EXHIBIT 2
AMENDMENT AGREEMENT
This AMENDMENT AGREEMENT, dated as of January 28, 1998 (this
"Amendment"), by and among MARRIOTT INTERNATIONAL, INC., a Delaware
corporation to be renamed "Sodexho Marriott Services, Inc." ("Parent"),
MARRIOTT-ICC MERGER CORP., a Delaware corporation and a direct wholly-owned
subsidiary of Parent ("Acquisition"), NEW MARRIOTT MI, INC., a Delaware
corporation and a wholly-owned subsidiary of Parent to be renamed "Marriott
International, Inc." ("Spinco"), SODEXHO ALLIANCE, S.A., a societe anonyme
organized under the laws of the Republic of France ("Seller"), and
INTERNATIONAL CATERING CORPORATION, a Delaware corporation and a wholly-owned
subsidiary of Seller ("Company"), amends (1) the Agreement and Plan of Merger
dated as of September 30, 1997 (the "Merger Agreement") by and among the
parties hereto, (2) the Distribution Agreement dated as of September 30, 1997
(the "Distribution Agreement") by and between Parent and Spinco and (3) the
Omnibus Restructuring Agreement dated as of September 30, 1997 (the "Omnibus
Agreement") by and among the parties hereto (collectively, the "Agreements").
RECITALS
WHEREAS, the parties hereto entered into the Agreements in
order to (i) distribute the shares of Spinco capital stock to the stockholders
of Parent and restructure Parent's existing debt in a series of transactions
that will separate Parent's management services division from Parent's other
businesses and (ii) combine the businesses of Parent's management services
division and Seller's North American management services division;
WHEREAS, the Agreements contemplate that Seller will make a cash
contribution to Company prior to the merger referred to in the Merger
Agreement in an amount equal to $304 million;
WHEREAS, the parties hereto have agreed that, in lieu of the
contribution referred to above, Seller shall make a cash payment to Parent in
the amount of $304 million simultaneously with the consummation of such
merger, as a result of which the Parent Common Stock to be issued to Seller
pursuant to the Merger Agreement will be issued in exchange for (i) the stock
of Company, (ii) the stock of Sodexho Canada and (iii) $304 million in cash;
WHEREAS, the parties hereto have agreed to amend the Agreements
to make certain other changes, including to the form of Tax Sharing Agreement.
NOW, THEREFORE, in consideration of the premises and agreements,
provisions and covenants contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. General. Capitalized terms used but not defined
herein shall have the respective meanings ascribed thereto in the Merger
Agreement.
Section 1.2. Interpretation. The descriptive headings herein
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Amendment. For all
purposes of this Amendment, 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 Amendment, (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 Amendment as a whole and not to any particular
Article, Section or other subdivision.
ARTICLE II
AMENDMENTS TO MERGER AGREEMENT
From and after the date hereof, the Merger Agreement is hereby
amended as follows:
Section 2.1. Amendments to Recitals to the Merger Agreement.
The Recitals to the Merger Agreement are hereby amended by deleting the fifth
and sixth recitals in their entireties and inserting in lieu thereof the
following:
"WHEREAS, immediately following the Distribution,
(i) Acquisition will merge with and into Company, Seller will
transfer to Parent all of the outstanding capital stock of
Sodexho Financiere du Canada Inc. ("Sodexho Canada" and,
together with Company, "Acquired Companies") and Seller will
make a cash payment to Parent of $304,000,000 (the "Seller
Payment"), in each case pursuant to the terms hereof, (ii) all
of the issued and outstanding shares of Company common stock
will be converted into common stock of Parent in such amounts
as are determined herein and (iii) all issued and outstanding
shares of Acquisition will be converted into all the
outstanding capital stock of the Surviving Corporation, as a
result of which Company (as the Surviving Corporation in the
merger) will become a wholly-owned subsidiary of Parent."
Section 2.2. Amendments to Article I of the Merger Agreement.
(a) The title of Article I of the Merger Agreement is hereby
amended to read "THE DISTRIBUTION; SELLER PAYMENT; CANADIAN TRANSFER."
(b) Section 1.2 of the Merger Agreement is hereby amended by
deleting it in its entirety and replacing it with the following:
"Section 1.2. Seller Payment and Canadian
Transfer.
(a) At the Effective Time, Seller will make the
Seller Payment to Parent in an amount equal to $304,000,000 in
immediately available funds. Following the Effective Time,
Seller will pay Parent, or Parent will pay Seller, as the case
may be, any amounts determined in accordance with Exhibit A
based on target Adjusted Net Tangible Assets for the Acquired
Companies, on a combined basis, of negative $35,000,000.
