be amended ("Delaware Law"), such notice
shall be given not less than 10 nor more than 60 days before the date of the
meeting to each stockholder of record entitled to vote at such meeting.
Unless these bylaws otherwise require, when a meeting is adjourned to another
time or place (whether or not a quorum is present), notice need not be given
of the adjourned meeting if the time and place thereof are announced at the
meeting at which the adjournment is taken. At the adjourned meeting, the
Corporation may transact any business which might have been transacted at the
original meeting. If the adjournment is for more than 30 days, or after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled
to vote at the meeting.
(b) A written waiver of any such notice signed by the person entitled
thereto, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends the meeting
for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Business transacted at any special meeting of stockholders shall be
limited to the purposes stated in the notice.
SECTION 2.05. Quorum. Unless otherwise provided under the certificate
of incorporation or these bylaws and subject to Delaware Law, the presence,
in person or by proxy, of the holders of a majority of the outstanding
capital stock of the Corporation entitled to vote at a meeting of
stockholders shall constitute a quorum for the transaction of business.
SECTION 2.06. Voting. (a) Unless otherwise provided in the certificate
of incorporation and subject to Delaware Law, each stockholder shall be
entitled to one vote for each outstanding share of capital stock of the
Corporation held by such stockholder. Unless otherwise provided in Delaware
Law, the certificate of incorporation or these bylaws, the affirmative vote
of a majority of the shares of capital stock of the Corporation present, in
person or by proxy, at a meeting of stockholders and entitled to vote on the
subject matter shall be the act of the stockholders.
(b) Each stockholder entitled to vote at a meeting of stockholders or
to express consent or dissent to a corporate action in writing without a
meeting may authorize another person or persons to act for him by proxy, but
no such proxy shall be voted or acted upon after three years from its date,
unless the proxy provides for a longer period.
SECTION 2.07. Action by Consent. (a) Unless otherwise provided in the
certificate of incorporation, any action required to be taken at any annual
or special meeting of stockholders, or any action which may be taken at any
annual or special meeting of stockholders, may be taken without a meeting,
without prior
2
<PAGE>
notice and without a vote, if a consent or consents in writing, setting forth
the action so taken, shall be signed by the holders of outstanding capital
stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted and shall be delivered to the
Corporation by delivery to its registered office in Delaware, its principal
place of business, or an officer or agent of the Corporation having custody
of the book in which proceedings of meetings of stockholders are recorded.
Delivery made to the Corporation's registered office shall be by hand or by
certified or registered mail, return receipt requested. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not consented
in writing.
(b) Every written consent shall bear the date of signature of each
stockholder who signs the consent, and no written consent shall be effective
to take the corporate action referred to therein unless, within 60 days of
the earliest dated consent delivered in the manner required by this section
and Delaware Law to the Corporation, written consents signed by a sufficient
number of holders to take action are delivered to the Corporation by
delivery to its registered office in Delaware, its principal place of
business, or an officer or agent of the Corporation having custody of the
book in which proceedings of meetings of stockholders are recorded. Delivery
made to the Corporation's registered office shall be by hand or by certified
or registered mail, return receipt requested.
Section 2.08. Organization. At each meeting of stockholders, the
Chairman of the Board, if one shall have been elected, (or in his absence or
if one shall not have been elected, the President) shall act as chairman of
the meeting. The Secretary (or in his absence or inability to act, the person
whom the chairman of the meeting shall appoint secretary of the meeting)
shall act as secretary of the meeting and keep the minutes thereof.
Section 2.09. Order of Business. The order of business at all meetings
of stockholders shall be as determined by the chairman of the meeting.
Section 2.10. Notice of Business. At any meeting of stockholders, only
such business shall be conducted as shall have been brought before the
meeting (a) by or at the direction of the Board of Directors or (b) by any
stockholder of the Corporation who is a stockholder of record at the time of
giving of the notice provided for in this Section 2.10, who shall be entitled
to vote at such meeting and who complies with the notice procedures set forth
in this Section 2.10. For business to be properly brought before a
stockholder meeting by a stockholder, the stockholder must have given timely
notice thereof in writing to the secretary of the Corporation. To be timely,
a stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation not less than 90 days nor more
than 120 days prior to the meeting; provided, however, that in the event that
less than 100 days' notice or prior public disclosure of the date of the
meeting is given or made to stockholders, notice by the stockholder to be
timely must be received no later than the close of business on the 10th day
following the day on which such notice of the date of the meeting was mailed
or such public disclosure was made. Each such notice shall set forth: (a) the
name
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and address of the stockholder proposing such business; (b) a brief
description of the business desired to be brought before the meeting,
including the text of any proposal to be introduced, the reasons for
conducting such business at the meeting and any material interest of the
stockholder in such business; (c) the class and number of shares of stock
held of record, owned beneficially and represented by proxy by such
stockholder as of the record date for the meeting (if such date shall then
have been made publicly available) and as of the date of such notice; and (d)
a representation that the stockholder intends to appear in person or by proxy
at the meeting to introduce the business specified in the notice.
Notwithstanding anything in the bylaws to the contrary, no business
shall be conducted at a stockholder meeting except in accordance with the
procedures set forth in this Section 2.10. The chairman of the meeting shall,
if the facts warrant, determine and declare to the meeting that business was
not properly brought before the meeting and in accordance with the provisions
of the bylaws, and if he should so determine, he shall so declare to the
meeting and any such business not properly brought before the meeting shall
not be transacted. Notwithstanding the foregoing, a stockholder shall also
comply with all applicable requirements of the Securities Exchange Act of
1934, and the rules and regulations thereunder with respect to the matters
set forth in this Section 2.10.
ARTICLE 3
Directors
SECTION 3.01. General Powers. Except as otherwise provided in
Delaware Law or the certificate of incorporation, the business and affairs of
the Corporation shall be managed by or under the direction of the Board of
Directors.
SECTION 3.02. Number, Election and Term of Office. The number of
directors which shall constitute the whole Board shall be fixed from time to
time by resolution of the Board of Directors but shall not be less than three
nor more than nine. The directors shall be elected at the annual meeting of
the stockholders, except as provided in Section 3.12 herein, and each
director so elected shall hold office until his successor is elected and
qualified or until his earlier death, resignation or removal. Directors need
not be stockholders.
SECTION 3.03. Quorum and Manner of Acting. Unless the certificate of
incorporation or these bylaws require a greater number, at all meetings of
the Board of Directors or any committee thereof a majority of the total
number of directors or members, as the case may be, shall constitute a quorum
for the transaction of business, and the affirmative vote of a majority of
the directors or members, as the case may be, present at meeting at which a
quorum is present shall be the act of the Board of Directors. When a meeting
is adjourned to another time or place (whether or not a quorum is present),
notice need not be given of the adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken. At
the adjourned meeting, the Board of Directors or committee may transact any
business which might have been transacted at the original meeting. If a
quorum shall not be present at any
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meeting of the Board of Directors or committee, the directors or members, as
the case may be, present thereat may adjourn the meeting, from time to time,
without notice other than announcement at the meeting, until a quorum shall
be present.
SECTION 3.04. Time and Place of Meetings. The Board of Directors shall
hold its meetings at such place, either within or without the State of
Delaware, and at such time as may be determined from time to time by the
Board of Directors (or the Chairman in the absence of a determination by the
Board of Directors).
SECTION 3.05. Annual Meeting. The Board of Directors shall meet for the
purpose of organization, the election of officers and the transaction of
other business, as soon as practicable after each annual meeting of
stockholders, on the same day and at the same place where such annual meeting
shall be held. Notice of such meeting need not be given. In the event such
annual meeting is not so held, the annual meeting of the Board of Directors
may be held at such place either within or without the State of Delaware, on
such date and at such time as shall be specified in a notice thereof given as
hereinafter provided in Section 3.07 herein or in a waiver of notice thereof
signed by any director who chooses to waive the requirement of notice.
SECTION 3.06. Regular Meetings. After the place and time of regular
meetings of the Board of Directors shall have been determined and notice
thereof shall have been once given to each member of the Board of Directors,
regular meetings may be held without further notice being given.
