EXHIBIT 9
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TAX SHARING AND INDEMNIFICATION AGREEMENT
Dated as of March 27, 1998
By and Among
MARRIOTT INTERNATIONAL, INC.
(to be renamed "Sodexho Marriott Services, Inc.")
NEW MARRIOTT MI, INC.
(to be renamed "Marriott International, Inc.")
and
SODEXHO ALLIANCE, S.A.
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TAX SHARING AND INDEMNIFICATION AGREEMENT
This TAX SHARING AND INDEMNIFICATION AGREEMENT (this
"Agreement"), is entered into effective as of the Distribution Date (as
hereinafter defined), by and among Marriott International, Inc., a Delaware
corporation to be renamed Sodexho Marriott Services, Inc. ("Marriott"), New
Marriott MI, Inc., a Delaware corporation and a wholly owned subsidiary of
Marriott to be renamed Marriott International, Inc. ("Spinco"), and Sodexho
Alliance, S.A., a societe anonyme organized under the laws of France
("Sodexho").
RECITALS
WHEREAS, Marriott, Marriott-ICC Merger Corp., a Delaware
corporation and a wholly owned subsidiary of Marriott, Spinco, International
Catering Corporation, a Delaware corporation and a wholly owned subsidiary of
Sodexho ("ICC"), and Sodexho have entered into an Agreement and Plan of Merger
dated as of September 30, 1997 (the "Merger Agreement");
WHEREAS, Marriott and Spinco have entered into the
Distribution Agreement dated as of September 30, 1997 (the "Distribution
Agreement"); and
WHEREAS, Marriott and Spinco wish to provide for the
allocation of all responsibilities, liabilities and benefits relating to or
affecting Taxes (as hereinafter defined) paid or payable by either of them or
their affiliated Groups (as hereinafter defined) for all taxable periods,
whether beginning before, on or after the Distribution Date and to provide for
certain other matters.
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements set forth herein, the
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 General.
As used in this Agreement, the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular
and the plural forms of the terms defined):
"Adjusted MMS Group" shall mean MMS and the MMS Subsidiaries.
"Affiliate" shall mean, with respect to any specified Person,
any other Person directly or indirectly controlling or controlled by, or under
direct or indirect common control with, such specified Person. For purposes of
this definition, "control," when used with respect to any Person, means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" shall have meanings
correlative to the foregoing.
"Affiliated Group" shall have the meaning set forth in Section 3.01(a)
hereof.
"Agreement" shall have the meaning set forth in the Preamble.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, and shall include corresponding provisions of any subsequently enacted
federal tax laws.
"Combined State Tax Returns" shall have the meaning set forth
in the Section 2.02(b) hereof.
"Combined Taxes" shall have the meaning set forth in the Section 3.01(b)
hereof.
"Distribution" shall mean the distribution of 100% of the
capital stock of Spinco by Marriott to the Marriott shareholders and related
transactions undertaken pursuant to the Distribution Agreement, which is
intended to qualify for tax-free treatment under Code Section 368(a)(1)(D) and
Section 355.
"Distribution Agreement" shall have the meaning set forth in
the Recitals.
"Distribution Date" shall mean the date on which the
Distribution occurs or is deemed to occur for federal income tax purposes. For
purposes of this Agreement, the Distribution shall be deemed effective as of the
close of business on the Distribution Date.
"Equity Securities" shall mean any stock 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.
"Fifty Percent or Greater Interest" shall have the meaning of
a "50 percent or greater interest" as defined in Section 355(e)(4)(A) of the
Code.
"Final Determination" shall mean the final resolution of
liability for any Tax for a taxable period, (i) by IRS Form 870 or 870-AD (or
any successor forms thereto), on the date of acceptance by or on behalf of the
taxpayer, or by a comparable form under the laws of other jurisdictions; except
that a Form 870 or 870-AD or comparable form that reserves (whether by its terms
or by operation of law) the right of the taxpayer to file a claim for refund
and/or the right of the taxing authority to assert a further deficiency shall
not constitute a Final Determination; (ii) by a decision, judgment, decree, or
other order by a court of competent jurisdiction, which has become final and
unappealable; (iii) by a closing agreement or accepted offer in compromise under
Section 7121 or 7122 of the Code, or comparable agreements under the laws of
other jurisdictions; (iv) by any allowance of a refund or credit in respect of
an overpayment of Tax, but only after the expiration of all periods during which
such refund may be recovered (including by way of offset) by the Tax imposing
jurisdiction; or (v) by any other final disposition, including by reason of the
expiration of the applicable statute of limitations or by mutual agreement of
the parties.
"Forwarding Responsibilities" shall have the meaning set forth
in Section 4.03 hereof.
"Governmental Entity" shall mean 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
any other entity exercising executive, legislative, judicial regulatory or
administrative functions of or pertaining to government, whether now or
hereafter in effect.
"Group" shall mean the Spinco Group or the MMS Group.
"Hypothetical Return" shall have the meaning set forth in
Section 3.02(a) hereof.
"ICC" shall have the meaning set forth in the Recitals.
"Indemnified Amount" shall have the meaning set forth in
Section 4.03(a) hereof.
"Indemnitee" shall have the meaning set forth in Section 4.02
hereof.
"Indemnitor" shall have the meaning set forth in Section 4.02
hereof.
"IRS" shall mean the Internal Revenue Service.
"Joint Tax Return" shall mean any Tax Return that includes the
Retained Business and the Spinco Business.
"Marriott" shall have the meaning set forth in the Preamble.
"Marriott (Canada)" shall mean Marriott Corporation of Canada
Ltd., a Canadian corporation and a wholly-owned subsidiary of Marriott.
"Marriott Tax Item" shall mean a Tax Item solely attributable
to the Retained Business.
"Marriott Tax Ruling Representations" shall mean those
representations made by Marriott in connection with the request for the Tax
Ruling.
"Merger Agreement" shall have the meaning set forth in the
Recitals.
"MMS" shall mean Marriott Management Services Corp., a New
York corporation and a wholly-owned subsidiary of Marriott.
"MMS Group" shall mean Marriott, MMS and the MMS Subsidiaries.
"MMS Indemnitee" shall mean Marriott, MMS, each Affiliate of
MMS and each of their respective Representatives and each of the heirs,
executors, successors and assigns of any of the foregoing.
"MMS Subsidiaries" shall mean all direct and indirect
Subsidiaries of Marriott through which Marriott conducts the Retained Business,
as set forth on Schedule 1.1, attached hereto.
"MMS (U.K.)" shall mean Marriott Management Services (U.K.)
Ltd., a United Kingdom corporation and a wholly-owned subsidiary of MMS.
"1997 Taxable Year" shall mean Marriott's consolidated federal
income taxable year ending January 2, 1998.
"1998 Taxable Year" shall mean Marriott's consolidated federal
income taxable year ending January 1, 1999.
"Other Taxes" shall have the meaning set forth in Section
3.01(d) hereof.
"Other Tax Returns" shall have the meaning set forth in
Section 2.02(d) hereof.
"Person" shall mean an individual, corporation, partnership,
association, trust, estate or other entity or organization, including any
Governmental Entity or authority.
"Post-Distribution Taxable Period" shall have the meaning set
forth in Section 2.04 hereof.
"Pre-Distribution Taxable Period" shall have the meaning set
forth in Section 2.02(a) hereof.
"Prohibited Sale or Issuance" shall have the meaning set forth
in Section 5.04(d).
"Representation Date" shall mean any date on which Marriott or
Spinco makes any representation to the IRS, to Spinco or Marriott, or to tax
counsel for the purpose of obtaining a Subsequent Ruling or an opinion pursuant
to Section 5.05(c) hereof.
"Representative" shall mean with respect to any Person, any of
such Person's directors, officers, employees, agents, consultants, advisors,
accountants, attorneys and representatives.
"Restricted Period" shall mean the period beginning on the
date hereof and ending on the three-year anniversary of the Distribution Date.
"Retained Business" shall have the meaning ascribed to such
term in the Distribution Agreement.
"Rollback Items" shall have the meaning set forth in Section
3.04(d) hereof.
"Rollover Items" shall have the meaning set forth in Section
3.04(d) hereof.
"Ruling Documents" shall mean the request for a ruling under
Section 368(a)(1)(D) and Section 355 of the Code submitted to the IRS regarding
the Tax-Free Status of the Distribution.
"Short Period" shall mean the period commencing on January 3,
1998, and ending on the Distribution Date.
"Sodexho" shall have the meaning set forth in the Preamble.
"Sodexho Tax Ruling Representations" shall mean those
representations made by Sodexho in connection with the request for the Tax
Ruling.
"Spinco" shall have the meaning set forth in the Preamble.
