Exhibit 3
STOCKHOLDER AGREEMENT
dated as of
March 27, 1998
between
SODEXHO MARRIOTT SERVICES, INC.
and
SODEXHO ALLIANCE, S.A.
TABLE OF CONTENTS
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PAGE
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ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions...................................................1
ARTICLE 2
CORPORATE GOVERNANCE; COVENANTS
SECTION 2.01. Composition of the Board......................................4
SECTION 2.02. Vacancies.....................................................5
SECTION 2.03. Removal.......................................................6
SECTION 2.04. Compensation Committee........................................6
SECTION 2.05. Audit Committee...............................................7
SECTION 2.06. Determination as to Breach....................................7
SECTION 2.07. Termination of Article 2......................................7
ARTICLE 3
LEGENDS
SECTION 3.01. Legend on Share Certificates..................................7
ARTICLE 4
REGISTRATION RIGHTS
SECTION 4.01. Demand Registration...........................................8
SECTION 4.02. Incidental Registration......................................10
SECTION 4.03. Holdback Agreements..........................................11
SECTION 4.04. Registration Procedures......................................12
SECTION 4.05. Indemnification by SMS.......................................15
SECTION 4.06. Indemnification by Sodexho of Registrable Securities.........15
SECTION 4.07. Conduct of Indemnification Proceedings.......................16
SECTION 4.08. Contribution.................................................17
SECTION 4.09. Participation in Public Offering.............................18
SECTION 4.10. Termination of Registration Rights...........................18
ARTICLE 5
MISCELLANEOUS
SECTION 5.01. Headings.....................................................19
SECTION 5.02. No Inconsistent Agreements...................................19
SECTION 5.03. Entire Agreement.............................................19
SECTION 5.04. Notices......................................................19
SECTION 5.05. Applicable Law; Submission to Jurisdiction...................20
SECTION 5.06. Severability.................................................21
SECTION 5.07. Termination..................................................21
SECTION 5.08. Successors; Assigns; Transferees.............................21
SECTION 5.09. Amendments; Waivers..........................................21
SECTION 5.10. Counterparts.................................................22
SECTION 5.11. Recapitalization, Etc........................................22
SECTION 5.12. Remedies.....................................................22
SECTION 5.13. Confidentiality..............................................22
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT dated as of March 27, 1998 between Sodexho
Marriott Services, Inc., a Delaware corporation ("SMS"), and Sodexho Alliance,
S.A., a societe anonyme organized under the laws of France ("Sodexho").
WHEREAS, pursuant to the Agreement and Plan of Merger dated as of
September 30, 1997, as amended (the "Merger Agreement"), by and among SMS,
Marriott -- ICC Merger Corp., New Marriott MI, Inc. ("New Marriott"), Sodexho
and International Catering Corporation ("ICC"), the parties thereto agreed that
SMS would acquire ICC and Sodexho Financiere du Canada, Inc. from Sodexho and
Sodexho would pay $304 million to SMS, and in consideration therefor Sodexho
would receive approximately 49% of the outstanding common stock of SMS; and
WHEREAS, the parties hereto wish to enter into this Agreement to govern
certain of their rights and obligations after consummation of the transactions
contemplated by the Merger Agreement and certain related agreements.
NOW THEREFORE, in consideration of the mutual promises set forth below
(the mutuality, adequacy and sufficiency of which are hereby acknowledged), the
parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. (a) The following terms, as used herein,
have the following meanings:
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common control with
such Person. For the purposes of this definition, the term "control", as used
with respect to any Person, means the power to direct or cause the direction of
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.
"Board" means the Board of Directors of SMS.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in the City of New York are authorized by law to close.
"Common Stock" means the common stock, par value $1.00 per share, of
SMS.
"Commission" means the Securities and Exchange Commission and any
successor commission or agency having similar powers.
"Controlled Entity" means, with respect to any Person, any entity of
which more than 50% of the capital stock or other equity interest is owned,
directly or indirectly, by such Person. For the avoidance of doubt, neither the
Universal Services Partnership nor the Universal/Xxxxx Joint Venture shall
constitute a "Controlled Entity" of Sodexho.
"Distribution Agreement" means the Distribution Agreement dated as of
September 30, 1997 between SMS and New Marriott, as amended.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization, including
a government or political subdivision or an agency or instrumentality thereof.
"Public Offering" means any public offering of equity securities (or
securities convertible into equity securities) of SMS pursuant to an effective
registration statement under the Securities Act other than pursuant to a
registration statement on Form S-4 or Form S-8 or any successor or similar form.
"Registrable Securities" means any shares of Common Stock held by
Sodexho at any time; provided that such shares shall cease to be Registrable
Securities if and when (i) a registration statement with respect to the
disposition of such shares shall have become effective under the Securities Act
and such shares shall have been disposed of pursuant to such effective
registration statement, (ii) such shares are sold under circumstances in which
all of the applicable provisions of Rule 144 (or any similar provisions then in
force) are met, or (iii) such shares are otherwise transferred, if (x) SMS has
delivered a new certificate or other evidence of ownership for such shares not
bearing the legend required pursuant to this Agreement and (y) such shares may
be resold without subsequent registration under the Securities Act.
"Registration Expenses" means all (i) registration and filing fees,
(ii) fees and expenses of compliance with securities or blue sky laws (including
reasonable fees and disbursements of a qualified independent underwriter, if
any, and counsel in connection therewith and the reasonable fees and
disbursements of counsel in connection with blue sky qualifications of the
Registrable Securities), (iii) printing expenses, (iv) internal expenses of SMS
(including without limitation all salaries and expenses of officers and
employees performing legal or accounting duties), (v) fees and disbursements of
counsel for SMS, (vi) customary fees and expenses for independent certified
public accountants retained by SMS (including without limitation the expenses of
any comfort letters or costs associated with the delivery by independent
certified public accountants of a comfort letter or comfort letters), (vii) fees
and expenses of any special experts retained by SMS in connection with such
registration and (viii) fees and expenses of listing the Registrable Securities
on a securities exchange; but shall not include (a) any underwriting fees or
discounts or commissions attributable to the sale of Registrable Securities, (b)
any fees and disbursements of special counsel designated to represent Sodexho in
connection with such registration, (c) out-of-pocket expenses of Sodexho or (d)
any transfer taxes.