SECTION 3.07. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board or the President and
shall be called by the Chairman of the Board, President or Secretary on the
written request of three directors. Notice of special meetings of the Board
of Directors shall be given to each director at least three days before the
date of the meeting in such manner as is determined by the Board of Directors.
SECTION 3.08. Committees. (a) The Corporation shall have two standing
committees: the audit committee and the compensation committee.
(b) The audit committee shall have the following powers and authority:
(i) employing independent public accountants to audit the books of account,
accounting procedures and financial statements of the Corporation and to
perform such other duties from time to time as the audit committee may
prescribe, (ii) receiving the reports and comments of the Corporation's
internal auditors and of the independent public accountants employed by the
committee and to take such action with respect thereto as may see
appropriate, (iii) requesting the Corporation's consolidated subsidiaries and
affiliated companies to employ independent public accountants to audit their
respective books of account, accounting procedures and financial statements,
(iv) requesting the independent public accountants to furnish to the
compensation committee the certifications required under any present or
future stock option, incentive compensation or employee benefit plan of the
Corporation, (v) reviewing the adequacy of internal financial controls, (vi)
approving the accounting principles employed in financial reporting, (vii)
approving the appointment or removal of the Corporation's general
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auditor, and (viii) reviewing the accounting principles employed in financial
reporting. None of the members of the audit committee shall be an officer or
full-time employee of the Corporation or of any subsidiary or affiliate of
the Corporation.
(c) The compensation committee shall have the following powers and
authority: (i) determining and fixing the compensation for all senior
officers of the Corporation and those of its subsidiaries that the
compensation committee shall from time to time consider appropriate, as well
as all employees of the Corporation and its subsidiaries compensated at a
rate in excess of such amount per annum as may be fixed or determined from
time to time by the Board of Directors, (ii) performing the duties of the
committees of the Board of Directors provided for in any present or future
stock option, incentive compensation or employee benefit plan of the
Corporation or, if the compensation committee shall so determine, any such
plan of any subsidiary of the Corporation and (iii) reviewing the operations
of and policies pertaining to any present or future stock option, incentive
compensation or employee benefit plan of the Corporation or any Subsidiary
that the compensation committee shall from time to time consider appropriate.
None of the members of the compensation committee shall be an officer or
full-time employee of the Corporation or of any subsidiary of the Corporation.
(d) In addition, the Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more additional committees,
each committee to consist of one or more of the directors of the Corporation.
Any such committee, to the extent provided in the resolution of the Board of
Directors, shall have and may exercise all the powers and authority of the
Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to
all papers which may require it; but no such committee shall have the power
or authority in reference to amending the certificate of incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, or amending
the bylaws of the Corporation; and unless the resolution of the Board of
Directors or the certificate of incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Each committee shall keep regular minutes of
its meetings and report the same to the Board of Directors when required.
(e) Regular meetings of committees shall be held at such times as may be
determined by resolution of the Board of Directors or the committee in
question and no notice shall be required for any regular meeting other than
such resolution. A special meeting of any committee shall be called by
resolution of the Board of Directors, or by the Secretary or an Assistant
Secretary upon request of the chairman or a majority of the members of any
committee. Notice of special meetings shall be given to each member of the
committee in the same manner as that provided for in Section 3.07 of these
Bylaws.
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SECTION 3.09. Action by Consent. Unless otherwise restricted by the
certificate of incorporation or these bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if all members of the Board
or committee, as the case may be, consent thereto in writing, and the writing
or writings are filed with the minutes of proceedings of the Board or
committee.
SECTION 3.10. Telephonic Meetings. Unless otherwise restricted by the
certificate of incorporation or these bylaws, members of the Board of
Directors, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors, or such committee, as the
case may be, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in
person at the meeting.
SECTION 3.11. Resignation. Any director may resign at any time by giving
written notice to the Board of Directors or to the Secretary of the
Corporation. The resignation of any director shall take effect upon receipt
of notice thereof or at such later time as shall be specified in such notice;
and unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
SECTION 3.12. Vacancies. Unless otherwise provided in the certificate of
incorporation, vacancies and newly created directorships resulting from any
increase in the authorized number of directors elected by all the
stockholders having the right to vote as a single class may be filled by a
majority of the directors then in office, although less than a quorum, or by
a sole remaining director. Whenever the holders of any class or classes of
stock or series thereof are entitled to elect one or more directors by the
certificate of incorporation, vacancies and newly created directorships of
such class or classes or series may be filled by a majority of directors
elected by such class or classes or series thereof then in office, or by a
sole remaining director so elected. Each director so chosen shall hold office
until his successor is elected and qualified, or until his earlier death,
resignation or removal. If there are no directors in office, then an election
of directors may be held in accordance with Delaware Law. Unless otherwise
provided in the certificate of incorporation, when one or more directors
shall resign from the Board, effective at a future date, a majority of the
directors then in office, including those who have so resigned, shall have
the power to fill such vacancy or vacancies, the vote thereon to take effect
when such resignation or resignations shall become effective, and each
director so chosen shall hold office as provided in the filling of other
vacancies.
SECTION 3.13. Removal. Any director or the entire Board of Directors may
be removed, with or without cause, at any time by the affirmative vote of the
holders of a majority of the outstanding capital stock of the Corporation
entitled to vote and the vacancies thus created may be filled in accordance
with Section 3.12 herein.
SECTION 3.14. Compensation. Unless otherwise restricted by the
certificate of incorporation or these bylaws, the Board of Directors shall
have
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authority to fix the compensation of directors, including fees and
reimbursement of expenses.
SECTION 3.15. Nomination of Directors. Only persons who are nominated in
accordance with the procedures set forth in these bylaws shall be eligible to
serve as directors. Nominations of persons for election to the Board of
Directors of the Corporation may be made at a meeting of stockholders (a) by
or at the direction of the Board of Directors or (b) by any stockholder of
the Corporation who is a stockholder of record at the time of giving of
notice provided for in this Section 3.15, who shall be entitled to vote for
the election of directors at the meeting and who complies with the notice
procedures set forth in this Section 3.15. Such nominations, other than those
made by or at the direction of the Board of Directors, shall be made pursuant
to timely notice in writing to the secretary of the Corporation. To be
timely, a stockholder's notice must be delivered to or mailed and received at
the principal executive offices of the Corporation not less than 90 days nor
more than 120 days prior to the meeting; provided, however, that in the event
that less than 100 days' notice or prior public disclosure of the date of the
meeting is given or made to stockholders, notice by the stockholder to be
timely must be received no later than the close of business on the 10th day
following the day on which such notice of the date of the meeting was mailed
or such public disclosure was made. Each such notice shall set forth: (a) the
name and address of the stockholder who intends to make the nomination and of
the person or persons to be nominated; (b) the class and number of shares of
stock held of record, owned beneficially and represented by proxy by such
stockholder as of the record date for the meeting (if such date shall then
have been made publicly available) and as of the date of such notice; (c) a
representation that the stockholder intends to appear in person or by proxy
at the meeting to nominate the person or persons specified in the notice; (d)
a description of all arrangements or understandings between the stockholder
and each nominee and any other person or persons (naming such person or
persons) pursuant to which the nomination or nominations are to be made by
the stockholder; (e) such other information regarding each nominee proposed
by such stockholder as would be required to be included in a proxy statement
filed pursuant to the proxy rules of the Securities and Exchange Commission,
had the nominee been nominated, or intended to be nominated, by the board of
directors; and (f) the consent of each nominee to serve as a director of the
Corporation if so elected.
At the request of the Board of Directors, any person nominated by the
Board of Directors for election as a director shall furnish to the secretary
of the Corporation that information required to be set forth in a
stockholder's notice of nomination which pertains to the nominee. No person
shall be eligible to serve as a director of the Corporation unless nominated
in accordance with the procedures set forth in this bylaw. The chairman of the
meeting shall, if the facts warrant, determine and declare to the meeting that
a nomination was not made in accordance with the procedures prescribed by the
bylaws, and if he should so determine, he shall so declare to the meeting and
the defective nomination shall be disregarded. Notwithstanding the foregoing
provisions of this Section 3.15, a stockholder shall also comply with all
applicable requirements of the Securities Exchange Act of 1934, and the rules
and regulations thereunder with respect to the matters set forth in this
Section 3.15.