"Spinco Business" shall have the meaning ascribed to such term
in the Distribution Agreement.
"Spinco Group" shall mean Spinco and the Spinco Subsidiaries.
"Spinco Indemnitee" shall mean each Affiliate of Spinco and
each of their respective Representatives and each of the heirs, executors,
successors and assigns of any of the foregoing.
"Spinco Subsidiaries" shall mean all direct and indirect
Subsidiaries of Marriott, other than MMS and any MMS Subsidiary, as set forth on
Schedule 1.2, attached hereto.
"Straddle Period" shall mean a taxable period that includes
but does not end on the Distribution Date, including the 1998 Taxable Year for
federal income tax purposes.
"Subsequent Ruling" shall mean a ruling from the IRS
confirming that the consummation of a transaction or existence of a condition
subsequent to the Distribution will not result in loss of Tax-Free Status.
"Subsidiary" shall mean, with respect to any Person, (a) any
corporation of which at least a majority in interest of the outstanding voting
stock (having by the terms thereof voting power under ordinary circumstances to
elect a majority of the directors of such corporation, irrespective or whether
or not at the time stock of any other class or classes of such corporation shall
have or might have voting power by reason of the happening of any contingency)
is at the time, directly or indirectly, owned or controlled by such Person, by
one or more Subsidiaries of such Person, or by such Person and one or more of
its Subsidiaries, or (b) any non-corporate entity in which such Person, one or
more Subsidiaries of such Person, or such Person and one or more Subsidiaries of
such Person, directly or indirectly, at the date of determination thereof, has
at least a majority ownership interest.
"Tax" shall mean any of the Taxes.
"Tax Deficiency" shall mean an assessment of Taxes as a result
of a Final Determination.
"Tax Detriment" shall mean any item of income, gain, recapture
of credit or any other Tax Item which increases Taxes paid or payable.
"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 Marriott 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.
"Tax Item" shall mean any item of income, gain, loss,
deduction, credit, provisions for reserves, recapture of credit or any other
item which increases or decreases Taxes paid or payable, including an adjustment
under Code Section 481 resulting from a change in accounting method.
"Tax Refund" shall mean a refund of Taxes as the result of a
Final Determination.
"Tax Return" shall mean any return, filing, questionnaire,
information return or other document required to be filed, including requests
for extensions of time, filings made with estimated tax payments, claims for
refund and amended returns that may be filed, for any period with any taxing
authority (whether domestic or foreign) in connection with any Tax or Taxes
(whether or not a payment is required to be made with respect to such filing).
"Tax Ruling" shall mean the private letter ruling to be issued
by the IRS in respect of the Tax-Free Status of the Distribution, and related
federal income tax consequences.
"Taxes" shall mean all forms of taxation, whenever created or
imposed, and whether of the United States or elsewhere, and whether imposed by a
local, municipal, governmental, state, foreign, federation or other body, and
without limiting the generality of the foregoing, shall include income, sales,
use, ad valorem, gross receipts, license, value added, franchise, transfer,
recording, withholding, payroll, employment, excise, occupation, unemployment
insurance, social security, business license, business organization, stamp,
environmental, premium and property taxes, together with any related interest,
penalties and additions to any such tax, or additional amounts imposed by any
taxing authority (domestic or foreign) upon the MMS Group, the Spinco Group or
any of their respective members or divisions or branches.
"True-Up Provision" shall mean the provisions of Section
2.8(f) of the Distribution Agreement, which govern the treatment of adjustments
to net tangible assets and related items for Marriott and Spinco.
Section 1.02 Interpretation. The descriptive headings herein
are inserted for convenience or reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement. For all
purposes of this Agreement, except as otherwise expressly provided, (i) the
enumeration of one or more items following the term "including" shall not be
interpreted as excluding any items not so enumerated, (ii) defined terms shall
include the plural as well as the singular, (iii) all references to "Articles,"
"Sections" or other subdivisions are to designated Articles, Sections and other
subdivisions of the body of this Agreement, (iv) pronouns of either gender or
neuter shall include, as appropriate, the other pronoun forms, and (v) the words
"herein," "hereof" and "hereunder" and other words of similar import refer to
this Agreement as a whole and not to any particular Article, Section or other
subdivision.
ARTICLE II
FILING OF TAX RETURNS
Section 2.01 Manner of Filing. All Tax Returns filed after the
Distribution Date shall be prepared on a basis which is consistent with the
consummation of the transactions as set forth in the Distribution Agreement, the
Marriott Tax Ruling Representations, the Sodexho Tax Ruling Representations and
the Tax Ruling (in the absence of a controlling change in law or circumstances)
and shall be filed on a timely basis (including extensions) by the party
responsible for such filing under this Agreement. In the absence of a
controlling change in law or circumstances, all Tax Returns filed after the date
of this Agreement shall be prepared on a basis consistent with the elections,
accounting methods, conventions, and principles of taxation used for the most
recent taxable periods for which Tax Returns involving similar Tax Items have
been filed, to the extent that a failure to do so would result in a Tax
Detriment to the other party hereto or a member of its Group. Subject to the
provisions of this Agreement, all decisions relating to the preparation of Tax
Returns shall be made by the party responsible under this Agreement for such
preparation (subject to any party's rights to review such Tax Returns as are
provided in this Agreement). Each party to this Agreement will provide the
information for the filing of such Tax Returns in the manner set forth in
Section 4.05(a), and will provide copies of all Tax Returns (or appropriate
portions thereof) filed after the Distribution Date to any other party to this
Agreement to the extent such returns relate to such other party.
Section 2.02 Pre-Distribution Tax Returns.
(a) Consolidated Returns. The Marriott consolidated federal
income Tax Returns required to be filed for all taxable periods ending on or
before the Distribution Date ("Pre-Distribution Taxable Periods") that have not
been filed prior to the Distribution Date shall be prepared and filed by Spinco,
and Marriott hereby irrevocably designates, and agrees to cause each of its
Subsidiaries to so designate, Spinco as its agent to take any and all actions
necessary or incidental to the preparation and filing of such Returns. Spinco
agrees to provide Marriott with (i) a pro forma federal income Tax Return for
the MMS Group for the 1997 Taxable Year no later than August 1, 1998 (and Spinco
will incorporate thereon any reasonable comments timely provided in writing by
Marriott in respect of the pro forma Tax Return for the 1997 Taxable Year for
the MMS Group), (ii) a copy of each such Tax Return for the 1997 Taxable Year as
soon as it is filed, and (iii) the pro forma tax returns for the Spinco Group
members for the Short Period no later than December 31, 1998 (which pro forma
tax returns will form the basis for the inclusion of the Spinco Group for the
Short Period in Marriott's consolidated federal income Tax Return for the 1998
Taxable Year).
(b) Combined, Consolidated and Unitary Returns. All state and
local combined, consolidated and unitary corporate income Joint Tax Returns
("Combined State Tax Returns") required to be filed for all Pre-Distribution
Taxable Periods, that have not been filed prior to the Distribution Date, shall
be prepared and filed by Spinco, and Marriott hereby irrevocably designates, and
agrees to cause each of its Subsidiaries to so designate, Spinco as its agent to
take any and all actions necessary or incidental to the preparation and filing
of such Joint Tax Returns. Spinco agrees to provide Marriott with a pro forma
Combined State Tax Return for the MMS Group for the 1997 taxable year as soon as
is practicable (and Spinco will incorporate thereon any reasonable comments
timely provided in writing by Marriott in respect of the Combined State Tax
Returns for the 1997 taxable year).
(c) Returns for Marriott (Canada). All Tax Returns for
Marriott (Canada) for Pre-Distribution Taxable Periods required to be filed for
all Pre-Distribution Taxable Periods, that have not been filed prior to the
Distribution Date, shall be prepared and filed by Spinco, and Marriott hereby
agrees to cause Marriott (Canada) to designate Spinco as its agent to take any
and all actions necessary or incidental to the preparation and filing of such
Returns. Spinco agrees to provide Marriott with a copy of such Tax Returns for
the 1997 taxable year as soon as is practicable before they are filed (and
Spinco will incorporate thereon any reasonable comments timely provided in
writing by Marriott in respect of such Tax Returns for the 1997 taxable year).