"Royalty Agreement" means the Royalty Agreement dated as of the date
hereof between SMS and Sodexho.
"Rule 144" means Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any other similar rule or regulation hereafter
adopted by the Commission.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"Subsidiary" means, with respect to any Person, any entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by such Person.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
------------------------------------ -----------------------------
Cause 2.03
Disadvantageous Condition 4.01(a)(ii)
ICC recitals
Indemnified Party 4.07
Indemnifying Party 4.07
Independent Director 2.01(c)
Inspectors 4.04(g)
Maximum Offering Size 4.01(e)
Merger Agreement recitals
New Marriott recitals
New Marriot Directors 2.01(d)
Priority Securities 4.02(a)
Records 4.04(g)
Representatives 5.13
SMS preamble
Sodexho preamble
Sodexho Designees 2.01(b)
ARTICLE 2
CORPORATE GOVERNANCE; COVENANTS
SECTION 2.01. Composition of the Board. (a) The Board shall
consist of eight members as follows: three Sodexho Designees (as defined
below), two Independent Directors (as defined below), the person who is
then serving as the Chief Executive Officer of SMS (subject to Section
2.01(g)) and two New Marriott Directors (as defined below).
(b) So long as Sodexho and its Affiliates own at least 20% of
the outstanding Common Stock, Sodexho shall be entitled to designate three
members of the Board. At such time as Sodexho and its Affiliates own less
than 20% of the outstanding Common Stock, Sodexho shall be entitled to
designate two members of the Board so long as either (i) Sodexho and its
Affiliates own at least 10% of the outstanding Common Stock or (ii) the
Royalty Agreement remains in full force and effect. At such time as
Sodexho and its Affiliates own less than 10% of the outstanding Common
Stock and the Royalty Agreement has terminated, Sodexho's right to
designate members of the Board pursuant to this Section 2.01(b) shall
terminate. Members of the Board that Sodexho is entitled to designate
pursuant to this Section 2.01(b) shall constitute "Sodexho Designees". In the
event that after the third anniversary of the date hereof the total Board
does not consist of eight members, the number of Board members that Sodexho
shall have the right to designate shall be adjusted as follows: (i) in
lieu of three members, the lowest number of members that would result
Sodexho Designees representing at least 37.5% of the total Board and (ii)
in lieu of two members, the lowest number of members that would result in
Sodexho Designees representing at least 25% of the Board. Initially the
Sodexho Designees shall be Xxxxxx Xxxxxx, Xxxxxxx Xxxxxx and Xxxxxxx xx
Xxxxxx.
(c) A person will qualify as an "Independent Director" if he
or she (i) is not an employee of SMS, Sodexho, New Marriott or any of their
Subsidiaries, (ii) is not otherwise receiving, directly or indirectly,
compensation for services that is material to such person from SMS, Sodexho,
New Marriott or any of their Subsidiaries and (iii) is not a member of the
immediate family (as defined in Item 404(a) of Regulation S-K under the
Securities Act) of any person described in clauses (i) and (ii) above.
Initially, the Independent Directors shall be Doctor X. Xxxxxx and Xxxxxx
X. Xxxxxxxxx.
(d) "New Marriott Directors" shall mean (i) initially, Xxxxxxx
X. Xxxx and Xxxx X. Marriott III and (ii) thereafter, any Board members
who fill the Board positions initially filled by such persons.
(e) SMS and Sodexho shall use their best efforts (including
using their best efforts to cause SMS to call a special meeting of
stockholders) in order to ensure that the composition of the Board is as
set forth in any provisions of Sections 2.01 and 2.02 then in force.
(f) Sodexho may at any time revoke the designation as to a
particular individual who is a Sodexho Designee, in which case Sodexho and SMS
will take all actions reasonably necessary to effect the removal of such
individual from the Board as promptly as practicable.
(g) In the event that the Chief Executive Officer of SMS is
(x) an employee of Sodexho or any of its Subsidiaries, (y) otherwise
receiving, directly or indirectly, compensation for services that is
material to such person from Sodexho or any of its Subsidiaries or (z) a
member of the immediate family (as defined in Item 404(a) of Regulation S-K
of the Securities Act) of any person described in clauses (x) or (y) above:
(i) such Chief Executive Officer shall not be eligible to
serve as a director in the Board seat otherwise intended for
the Chief Executive Officer pursuant to Section 2.01(a)
hereof; and
(ii) the individual that fills the vacancy on the Board
created thereby shall be chosen according to SMS's Bylaws
and shall be a person who qualifies as an Independent
Director.
For the avoidance of doubt, this Section 2.01(g) shall not prohibit Sodexho
from designating such Chief Executive Officer to the Board as a Sodexho
Designee.
SECTION 2.02. Vacancies. In the event that, as a result of
death, disability, retirement, resignation, removal (with or without cause) or
otherwise, there shall exist or occur any vacancy of the Board, the provisions
of Section 2.01(g)(ii) and this Section 2.02 shall apply.
(a) If the director whose death, disability, retirement,
resignation or removal resulted in such vacancy was a Sodexho Designee,
Sodexho may designate another individual to fill such position and serve as
a director of SMS.