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ARTICLE 4
Officers
SECTION 4.01. Principal Officers. The principal officers of the
Corporation shall be a President, a Chief Executive Officer, a Chief
Financial Officer, one or more Executive Vice Presidents, one or more Senior
Vice Presidents, one or more Vice Presidents, a Treasurer, one or more
Assistant Treasurers, a Secretary, and one or more Assistant Secretaries. The
Secretary who shall have the duty, among other things, to record the
proceedings of the meetings of stockholders and directors in a book kept for
that purpose. The Corporation may also have such other principal officers,
including one or more Controllers, as the Board may in its discretion
appoint. One person may hold the offices and perform the duties of any two or
more of said offices, except that no one person shall hold the offices and
perform the duties of President and Secretary.
SECTION 4.02. Election, Term of Office and Remuneration. The principal
officers of the Corporation shall be elected annually by the Board of
Directors at the annual meeting thereof. Each such officer shall hold office
until his successor is elected and qualified, or until his earlier death,
resignation or removal. The remuneration of all officers of the Corporation
shall be fixed by the Board of Directors. Any vacancy in any office shall be
filled in such manner as the Board of Directors shall determine.
SECTION 4.03. Subordinate Officers. In addition to the principal
officers enumerated in Section 4.01 herein, the Corporation may have one or
more Assistant Treasurers, Assistant Secretaries and Assistant Controllers
and such other subordinate officers, agents and employees as the Board of
Directors may deem necessary, each of whom shall hold office for such period
as the Board of Directors may from time to time determine. The Board of
Directors may delegate to any principal officer the power to appoint and to
remove any such subordinate officers, agents or employees.
SECTION 4.04. Removal. Except as otherwise permitted with respect to
subordinate officers, any officer may be removed, with or without cause, at
any time, by resolution adopted by the Board of Directors.
SECTION 4.05. Resignations. Any officer may resign at any time by giving
written notice to the Board of Directors (or to a principal officer if the
Board of Directors has delegated to such principal officer the power to
appoint and to remove such officer). The resignation of any officer shall
take effect upon receipt of notice thereof or at such later time as shall be
specified in such notice; and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
SECTION 4.06. Powers and Duties. The officers of the Corporation shall
have such powers and perform such duties incident to each of their respective
offices and such other duties as may from time to time be conferred upon or
assigned to them by the Board of Directors.
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ARTICLE 5
Stock Certificate and Transfers
SECTION 5.01. Stock Certificates and Transfers. (a) The interest of each
stockholder of the Corporation shall be evidenced by certificates for shares
of stock in such form as the appropriate officers of the Corporation may from
time to time prescribe; provided that the Board of Directors may provide by
resolution or resolutions that all or some of all classes or series of the
stock of the Corporation shall be represented by uncertificated shares.
Notwithstanding the adoption of such a resolution by the Board of Directors,
every holder of stock represented by certificates and upon request every
holder of uncertificated shares shall be entitled to have a certificate
signed by, or in the name of the Corporation by the Chairman of the Board of
Directors, or the President or any other authorized officer and by the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary of the Corporation representing the number of shares registered in
certificate form. Except as otherwise expressly provided by law, the rights
and obligations of the holders of uncertificated stock and the rights and
obligations of the holders of certificates representing stock of the same
class and series shall be identical.
(b) The certificates of stock shall be signed, countersigned and
registered in such manner as the Board of Directors may by resolution
prescribe, which resolution may permit all or any of the signatures on such
certificates to be in facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate has ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with
the same effect as if he were such officer, transfer agent or registrar at
the date of issue.
(c) The shares of the stock of the Corporation represented by
certificates shall be transferred on the books of the Corporation by the
holder thereof in person or by his attorney, upon surrender for cancellation
of certificates for the same number of shares, with an assignment and power
of transfer endorsed thereon or attached thereto, duly executed, with such
proof of the authenticity of the signature as the Corporation or its agents
may reasonably require. Upon receipt of proper transfer instructions from the
registered owner of uncertificated shares such uncertificated shares shall
be canceled and issuance of new equivalent uncertificated shares or
certificated shares shall be made to the person entitled thereto and the
transaction shall be recorded upon the books of the Corporation. Within a
reasonable time after the issuance or transfer of uncertificated stock, the
Corporation shall send to the registered owner thereof a written notice
containing the information required to be set forth or stated on certificates
pursuant to Delaware Law or, unless otherwise provided by Delaware Law, a
statement that the Corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences and
relative participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or restrictions
of such preferences and/or rights.
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SECTION 5.02. Lost, Stolen or Destroyed Certificates. No certificate for
shares or uncertificated shares of stock in the Corporation shall be issued
in place of any certificate alleged to have been lost, destroyed or stolen,
except on production of such evidence of such loss, destruction or theft and
on delivery to the Corporation of a bond of indemnity in such amount, upon
such terms and secured by such surety, as the Board of Directors or its
designee may in its or his discretion require.
ARTICLE 6
General Provisions
SECTION 6.01. Fixing the Record Date. (a) In order that the Corporation
may determine the stockholders entitled to notice of or to vote at any
meeting of stockholders or any adjournment thereof, the Board of Directors
may fix a record date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than 60 nor less than 10
days before the date of such meeting. If no record date is fixed by the Board
of Directors, the record date for determining stockholders entitled to notice
of or to vote at a meeting of stockholders shall be at the close of business
on the day next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the day next preceding the day on which
the meeting is held. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided that the Board of Directors may fix a
new record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the
Board of Directors may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record date is adopted by the
Board of Directors, and which date shall not be more than 10 days after the
date upon which the resolution fixing the record date is adopted by the Board
of Directors. If no record date has been fixed by the Board of Directors, the
record date for determining stockholders entitled to consent to corporate
action in writing without a meeting, when no prior action by the Board of
Directors is required by Delaware Law, shall be the first date on which a
signed written consent setting forth the action taken or proposed to be taken
is delivered to the Corporation by delivery to its registered office in
Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered
office shall be by hand or by certified or registered mail, return receipt
requested. If no record date has been fixed by the Board of Directors and
prior action by the Board of Directors is required by Delaware Law, the
record date for determining stockholders entitled to consent to corporate
action in writing without a meeting shall be at the close of business on the
day on which the Board of Directors adopts the resolution taking such prior
action.
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(c) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or
allotment of any rights or the stockholders entitled to exercise any rights
in respect of any change, conversion or exchange of stock, or for the purpose
of any other lawful action, the Board of Directors may fix a record date,
which record date shall not precede the date upon which the resolution fixing
the record date is adopted, and which record date shall be not more than 60
days prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution
relating thereto.
SECTION 6.02. Dividends. Subject to limitations contained in Delaware
Law and the certificate of incorporation, the Board of Directors may declare
and pay dividends upon the shares of capital stock of the Corporation, which
dividends may be paid either in cash, in property or in shares of the capital
stock of the Corporation.
SECTION 6.03. Year. The fiscal year of the Corporation shall be as
specified by the Board of Directors.
SECTION 6.04. Corporate Seal. The corporate seal shall have inscribed
thereon the name of the Corporation and shall be in such form as may be
approved from time to time by the Board of Directors. The seal may be used by
causing it or a facsimile thereof to be impressed, affixed or otherwise
reproduced.
SECTION 6.05. Voting of Stock Owned by the Corporation. The Board of
Directors may authorize any person, on behalf of the Corporation, to attend,
vote at and grant proxies to be used at any meeting of stockholders of any
corporation (except this Corporation) in which the Corporation may hold stock.
SECTION 6.06. Waiver of Notice. Whenever any notice is required to be
given to any stockholder or director of the Corporation under the provisions
of Delaware Law, a waiver thereof in writing, signed by the person or persons
entitled to such notice, whether before or after the time stated therein,
shall be deemed equivalent to the giving of such notice. Neither the business
to be transacted at, nor the purpose of, any annual or special meeting of the
stockholders or any meeting of the Board of Directors or committee thereof
need be specified in any waiver of notice of such meeting.
SECTION 6.07. Audits. The accounts, books and records of the Corporation
shall be audited upon the conclusion of each fiscal year by an independent
certified public accountant selected by the audit committee, and it shall be
the duty of the audit committee to cause such audit to be made annually.