(d) Other Returns. All other Tax Returns not described
elsewhere in this Section 2.02, including separate state returns, local tax
returns and payroll tax returns ("Other Tax Returns"), required to be filed for
all Pre-Distribution Taxable Periods, that have not been filed prior to the
Distribution Date, shall be prepared and filed by the party which prepared and
filed such Other Tax Return for the most recent period for which such Other Tax
Return was filed, or, if no such Other Tax Return was filed in such period, the
party responsible under the appropriate law of the taxing jurisdiction. The
parties hereto intend that, under this Section 2.02(d), no member of the Spinco
Group shall be responsible for preparing or filing such Other Tax Returns that
are currently prepared and filed by or on behalf of members of the Adjusted MMS
Group, including any sales, use or property Tax Returns. Schedule 2.02(d) sets
forth the agreed-upon list of the Other Tax Returns filed by or on behalf of the
Adjusted MMS Group (and listing the entity actually filing such Other Tax
Return) for the most recent periods, which schedule shall be finalized on the
Distribution Date. Notwithstanding the foregoing, any Other Tax Returns which
were historically prepared and filed by Marriott on behalf of members of the
Adjusted MMS Group, shall be prepared and filed by Spinco, and Marriott hereby
irrevocably designates Spinco as its agent to take any and all actions necessary
or incidental to the preparation and filing of such Other Tax Returns. Spinco
agrees to provide Marriott with a copy of each such Other Tax Return that has
been filed historically by Marriott on behalf of the Adjusted MMS Group as soon
as possible before it is required to be filed, and to incorporate thereon any
reasonable comments timely provided in writing by Marriott in respect of such
Other Tax Returns before Spinco files such Other Tax Return.
Section 2.03 Straddle Period Tax Returns.
(a) Consolidated Returns. The Marriott consolidated federal
income Tax Returns required to be filed for all Straddle Periods shall be
prepared and filed by Marriott. Marriott agrees to provide Spinco with a copy of
each such Tax Return four weeks before it is filed, and to incorporate thereon
any reasonable comments timely provided in writing by Spinco. As provided for in
Section 2.02(a) hereof, Spinco agrees to provide to Marriott by December 31,
1998, pro forma tax returns for the Spinco Group for the Short Period.
(b) Combined, Consolidated and Unitary Returns. All Combined
State Tax Returns for all Straddle Periods shall be prepared and filed by
Marriott. Marriott agrees to provide Spinco with a copy of each such Combined
State Tax Return as soon as is practicable before it is filed, and to
incorporate thereon any reasonable comments timely provided in writing by
Spinco. To assist Marriott in the preparation of such Tax Returns, Spinco agrees
to provide to Marriott by December 31, 1998, any information necessary for
Marriott to prepare such Tax Returns.
(c) Returns for Marriott (Canada). All Tax Returns for
Marriott (Canada) for all Straddle Periods shall be prepared and filed by
Marriott. Marriott agrees to provide Spinco with a copy of each such Tax Return
as soon as is practicable before it is filed, and to incorporate thereon any
reasonable comments timely provided in writing by Spinco. Spinco agrees to
provide to Marriott by December 31, 1998, any information necessary for Marriott
to prepare such Tax Returns.
(d) Other Returns. All Other Tax Returns that are required to
be filed for Straddle Periods shall be prepared and filed by the party which
prepared and filed such Tax Return for the most recent period for which such Tax
Return was filed or if no such Tax Return was filed in such period, the party
responsible under the appropriate law of the taxing jurisdiction. Schedule
2.02(d) sets forth the agreed-upon list of Tax Returns that have been filed for
the most recent periods. The parties hereto intend that, under this Section
2.03(d), no member of the Spinco Group shall be responsible for preparing or
filing such Tax Returns that are currently prepared and filed by members of the
Adjusted MMS Group, including any sales, use or property Tax Returns.
(e) Delayed Distribution Date. Notwithstanding anything to the
contrary in this Agreement, in the event the Distribution Date has not occurred
before May 31, 1998, Spinco shall have the right to prepare and file all Tax
Returns for the Straddle Period and shall take such other steps and shall have
such other authority delegated to it by Marriott as Spinco in its discretion
shall deem necessary to prepare and file such returns in a timely manner. In the
event Spinco exercises such a right, the parties hereto shall execute an
amendment to this Agreement that shall set forth the procedures for Spinco's
preparation of such Tax Returns for the Straddle Period and the mechanisms for
Spinco's payment of Taxes reflected on such Tax Returns in such a manner as is
consistent with the principles set forth in this Agreement.
Section 2.04 Post-Distribution Tax Returns. All Tax Returns
for periods beginning after the Distribution Date ("Post-Distribution Taxable
Periods") shall be (i) the responsibility of the Spinco Group if such Tax
Returns relate solely to a member or members of the Spinco Group or their
respective assets or businesses, and (ii) the responsibility of the MMS Group if
such Tax Returns relate solely to a member or members of the MMS Group or their
respective assets or businesses.
ARTICLE III
LIABILITY FOR TAXES
Section 3.01 Pre-Distribution Taxable Period Tax Liabilities.
(a) Pre-Distribution Taxable Period Consolidated Federal
Income Tax Liabilities. Spinco shall pay, on a timely basis, all Taxes due with
respect to the consolidated federal income tax liability for all
Pre-Distribution Taxable Periods of the affiliated group of which Marriott is
the common parent (the "Affiliated Group"). Notwithstanding the foregoing, any
payments in respect of the Spinco Group's Tax Return for the Short Period will
be determined and governed by Section 3.02 and Section 3.03 hereof. As provided
in Section 2.8(f) of the Distribution Agreement, the Distribution Agreement's
definition of Adjusted Net Tangible Assets, and the "Distribution Date
Statement" referred to in Section 2.8(f) of the Distribution Agreement, in
connection with the transfer of the Spinco Business to Spinco, Marriott shall,
in effect, transfer to Spinco 100% of the income tax provisions of Marriott for
accrued income taxes as at the Distribution Date. Any tax provisions relating to
sales, use and property Taxes accrued as at the Distribution Date shall be
treated in accordance with Section 3.03(g) hereof.
(b) Pre-Distribution Taxable Period Combined Consolidated and
Unitary Corporate Income Tax Liabilities. Spinco or a member of the Spinco Group
shall pay, on a timely basis, all Taxes due with respect to any Combined State
Tax Returns ("Combined Taxes") for Pre-Distribution Taxable Periods.
(c) Tax Liability for Marriott (Canada). Spinco shall pay, on
a timely basis, all Taxes due with respect to Marriott (Canada) for all
Pre-Distribution Taxable Periods.
(d) Pre-Distribution Taxable Period Liabilities for Other
Taxes. All Taxes due with respect to Other Tax Returns ("Other Taxes") for
Pre-Distribution Taxable Periods shall be paid by the party responsible under
this Agreement for filing the Other Tax Return pursuant to which such Taxes are
due. Spinco hereby assumes and agrees to pay directly to the appropriate taxing
authority that amount of all Other Taxes (except for sales, use and property
Taxes, which are provided for in Section 3.03(g) hereof, and for Other Taxes
with respect to Other Tax Returns filed by any MMS Subsidiary, as reflected on
Schedule 2.02(d), which shall be paid directly to Marriott for payment to the
appropriate taxing authority) that are due with respect to Other Tax Returns
filed by Marriott or any MMS Subsidiary for Pre-Distribution Taxable Periods.
Section 3.02 Straddle Period Tax Liabilities.
(a) Straddle Period Consolidated Federal Income Tax
Liabilities. Except as otherwise provided in Section 2.03(e) and Section 4.05(a)
of this Agreement, Marriott shall pay, on a timely basis, all Taxes due with
respect to the consolidated federal income tax liability for all Straddle
Periods of the Affiliated Group. Spinco hereby assumes and agrees to pay
directly to Marriott its allocable share of the Taxes for the Straddle Period,
in accordance with the following:
(i) Spinco's allocable share of liability
for Taxes for the Straddle Period will be the net hypothetical
consolidated federal income tax liability for the Affiliated
Group determined pursuant to a hypothetical pro forma tax
return prepared by Spinco (the "Hypothetical Return") that
shall be prepared as though the Short Period were a taxable
period ending on the Distribution Date, which hypothetical tax
liability may be positive or negative (provided, however, that
any Taxes attributable to, resulting from, arising from, or
caused by a loss, in part or in whole, of Tax-Free Status
shall be treated as occurring the day after the Distribution
Date for these purposes). The Hypothetical Return shall be
prepared by determining the items of income, expense,
deduction, loss or credit on a "closing of the books" basis as
of the Distribution Date and shall be provided by Spinco to
Marriott, on an estimated basis, within twelve weeks after the
Distribution Date, and shall incorporate thereon any
reasonable comments timely provided in writing by Marriott.
Subject to the foregoing, the Hypothetical Return shall be
prepared on a basis consistent with the elections, accounting
methods, conventions, and principles of taxation used for the
most recent taxable periods for which Tax Returns involving
similar Tax Items have been filed, to the extent that a
failure to do so would result in a Tax Detriment to the other
party hereto or a member of its Group.