(b) If the director whose death, disability, retirement,
resignation or removal resulted in such vacancy was an Independent
Director, the individual that fills such position and serves as a director
of SMS shall be chosen according to SMS's Bylaws and shall be a person who
qualifies as an Independent Director.
(c) If the director whose death, disability, retirement,
resignation or removal resulted in such vacancy was a New Marriott
Director, the remaining New Marriott Director (or the departing New
Marriott Director causing such vacancy, if each New Marriott Director
resigns or otherwise no longer serves effective on or about the same date)
may designate another individual to fill such position and serve as a
director of SMS. If such designation is not made within 15 days after the
vacancy occurs, the individual that fills such position and serves as a
director of SMS shall be chosen according to SMS's Bylaws and shall be a
person who qualifies as an Independent Director.
SECTION 2.03. Removal. Sodexho agrees that if, at any time, it
is then entitled to vote for the removal of directors of SMS, it will not
take such action by written consent unless such removal shall be for Cause.
Removal for "Cause" shall mean removal of a director because of such
director's (a) willful and continued failure to substantially perform his
or her duties as a director of SMS, (b) willful and continued conduct
inconsistent with the good faith exercise of his or her fiduciary
obligations and which is significantly injurious to SMS, monetarily or
otherwise, or (c) conviction for, or guilty plea to, a felony.
Notwithstanding the foregoing, if the person serving as Chief Executive
Officer of SMS is removed from such position in accordance with SMS's
Bylaws, Sodexho shall be permitted to take action by written consent to
remove such person as a director of SMS.
SECTION 2.04. Compensation Committee. The Board will create a
three-member Compensation Committee which shall have the duties specified
in SMS's Bylaws. The Compensation Committee shall consist of one
Independent Director who will serve as the Chairman of the committee, one
Sodexho Designee and one New Marriott Director. The initial members of the
Compensation Committee shall be Doctor X. Xxxxxx (Chairman), Xxxxxxx
Xxxxxx and Xxxxxxx X. Xxxx.
SECTION 2.05. Audit Committee. The Board will create a
three-member Audit Committee which shall have the duties specified in SMS's
Bylaws. The initial members of the Audit Committee shall be Xxxxxx X.
Xxxxxxxxx (Chairman), Doctor X. Xxxxxx and Xxxxxxx xx Xxxxxx.
SECTION 2.06. Determination as to Breach. Any determination as
to whether Sodexho is in breach of this Article 2, and whether SMS should
as a result thereof pursue any remedies available to it under this
Agreement or otherwise, shall be made on behalf of SMS solely by the
Independent Directors.
SECTION 2.07. Termination of Article 2. Except for Sections
2.01(b), 2.01(e), 2.01(f) and 2.02(a), the provisions of this Article 2 shall
terminate and have no further force or effect on the third anniversary of
the date hereof.
ARTICLE 3
LEGENDS
SECTION 3.01. Legend on Share Certificates. (a) In addition to
any other legend that may be required, each certificate for Registrable
Securities that is issued to Sodexho shall bear a legend in substantially
the following form:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAW. NO TRANSFER OR SALE OF
THESE SECURITIES OR ANY INTEREST THEREIN MAY BE MADE WITHOUT SUCH
REGISTRATION AND QUALIFICATION UNLESS THE ISSUER RECEIVES AN
OPINION OF COUNSEL FOR THE HOLDER OF THESE SECURITIES REASONABLY
SATISFACTORY TO THE ISSUER STATING THAT SUCH TRANSFER OR SALE DOES
NOT REQUIRE REGISTRATION OR QUALIFICATION UNDER APPLICABLE LAW.
THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE ALSO SUBJECT TO
RESTRICTIONS AS SET FORTH IN THE STOCKHOLDER AGREEMENT DATED AS OF
MARCH 27, 1998, COPIES OF WHICH MAY BE OBTAINED UPON REQUEST FROM
SODEXHO MARRIOTT SERVICES, INC. AND ANY SUCCESSOR THERETO."
(b) If any shares of Common Stock shall cease to be Registrable
Securities, SMS shall, upon the written request of the holder thereof,
issue to such holder a new certificate evidencing such shares without the
first two sentences of the legend required by Section 3.01(a) endorsed
thereon.
ARTICLE 4
REGISTRATION RIGHTS
SECTION 4.01. Demand Registration. (a) Registration on Request
of Sodexho. Upon the written request of Sodexho that SMS effect the
registration under the Securities Act of Registrable Securities having a
fair market value of not less than $50 million and specifying the intended
method of disposition thereof, SMS will thereupon will use its best efforts
to effect, as promptly as practicable, the registration under the
Securities Act of such Registrable Securities to the extent necessary to
permit the disposition (in accordance with the intended methods for such
disposal) of such Registrable Securities; provided that:
(i) SMS shall not be obligated to file a registration
statement relating to a registration request pursuant to
this Section 4.01 at any time during the one-year period
immediately following the effective date of another
registration statement filed pursuant to this Section
4.01(a); and
(ii) with respect to any registration statement filed or
to be filed pursuant to this Section 4.01 and not yet
effective, if the Board (which for this purpose shall not
include the Sodexho Designees) shall determine, in its good
faith judgment, that to permit such registration statement
to become effective (or, if no registration statement has
yet been filed, to file such a registration statement) would
be significantly disadvantageous (a "Disadvantageous
Condition") to SMS or its stockholders in light of the
existence, or in anticipation, of any acquisition or
financing activity involving SMS or the unavailability for
reasons beyond SMS's control of any required financial
statements, SMS may, for the shortest possible period (but
in no event to exceed 180 days from the date of the Board's
determination), cause such registration statement to be
withdrawn or, if no registration statement has yet been
filed, to delay the filing of such registration statement.