SECTION 6.08. Resignations. Any director or any officer, whether elected
or appointed, may resign at any time upon notice of such resignation to the
Corporation.
SECTION 6.09. Indemnification and Insurance. (a) Each person who was or
is a party or is threatened to be made a party to, or is involved in any
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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
Corporation or a Subsidiary, or is or was serving at the request of the
Corporation 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 Corporation 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 Corporation to provide broader
indemnification rights than said law permitted the Corporation 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 Corporation 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 Corporation
shall pay the expenses incurred by such person in defending any such
Proceeding in advance of its final disposition upon receipt (unless the
Corporation 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
Corporation as authorized by this Bylaw or otherwise.
(b) The indemnification and the advancement of expenses incurred in
defending a Proceeding prior to its final disposition provided by, or granted
pursuant to this Bylaw shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, other provision of these bylaws, agreement, vote
of stockholders or Disinterested Directors 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 Corporation 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 Corporation or a Subsidiary or of another
corporation, partnership, joint venture, trust or other enterprise against
any expense, liability or loss, whether or not the Corporation 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
13
<PAGE>
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 Corporation
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 Corporation.
(f) Any notice, request, or other communication required or permitted
to be given to the Corporation under this Bylaw shall be in writing and
either delivered in person or sent by telecopy, telex, telegram, overnight
mail or courier service, or certified or registered mail, postage prepaid,
return receipt requested, to the Secretary of the Corporation and shall be
effective only upon receipt by the Secretary.
Section 6.10. Amendments. These bylaws or any of them, may be altered,
amended or repealed, or new bylaws may be made, by the stockholders entitled
to vote thereon at any annual or special meeting thereof or by the Board of
Directors.
14
<PAGE>
Exhibit No. 21
LIST OF SUBSIDIARIES
Sodexho Marriott Operations, Inc.
Sodexho Marriott Management, Inc.
(formerly named "Marriott Management Services Corp.")
Corporate Food Services, Inc.
MFS Boise, Inc.
Marriott Educational Services of Texas, Inc.
(to be renamed "SMS Education Services of Texas, Inc.")
Marriott Educational Services, Inc.
(to be renamed "Sodexho Marriott Education Services, Inc.")
Mariott Educational Services, Inc., of Wisconsin
(to be renamed "SMS Education Services of Wisconsin, Inc.")
Marriott Electrical, Inc.
(to be renamed "SMS Electrical, Inc.")
Marriott Food Services, Inc., of Vermont
(to be renamed "SMS Food Services of Vermont, Inc.")
Marriott International Services, Inc.
(to be renamed "Sodexho Management Corp.")
Sodexho Marriott Laundry Services, Inc.
(formerly named "Marriott Laundry Services, Inc.")
Marriott Services, Inc.
(to be renamed "SMS Services of California, Inc.")
Saga Educational Food Service, Inc.
Saga Health Care Dietary Management Services, Inc.
Service Systems Corporation
Marriott Globetrotters, JV (to be renamed)
Marriott Management Service Limited Partnership
(to be renamed "Sodexho Marriott Services of Indiana Limited Partnership")
Marriott Corporation of Canada, Ltd.
(to be renamed "Sodexho Marriott Services Canada, Ltd.")
1
<PAGE>
Administration Marriott Limitee
(to be renamed "Sodexho Marriott Quebec Ltee.")
International Catering Corporation
Sodexho USA, Inc.
Sodexho Services, Inc.
Boatel Associates, Inc.
Boatel Catering, Inc.
Boatel, Inc.
Boatel Services, Inc.
Creative Gourmet, Inc.
Gardner Merchant Holdings, Inc.
Garfield Catering Corp.
Garfield Food Services, Inc.
Garlex Realty Corp.
Gulfwide Services, Inc.
International Boatel Companies, Inc.
International Catering Corporation of Massachusetts
Offshore Food Services, Inc.
Premier Hospitality Club, Inc.
Premier Hospitality, Inc.
Servend Food Services, Inc.
Service Supply Corp.
Servo Food Systems, Inc.
Sodexho Alaska, Inc.
Sodexho of Vermont, Inc.
Sofinsod Corp.
2
<PAGE>
Sodexho Financiere du Canada Inc.
Bona Vista Food Services Ltd.
Dalmar Foods Limited
Luc Inc.
Ontrak Services Inc.
Sodexho Canada Inc.
3
<PAGE>
Exhibit No. 22
MARRIOTT INTERNATIONAL, INC.
Special Meeting of Shareholders
March 20, 1997
REPORT OF INSPECTORS OF ELECTIONS
We, the undersigned, duly appointed to act as Inspectors of
Elections, hereby report as follows:
That the Special Meeting of Shareholders of Marriott International,
Inc. (the "Company") was held at the Westfields Marriott Conference Center,
14750 Conference Center Drive, Chantilly, Virginia, on the 20th day of March,
1998, at 10:00 a.m., local time; and
That before entering upon the discharge of our duties as Inspectors
of Elections at the meeting, we took an oath of office which is attached
hereto; and
That we inspected the signed proxies and ballots used at the meeting
and found the same to be in proper form; and
That there were present, either in person or by proxy, holders of
104,259,918 common shares out of 125,415,165 common shares outstanding as of
the close of business on January 28, 1998; and
That the votes cast for, against and abstaining on Proposal One:
Approval of (a) the spinoff of New Marriott, (b) the acquisition of Sodexho
North America, (c) the amendment of the Company's certificate of
incorporation and bylaws; and (d) the amendment of New Marriott's certificate
of incorporation and bylaws; and
<TABLE>
<CAPTION>
FOR AGAINST ABSTAIN
--- ------- -------
<S> <C> <C>
89,235,072 14,637,884 386,962
</TABLE>
That the votes cast for, against and abstaining on Proposal Two:
Ratification of Pierre Bellon, Bernard Carton, Edouard de Royere, William J.
Shaw, Charles D. O'Dell, John W. Marriott III, Doctor R. Crants and Daniel J.
Altobello as directors of SMS, effective upon the consummation of the
Transactions; and
<TABLE>
<CAPTION>
FOR AGAINST ABSTAIN
--- ------- -------
<S> <C> <C>
102,302,028 1,272,720 685,090
</TABLE>
<PAGE>
That the votes cast for, against and abstaining on Proposal Three:
Ratification of Gilbert M. Grosvenor, Richard E. Marriott, Harry J. Pearce,
J.W. Marriott, Jr., W. Mitt Romney, William J. Shaw, Dr. Henry Cheng
Kar-Shun, Floretta Dukes McKenzie, Roger W. Sant and Lawrence M. Small as
directors of New Marriott; and
<TABLE>
<CAPTION>
FOR AGAINST ABSTAIN
--- ------- -------
<S> <C> <C>
102,516,689 1,111,057 632,092
</TABLE>
That the votes cast for, against, and abstaining on Proposal Four:
Ratification of the New Marriott 1998 Comprehensive Stock and Cash Incentive
Plan and the reservation of shares pursuant to such plan; and
<TABLE>
<CAPTION>
FOR AGAINST ABSTAIN
--- ------- -------
<S> <C> <C>
67,802,066 35,712,300 745,472
</TABLE>
That the votes cast for, against and abstaining on Proposal Five:
Ratification of the appointment of Price Waterhouse LLP as independent
auditors of SMS effective upon consummation of the Transactions; and
<TABLE>
<CAPTION>
FOR AGAINST ABSTAIN
--- ------- -------
<S> <C> <C>
103,064,853 635,131 559,854
</TABLE>
That the votes cast for, against and abstaining on Proposal Six:
Ratification of the appointment of Arthur Andersen LLP as independent
auditors of New Marriott.
<TABLE>
<CAPTION>
FOR AGAINST ABSTAIN
--- ------- -------
<S> <C> <C>
103,038,558 688,485 532,795
</TABLE>
That at least two-thirds (or 66 2/3 percent) of the outstanding
shares of Company common stock voted FOR Proposal One; and
2
<PAGE>
That the majority of the outstanding shares of Company common stock
voted FOR Proposals Two through Six.