(ii) In determining Spinco's allocable share
of any Tax liability as set forth in the Hypothetical Return,
(A) those extraordinary expenses (and related income tax
deductions) incurred in connection with the Distribution and
acquisition of ICC, whether on or before the Distribution
Date, that are described in Clause (x)(I) of the definition of
"Adjusted Net Tangible Assets" of the Distribution Agreement
shall be allocated to the portion of the Straddle Period after
the Distribution Date; and (B) all other extraordinary
expenses (and related income tax deductions) incurred in
connection with the Distribution and acquisition of ICC shall
be allocated for tax and other purposes to the Short Period.
(iii) After the Distribution Date, Spinco
shall timely pay all amounts payable in respect of the
Affiliated Group's quarterly estimated federal income tax
payments for the Short Period; such payments shall be made
directly to Marriott, which will, to the extent Tax is owed by
the Affiliated Group, forward such payments to the IRS.
(iv) If the calculations made pursuant to
this Section 3.02(a) indicate that Spinco's allocable share of
the consolidated federal income tax liability for the 1998
Taxable Year exceeds the sum of (A) any estimated payments,
deposits or credits made or applied with respect to the Short
Period (which shall be made or applied in accordance with past
practice), and (B) the estimated tax payments made in
accordance with Section 3.02(a)(iii) hereof, then within 30
days of the filing of Marriott's consolidated federal income
tax return for the 1998 Taxable Year, Spinco shall pay
Marriott the amount of any such excess.
(v) If the calculations made pursuant to
this Section 3.02(a) indicate that the sum of (w) any
estimated payments, deposits or credits made or applied with
respect to the Short Period made before the Distribution Date
(which shall be made or applied in accordance with past
practice), and (x) the estimated tax payments made in
accordance with Section 3.02(a)(iii) hereof, exceeds Spinco's
allocable share of the consolidated federal income tax
liability for the 1998 Taxable Year, then within 30 days of
the filing of Marriott's consolidated federal income tax
return for the 1998 Taxable Year, Marriott shall pay Spinco
the amount of any such excess. For these purposes, if Spinco's
allocable share of the consolidated federal income tax
liability is negative (for example, in the event that the
Hypothetical Return reflects a loss or a refund due for the
Short Period), Marriott shall pay to Spinco such negative
amount plus the sum of (y) any estimated payments, deposits or
credits made or applied with respect to the Short Period made
before the Distribution Date (which shall be made or applied
in accordance with past practice), and (z) the estimated tax
payments made in accordance with Section 3.02(a)(iii) hereof.
(vi) All calculations and determinations
required to be made pursuant to this Section 3.02(a) shall be
made by Spinco on a basis reasonably consistent with prior
years.
(b) Straddle Period Combined Consolidated and Unitary
Corporate Income Tax Liability. Except as otherwise provided in Section 2.03(e)
and Section 4.05(a) of this Agreement, Marriott shall pay, on a timely basis,
all Combined Taxes due with respect to all Straddle Periods. In accordance with
the principles set forth in Section 3.02(a) hereof, Spinco hereby assumes and
agrees to pay directly to Marriott its allocable share of all Combined Taxes for
all Straddle Periods, and Marriott hereby assumes and agrees to pay directly to
Spinco any overpayments by Spinco or any "negative tax liabilities."
(c) Tax Liability for Marriott (Canada). Except as otherwise
provided in Section 2.03(e) and Section 4.05(a) of this Agreement, Marriott
shall pay, on a timely basis, all Taxes due with respect to Marriott (Canada)
for all Straddle Periods. In accordance with the principles set forth in Section
3.02(a) hereof, Spinco hereby assumes and agrees to pay directly to Marriott its
allocable share of Marriott (Canada)'s Taxes for the Straddle Period, and
Marriott hereby assumes and agrees to pay directly to Spinco any overpayments by
Spinco or any "negative tax liabilities."
(d) Straddle Period Other Taxes. In the case of all Other
Taxes (except for sales, use and property Taxes, which are provided for in
Section 3.03(g) hereof) that are due with respect to Other Tax Returns filed by
Marriott or any MMS Subsidiary for Straddle Periods, and in accordance with the
principles set forth in Section 3.02(a) hereof, Spinco hereby assumes and agrees
to pay directly to Marriott its allocable share of all Taxes for all Straddle
Periods, and Marriott hereby assumes and agrees to pay directly to Spinco any
overpayments by Spinco or any "negative tax liabilities." Where the system set
forth in Section 3.02(a) hereof is not feasible in calculating the portion of
Other Taxes for a Straddle Period for which Spinco or Marriott is responsible
under this Section 3.02, the amount of such Other Taxes for which Spinco or
Marriott is responsible shall be determined by prorating the actual tax due for
the Straddle Period on a daily proration basis or by some other reasonable
method on which Spinco and Marriott agree (and Spinco and Marriott hereby agree
to cooperate in good faith in determining any such mutually acceptable method).
The amount of such Other Tax borne by Spinco shall be the amount allocated to
the portion of the Straddle Period ending on the Distribution Date.
Section 3.03 Other Allocations of Tax Liabilities.
(a) In implementing this Article III, the parties shall make
any adjustments that are necessary to insure that, with respect to all Taxes for
Straddle Periods, payment and reimbursement between the parties reflects the
principle that Spinco is to be liable for Taxes attributable to the portion of
Straddle Periods ending on the Distribution Date and Marriott is to bear
responsibility for Taxes attributable to the portion of Straddle Periods after
the Distribution Date (other than sales, use and property Taxes, the liability
for which is provided for in Section 3.03(g) hereof).
(b) Notwithstanding anything to the contrary in this
Agreement, in determining Spinco's allocable share of any Tax liability (under
Section 3.01, Section 3.02 or this Section 3.03), any increase in the Tax
liability resulting from any act or omission not in the ordinary course of
business (other than transactions contemplated by this Agreement, the
Distribution Agreement or the Merger Agreement) on the part of any member of the
MMS Group occurring on the Distribution Date, after the Distribution has been
effected, shall be deemed to arise in a taxable period which begins after the
Distribution Date.
(c) Notwithstanding anything to the contrary in this
Agreement, in determining Spinco's allocable share of any Tax liability (under
Section 3.01, Section 3.02 or this Section 3.03), any increase in the Tax
liability resulting from any act or omission not in the ordinary course of
business (other than transactions contemplated by this Agreement, the
Distribution Agreement or the Merger Agreement) on the part of any member of the
Spinco Group occurring on the Distribution Date, after the Distribution has been
effected, shall be deemed to arise in a taxable period which begins before the
Distribution Date.
(d) Notwithstanding anything to the contrary in this Article
III, whenever any party hereto is required to make any of the calculations or
determinations referred to therein, such party shall provide the other party
with (i) copies of any material calculations or determinations as soon as is
practicable after such calculations or determinations have been made, and prior
to the applicable Tax Returns' being filed, sufficient to enable the other party
to verify mathematical accuracy and (ii) if requested by the other party, access
during reasonable business hours to copies of any Returns, reports or other
statements sufficient to enable the other party to verify reasonably consistent
treatment with prior years.
(e) Notwithstanding anything to the contrary in this
Agreement, any Tax liabilities of MMS (U.K.) shall be governed exclusively by
the Stock Purchase and Sale Agreement to be entered into among Marriott, MMS,
Sodexho and a subsidiary of Sodexho respecting MMS's sale of MMS (U.K.) to
Sodexho (or a Sodexho Affiliate); provided, however, that any gain or loss
incurred in the sale of MMS (U.K.) shall be governed by this Agreement.
(f) Marriott shall not be responsible for or liable for any
Taxes of ICC or attributable to ICC which are attributable to periods prior to
Marriott's acquisition of ICC, and the Spinco Group shall not be responsible for
or liable for any Taxes of ICC or attributable to ICC for any period, and
Sodexho and its Affiliates shall be liable for and shall indemnify, defend and
hold harmless Marriott against any liability, payment, cost and/or expense
(including any Tax liability, lawyers' fees and accountants' fees) ("ICC Tax
Liability") incurred by Marriott in respect of any Taxes of ICC or attributable
to ICC which are attributable to periods prior to Marriott's acquisition of ICC,
and shall indemnify, defend and hold harmless Spinco against any ICC Tax
Liability incurred by any member of the Spinco Group in respect of any Taxes of
ICC which are attributable to any period.
(g) Notwithstanding any other provision of this Agreement,
Marriott and the MMS Group shall be responsible for, and shall be entitled to
receive and retain all refunds relating to, all sales, use, and property taxes
incurred with respect to the Retained Business for the Pre-Distribution Taxable
Period, the Straddle Taxable Period, and the Post-Distribution Taxable Period,
and the portion of any reserve for Taxes relating to such sales, use and
property Taxes related to the Retained Business shall be retained by Marriott
following the Distribution and shall be reflected in the Distribution Date
Statement described in Section 2.8(f) of the Distribution Agreement.