Unless Sodexho shall consent in writing, no other party,
including SMS, shall be permitted to offer securities under any
registration pursuant to this Section 4.01(a). Sodexho may, at any time
prior to the effective date of the registration statement relating to such
registration, revoke such request, without liability (except as set forth
in Section 4.01(c)) by providing a written notice to SMS revoking such
request. If SMS determines to take any action pursuant to clause (ii)
above, SMS shall deliver a notice to Sodexho to such effect, and furnish to
Sodexho a certified copy of the resolution of the Board authorizing such
action, together with a general description of the applicable
Disadvantageous Condition. If any Disadvantageous Condition shall cease to
exist SMS shall promptly notify Sodexho to such effect. SMS shall, if any
registration statement shall have been withdrawn, at the end of the period
(not to exceed 180 days) referred to in clause (ii) above (or, if earlier,
at such time as it in good xxxxx xxxxx appropriate) file a new registration
statement covering the Registrable Securities that were covered by such
withdrawn registration statement, and the effectiveness of such
registration statement shall be maintained for such time as may be
necessary so that the period of effectiveness of such new registration
statement, when aggregated with the period during which such withdrawn
registration statement was effective, shall be such time as may be
otherwise required by this Agreement.
(b) Registration Statement Form. Registrations under this
Section 4.01 shall be on such appropriate registration form of the
Commission (i) as shall be selected by SMS and as shall be reasonably
acceptable to Sodexho and (ii) as shall permit the disposition of such
Registrable Securities in accordance with the method or methods of
disposition intended on the part of Sodexho. Notwithstanding anything
herein to the contrary, if, pursuant to a registration request under this
Section 4.01, (x) SMS proposes to effect registration by filing a
registration statement on Form S-3 (or any successor or similar short-form
registration statement), (y) such registration is in connection with an
underwritten Public Offering and (z) the managing underwriter shall advise
SMS in writing that, in its opinion, the use of another form of
registration statement is of material importance to the success of such
proposed offering, then such registration shall be effected on such other
form.
(c) Expenses. SMS shall pay all Registration Expenses in
connection with the registrations which are requested and become effective
pursuant to this Section 4.01, provided that after four such registrations
have been requested and become effective, Sodexho shall pay all
Registration Expenses in connection with subsequent registrations pursuant
to this Section 4.01. Sodexho shall pay all underwriting discounts and
commissions, the fees and disbursements of special counsel designated to
represent Sodexho, its out-of-pocket expenses and transfer taxes, if any,
relating to the sale or disposition of Sodexho's Registrable Securities
pursuant to a registration statement requested pursuant to this Section
4.01. SMS shall not be liable for Registration Expenses in connection with
a registration that shall not have become effective due to a revocation by
Sodexho requesting such registration under this Section 4.01, and such
Registration Expenses shall be borne by Sodexho.
(d) Effective Registration Statement. A registration requested
pursuant to this Section 4.01 shall not be deemed to have been effected
unless the registration statement relating thereto has been effective (and
not subject to any stop order, injunction or other order or requirement of
the Commission or other governmental agency or court for any reason) for a
period of 180 days following the date on which such registration statement
was declared effective or such shorter period which will terminate when all
Registrable Securities covered by such registration statement have been
sold.
(e) Priority Participation in Requested Registrations. If a
registration pursuant to this Section 4.01 involves an underwritten Public
Offering and the managing underwriter shall advise SMS that, in its view, the
number or proposed mix of equity securities requested to be included in such
registration (including securities which SMS requests to be included which are
not Registrable Securities) exceeds the largest number or appropriate mix of
securities which can be sold without having an adverse effect on such offering
(the "Maximum Offering Size"), including the price at which such securities can
be sold, SMS will include in such registration, in the priority listed below,
securities up to the Maximum Offering Size:
(i) first, the Registrable Securities requested to be
included in such registration pursuant to Sections 4.01(a)(i)
by Sodexho; and
(ii) second, securities to be sold for the account of
other Persons (including SMS), with such priorities among
them as the SMS shall determine.
SECTION 4.02. Incidental Registration. (a) If SMS at any time
proposes to register any of its equity securities (the "Priority
Securities") under the Securities Act (other than a registration (i) on
Form S-8 or S-4 or any successor or similar forms, (ii) relating to Common
Stock issuable upon exercise of employee stock options or in connection
with any employee benefit or similar plan of SMS, (iii) in connection with
a direct or indirect acquisition by SMS of another Person or (iv) pursuant
to a shelf registration of securities pursuant to Rule 415 under the
Securities Act), whether or not for sale for its own account, in a manner
which would permit registration of Registrable Securities for sale to the
public under the Securities Act, it will each such time, subject to the
provisions of Section 4.02(b), give prompt written notice to Sodexho of its
intention to do so at least 30 days prior to the anticipated filing date of
the registration statement relating to such registration. Any such notice
shall offer Sodexho the opportunity to include in such registration such
number of Registrable Securities as Sodexho may request. Upon the written
request of Sodexho within 15 days after the receipt of notice from SMS
(which request shall specify the number of Registrable Securities intended
to be disposed of and the intended method of disposition thereof), SMS will
use its best efforts to effect the registration under the Securities Act of
all Registrable Securities which SMS has been so requested to register by
Sodexho, to the extent required to permit the disposition (in accordance
with such intended methods thereof) of the Registrable Securities so to be
registered; provided that (i) if such registration involves an underwritten
Public Offering, Sodexho must sell its Registrable Securities to the
underwriters selected by SMS on the same terms and conditions as apply to
SMS and (ii) if, at any time after giving written notice of its intention
to register any securities pursuant to this Section 4.02(a) and prior to
the effective date of the registration statement filed in connection with
such registration, SMS shall determine for any reason not to register such
securities, SMS shall give written notice to Sodexho and shall be relieved
of its obligation to register any Registrable Securities in connection with
such registration. If a registration pursuant to this Section 4.02(a)
involves an underwritten Public Offering, Sodexho may elect, in writing not
less than 5 Business Days prior to the effective date of the registration
statement filed in connection with such registration, not to register such
securities in connection with such registration. No registration effected
under this Section 4.02 shall relieve SMS of its obligations to effect
registrations upon request under Section 4.01. SMS will pay all
Registration Expenses in connection with each registration of Registrable
Securities requested pursuant to this Section 4.02, and Sodexho shall pay
all underwriting discounts and commissions, the fees and disbursements of
special counsel designated to represent Sodexho, its out-of-pocket expenses
and transfer taxes, if any, relating to the sale or disposition of
Sodexho's Registrable Securities pursuant to a registration statement
effected pursuant to this Section 4.02.