All defined terms used herein shall have the same meanings as set forth
in the Company's Proxy Statement.
Respectfully Submitted,
/s/ Kathleen D. Whelply
--------------------------------
Kathleen D. Whelply
Inspector of Election
/s/ Charles D. Keryc
--------------------------------
Charles D. Keryc
Inspector of Election
3
<PAGE>
Exhibit No. 99(a)
[Letterhead]
NEWS
Marriott International, Inc. and its wholly owned subsidiary RHG Finance
Corporation Announce $720 Million Debt Tenders and Consent Solicitations
WASHINGTON, D.C., February 24, 1998 - Marriott International, Inc. (the
"Company") (MAR/NYSE) today announced that it has commenced cash tender
offers and consent solicitations for the Company's outstanding Series A
through D Senior Notes (the "Notes"). RHG Finance Corporation ("RHG
Finance"), a wholly owned subsidiary of the Company, also announced that it
has commenced a cash tender offer and consent solicitation for its
outstanding Guaranteed Notes which are guaranteed by Marriott International,
Inc. and its subsidiary Renaissance Hotel Group, N.V. (the "Guaranteed
Notes").
The following table sets forth for each of the Notes and Guaranteed Notes
to which the offers apply, the CUSIP number, the outstanding principal
amount, the securities, the reference security and the fixed spread.
<TABLE>
<CAPTION>
Outstanding
Aggregate
Principal Security Reference Fixed
CUSIP No. Amount Description Security Spread
- --------- ------------- ----------------- ----------- ------
<S> <C> <C> <C> <C>
571900AA7 $150,000,000 6.750% Series 5.875% 0.27%
A Senior Notes Due 2/15/04
Due 2003
571900AB5 $200,000,000 7.875% Series 5.500% 0.35%
B Senior Notes Due 2/15/08
Due 2005
571900AC3 $150,000,000 7.125% Series 5.500% 0.40%
C Senior Notes Due 2/15/08
Due 2007
571900AD1 $100,000,000 6.750% Series 5.500% 0.45%
D Senior Notes Due 2/15/08
Due 2009
749928AA5 $120,000,000 RHG Finance Corp. 5.500% 0.40%
8.875% Guaranteed Due 2/15/08
Notes Due 2005
------------
Total $720,000,000
------------
------------
</TABLE>
The tender offers are being made upon the terms and subject to the
conditions set forth in the Offer to Purchase and Consent Solicitation
Statements being mailed to the Company's noteholders and RHG Finance's
noteholders on or about February 25, 1998.
The obligations of the Company, its wholly owned subsidiary, New Marriott
MI, Inc., and Sodexho Alliance S.A. to consummate the Reorganization
described below are not conditioned on the success of the offers or consent
solicitations.
Under the terms of the tender offers, the consideration for each $1,000
principal amount of Notes and Guaranteed Notes will be calculated based on
the yield on an applicable United States Treasury reference security, plus an
applicable fixed spread, less the consent payment described below. The
consideration will also include accrued and unpaid interest. The
consideration will be set two days prior to the expiration of the tender
offers. The tender offers will expire at 9:00 a.m., New York City time, on
Friday, March 27, 1998 unless extended or earlier terminated by the Company.
(more)
<PAGE>
The Company and RHG Finance are also soliciting consents from the holders
of Notes and Guaranteed Notes, respectively, to amend the respective
indentures under which the Notes and Guaranteed Notes were issued. Each
holder who tenders Notes and Guaranteed Notes and validly consents to the
proposed amendments prior to the applicable consent time will be paid $20.00
in cash for each $1,000 in principal amount of Notes and Guaranteed Notes
validly tendered and accepted for payment. The consent time for each consent
solicitation is 5:00 p.m., New York City time, on Tuesday, March 10, 1998.
Holders tendering their Notes or Guaranteed Notes prior to the consent time
will be required to consent to amendments which will eliminate or modify most
of the covenants contained in the respective indentures governing the Notes
and the Guaranteed Notes.
Merrill Lynch & Co. and Lehman Brothers Inc. are the dealer managers and
consent solicitation agents for the tender offers and the consent
solicitations.
The offers and consent solicitations are being made in connection with the
reorganization of the Company (the "Reorganization"), which consists of the
planned spinoff of the Company's lodging (including timeshare resort
development and operations), senior living services and distribution services
businesses and the subsequent merger of the Company's North American food
service and facilities management business (Marriott Management Services)
with the North American food service and facilities management operations of
Sodexho Alliance, S.A. Following the Reorganization, the company to be spun
off ("New Marriott") will adopt the name "Marriott International, Inc.," and
the Company will assume the name "Sodexho Marriott Services, Inc." ("SMS").
If the requisite consents to a supplemental indenture are obtained and the
supplemental indenture with respect to any series of Notes becomes effective,
any Notes of such series not tendered and accepted for payment will remain
obligations of SMS. If the requisite consents to a supplemental indenture are
not obtained, all Notes of the applicable series that have not been tendered
and accepted for payment will become obligations of New Marriott. Regardless
of the outcome of the consent solicitation for its Guaranteed Notes, RHG
Finance will become a subsidiary of New Marriott as part of the
Reorganization, and New Marriott will assume the Company's obligations as
guarantor of the Guaranteed Notes. After the Reorganization, SMS will be
substantially more leveraged on a relative basis than the Company was before
the Reorganization, and New Marriott will have significantly less debt than
the Company had before the Reorganization.
New Marriott will be one of the world's leading hospitality companies with
more than 1,500 operating units, over 140,000 employees and 1997 sales in
excess of $9 billion. The Company believes that New Marriott's ability to
participate aggressively in the global consolidation of the lodging industry,
as well as the senior living services industry within the United States, will
be significantly enhanced by the Reorganization. The Company also believes
that New Marriott will have substantially greater investment capacity after
the Reorganization than the Company has today.
The Company will not effect the Reorganization in the event that the
Reorganization is not approved by its stockholders at a special meeting
called for such purpose on March 17, 1998. The closing of the Reorganization
is also subject to certain other conditions. In the event any of these
conditions is not satisfied and the Reorganization is not consummated, the
Company is under no obligation to accept tendered Notes for payment.
(more)
2
<PAGE>
This news release is neither an offer to purchase the Notes nor a
solicitation of an offer to sell the Notes. The tender offers and consent
solicitations are only made pursuant to the offering documents. Questions
regarding the terms of the tender offers and consent solicitations may be
directed to Merrill Lynch & Co. at (888) 654-8637, attention: Susan Weinberg,
or Lehman Brothers Inc. at (800) 438-3242, attention: Scott Macklin. Copies
of the offering documents may be obtained by calling MacKenzie Partners,
Inc., at (212) 929-5500 (call collect) or (800)322-2885 (toll free).
MARRIOTT INTERNATIONAL, INC. is a leading worldwide hospitality company,
with nearly 4,600 units in the United States and 53 other countries and
territories. The Company is headquartered in Washington, D.C. and has
approximately 195,000 employees. In fiscal year 1997, Marriott International
reported total sales of $12.0 billion.
Note: This press release contains "forward-looking statements" within the
meaning of federal securities law, including statements concerning new
Marriott's investment capacity and its ability to participate in the ongoing
consolidation of the lodging and senior living services industries; business
strategies and their intended results, and similar statements concerning
anticipated future events and expectations that are not historical facts. The
forward-looking statements in this press release are subject to numerous
risks and uncertainties, including the effects of economic conditions;
changes in supply and demand for hotel rooms, vacation club resorts and
senior living accommodations; competitive conditions in the lodging,
management services and other contract services industries; relationships
with clients and property owners; the impact of government regulations; and,
the availability of capital to finance growth, which could cause actual
results to differ materially from those expressed in or implied by the
statements herein.
###
Contact: Corporate Relations, 301-380-7770
3
<PAGE>
Exhibit No. 99(b)
[LETTERHEAD]
MARRIOTT INTERNATIONAL, INC. AND ITS WHOLLY OWNED SUBSIDIARY RHG FINANCE
CORPORATION ANNOUNCE SUCCESSFUL CONSENT SOLICITATIONS
WASHINGTON, D.D., March 10, 1998 -- Marriott International, Inc. (MAR/NYSE)
and its wholly owned subsidiary RHG Finance Corporation today announced that
as of 5:00 p.m., New York City time, on March 10, 1998, they had received
tenders and consents with respect to substantially all of each series of
Marriott International's outstanding Senior Notes and RHG Finance
Corporation's outstanding Guaranteed Notes.