Section 3.04 Redetermined Tax Liabilities.
(a) Pre-Distribution Taxable Period Tax Returns. In the case
of any Final Determination regarding a Tax Return for a Pre-Distribution Taxable
Period, any Tax Deficiency shall be paid to the appropriate taxing authority by,
and any Tax Refund received from the appropriate taxing authority shall be paid
to, Spinco, and Marriott shall forward any such Tax Refund to Spinco within ten
days after receipt thereof; provided, however, that (i) any Final Determination
respecting consolidated federal income Taxes for the Short Period shall be
provided for in Section 3.04(b) hereof, and (ii) any Final Determination
respecting sales, use or property Taxes shall be provided for in Section 3.03(g)
hereof.
(b) Straddle Period Joint Tax Returns. In the case of any
Final Determination regarding a Straddle Period Tax Return (which, for purposes
of this Section 3.04(b), shall include Marriott's consolidated federal income
Tax Return for the 1998 Taxable Year), Spinco's allocable share of any Tax
Deficiency shall be paid to the appropriate taxing authority by, and Spinco's
allocable share of any Tax Refund received from the appropriate taxing authority
shall be paid to, Spinco, and Marriott shall forward Spinco's allocable share of
any such Tax Refund to Spinco within ten days after receipt thereof. For
purposes of this Section 3.04(b), Spinco's allocable share of Tax respecting any
Final Determination shall be the excess of (A) Spinco's allocable share of Tax,
determined under the principles of Section 3.02(a), with respect to a recomputed
Hypothetical Return that takes into account the Final Determination, over (B)
Spinco's allocable share of Tax as determined using the most recent Hypothetical
Return (either the original Hypothetical Return or a recomputed Hypothetical
Return generated with respect to a prior Final Determination). For purposes of
this Section 3.04(b), the MMS Group's allocable share of Tax respecting any
Final Determination shall be the amount of such Final Determination, less
Spinco's allocable share as determined in the immediately preceding sentence.
Whether or not there is a Tax Deficiency or Tax Refund or whether or not a
payment is required to or from the appropriate taxing authority, Marriott shall
make payments to Spinco or receive payments from Spinco based upon the following
principles:
(i) Marriott shall make a payment to Spinco in an
amount equal to any increase in the MMS Group's allocable
share of Tax (including any applicable interest or penalties,
which is or has been imposed by any taxing authority with
respect to any additional Taxes resulting from such
adjustments, or any such interest that would have been imposed
but for any offsetting Tax Items) with respect to such Tax
Return, less any payments previously made by Marriott to
Spinco (or directly to the appropriate taxing authority) or
any Refund amount received by Spinco attributable to the MMS
Group's allocable share of Tax.
(ii) Spinco shall make a payment to Marriott in an
amount equal to any decrease in the MMS Group's allocable
share of Tax (including any applicable interest or penalties,
which is or has been imposed by any taxing authority with
respect to any additional Taxes resulting from such
adjustments, or any such interest that would have been imposed
but for any offsetting Tax Items) with respect to such Tax
Return, less any payments previously made by Spinco to
Marriott (or directly to the appropriate taxing authority) or
any Refund amount received by Marriott attributable to the MMS
Group's allocable share of Tax.
(iii) Payments made pursuant to subsections (i) and
(ii) above shall be adjusted to take into account the amounts
of any offsetting adjustments that result in an increase or
decrease in the MMS Group's allocable share of Taxes with
respect to any Tax Return for another period (as determined
under the above principles), resulting from adjustments to
Marriott Tax Items in such Final Determination. This Section
3.04 shall be applied in a manner that avoids any duplications
of payments.
(c) Liability for Taxes with Respect to Post-Distribution
Periods. Except as otherwise provided in Section 3.04(a) or Section 3.04(b) of
this Agreement, the Spinco Group shall pay all Taxes and shall be entitled to
receive and retain all refunds of Taxes resulting from a Final Determination
with respect to periods beginning after the Distribution Date which are
attributable to the Spinco Business. Except as otherwise provided in Section
3.04(a) or Section 3.04(b) of this Agreement, the MMS Group shall pay all Taxes
and shall be entitled to receive and retain all refunds of Taxes resulting from
a Final Determination with respect to periods beginning after the Distribution
Date which are attributable to the Retained Business.
(d) Rollover Items. Notwithstanding anything to the contrary
in this Agreement, (i) with respect to any tax items for which, pursuant to a
Final Determination, taxable income is recognized in a period before the
Distribution Date with respect to an asset or other item (including an
intangible asset or a capitalized expense) and such items will generate a
corresponding tax benefit or benefits (excluding permanent timing changes) to
the MMS Group in a tax period ending after the Distribution Date ("Rollover
Items"), Marriott shall pay to Spinco an amount equal to the amount of such tax
benefit or benefits attributable to such Rollover Items, determined at the
highest marginal corporate tax rate set by statute for such periods, and (ii)
with respect to any tax items for which, pursuant to a Final Determination,
taxable income is recognized by the MMS Group in a taxable period ending after
the Distribution Date with respect to an asset or other item (including an
intangible asset or a capitalized expense), and such Rollback Items will
generate a corresponding tax benefit or benefits (excluding permanent timing
changes) to a member of the Spinco Group ("Rollback Items"), Spinco shall pay to
Marriott an amount equal to the amount of such tax benefit or benefits
attributable to such Rollback Items, determined at the highest marginal
corporate tax rate set by statute for such periods. Any payment to be made under
this Section 3.04(d) shall be appropriately discounted to the present value of
any reduction in Taxes, to reflect the time-value-of-money (the discount rate to
be equal to LIBOR plus one percent for the period in which such payment is to be
made).
(e) Calculation and Payment of Amounts. Except in the case of
Tax Returns that include only MMS and the MMS Subsidiaries, all calculations and
determinations required to be made pursuant to this Section 3.04 shall be made
by Spinco in good faith and on a basis reasonably consistent with prior years.
Any payments made by the parties hereunder to each other shall be treated by
each of the parties as satisfaction of liabilities of such paying party and
shall not be subject to any gross-up or additional payment.
(f) Other Tax Liabilities and Refunds. Any Tax Liability or
Refund with respect to a Pre-Distribution Taxable Period Joint Tax Return not
arising from an adjustment to, or change in, a Tax Item (e.g., change in
applicable law) shall be allocated to Spinco. Any Tax Liability or Refund with
respect to a Straddle Period Joint Tax Return not arising from an adjustment to,
or change in, a Tax Item (e.g., change in applicable law) shall be allocated by
Spinco between Spinco and Marriott in a manner consistent with Section 3.02(a)
hereof.
(g) The provisions of Section 3.03(d) hereof shall apply with
respect to the calculations and allocations to be made by Spinco pursuant to
this Section 3.04.
Section 3.05 Carrybacks. Any Tax Refund resulting from the
carryback by Spinco of any Tax Item arising after the Distribution Date to a
Pre-Distribution Taxable Period or a Straddle Period shall be for the account of
Spinco, and Marriott shall promptly pay over to Spinco any such Tax Refund that
it receives. Spinco shall be permitted to file, and Marriott shall fully
cooperate with Spinco in connection with, any such Tax Refund claim. Any Tax
Refund resulting from the carryback by Marriott of any Tax Item arising after
the Distribution Date (including items allocated to the portion of the Straddle
Period after the Distribution Date) to a Pre-Distribution Taxable Period or a
Straddle Period shall be for the account of Marriott, provided that to the
extent that any carryback by Marriott of any Tax Item arising after the
Distribution Date causes a Tax Detriment to the Spinco Group, Marriott shall
reimburse Spinco for the cost to the Spinco Group of such Tax Detriment.
ARTICLE IV
INDEMNITY, TAX NOTICES, AUDITS AND EXCHANGE OF INFORMATION
Section 4.01 Indemnity for Breach. Spinco shall be
liable for and shall indemnify, defend and hold harmless the MMS
Indemnitees from and against any payment required to be made as a result of
the breach by a member of the Spinco Group of any representation, warranty,
covenant or agreement under this Agreement. Marriott shall be liable for
and shall indemnify, defend and hold harmless the Spinco Indemnitees from
and against any payment required to be made as a result of the breach by a
member of the MMS Group of any representation, warranty, covenant or
agreement under this Agreement.