(b) Priority in Incidental Registrations. If a registration
pursuant to this Section 4.02 involves an underwritten Public Offering and the
managing underwriter shall advise SMS that, in its view, the number or
proposed mix of equity securities (including all Registrable Securities)
which SMS, Sodexho and any other Persons, intend to include in such
registration exceeds the Maximum Offering Size, SMS will include in such
registration, in the priority listed below, securities up to the Maximum
Offering Size:
(i) first, securities to be sold for SMS's own account;
(ii) second, Registrable Securities requested to be
included in such registration by Sodexho pursuant to
Section 4.02(a).
SECTION 4.03. Holdback Agreements. (a) If any registration of
Registrable Securities shall be in connection with an underwritten Public
Offering, Sodexho agrees not to effect any public sale or distribution,
including any sale pursuant to Rule 144, of any Registrable Securities,
(other than as part of such Public Offering) during the 14 days prior to,
and during the 90 day period beginning on, the effective date of such
registration statement (except as part of such registration); provided that
Sodexho has received written notice of such registration at least 2
Business Days prior to the anticipated beginning of the 14 day period
referred to above.
(b) If any registration of Registrable Securities shall be in
connection with an underwritten Public Offering, SMS agrees (i) not to effect
any public sale or distribution of any of its securities during the 14 days
prior to, and during the 90 day period beginning on, the effective date of
such registration statement (except as part of such registration) and (ii)
that any agreement entered into after the date of this Agreement pursuant
to which SMS issues or agrees to issue any privately placed securities
shall contain a provision under which holders of such securities agree not
to effect any public sale or distribution of any such securities during the
periods described in (i) above, in each case including a sale pursuant to
Rule 144 (except as part of any such registration, if permitted); provided
that the provisions of this paragraph (b) shall not prevent the conversion or
exchange of any securities pursuant to their terms into or for other
securities.
SECTION 4.04. Registration Procedures. Whenever Sodexho
requests that any Registrable Securities be registered pursuant to Section
4.01 or 4.02, SMS shall, subject to the provisions of such Sections, use
its best efforts to effect the registration and the sale of such
Registrable Securities in accordance with the intended method of
disposition thereof as quickly as practicable, and in connection with any
such request:
(a) SMS will as expeditiously as possible prepare and file
with the Commission a registration statement on the requisite form, subject
to Section 4.01(b), and use its best efforts to cause such filed registration
statement to become and remain effective for the period set forth in
Section 4.01(d).
(b) SMS will, if requested, prior to filing a registration
statement or prospectus or any amendment or supplement thereto, furnish to
Sodexho and each underwriter, if any, of the Registrable Securities covered
by such registration statement copies of such registration statement as
proposed to be filed, and thereafter SMS will furnish to Sodexho and such
underwriter, if any, such number of copies of such registration statement,
each amendment and supplement thereto (in each case including all exhibits
thereto and documents incorporated by reference therein), the prospectus
included in such registration statement (including each preliminary
prospectus) and such other documents as Sodexho or such underwriter may
reasonably request in order to facilitate the disposition of the
Registrable Securities owned by Sodexho. Sodexho shall have the right to
request that SMS modify any information contained in such registration
statement, amendment and supplement thereto pertaining to Sodexho and SMS
shall use all reasonable efforts to comply with such request; provided that
SMS shall not have any obligation to so modify any information if so doing
would cause the prospectus to contain an untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading.
(c) After the filing of the registration statement, SMS will
promptly notify Sodexho of any stop order issued or threatened by the
Commission and take all reasonable actions required to prevent the entry of
such stop order or to remove it if entered.
(d) SMS will use its best efforts (i) to register or qualify
the Registrable Securities under such other securities or blue sky laws of
such jurisdictions in the United States as Sodexho (in light of its
intended plan of distribution) requests and (ii) to cause such Registrable
Securities to be registered with or approved by such other governmental
agencies or authorities as may be necessary by virtue of the business and
operations of SMS and do any and all other acts and things that may be
reasonably necessary or advisable to enable Sodexho to consummate the
disposition of its Registrable Securities; provided that SMS will not be
required (x) to qualify generally to do business in any jurisdiction where
it would not otherwise be required to qualify but for this paragraph (d),
(y) to subject itself to taxation in any such jurisdiction or (z) to
consent to general service of process in any such jurisdiction.
(e) SMS will immediately notify Sodexho, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the occurrence of an event requiring the preparation of a
supplement or amendment to such prospectus so that, as thereafter delivered
to the purchasers of such Registrable Securities, such prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading and promptly make available to Sodexho
and file with the Commission any such supplement or amendment.
(f) SMS will enter into customary agreements (including an
underwriting agreement in customary form) and take such other actions as are
reasonably required in order to expedite or facilitate the disposition of such
Registrable Securities.