(b) Seller shall transfer to Parent all of the
outstanding capital stock of Sodexho Canada, which contribution
shall be made (and effective) at the Effective Time, by
delivering to Parent the certificates evidencing such stock,
properly endorsed for transfer to or accompanied by a duly
executed stock power in favor of Parent or its nominee and
otherwise in a form acceptable for transfer on the books of
Sodexho Canada."
Section 2.3. Amendment to Section 2.8(a) of the Merger
Agreement. Section 2.8(a) of the Merger Agreement is hereby amended by
deleting the first sentence in its entirety and replacing it with the
following:
"By virtue of the Merger and without any action on the part of
Seller other than the transfer of the stock of Sodexho Canada
to Parent and making of the Seller Payment, all shares of
common stock, par value $0.001 per share, of Company (each, a
"Company Share") issued and outstanding immediately prior to
the Effective Time (all of which are held by Seller) shall be
converted into the right to receive, and become exchangeable
for, a number of shares of validly issued, fully paid and
nonassessable common stock of Parent, par value $1.00 per share
(the "Parent Common Stock") (each such share, a "Parent
Share"), upon the surrender of the certificate(s) formerly
representing such Company Shares, such that Seller shall, in
the aggregate, have the right to receive a number of Parent
Shares which, when added to Parent Shares issuable upon
exercise of options issued pursuant to Section 2.8(c), equal
49% of the Parent Shares (other than Parent Shares held in the
treasury of Parent or held by any wholly owned Subsidiary of
Parent) issued and outstanding immediately after the Effective
Time."
Section 2.4. Amendments to Exhibit A of the Merger Agreement.
(a) Section 1 of Exhibit A of the Merger Agreement is amended
by deleting the words "other than the making of the Seller Contribution
contemplated by Section 1.2(a) of the Agreement" from the definition of
"Adjusted Net Tangible Assets."
(b) Section 2(a) of Exhibit A of the Merger Agreement is
amended by deleting the words "(other than the making of the Seller
Contribution contemplated by Section 1.2(a) of the Agreement)" appearing in
the first sentence.
(c) Section 2(b) of Exhibit A of the Merger Agreement is
amended by deleting the words "to the sum of $269,000,000" and replacing it
with the words "in the aggregate to negative $35,000,000."
(d) Section 2(e) of Exhibit A of the Merger Agreement is
amended by deleting each occurrence of the number "$269,000,000" and replacing
it with the words "negative $35,000,000."
(e) Exhibit C of the Merger Agreement is deleted in its
entirety and replaced with the document attached hereto as Exhibit 1.
ARTICLE III
AMENDMENTS TO DISTRIBUTION AGREEMENT
From and after the date hereof, the Distribution Agreement is
hereby amended as follows:
Section 3.1. Amendment to Recitals to the Distribution
Agreement. The Recitals to the Distribution Agreement are hereby amended by
deleting subparagraph (5) of the fifth recital in its entirety and replacing
it with the following:
"(5) pursuant to the Agreement and Plan of Merger (the
"Merger Agreement") dated as of even date herewith by and among
Parent, Marriott-ICC Merger Corp., a Delaware corporation
("Acquisition"), Spinco, Seller and Company, in exchange for
approximately 49% of the outstanding stock of Parent, Parent
will (a) acquire 100% of the stock of Company (the "Merger"),
(b) acquire 100% of the stock of Sodexho Canada and (c) receive
from Seller a cash payment of $304 million;"
Section 3.2. Amendments to Section 1.1 of the Distribution
Agreement.
(a) The definition of "Retained Liabilities" is hereby
amended by adding the following at the end thereof: "; provided that all
Liabilities arising under the deeds delivered pursuant to Section 2.7(a)(ii)
shall not constitute Retained Liabilities."
(b) The definition of "Spinco Liabilities" is hereby amended
by deleting the word "and" immediately following the phrase "(iv) the Spinco
Self Insurance Liabilities," and adding the following at the end thereof: "and
(vi) all Liabilities arising under the deeds delivered pursuant to Section
2.7(a)(ii)."
Section 3.3. Amendment to Section 2.7(a) of the Distribution
Agreement. Section 2.7(a) is hereby amended by deleting the words "quitclaim
deed" occurring in clause (ii) thereof and replacing it with the words
"special warranty deed."