Section 4.02 Notice of Indemnity Issue. Whenever a party
hereto becomes aware of the existence of an issue which could increase the
liability for any Tax of the other party hereto or any member of its Group or
require a payment hereunder (hereinafter an "Indemnitee"), the Indemnitee shall
in good faith promptly give notice to such other party (hereinafter the
"Indemnitor") of such issue. The failure of any Indemnitee to give such notice
shall not relieve any Indemnitor of its obligations under this Agreement except
to the extent such Indemnitor or its Affiliate is actually materially prejudiced
by such failure to give notice.
Section 4.03 Forwarding Responsibilities. If Marriott or
Spinco, or any member of the MMS Group or Spinco Group, fails to comply in any
respect whatsoever with any of its responsibilities under the Agreement relating
to promptly forwarding any communications with and refunds received from any
taxing authority ("Forwarding Responsibilities"), then:
(a) If such failure relates to a communication other than a
refund, the party failing to fulfill the Forwarding Responsibilities (or any
member of such party's Group) shall be liable for and shall indemnify and hold
Spinco and the Spinco Group, or Marriott and the MMS Group, as the case may be,
harmless from and against any costs or expenses (including Taxes and lawyers'
and accountants' fees) ("Indemnified Amount") incurred by or imposed upon the
party to receive such communication, or any member of the party's Group, as a
result of such delay with respect to such communication.
(b) If such failure relates to a refund, the party failing to
fulfill the Forwarding Responsibilities (or any member of such party's Group)
shall be liable to Spinco and the Spinco Group, or Marriott and the MMS Group,
as the case may be, for the full amount of such refund, plus interest accruing
as of the date such communication should have been forwarded at the prime rate
as published in The Wall Street Journal, plus any costs or expenses (including
lawyers' and accountants' fees) incurred by or imposed upon the party to receive
such refund, or any member of the party's Group, as a result of such delay with
respect to such refund.
(c) Whenever an Indemnitee receives any written communication
by any means from any Governmental Entity that relates to or could have an
effect on Taxes for any Pre-Distribution Taxable Period or Straddle Period, the
Indemnitee shall immediately thereupon forward such communication to the
Indemnitor at the address provided in Section 4.03(d). The failure of any
Indemnitee to give such notice shall not relieve any Indemnitor of its
obligations under this Agreement except to the extent such Indemnitor or its
Affiliate is prejudiced by such failure to give notice.
(d) All communications forwarded pursuant to Sections 4.02 and
4.03 hereunder shall be delivered by hand including overnight business courier
or mailed by registered or certified mail (return receipt requested) to the
parties at the following addresses (or to such other person as a party hereto
shall designate in writing by notice provided under Section 6.03 hereof):
To Spinco or any member of the Spinco Group:
New Marriott MI, Inc.
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Senior Vice President-Taxes
To Marriott or any member of the MMS Group:
Sodexho Marriott Services, Inc.
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Section 4.04 Audit Matters. Spinco shall have primary
responsibility for conducting the audit of any Joint Tax Return relating to or
having an effect on any Pre-Distribution Taxable Period or Straddle Period, and
Spinco shall have primary responsibility for conducting any subsequent
litigation relating thereto. Marriott shall have the right, directly or through
its designated representatives, to review in advance and comment upon all
submissions made in the course of such audits, appeals, or litigation and to be
present at, directly or by its representatives, all conferences, meetings or
proceedings with any taxing authority, and all appearances before any court, the
subject matter of which is or includes an item for which the MMS Group could be
liable under this Agreement; in addition, if the disposition, resolution or
compromise of such audit or appeal will or might reasonably be expected to
result in Marriott having an increased Tax liability, or any other adverse Tax
consequence, for any period beginning after the Distribution Date, Marriott
shall have the right, exercisable within 10 days of its receipt of notice of a
proposed disposition of the audit or appeal, to veto the disposition of any
audit adjustment with respect to such periods, such veto not to be unreasonably
exercised. Each party shall bear its own internal expenses of participation in
such audits, appeals, or litigation. The expenses of hiring outside counsel or
accountants by either party with respect to the matters contemplated by this
Section 4.04 shall be borne (i) by Spinco for matters relating to
Pre-Distribution Taxable Periods (other than periods ending on the Distribution
Date), and (ii) 50% by Spinco and 50% by MMS Group for all Straddle Periods
(which for these purposes includes those periods ending on the Distribution
Date). If Spinco declines to defend any matter provided for in this Section
4.04, Marriott has the right to pay, compromise or contest the matter, and
Spinco shall bear Marriott's costs in those actions.
Section 4.05 Cooperation and Exchange of Information.
(a) Preparation of Returns. Marriott shall, and shall cause
each appropriate member of the MMS Group to, prepare and submit to Spinco, at
Marriott's expense, (i) in accordance with past practice, but in no event later
than July 1, 1998, all information as Spinco shall reasonably request to enable
Spinco to file the Marriott consolidated federal income tax return for the 1997
Taxable Year, and (ii) in accordance with past practice, but in no event later
than August 1, 1998, all information that Spinco shall reasonably request to
enable Spinco to file any state and local combined or unitary corporate income
tax returns for the 1997 Taxable Year. Spinco shall, and shall cause each
appropriate member of the Spinco Group to, prepare and submit to Marriott, at
Spinco's expense, in accordance with past practice, but in no event later than
July 1, 1999, all information as Marriott shall reasonably request to enable
Marriott to file the Marriott consolidated federal income tax return for the
1998 Taxable Year (other than the pro forma tax returns for the Spinco Group,
which will be provided by December 31, 1998, as provided for in Section 2.02(a)
hereof), and (ii) in accordance with past practice, but in no event later than
August 1, 1999, all information that Marriott shall reasonably request to enable
Marriott to file any state and local combined or unitary corporate income tax
returns for the 1998 Taxable Year. Notwithstanding the foregoing provisions of
this Section 4.05(a), if the Distribution Date is delayed until after May 31,
1998, then, in order to facilitate the orderly preparation and filing of the tax
returns for Marriott for the balance of the 1998 Taxable Year, Spinco, if it so
elects under Section 2.03(e) hereof, will prepare at its expense, and submit to
Marriott for its review and approval, the Marriott consolidated federal income
tax and state income tax returns for the 1998 Taxable Year, and shall take such
other steps and shall have such other authority delegated to it by Marriott as
Spinco in its discretion shall deem necessary to prepare and file such returns
in a timely manner.
(b) Cooperation. Marriott, on behalf of itself and each member
of the MMS Group, agrees to provide the Spinco Group with such cooperation and
information as Spinco shall reasonably request in connection with the
preparation or filing of any Tax Return (or Hypothetical Return) or claim for
refund not inconsistent with this Agreement or in conducting any audit or other
proceeding in respect to Taxes. Such cooperation and information shall include
designation of an officer of Spinco as an officer of Marriott and MMS for the
purpose of signing Tax Returns, receiving and cashing refund checks and
defending audits as well as promptly forwarding copies of appropriate notices
and forms or other communications received from or sent to any taxing authority
which relate to the Affiliated Group or the Retained Business and providing
copies of all relevant Tax Returns, together with accompanying schedules and
related workpapers, documents relating to rulings or other determinations by
taxing authorities, including foreign taxing authorities, and records concerning
the ownership and Tax basis of property, which either party may possess. It is
expressly the intention of the parties to this Agreement to take all actions
necessary to establish Spinco as the sole agent for tax purposes of each member
of the Affiliated Group with respect to all combined, consolidated and unitary
Tax Returns of the Affiliated Group for Pre-Distribution Taxable Periods as if
Spinco were the common parent of the Affiliated Group, and as the sole agent for
tax purposes of Marriott for all Tax Returns of Marriott for Pre-Distribution
Taxable Periods. Marriott and MMS shall make, or shall cause the members of the
MMS Group to make, their employees and facilities available on a mutually
convenient basis to provide explanation of any documents or information provided
hereunder, without charge to Spinco.
(c) Record Retention. Marriott and Spinco agree to retain all
Tax Returns, related schedules and workpapers, and all material records and
other documents as required under Section 6001 of the Code and the regulations
promulgated thereunder relating thereto existing on the date hereof or created
through the Distribution Date, until the expiration of the statute of
limitations (including extensions) of the taxable years to which such Tax
Returns and other documents relate and until the Final Determination of any
payments which may be required in respect of such years under this Agreement.
Spinco and Marriott agree to advise each other promptly of any such Final
Determination. Any information obtained under this Section 4.05 shall be kept
confidential, except as may be otherwise necessary in connection with the filing
of Tax Returns or claims for refund or in conducting any audit or other
proceeding. Spinco shall be the owner of those Tax Returns, related schedules
and workpapers, and all material records and other documents relating to those
Tax Returns, relating to all Pre-Distribution Taxable Periods and that portion
of the Straddle Period ending on the Distribution Date (except for those Tax
Returns, related schedules and workpapers, and all material records and other
documents relating to those Tax Returns, prepared and filed by members of the
Adjusted MMS Group). Marriott shall be the owner of those Tax Returns, related
schedules and workpapers, and all material records and other documents relating
to those Tax Returns, relating to all Post-Distribution Taxable Periods and that
portion of the Straddle Period following the Distribution Date.