(g) Upon execution of confidentiality agreements in form and
substance reasonably satisfactory to SMS, SMS will make available for
inspection by Sodexho, any underwriter participating in any disposition
pursuant to such registration statement and any attorney, accountant or
other professional retained by Sodexho or such underwriter (collectively,
the "Inspectors"), all financial and other records, pertinent corporate
documents and properties of SMS (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause SMS's officers, directors and employees to supply
all information reasonably requested by any Inspectors in connection with
such registration statement.
(h) SMS will furnish to Sodexho and to each underwriter, if
any, a signed counterpart of a comfort letter or comfort letters from SMS's
independent public accountants, each in customary form and covering such
matters of the type customarily covered by comfort letters as Sodexho or
the managing underwriter therefor reasonably requests.
(i) SMS will otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available to
Sodexho, as soon as reasonably practicable, an earnings statement covering a
period of 12 months, beginning within three months after the effective date
of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act.
(j) SMS will use its best efforts to cause all such Registrable
Securities to be listed on each securities exchange on which similar
securities issued by SMS are then listed.
SMS may require Sodexho promptly to furnish in writing to
SMS such information regarding the distribution of the Registrable
Securities as SMS may from time to time reasonably request and such other
information as may be legally required in connection with such
registration.
Sodexho agrees that, upon receipt of any notice from SMS of
the happening of any event of the kind described in Section 4.04(e), Sodexho
will forthwith discontinue disposition of Registrable Securities pursuant
to the registration statement covering such Registrable Securities until
Sodexho's receipt of the copies of the supplemented or amended prospectus
contemplated by Section 4.04(e), and, if so directed by SMS, Sodexho will
deliver to SMS all copies of the most recent prospectus covering such
Registrable Securities at the time of receipt of such notice. In the event
SMS shall give such notice, SMS shall extend the period during which the
effectiveness of such registration statement shall be maintained (including
the period referred to in Section 4.04(a) hereof) by the number of days
during the period from and including the date of the giving of notice
pursuant to Section 4.04(e) to the date when SMS shall make available to
Sodexho a prospectus supplemented or amended to conform with the
requirements of Section 4.04(e).
SMS shall not be liable for the failure of any such
registration to become effective provided that SMS complies with its
obligations hereunder.
SECTION 4.05. Indemnification by SMS. SMS agrees to
indemnify and hold harmless Sodexho, its officers, directors and agents,
and each Person, if any, who controls Sodexho within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act from and against
any and all losses, claims, damages, liabilities and expenses caused by any
untrue statement or alleged untrue statement of a material fact contained
in any registration statement or prospectus relating to the Registrable
Securities (as amended or supplemented if SMS shall have furnished any
amendments or supplements thereto) or any preliminary prospectus, or caused
by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, except insofar as such losses, claims, damages, liabilities
or expenses are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information furnished in writing
to SMS by Sodexho or on Sodexho's behalf expressly for use therein; provided
that with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus, or in any
prospectus, as the case may be, the indemnity agreement contained in this
Section 4.05 shall not apply to the extent that any such loss, claim, damage,
liability or expense results from the fact that a current copy of the
prospectus (or, in the case of a prospectus, the prospectus as amended or
supplemented) was not sent or given to the Person asserting any such loss,
claim, damage, liability or expense at or prior to the written confirmation
of the sale of the Registrable Securities concerned to such Person if it is
determined that SMS has provided such prospectus to Sodexho and it was the
responsibility of Sodexho to provide such Person with a current copy of the
prospectus (or such amended or supplemented prospectus, as the case may be)
and such current copy of the prospectus (or such amended or supplemented
prospectus, as the case may be) would have cured the defect giving rise to
such loss, claim, damage, liability or expense. SMS also agrees to
indemnify any underwriters of the Registrable Securities, their officers
and directors and each Person who controls such underwriters on
substantially the same basis as that of the indemnification of Sodexho
provided in this Section 4.05, or on any other basis agreed to by such
underwriters.
SECTION 4.06. Indemnification by Sodexho of Registrable
Securities. Sodexho agrees to indemnify and hold harmless SMS, its
officers, directors and agents and each Person, if any, who controls SMS
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from SMS to
Sodexho, but only (i) with respect to information furnished in writing by
Sodexho or on Sodexho's behalf expressly for use in any registration
statement or prospectus relating to the Registrable Securities, or any
amendment or supplement thereto, or any preliminary prospectus or (ii) to
the extent that any loss, claim, damage, liability or expense described in
Section 4.05 results from the fact that a current copy of the prospectus (or,
in the case of a prospectus, the prospectus as amended or supplemented) was
not sent or given to the Person asserting any such loss, claim, damage,
liability or expense at or prior to the written confirmation of the sale of
the Registrable Securities concerned to such Person if it is determined
that it was the responsibility of Sodexho to provide such Person with a
current copy of the prospectus (or such amended or supplemented prospectus,
as the case may be) and such current copy of the prospectus (or such
amended or supplemented prospectus, as the case may be) would have cured
the defect giving rise to such loss, claim, damage, liability or expense.
Sodexho also agrees to indemnify and hold harmless underwriters of the
Registrable Securities, their officers and directors and each Person who
controls such underwriters on substantially the same basis as that of the
indemnification of SMS provided in this Section 4.06. Notwithstanding
anything herein to the contrary, in no event shall Sodexho be liable under the
provisions of this Section 4.06 for an amount in excess of the aggregate net
proceeds of the sale of its Registrable Securities received by it.