Accordingly, upon the terms and subject to the conditions set forth in the
Offer to Purchase and Consent Solicitation Statements dated February 25,
1998, Marriott International and RHG Finance Corporation and the applicable
indenture trustee have signed supplemental indentures that eliminate or
modify most of the restrictive covenants contained in the indentures
governing the Senior Notes and Guaranteed Notes. The amendments implemented
by such supplemental indentures will not become operative until Marriott
International completes its previously announced spin off transaction and
accepts the validly tendered Senior Notes and RHG Finance accepts the validly
tendered Guaranteed Notes following the expiration of the Offers to purchase
the Senior Notes and Guaranteed Notes, respectively. Such expiration will be
at 9:00 a.m., New York City time, on March 27, 1998, unless extended. Holders
who have not yet tendered their Senior Notes or Guaranteed Notes may do so
until 9:00 a.m., New York City time, on March 27, 1998. The consideration to
be paid for each Senior Note and Guaranteed Note will be calculated at 12:00
noon, New York City time, on March 25, 1998, unless the tender offers are
extended.
Merrill Lynch & Co. (1-888-654-8637 toll-free) and Lehman Brothers Inc.
(1-800-438-3242 toll-free) are the exclusive dealer managers and solicitation
agents. MacKenzie Partners, Inc. (1-800-322-2885 toll-free) is the
information agent.
(more)
<PAGE>
MARRIOTT INTERNATIONAL, INC. is a leading worldwide hospitality company, with
approximately 4,600 operating units in the United States and 53 other
countries and territories. Major businesses include hotels operated and
franchised under the Marriott, Ritz-Carlton, Courtyard, Residence Inn,
Fairfield, TownePlace Suites, Renaissance, New World and Ramada International
brands; vacation club (timeshare) resorts; food service and facilities
management for clients in business, education, and health care; senior living
communities and services; and food service distribution. The company is
hearquartered in Washington D.C. and has approximately 195,000 employees. In
fiscal year 1997, Marriott International reported total sales of $12.0
billion.
###
CONTACT: Nick Hill, Corporate Relations, 301-380-7484
2
<PAGE>
Exhibit No. 99(c)
[Letterhead]
MARRIOTT INTERNATIONAL CHANGES RECORD DATE FOR SPINOFF TO MARCH 27, 1998
WASHINGTON, D.C., March 17, 1998 -- Marriott International, Inc.
(MAR/NYSE) today announced it has changed to March 27, 1998 the record date
for the spinoff of a new company, "new" Marriott International, Inc., to be
comprised of its lodging, senior living and distribution services businesses.
The record date had previously been set for March 20, 1998. The change was
made as a result of the company's previously announced adjournment of its
special stockholders' meeting from March 17, 1998 to March 20, 1998.
The current Marriott International will distribute one share of common
stock (having one vote per share) and one share of Class A common stock
(having ten votes per share) of the "new" Marriott International for every
share owned on the record date. The distribution is expected to be made on
March 27, 1998, subject to approval of the transaction at the special
stockholders' meeting and other customary conditions.
As previously reported, Marriott International has entered into a
definitive agreement to merge its food service and facilities management
business (Marriott Management Services) with the North American operations of
Sodexho Alliance, S.A. Prior to the merger, Marriott International plans to
complete the spinoff described above. The present Marriott International will
change its name to Sodexho Marriott Services, Inc., and the spun off company
will adopt the Marriott International, Inc. name.
The company announced yesterday that in the event the transactions are
approved at its special meeting of stockholders that has been adjourned to
March 20, 1998, the "new" Marriott International will include in its May 1998
annual meeting proxy statement a separate and independent ballot proposal on
whether the dual classes of common stock should be retained. The record date
for this annual meeting is also set for March 27, 1998. The dual class
structure is presently part of a single proposal for the spinoff and merger
transactions in the proxy statement for the company's special meeting.
(more)
<PAGE>
MARRIOTT INTERNATIONAL, INC. is a leading worldwide hospitality company, with
nearly 4,600 operating units in the United States and 53 other countries and
territories. Major businesses include hotels operated and franchised under
the Marriott, Ritz-Carlton, Courtyard, Residence Inn, Fairfield, TownePlace
Suites, Renaissance, New World and Ramada International brands; vacation club
(timeshare) resorts; food service and facilities management for clients in
business, education, and health care; senior living communities and services;
and food service distribution. The company is headquartered in Washington,
D.C. and has approximately 195,000 employees. In fiscal year 1997, Marriott
International reported total sales of $12.0 billion.
###
Contact: Tom Marder, 301-380-2553
2
<PAGE>
Exhibit No. 99(d)
[LETTERHEAD]
MARRIOTT INTERNATIONAL STOCKHOLDERS APPROVE SPINOFF AND MERGER TRANSACTIONS;
COMPANY SETS MARCH 27 CLOSING DATE
WASHINGTON, D.C., March 20, 1998 -- Marriott International, Inc. (MAR/NYSE)
today reported that its stockholders have approved the company's planned
spinoff and merger transactions. Marriott International will spin off to its
stockholders, on a tax-free basis, a new company comprised of its lodging,
senior living services, and distribution services businesses. This new
company will adopt the "Marriott International, Inc." name. Following the
spinoff, Marriott's food service and facilities management business (Marriott
Management Services) will be merged with the North American operations of
Sodexho Alliance. The merged company will be renamed "Sodexho Marriott
Services, Inc."
Marriott also announced it has set March 27, 1998 as both the record date and
closing date for the spinoff and merger transactions.
"We are very pleased with this endorsement by Marriott stockholders of the
company's spinoff and merger plans," said J.W. Marriott, Jr., chairman and
chief executive officer of Marriott International. "The transactions approved
today will create two strong, well-focused and growth-oriented companies,"
Mr. Marriott added.
A total of 89.2 million shares, or over 85% of the approximately 104 million
shares voting, were voted in favor of the transactions, which represented 71%
of the roughly 125 million common shares outstanding. Approval of the
transactions required an affirmative vote of at least two-thirds of the
outstanding shares.
Mr. Marriott also said, "We listened to our stockholders, including Evelyn Y.
Davis, and as previously announced, 'New' Marriott International will submit
the dual class common stock proposal to stockholders at our annual meeting on
May 20, 1998, at the Crystal Gateway Marriott in Arlington, Virginia."
The annual meeting ballot proposal will provide that, unless the holders of
a majority of the outstanding shares approve retention of the dual class
structure, the New Marriott board of directors will immediately convert the
two classes into a single class of common stock, and thereafter take all
steps necessary to remove the dual class provisions from New Marriott's
charter. This would result in the conversion of all outstanding shares of New
Marriott common stock into Class A common stock on a one-for-one basis. In
addition, the board will refrain from issuing additional shares of common
stock (having one vote per share) after the spinoff, unless stockholders vote
to refrain the dual class structure at the 1998 annual meeting.
(more)
<PAGE>
Mr. Marriott said, "We believe the dual class structure will enhance the
ability of New Marriott to pursue growth opportunities and create additional
value for stockholders. We will urge our stockholders to vote in favor of
retaining the dual class structure at our annual meeting in May."
Following the spinoff and merger transactions, a stockholder of record (as of
March 27, 1998) with 100 shares of Marriott International common stock, for
example, will own the following: 100 shares of "New" Marriott International
common stock; 100 shares of "New" Marriott International Class A common
stock; and 25 shares of Sodexho Marriott Services, Inc. common stock (after
giving effect to a one-for-four reverse stock split). These new securities
are expected to begin trading on a "when issued" basis on the New York Stock
Exchange on March 23, 1998, with the following ticker symbols:
<TABLE>
<CAPTION>
"When-Issued"
Security Ticker Symbol
- -------- -------------
<S> <C>
"New Marriott International, Inc.
- ---------------------------------
Common Stock MAR wi
Class A Common Stock MAR-A wi
Sodexho Marriott Service, Inc.