(d) Special Indemnification. If any member of the Spinco Group
or the MMS Group, as the case may be, supplies information to a member of the
other Group pursuant to this Section 4.05 and an officer of the requesting party
signs a statement or other document under penalties of perjury in reliance upon
the accuracy of such information, then a duly authorized officer of the party
supplying such information shall certify upon request, under penalties of
perjury, the accuracy and completeness of the information so supplied. Spinco
agrees to indemnify and hold harmless each member of the MMS Group and its
directors, officers and employees, and Marriott agrees to indemnify and hold
harmless each member of the Spinco Group and its directors, officers and
employees, from and against any cost, fine, penalty or other expense of any kind
attributable to the negligence or willful misconduct of a member of the Spinco
Group or the MMS Group, as the case may be, in supplying a member of the other
Group with inaccurate or incomplete information.
ARTICLE V
MATTERS RELATING TO THE DISTRIBUTION
Section 5.01 Representations of Spinco.
(a) Spinco hereby represents and warrants to Marriott and
Sodexho that, as of the Distribution Date, (i) it has examined the Ruling
Documents and (ii) to its best knowledge after due inquiry, the facts presented
and the representations made therein (including the representations in the
Ruling Documents to the extent that they relate to the plans, proposals,
intentions, and policies of Spinco, Marriott and its Subsidiaries) are true,
complete and correct.
(b) Spinco hereby represents and warrants to Marriott and
Sodexho that it has no plan or intention of taking any action, or failing or
omitting to take any action, that would (i) cause the Distribution not to have
Tax-Free Status, (ii) cause any representation or factual statement made in the
Ruling Documents to be untrue, or (iii) be inconsistent with information
provided to the IRS in connection with Tax Ruling.
(c) Spinco hereby represents and warrants to Marriott and
Sodexho that the Distribution is not part of a plan (or series of related
transactions) pursuant to which any Persons will acquire stock representing a
Fifty Percent or Greater Interest in Spinco.
Section 5.02 Covenants of Spinco.
(a) Spinco shall not, and Spinco shall cause each Spinco Group
member not to, take any action, or fail or omit to take any action that would
(i) cause the Distribution not to have Tax-Free Status, or (ii) cause any
representation made in the Ruling Documents to be untrue.
(b) During the two-year period beginning on the Distribution
Date, Spinco shall not cease, or permit any of its Subsidiaries or Affiliates to
cease to be engaged in the conduct of the active trade or business relied upon
for purposes of satisfying the requirements of Section 355(b) of the Code for
purposes of the Tax Ruling.
(c) Until the first day after the Restricted Period, Spinco
(or any successor thereof) shall not (i) solicit any Person to make a tender
offer for the Equity Securities of Spinco or any successor thereof, (ii)
participate in or support any unsolicited tender offer for the Equity Securities
of Spinco or any successor thereof, or (iii) approve any proposed business
combination or any transaction which, in each case, results in any Persons
acquiring an interest in Spinco or any successor thereof such that such Persons
own a Fifty Percent or Greater Interest in Spinco or any successor thereof;
provided, however, that this Section 5.02(c) shall not prevent Spinco from
purchasing Spinco stock pursuant to a stock purchase program satisfying the
requirements of Section 4.05(1)(b) of Rev. Proc. 96-30, 1996-1 C.B. 696.
Section 5.03 Representations of Marriott and Sodexho.
(a) Marriott and Sodexho each hereby represents and warrants
to Spinco that, as of the Distribution Date, (i) it has examined the Ruling
Documents and (ii) to its best knowledge after due inquiry, to the extent
descriptive of the MMS Subsidiaries and the Retained Business (including the
representations in the Ruling Documents to the extent that they relate to the
plans, proposals, intentions, and policies of Marriott with respect to the MMS
Subsidiaries or with respect to the Retained Business), the facts presented and
the representations made therein are true, complete and correct.
(b) Marriott and Sodexho each hereby represents and warrants
to Spinco that it has no plan or intention of taking any action, or failing or
omitting to take any action, that would (i) cause the Distribution not to have
Tax-Free Status, (ii) cause any representation or factual statement made in the
Ruling Documents to be untrue, or (iii) be inconsistent with information
provided to the IRS in connection with Tax Ruling.
(c) Marriott and Sodexho each hereby represents and warrants
to Spinco that the Distribution is not part of a plan (or series of related
transactions) pursuant to which any Persons will acquire stock representing a
Fifty Percent or Greater Interest in Marriott or any successor to Marriott.
Section 5.04 Covenants of Marriott and Sodexho.
(a) Neither Marriott, Sodexho, nor any Affiliate of Sodexho
shall take any action, fail or omit to take any action, or permit any Member of
the MMS Group to take any action or fail or omit to take any action, that would
(i) cause the Distribution not to have Tax-Free Status or (ii) cause any
representation made in the Ruling Documents to be untrue.
(b) During the two-year period beginning on the Distribution
Date, Marriott shall not cease, or permit any of its Subsidiaries or Affiliates
to cease, to be engaged in the conduct of the active trade or business relied
upon for purposes of satisfying the requirements of Section 355(b) of the Code
for purposes of the Tax Ruling.
(c) Until the first day after the Restricted Period, Sodexho
will not hold, acquire or exercise any right or interest in Marriott or its
successors (including the exercise of any rights respecting the corporate
governance of Marriott or its successors), such that Sodexho, and any direct or
indirect Subsidiary, parent, Affiliate of, or any Person otherwise related to,
or that could be treated as acting pursuant to a plan or arrangement with,
Sodexho, will collectively hold a Fifty Percent or Greater Interest in Marriott
or any successor thereof.
(d) Until the first day after the Restricted Period, Marriott
shall not sell or otherwise issue to any Person (a "Prohibited Sale or
Issuance"), or redeem or otherwise acquire from any Person, any Equity
Securities of Marriott or any successor thereof; provided, however, that (i)
Marriott may issue (x) Equity Securities in respect of the Liquid Yield Option
Notes due March 25, 2011, and (y) any compensatory options or shares of Marriott
stock to employees of Marriott or any of its Subsidiaries where the issuance of
such shares or options, or shares of Marriott stock issued pursuant to the
exercise of such options, shall not constitute a transaction which results in
the acquisition by a Person or Persons such that Sodexho, and any direct or
indirect Subsidiary, parent, Affiliate of, or any Person otherwise related to,
or that could be treated as acting pursuant to a plan or arrangement with,
Sodexho, will collectively hold a Fifty Percent or Greater Interest in Marriott
or any successor thereof; and (ii) Marriott may purchase its Equity Securities
pursuant to a stock purchase program satisfying the requirements of Section
4.05(1)(b) of Rev. Proc. 96-30, 1996-1 C.B. 696, provided that such purchase
will not violate the provisions of Section 5.04(f) below.
(e) Until the first day after the Restricted Period, Sodexho
shall not (i) individually, or with any direct or indirect Subsidiary, parent,
or Affiliate of, or any Person otherwise related to, or that could be treated as
acting pursuant to a plan or arrangement with, Sodexho, acquire or hold
collectively a Fifty Percent or Greater Interest in Marriott or any successor
thereof, and (ii) permit any Equity Securities of Marriott or any successor
thereof to be acquired or held in any manner that would allow a Person or group
of Persons to hold a Fifty Percent or Greater Interest in Marriott or any
successor thereof.
(f) Until the first day after the Restricted Period, Marriott
(or any successor thereof) shall not (i) solicit any Person to make a tender
offer for the Equity Securities of Marriott or any successor thereof, (ii)
participate in or support any unsolicited tender offer for the Equity Securities
of Marriott or any successor thereof, or (iii) approve any proposed business
combination or any transaction which, in each case, results in any Persons
acquiring an interest in Marriott or any successor thereof such that such
Persons own a Fifty Percent or Greater Interest in Marriott or any successor
thereof.
Section 5.05 Joint Covenants.
(a) Any of the provisions of Section 5.02(b) and (c), and
Section 5.04(b), (c), (d), (e) and (f) shall be waived with respect to any
particular transaction or transactions if Spinco or Marriott has obtained (i) a
ruling from the IRS, in form and substance reasonably satisfactory to the other
party hereto, to the effect that such proposed transaction will not adversely
affect the Tax-Free Status of the Distribution, or (ii) an opinion of counsel,
which opinion and counsel shall be reasonably satisfactory to the other party
hereto, that to effect the proposed transaction will not adversely affect the
Tax-Free Status of the Distribution. Waiver with respect to one transaction or
group of transactions shall not constitute a waiver with respect to any other
transaction.