SECTION 4.07. Conduct of Indemnification Proceedings. In case
any proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant to
Section 4.05 or 4.06, such Person (an "Indemnified Party") shall promptly
notify the Person against whom such indemnity may be sought (the
"Indemnifying Party") in writing and the Indemnifying Party shall assume
the defense thereof, including the employment of counsel reasonably
satisfactory to such Indemnified Party, and shall assume the payment of all
fees and expenses. In any such proceeding, any Indemnified Party shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party unless (i) the
Indemnifying Party and the Indemnified Party shall have mutually agreed to
the retention of such counsel or (ii) representation of both parties by the
same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the Indemnifying Party shall
not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) at any
time for all such Indemnified Parties, and that all such fees and expenses
shall be reimbursed as they are incurred. In the case of any such separate
firm for the Indemnified Parties, such firm shall be designated in writing
by the Indemnified Parties. The Indemnifying Party shall not be liable for
any settlement of any proceeding effected without its written consent, but
if settled with such consent, or if there be a final judgment for the
plaintiff, the Indemnifying Party shall indemnify and hold harmless such
Indemnified Parties from and against any loss or liability (to the extent
stated above) by reason of such settlement or judgment. No Indemnifying
Party shall, without the prior written consent of the Indemnified Party,
effect any settlement of any pending or threatened proceeding in respect of
which any Indemnified Party is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Party, unless such
settlement includes an unconditional release of such Indemnified Party from
all liability arising out of such proceeding.
SECTION 4.08. Contribution. If the indemnification provided
for in this Article is unavailable to the Indemnified Parties in respect of
any losses, claims, damages or liabilities referred to herein, then each
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a
result of such losses, claims, damages or liabilities (i) as between SMS
and Sodexho on the one hand and the underwriters on the other, in such
proportion as is appropriate to reflect the relative benefits received by
SMS and Sodexho on the one hand and the underwriters on the other from the
offering of the Registrable Securities, or if such allocation is not permitted
by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits but also the relative fault of SMS and Sodexho
on the one hand and of the underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations and
(ii) as between SMS on the one hand and Sodexho, in such proportion as is
appropriate to reflect the relative fault of SMS and Sodexho in connection
with such statements or omissions, as well as any other relevant equitable
considerations. The relative benefits received by SMS and Sodexho on the
one hand and the underwriters on the other shall be deemed to be in the
same proportion as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses)
received by SMS and Sodexho bear to the total underwriting discounts and
commissions received by the underwriters, in each case as set forth in the
table on the cover page of the prospectus. The relative fault of SMS and
Sodexho on the one hand and of the underwriters on the other shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by SMS
and Sodexho or by the underwriters. The relative fault of SMS on the one
hand and Sodexho on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates
to information supplied by such party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
SMS and Sodexho agree that it would not be just and equitable
if contribution pursuant to this Section 4.08 were determined by pro rata
allocation (even if the underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a result
of the losses, claims, damages or liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably
incurred by such Indemnified Party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 4.08, no underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission, and Sodexho shall not be
required to contribute any amount in excess of the amount by which the
total price at which its Registrable Securities were offered to the public
exceeds the amount of any damages which Sodexho has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
SECTION 4.09. Participation in Public Offering. Sodexho
may not participate in any underwritten Public Offering hereunder unless
Sodexho (i) agrees to sell its Registrable Securities on the basis provided
in any underwriting arrangements approved by the Persons entitled hereunder
to approve such arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents reasonably required under the terms of such
underwriting arrangements and this Article 4.
SECTION 4.10. Termination of Registration Rights. The
registration rights for the Registrable Securities pursuant to this Article 4
shall terminate when Sodexho shall be able to sell its shares of Common Stock
under section (k) of Rule 144 (or any similar provision then in force
permitting the sale of restricted securities without limitation on the amount
of securities sold or the manner of sale, and without requirements as to
current public information about the issuer thereof or notice of the proposed
sale).
ARTICLE 5
MISCELLANEOUS
SECTION 5.01. Headings. The headings in this Agreement are
for convenience of reference only and shall not control or affect the
meaning or construction of any provisions hereof.
SECTION 5.02. No Inconsistent Agreements. SMS will not
hereafter enter into any agreement with respect to its securities which is
inconsistent with, or grant rights superior to the rights granted to
Sodexho pursuant to, this Agreement.
SECTION 5.03. Entire Agreement. This Agreement, the Merger
Agreement, the Distribution Agreement and the other Transaction Documents
(as defined in the Merger Agreement) to which SMS and Sodexho are party
constitute the entire agreement and understanding of the parties hereto or
thereto in respect of the subject matter contained herein, and there are no
restrictions, promises, representations, warranties, covenants, or
undertakings with respect to the subject matter hereof or thereof, other
than those expressly set forth or referred to herein. This Agreement, the
Merger Agreement, the Distribution Agreement and the other Transaction
Documents to which SMS and Sodexho are party supersede all prior agreements
and understandings between the parties hereto with respect to the subject
matter hereof.
SECTION 5.04. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including
facsimile) and shall be deemed to have been duly given or made if sent by
facsimile (with confirmation in writing), delivered personally or sent by
registered or certified mail (postage prepaid, return receipt requested) to
such party at its address or telecopier number set forth below or such
other address or telecopier number as such party may hereinafter specify
for the purpose to the party giving such notice:
If to SMS, to:
Sodexho Marriott Services, Inc.
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Telecopy: 000-000-0000
with a copy to:
Sodexho Marriott Services, Inc.
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telecopy: 000-000-0000
If to Sodexho, to:
Sodexho Alliance, S.A.
0, Xxxxxx Xxxxxx
00000 Xxxxxxxx - xx - Xxxxxxxxxx
Xxxxxx
Attention: Xxxxx Xxxxx
Telecopy: 011-331-3085-5088
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx
Telecopy: 000-000-0000
All such notices, requests and other communications shall be deemed
received on the date of receipt by the recipient thereof if received prior
to 5 p.m. in the place of receipt and such day is a Business Day in the
place of receipt. Otherwise, any such notice, request or communication
shall be deemed not to have been received until the next succeeding
Business Day in the place of receipt.