- ------------------------------
Common Stock SDH wi
</TABLE>
"Regular way" trading for the new securities is expected to begin on
March 30, 1998.
###
MARRIOTT INTERNATIONAL, INC. is a leading worldwide hospitality company, with
nearly 4,600 operating units in the United States and 53 other countries and
territories. Major businesses include hotels operated and franchised under
the Marriott, Ritz-Carlton, Courtyard, Residence Inn, Fairfield, TownePlace
Suites, Renaissance, New World and Ramada International brands; vacation club
(timeshare) resorts; food service and facilities management for clients in
business, education, and health care; senior living communities and services;
and food service distribution. The company is headquartered in Washington,
D.C. and has approximately 195,000 employees. In fiscal year 1997, Marriott
International reported total sales of $12.0 billion.
Contact: Tom Marder (301) 380-2553
<PAGE>
Exhibit No. 99(e)
[Letterhead]
MARRIOTT INTERNATIONAL COMPLETES SPINOFF AND MERGER TRANSACTIONS
RESULTING IN "NEW" MARRIOTT INTERNATIONAL AND SODEXHO MARRIOTT SERVICES
WASHINGTON, D.C., March 27, 1998 -- Marriott International, Inc. (MAR/NYSE)
today reported that it has completed its previously announced spinoff and
merger transactions.
In these transactions, Marriott International spun off to its stockholders, on
a tax-free basis, a new company comprised of its lodging, senior living
services, and distribution services businesses. This new company has adopted
the Marriott International, Inc. name. Immediately following the spinoff,
Marriott's food service and facilities management business (Marriott
Management Services) was merged with the North American operations of Sodexho
Alliance. The merged company has been renamed Sodexho Marriott Services,
Inc., and will remain headquartered in the Washington, D.C. area.
J.W. Marriott, Jr., chairman and chief executive officer of the "old"
Marriott International, Inc., and William J. Shaw, its president and chief
operating officer, assumed the same positions with the new Marriott
International. Mr. Shaw also will serve as chairman of the board of Sodexho
Marriott Services, Inc. Charles D. O'Dell, previously president of Marriott
Management Services, has been named president and chief executive officer of
Sodexho Marriott Services. Michel Landel, formerly president and chief
executive officer of Sodexho North America, is now executive vice president
of Sodexho Marriott Services.
"These two new companies are poised for growth. They have much in common that
will help deliver enhanced value to stockholders, including strong positions
of leadership in their respective industries, and dedicated workforces
committed to providing exceptional customer service," said Mr. Marriott.
"The new Marriott International has substantial investment capacity, which
will enable us to aggressively pursue growth opportunities around the
world," Mr. Marriott added.
(more)
<PAGE>
2
"Marriott will continue to execute its global growth strategy by expanding
distribution of our 10 hotel brands, as well as developing new vacation club
resorts," explained Mr. Shaw. "We expect to add more than 140,000 rooms to
the Marriott lodging system over the next five years (1998-2002) through
management contracts, franchise agreements, selective company development,
and acquisitions," he said, "as well as double the cumulative number of
timeshare intervals sold by our vacation club business." According to Mr.
Shaw, new Marriott International also will take advantage of opportunities in
the rapidly growing market for senior living services over the next five
years, by opening more than 200 assisted living and full-service communities,
while Marriott Distribution Services expects to gain market share in the
limited line food service distribution business.
Mr. O'Dell said, "Today marks the beginning of an exciting period, with
exceptional opportunities for Sodexho Marriott Services. Our people are
moving forward with a focused strategy to expand our leadership position in
outsourced services." Mr. O'Dell continued, "The North American food and
facilities management service industry is a $157 billion market, of which
only 17 percent is contracted to management providers. As the industry
leader, Sodexho Marriott Services is well-positioned to meet the needs of the
expanding marketplace.
"In addition," Mr. O'Dell continued, "we expect to grow at above-average
rates, and to capture a major share of new business as more organizations
understand the cost savings and performance gains made through outsourcing."
As a result of the spinoff and merger transactions, a stockholder of record
as of March 27, 1998, with 100 shares of "old" Marriott International common
stock, for example, will own the following: 100 shares of Marriott
International, Inc. common stock; 100 shares of Marriott International, Inc.
Class A common stock; and 25 shares of Sodexho Marriott Services, Inc. common
stock (after giving effect to a one-for-four reverse stock split).
As consideration for the merger, Sodexho Alliance received common shares of
Sodexho Marriott Services representing about a 49 percent ownership interest
in the merged company.
(more)
<PAGE>
3
In connection with the spinoff and merger transactions, Marriott
International and its wholly-owned subsidiary RHG Finance Corporation ("RHG
Finance") completed the previously announced cash tender offers and consent
solicitations for Marriott International, Inc.'s outstanding Series A through
D Senior Notes (the "Notes") and RHG Finance's outstanding Guaranteed Notes.
The offers to purchase, announced on February 25, 1998, expired at 9:00 a.m.,
New York City time, today. All Notes and Guaranteed Notes validly tendered in
the offers have been accepted. The amount tendered and accepted represents
approximately 99 percent of the total Notes and Guaranteed Notes outstanding.
Payment of the tender offer price, the consent payment (if applicable), and
accrued and unpaid interest will be made on April 1, 1998.
The description, outstanding principal amount prior to the offers to
purchase, and the amount tendered and accepted for purchase for each series
of Notes and for the Guaranteed Notes are as follows:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Security description and CUSIP Outstanding principal Amount tendered
number amount prior to offers and accepted for
purchase
- --------------------------------------------------------------------------------
<S> <C> <C>
6.750% Series A Senior Notes Due $150,000,000 $147,744,000
12/15/03, 571900AA7
- --------------------------------------------------------------------------------
7.875% Series B Senior Notes Due $200,000,000 $199,021,000
04/15/05, 571900AB5
- --------------------------------------------------------------------------------
7.125% Series C Senior Notes Due $150,000,000 $147,419,000
06/01/07, 571900AC3
- --------------------------------------------------------------------------------
6.750% Series D Senior Notes Due $100,000,000 $99,344,000
12/01/09, 571900AD1
- --------------------------------------------------------------------------------
RHG Finance 8.875% Guaranteed $120,000,000 $116,500,000
Notes Due 10/01/05, 749928AA5
- --------------------------------------------------------------------------------
</TABLE>
(more)
<PAGE>
4
"Regular way" trading of both classes of common stock of new Marriott
International and the common stock of Sodexho Marriott Services will begin on
the New York Stock Exchange on Monday, March 30, 1998, under the following
trading symbols:
<TABLE>
<CAPTION>
Trading
Company Symbol
------- -------
<S> <C>
Marriott International, Inc.
----------------------------
Common stock MAR
Class A common stock MAR.A
Sodexho Marriott Services, Inc.
-------------------------------
Common stock SDH
</TABLE>
MARRIOTT INTERNATIONAL, INC. ("New" Marriott International) is a leading
worldwide hospitality company, with nearly 1,600 operating units in the
United States and 53 other countries and territories. Major businesses
include hotels operated and franchised under the Marriott, Ritz-Carlton,
Courtyard, Residence Inn, Fairfield, TownePlace Suites, Renaissance, New
World and Ramada International brands; vacation club (timeshare) resorts;
senior living communities and services; and food service distribution. The
company is headquartered in Washington, D.C. and has approximately 117,000
employees. Total sales for fiscal 1997 were $9.0 billion.
SODEXHO MARRIOTT SERVICES, INC. is the largest food service and facilities
management services company in North America. It serves over 4,800 clients in
business, health care and education. Sodexho Marriott had proforma sales of
$4.2 billion in fiscal 1997, and has approximately 100,000 employees, as well
as 60,000 client employees managed by the company.
Note: This press release contains "forward-looking statements" within the
meaning of federal securities law, including statements concerning
anticipated synergies and cost savings, the number of lodging properties and
senior living communities expected to be added in future years, business
strategies and their intended results, and similar statements concerning
anticipated future events and expectations that are not historical facts. The
forward-looking statements in this press release are subject to numerous
risks and uncertainties, including the effects of economic conditions;
changes in supply of and demand for hotel rooms, vacation club resorts and
senior living accommodations; competitive conditions in the lodging,
management services, senior living, and food service distribution industries;
relationships with clients and property owners; the impact of government
regulations; and, the availability of capital to finance growth, which could
cause actual results to differ materially from those expressed in or implied
by the statements herein.