(b) Until the first day after the Restricted Period, Marriott,
Sodexho and Spinco, as the case may be, will provide written notice to the other
party hereto of any action described in Section 5.02 or Section 5.04 hereof,
without regard to the exceptions thereto, within a period of time sufficient to
enable the other party to seek a Subsequent Ruling or opinion of counsel, or to
prepare and seek injunctive relief in a court of competent jurisdiction. Each
such notice shall set forth the terms and conditions of the proposed
transaction, including the nature of any related action proposed to be taken by
the board of directors of Marriott or Spinco, as the case may be, the
approximate number of Equity Securities (if any) proposed to be sold or
otherwise issued, the approximate value of any assets (or assets of any
Affiliates) proposed to be transferred, and the proposed timetable for such
transaction, all with sufficient particularity to enable the other party to
prepare and seek such Subsequent Ruling or opinion of counsel, or seek such
injunctive relief. Promptly, but in any event within 30 days, after the other
party receives such written notice from the party seeking to effect the
transaction, the party receiving notice shall notify Marriott or Spinco, as the
case may be, in writing of any intent to seek a Subsequent Ruling or opinion of
counsel. In the event a party intends to seek a Subsequent Ruling, such party
must notify the other party of the proposed date for the initial submission
thereof, which date shall not be more than 60 days after so notifying Marriott
or Spinco of its intent to seek such Subsequent Ruling, provided that such
30-day period (from the preceding sentence) or 60-day period, as the case may
be, shall be appropriately extended for any period of noncompliance by Marriott
or Spinco with this Section.
(c) Each party hereto shall cooperate with the other party in
connection with a party's request for a Subsequent Ruling or opinion of counsel.
Such cooperation shall include providing any information and/or representations
reasonably requested to enable a party to obtain and maintain any Subsequent
Ruling or opinion of counsel. From and after any Representation Date until the
first day after the two-year anniversary of the date that a party receives the
correlative Subsequent Ruling or opinion of counsel, the parties hereto shall
not take (nor refrain from taking) any action that would have caused a
representation given in connection with any such Subsequent Ruling or opinion of
counsel to have been untrue as of the relevant Representation Date, had such
party intended to take (or refrain from taking) such action on the relevant
Representation Date.
Section 5.06 Indemnification Relating to the Distribution.
(a) Spinco agrees to indemnify, defend and hold harmless the
MMS Indemnitees from and against any costs or expenses (including Taxes and
lawyers' and accountants' fees) resulting from (i) a breach by Spinco of any
representation or covenant hereof; or (ii) the loss of Tax-Free Status by reason
of the acquisition by any Person or Persons of a direct or indirect interest in
Spinco or any successor thereof such that such Person owns or Persons own a
Fifty Percent or Greater Interest in Spinco or any successor thereof.
(b) Marriott and Sodexho agree to indemnify, defend and hold
harmless the Spinco Indemnitees from and against any costs or expenses
(including Taxes and lawyers' and accountants' fees) resulting from (i) a breach
by Marriott or Sodexho of any representation or covenant hereof, or (ii) the
loss of Tax-Free Status by reason of the acquisition by any Person or Persons of
a direct or indirect interest in Marriott or any successor thereof such that
such Person owns or Persons own a Fifty Percent or Greater Interest in Marriott
or any successor thereof.
Section 5.07 Changes Resulting from Tax Ruling Process. To the
extent the IRS requires the parties to change the transactions undertaken in
connection with the Distribution or acquisition of ICC, or to change the rights
and obligations of the parties respecting the Distribution or acquisition of
ICC, in order for the parties to obtain the Tax Ruling, or the IRS requires
representations or covenants from the parties that are not contained in this
Article 5 (and such representations or covenants are material), and the parties
hereto agree to any such changes pursuant to Section 6.12 of the Merger
Agreement, the parties hereto agree to amend this Agreement and revise the
representations and covenants of this Article V to reflect such changes.
Section 5.08 Injunction. The parties hereto agree that the
payment of monetary compensation would not be an adequate remedy to a breach of
the obligations contained in Section 5.02(a) and (c) and Section 5.04(a), (c),
(d), (e) and (f) hereof, and each party consents to the issuance and entry of an
injunction to prevent a breach of the obligations contained in those Sections;
provided, however, that the foregoing shall be without prejudice to and shall
not constitute a waiver of any other remedy either party may be entitled to at
law or at equity hereunder.
Section 5.09 Procedures Regarding Transfer Restriction
(a) Marriott shall not knowingly give effect on its books to any
purported transfer of shares of Marriott's common stock in violation of Article
7 of Marriott's Certificate of Incorporation.
(b) Marriott shall give its transfer agent stop-transfer instructions
with respect to any proposed transfers of Marriott's common stock by Sodexho
that would be in violation of Article 7 of Marriott's Certificate of
Incorporation or the Stockholder Agreement dated as of the date hereof between
Marriott and Sodexho.
(c) In the event that the Board of Directors of Marriott is provided
with an opinion of counsel pursuant to Section 6 of Article 7 of Marriott's
Certificate of Incorporation, Marriott shall provide a copy of such opinion to
Spinco. Within seven days of receipt of such opinion, Spinco shall provide
written notice to Marriott as to whether such opinion is satisfactory to Spinco
in its reasonable discretion in accordance with the terms of such Section 6 of
Article 7.
ARTICLE VI
MISCELLANEOUS
Section 6.01 Expenses. Except as otherwise expressly provided
in this Agreement or in the Distribution Agreement, each party shall bear any
and all expenses that arise from their respective obligations under this
Agreement.
Section 6.02 Amendment. This Agreement may not be amended
except by an agreement in writing, signed by the parties hereto. Anything in
this Agreement or the Distribution Agreement to the contrary notwithstanding, in
the event and to the extent that there shall be a conflict between the
provisions of this Agreement and the Distribution Agreement, the provisions of
this Agreement shall control.
Section 6.03 Notices. All notices and other communications
hereunder, excepting those notices provided for in Sections 4.02 and 4.03
hereunder, shall be in writing and shall be delivered by hand including
overnight business courier or mailed by registered or certified mail (return
receipt requested) to the parties at the following addresses (or at such other
addresses for a party as shall be specified by like notice) and shall be deemed
given on the date on which such notice is received:
To Spinco or any member of the Spinco Group:
New Marriott MI, Inc.
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Senior Vice President-Taxes
With a copy to:
O'Melveny & Xxxxx LLP
000 00xx Xxxxxx, XX
Xxxxx 000 Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
To Sodexho, Marriott or any member of the MMS Group:
Sodexho Marriott Services, Inc.
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
With a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx
Section 6.04 Resolution of Disputes. Any disputes between the
parties with respect to this Agreement shall be resolved by a "Big Six" public
accounting firm or a law firm satisfactory to Spinco and Marriott, whose fees
and expenses shall be shared equally by Spinco and Marriott.
Section 6.05 Application to Present and Future Subsidiaries.
This Agreement is being entered into by Spinco and Marriott on behalf of
themselves and each member of the Spinco Group and MMS Group, respectively. This
Agreement shall constitute a direct obligation of each such member and shall be
deemed to have been readopted and affirmed on behalf of any corporation which
becomes a member of the Spinco Group or MMS Group in the future. Spinco and
Marriott hereby guarantee the performance of all actions, agreements and
obligations provided for under this Agreement of each member of the Spinco Group
and the MMS Group, respectively. Spinco and Marriott shall, upon the written
request of the other, cause any of their respective group members formally to
execute this Agreement. This Agreement shall be binding upon, and shall inure to
the benefit of, the successors, assigns and persons controlling any of the
corporations bound hereby for so long as such successors, assigns or controlling
persons are members of the Spinco Group or the MMS Group or their successors and
assigns.
Section 6.06 Term. This Agreement shall commence on the date
of execution indicated below and shall continue in effect until otherwise agreed
to in writing by Spinco and Marriott, or their successors.
Section 6.07 Legal Enforceability. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. Without prejudice
to any rights or remedies otherwise available to any party hereto, each party
hereto acknowledges that damages would be an inadequate remedy for any breach of
the provisions of this Agreement and agrees that the obligations of the parties
hereunder shall be specifically enforceable.
Section 6.08 Governing Law. This Agreement shall be governed
by the laws of the State of New York.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date above first written.
MARRIOTT INTERNATIONAL, INC.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
NEW MARRIOTT MI, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Treasurer
SODEXHO ALLIANCE, S.A.
By: /S/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