SECTION 5.06. Applicable Law; Submission to Jurisdiction. This
Agreement shall be construed in accordance with and governed by the laws of
the State of New York, without regard to the conflicts of law rules of such
state. Each party hereto agrees that any legal action or proceeding
arising out of or relating to this Agreement shall be instituted in any
State or Federal court sitting in New York City, Borough of Manhattan (and
each party agrees not to commence any legal action or proceeding except in
such courts) and each party irrevocably submits to jurisdiction of such
courts in such action or proceeding. Subject to applicable law, process in
any such action or proceeding may be served on any party anywhere in the
world, whether within or without the jurisdiction of any such court.
Without limiting the foregoing and subject to applicable law, each party
agrees that service of process on such party as provided in Section 5.04 shall
be deemed effective service of process on such party. Nothing herein shall
affect the right of any party to serve legal process in any other manner
permitted by law or at equity or to enforce in any lawful manner a judgment
obtained in one jurisdiction in any other jurisdiction. WITH RESPECT TO A
PROCEEDING IN ANY SUCH COURT, EACH PARTY IRREVOCABLY WAIVES AND RELEASES TO
THE OTHER PARTIES ITS RIGHT TO A TRIAL BY JURY, AND AGREES THAT IT WILL NOT
SEEK A TRIAL BY JURY IN ANY SUCH PROCEEDING.
SECTION 5.06. Severability. The invalidity or
unenforceability of any provisions of this Agreement in any jurisdiction
shall not affect the validity, legality or enforceability of the remainder
of this Agreement in such jurisdiction or the validity, legality or
enforceability of this Agreement, including any such provision, in any
other jurisdiction, it being intended that all rights and obligations of
the parties hereunder shall be enforceable to the fullest extent permitted
by law.
SECTION 5.07. Termination. Subject to Sections 2.07 and 4.10,
this Agreement shall terminate and be of no further force or effect with
respect to Sodexho when Sodexho ceases to hold any shares of Common Stock;
provided that the provisions of Sections 5.05 and 5.12 shall survive any
termination hereof.
SECTION 5.08. Successors; Assigns; Transferees. The provisions
of this Agreement shall be binding upon and accrue to the benefit of the
parties hereto and their respective successors and permitted assigns. If
Sodexho shall transfer the Registrable Securities (other than pursuant to a
public sale), (i) it may assign to the acquiror of such securities any of its
rights under this Agreement and (ii) the acquiror shall agree in writing to be
bound by the terms and conditions of this Agreement. Except as set forth in
the preceding sentence, neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable by either party. Nothing in this Agreement, expressed or implied,
is intended to confer on any Person other than the parties hereto, and their
respective successors and permitted assigns, any rights, remedies, obligations
or liabilities under or by reason of this Agreement.
SECTION 5.09. Amendments; Waivers. No failure or delay on
the part of either party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. No provision of this
Agreement may be waived except by an instrument in writing executed by the
party or parties against whom the waiver is to be effective. No provision
of this Agreement may be amended or otherwise modified except (i) by an
instrument in writing executed by each party hereto and (ii) during the
period from the date hereof until the third anniversary of the date hereof,
with the approval of a majority of the directors of SMS who are not Sodexho
Designees or employees of SMS.
SECTION 5.10. Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be an original with the
same effect as if the signatures thereto and hereto were upon the same
instrument.
SECTION 5.11. Recapitalization, Etc. In the event that any
capital stock or other securities are issued in respect of, in exchange
for, or in substitution of, any shares of Common Stock by reason of any
reorganization, recapitalization, reclassification, merger, consolidation,
spin-off, partial or complete liquidation, stock dividend, split-up, sale
of assets, distribution to stockholders or combination of shares of Common
Stock or any other change in capital structure of SMS, appropriate
adjustments shall be made with respect to the relevant provisions of this
Agreement so as to fairly and equitably preserve, as far as practicable,
the original rights and obligations of the parties hereto under this
Agreement.
SECTION 5.12. Remedies. Each party hereto acknowledges that
the remedies at law of the other parties for a breach or threatened breach of
this Agreement would be inadequate and, in recognition of this fact, any
party to this Agreement, without posting any bond, and in addition to all
other remedies which may be available, shall be entitled to obtain
equitable relief in the form of specific performance, a temporary
restraining order, a temporary or permanent injunction or any other
equitable remedy which may then be available.
SECTION 5.13. Confidentiality. Sodexho will hold, and will
use its best efforts to cause its officers, directors, employees, accountants,
counsel, consultants, advisors and agents (all such persons being
collectively referred to as "Representatives"), to hold, in confidence,
unless compelled to disclose by judicial or administrative process or by
other requirements of law, all confidential information concerning SMS and
its Subsidiaries, except to the extent that such information can be shown
to have been (i) previously known on a nonconfidential basis by Sodexho,
(ii) in the public domain through no fault of Sodexho or (iii) later
lawfully acquired by Sodexho from sources other than SMS who, to the actual
knowledge of the recipient, are not subject to a confidentiality agreement;
provided that Sodexho and its Representatives may disclose such information
(x) to any Controlled Entity of Sodexho or (y) to any other Person (other
than the Universal Services Partnership and any of its Subsidiaries or
Affiliates, including the Universal/Xxxxx Joint Venture) so long as such
Person is advised of the confidential nature of the information and agrees
to keep such information confidential on a basis consistent with the
provisions hereof. The obligation of Sodexho to hold any such information
in confidence shall be satisfied if it exercises the same care with respect
to such information as it would take to preserve the confidentiality of its
own similar information.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
SODEXHO MARRIOTT SERVICES, INC.
By /s/ Xxxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Senior Vice President and
Chief Financial Officer
SODEXHO ALLIANCE, S.A.
By /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