# # #
Contact: Tom Marder (301) 380-2553
<PAGE>
Exhibit No. 99(f)
FOR IMMEDIATE RELEASE
Company Contact: Contact:
- ---------------- --------
Investor Relations Investor Relations
Leeny Oberg, VP John D. Lovallo, SVP
Sodexho Marriott Services, Inc. Makovsky & Company
(301) 380-2745 (212) 508-9600
Media Relations Media Relations
Steve Brady, SVP, Corporate Comm. Tom Reno, SVP
Sodexho Marriott Services, Inc. Makovsky & Company
(301) 380-3953 (212) 508-9600
SODEXHO MARRIOTT SERVICES, INC. FORMED ON THE
COMPLETION OF SPIN-OFF AND MERGER TRANSACTIONS
Creates the Leading Provider of Outsourced Food and
Facilities Management in North America
BETHESDA, Maryland, March 27, 1998 -- Sodexho Marriott Services,
Inc. (NYSE:SDH-W) reported today the completion of the previously announced
spin-off and merger transactions, creating the leading provider of outsourced
food and facilities management in North America. Sodexho Marriott Services
is currently trading on the New York Stock Exchange on a "when-issued" basis.
As a result of these transactions, Marriott International, Inc.
(NYSE:MAR) spun- off to its stockholders on a tax-free basis, a new company
comprised of its lodging, senior living services and distribution service
businesses. This new company has adopted the Marriott International, Inc.
name. Immediately following the spin-off, Marriott's food service and
facilities management business, Marriott Management Services, merged with the
North American operations of Sodexho Alliance. The combined company formed
Sodexho Marriott Services, Inc.
- more -
<PAGE>
Page: 2
Sodexho Marriott Services, is the largest provider of outsourced
food and facilities management in North America. The company, which has over
4,800 client relationships, offers a variety of outsourcing solutions,
including food services, housekeeping, grounds keeping, plant operations and
maintenance, and integrated facilities management to the corporate, health
care and education markets. Sodexho Marriott Services is one of the top 50
employers in the United States with over 100,000 employees and managing an
additional 60,000 employees on behalf of its clients. On a pro forma basis,
1997 calendar year sales would have been over $4.1 billion and earnings
before interest, taxes, depreciation and amortization (EBITDA) would have
been $240 million.
Charles D. O'Dell, Sodexho Marriott Services, Inc. President and
Chief Executive Officer commented, "The combination of Marriott Management
Services and Sodexho North America is representative of an effective business
strategy which combines two powerful brands, recognized for quality, service
and leadership. Furthermore, the marketplace is increasingly turning to
large, nationally-integrated suppliers like Sodexho Marriott Services to meet
their expanding outsourcing needs."
Outsourcing services is a trend that is expanding throughout all
sectors of the economy. With the continued pressure to contain costs, a full
75% of American companies, hospitals and educational institutions either
outsource services or are evaluating opportunities to do so. The size of
this market is estimated to be $157 billion, with $48 billion associated with
food services and $109 billion with facilities management. The North
American market remains substantially underpenetrated, with only $27 billion,
or 17% of the total potential market, currently contracted to management
providers.
- more -
<PAGE>
Page: 3
Charles D. O'Dell stated, "As the industry leader, we have
significant cross-selling potential in facilities management services to our
existing food services customers. Demand for providers of national,
multi-service outsourcing is rapidly growing. With the national and global
network, Sodexho Marriott Services can provide integrated management
solutions to a wide range of industries, including corporate, health care and
education markets."
As a result of the spin-off and merger transactions, a
stockholder of record as of March 27, 1998 with 100 shares of "old " Marriott
International, Inc. common stock, for example, will own the following: 25
shares of Sodexho Marriott Services, Inc. common stock (NYSE:SDH), which
reflects a one-for-four reverse stock split; 100 shares of Marriott
International, Inc. common stock (NYSE:MAR); and 100 shares of Marriott
International, Inc., Class A common stock (NYSE:MAR.A).
Sodexho Marriott Services, Inc. is the largest food service and
integrated facilities management provider in North America with more than
4,800 clients and annual sales in excess of $4 billion. It was created by
the merger of Marriott Management Services and the North American operations
of Sodexho Alliance. Sodexho Marriott Services provides a variety of
outsourcing solutions, including food services, housekeeping, groundskeeping
and plant operations and maintenance, to major business sectors such as the
corporate, health care and education markets. Headquartered in Bethesda,
Md., the company employs more than 100,000 people and manages over 60,000
client employees.
###
<PAGE>
Exhibit No. 99(g)
FOR IMMEDIATE RELEASE
<TABLE>
<CAPTION>
Company Contact: Contact:
- ---------------- --------
<S> <C>
Investor Relations Investor Relations
Leeny Oberg, VP John D. Lovallo, SVP
Sodexho Marriott Services, Inc. Makovsky & Company
(301) 380-2745 (212) 508-9600
Media Relations Media Relations
Steve Brady, SVP, Corporate Comm. Tom Reno, SVP
Sodexho Marriott Services, Inc. Makovsky & Company
(301) 380-3953 (212) 508-9600
</TABLE>
SODEXHO MARRIOTT SERVICES, INC. BEGINS "REGULAR-WAY"
TRADING ON THE NEW YORK STOCK EXCHANGE
Trading Under the Stock Symbol "SDH"
BETHESDA, Maryland, March 30, 1998 -- Sodexho Marriott Services, Inc.
(NYSE:SDH) announced today it has begun "regular-way" trading on the New York
Stock Exchange under the symbol "SDH". The Company had been trading on a
"when-issued" basis since March 24, 1998.
Sodexho Marriott Services, the largest provider of outsourced food and
facilities management in North America, was created through the combination of
the North American operations of Sodexho Alliance, S.A. and Marriott Management
Services. This combination was completed concurrently on March 27, 1998, with
the tax-free spin-off of Marriott International Inc. (NYSE:MAR) lodging, senior
living services and distribution service business. Sodexho Marriott Services,
which has over 4,800 client relationships, offers a variety of outsourcing
solutions, including food services, housekeeping, grounds keeping, plant
operations and maintenance, and integrated facilities management to the
corporate, health care and education markets.
- more -
<PAGE>
Page: 2
Charles D. O'Dell, President and Chief Executive Officer commented,
"Today marks the beginning of an exciting period, with exceptional opportunities
for Sodexho Marriott Services. Our people are moving forward with a focused
strategy to expand our leadership position in outsourced services." Mr. O'Dell
continued, "The North American food and facilities management service industry
is a $157 billion market, of which only 17% is contracted to service providers.
As the industry leader, Sodexho Marriott Services is well positioned to meet the
needs of the expanding marketplace."
Sodexho Marriott Services is one of the top 50 employers in the United
States with 100,000 employees and managing an additional 60,000 employees on
behalf of its clients. On a pro forma basis, 1997 calendar year sales would have
been over $4.1 billion and earnings before interest, taxes, depreciation and
amortization (EBITDA) would have been $240 million.
Sodexho Marriott Services, Inc. is the largest provider of outsourced
food and facilities management in North America, with more than 4,800 clients
and annual sales in excess of $4 billion.
###
<PAGE>
Exhibit 99(h)
ARTHUR
ANDERSEN
---------------------------
Arthur Andersen, LLP
---------------------------
Suite 400
April 1, 1998 8000 Towers Crescent Drive
Vienna VA 22182-2725
Office of the Chief Accountant 703 734 7300
SECPS Letter File
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
To the Chief Accountant of the
Securities and Exchange Commission:
We have read Item 4 included in the attached form 8-K of Sodexho Marriott
Services, Inc. (Commission File Number 1-12188) to be filed with the
Securities and Exchange Commission and are in agreement with the statements
contained therein.
Very truly yours,
/s/ Arthur Andersen LLP
Arthur Andersen LLP
Copy to:
Lawrence E. Hyatt, Chief Financial Officer
Sodexho Marriott Services, Inc.