Section 3.4. Amendment to Section 2.8(e) of the Distribution
Agreement. Section 2.8(e) is hereby amended by deleting the second sentence
thereof in its entirety and replacing it with the following:
"Therefore, Parent shall use its reasonable efforts to borrow
funds in such amounts as are necessary, together with the cash
payment to be made by Seller to Parent as contemplated by the
Merger Agreement, to provide net proceeds to Parent sufficient
to refinance the indebtedness of Parent and pay the other
amounts described above."
Section 3.5. Amendment to Schedule 1.1(b) of the Distribution
Agreement. Schedule 1.1(b) of the Distribution Agreement is deleted in its
entirety and replaced with the document attached hereto as Schedule 1.
ARTICLE IV
AMENDMENT TO OMNIBUS AGREEMENT
From and after the date hereof, the Omnibus Agreement is hereby
amended as follows:
Section 4.1. Amendments to Section 1. of the Omnibus Agreement.
(a) Section 1.f. of the Omnibus Agreement is amended by
deleting the text thereof in its entirety.
(b) Section 1. of the Omnibus Agreement is further amended by
relabeling subsection g. as subsection f., deleting the last sentence thereof
in its entirety and replacing it with the following:
"In consideration thereof and for a $304 million cash payment
to be made simultaneously therewith by Seller to Parent, Parent
will issue new shares of its common stock to Seller which, when
added to common stock issuable upon exercise of options to
purchase common stock of Parent received in the Merger upon
conversion of options to purchase stock of Company, shall equal
49% of the then-outstanding common stock of Parent."
(c) Section 1. of the Omnibus Agreement is further amended by
changing the reference in the last sentence thereof from "(g)" to "(f)."
ARTICLE V
MISCELLANEOUS
Section 5.1. Effect of Amendment. The Amendments made by this
Amendment shall be effective as of the date hereof and for all times
hereafter. Except as amended hereby, the Agreements shall remain in full
force and effect.
Section 5.2. Entire Agreement. Except for the provisions of
the Confidentiality Agreement (as modified by the Merger Agreement) which
shall continue in full force and effect, this Amendment, the Merger Agreement,
the Distribution Agreement, the Omnibus Agreement and the other Transaction
Documents constitute the entire agreement among the parties with respect to
the subject matter hereof and supersede all other prior negotiations,
commitments, agreements and understandings, both written and oral, between the
parties or any of them with respect to the subject matter hereof.
Section 5.3. Governing Law. This Amendment shall be governed
by and construed in accordance with the Laws of the State of New York
(regardless of the Laws that might otherwise govern under applicable
principles of conflicts Law) as to all matters, including matters of validity,
construction, effect, performance and remedies.
Section 5.4. Counterparts. This Amendment may be executed in
two or more counterparts, each of which shall be deemed to be an original, but
all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties has caused this
Amendment Agreement to be executed on its behalf by its officers thereunto duly
authorized, all as of the day and year first above written.
MARRIOTT INTERNATIONAL, INC. (to be
renamed "Sodexho Marriott Services,
Inc.")
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and
Treasurer
MARRIOTT-ICC MERGER CORP.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and
Treasurer
NEW MARRIOTT MI, INC. (to be renamed
"Marriott International, Inc.")
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and
Treasurer
SODEXHO ALLIANCE, S.A.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
INTERNATIONAL CATERING CORPORATION
By: /s/ X. Xxxxxx
----------------------------------
Name: X. Xxxxxx
Title: President
Exhibit 1
Schedule 1
CONFERENCE CENTERS (Managed by MMS)
Unit Unit Name Location
---- -------- --------
22-03291 Xxxxx X. Xxxxx Conference Center Bryn Mawr, PA
22-11720 Des Moines Area Comm College Newton, IA
22-22701 Findlay Inn Xxxxxxxxxx Xxxxxx Xxxxxxx, XX
00-00000 Holiday Valley Resort Xxxxxxxxxxxxx, XX
00-00000 Xxxxxxxx Hotel Bartlesville, OK
22-40142 HP Conference Center Xxxx Xxxx, XX
00-00000 Argonne Nat'l Labs Xxxxxxx, XX
00-00000 Mutual of Omaha Xxxxx, XX
00-00000 PG&E Learning Center Xxx Xxxxx, XX
00-00000 Xxxx Xxxxxxx Conference Center Boston, MA
22-72518 SBC Center for Learning Xxxxxx, XX
00-00000 Xxxxxxxx Xxxxxxxxxx Xxxxxx Xxxxxx, XX
00-00000 Xxxxxxxx Xxxxxxxxxx Xxxxxx Xxxxxx, XX
00-00000 Xxxxxxxx Companies Learning Center Tulsa, OK
22-53854 Dresser Houston, TX
Schedule 1
