As filed with the Securities and Exchange Commission on March 20, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
--------------------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
NEW MARRIOTT MI, INC. (TO BE RENAMED "MARRIOTT INTERNATIONAL, INC.")
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 52-2055918
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
10400 FERNWOOD ROAD
BETHESDA, MARYLAND 20817
(Address of Principal Executive Offices) (Zip Code)
EMPLOYEES' PROFIT SHARING, RETIREMENT AND
SAVINGS PLAN AND TRUST
(Full Title of the Plan)
JOSEPH RYAN, ESQ.
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
NEW MARRIOTT MI, INC.
10400 FERNWOOD ROAD, BETHESDA, MARYLAND 20817
(Name and Address of Agent for Service)
(301) 380-3000
(Telephone Number, Including Area Code, of Agent for Service)
---------------
Copies of all communications, including all communications sent to agent for
service, should be sent to:
Ronald O. Mueller
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, NW, Suite 900
Washington, DC 20036
(202) 955-8500
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------
PROPOSED AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE MAXIMUM OFFERING PRICE PROPOSED MAXIMUM REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE AGGREGATE OFFERING PRICE FEE
- ------------------------------------------------------------------------------------------------------------------------------
Common Stock, par value
$.01 share (1)............ 6,000,000(2) (3) $60,000 (3) $18
Class A Common Stock, par
value $.01 share (1)...... 6,000,000(2) (3) $60,000 (3) $18
- ------------------------------------------------------------------------------------------------------------------------------
(1) The Preferred Stock Purchase Rights, which are attached to the shares of
Common Stock being registered, will be issued for no additional
consideration and, therefore, no additional registration fee is required.
(2) Pursuant to Rule 416(a), this Registration Statement also registers such
number of additional securities that may be offered pursuant to the terms of
the Employees' Profit Sharing, Retirement and Savings Plan and Trust which
provides for a change in the amount or type of securities being offered or
issued to prevent dilution as a result of stock splits, stock dividends or
similar transactions. Pursuant to Rule 416(c) under the Securities Act of
1933, as amended, this registration statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the Employees' Profit
Sharing, Retirement and Savings Plan and Trust.
(3) Calculated solely for purposes hereof pursuant to Rules 457(h)(1) on the
basis of par value of such shares (which exceeds their book value as of
March 19, 1998).
INTRODUCTION
This Registration Statement on Form S-8 is filed by New Marriott MI,
Inc. (to be renamed "Marriott International, Inc."), a Delaware corporation (the
"Company" or "Registrant"), and the Employees' Profit Sharing Retirement and
Savings Plan and Trust (the "Plan"), relating to 6,000,000 shares of the
Company's Common Stock, par value $.01 per share (the "Common Stock"), and
6,000,000 shares of the Company's Class A Common Stock, par value $.01 per share
(the "Class A Common Stock") to be offered and sold to accounts of eligible
employees of the Company under the Plan, as well as to interests in the Plan.
PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not filed as part of this Registration Statement pursuant to Note to
Part 1 of Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not filed as part of this Registration Statement pursuant to Note to
Part 1 of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of the Registrant heretofore filed with the
Securities and Exchange Commission (the "Commission") are hereby incorporated in
this Registration Statement by reference:
(1) The Company's Registration Statement on Form 10 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), filed on
February 13, 1998.
(2) The Company's Annual Report on Form 10-K for the year ended January 2,
1998.
(3) The Company's Report on Form 8-K filed on March 13, 1998.
(4) The Plan's Annual Report on Form 11-K under the Exchange Act, filed
on June 27, 1997.
All reports and other documents subsequently filed by the Company or
the Plan pursuant to Sections 13(a) and (c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of
a post-effective amendment which indicates that all
1
securities offered hereunder have been sold or which deregisters all such
securities then remaining unsold shall be deemed to be incorporated by reference
in this Registration Statement and to be a part hereof from the date of filing
of such reports and documents.
Any statement contained herein or in a document incorporated or deemed
to be incorporated by reference herein and any document incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such earlier statement.
Any statement or document so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Articles Eleventh and Sixteenth of the New Marriott Certificate and
Section 7.7 of the New Marriott Bylaws (the "New Marriott Director Liability and
Indemnification Provisions") limit the personal liability of New Marriott
directors to the company or its stockholders for monetary damages for breach of
fiduciary duty.
The New Marriott Director Liability and Indemnification Provisions
define and clarify the rights of certain individuals, including New Marriott
directors and officers, to indemnification by New Marriott in the event of
personal liability or expenses incurred by them as a result of certain
litigation against them. Such provisions are consistent with Section 102(b)(7)
of the DGCL, which is designed, among other things, to encourage qualified
individuals to serve as directors of Delaware corporations by permitting
Delaware corporations to include in their certificates of incorporation a
provision limiting or eliminating directors' liability for monetary damages and
with other existing DGCL provisions permitting indemnification of certain
individuals, including directors and officers. The limitations of liability in
the New Marriott Director Liability and Indemnification Provisions may not
affect claims arising under the federal securities laws.
Set forth below is a description of the New Marriott Director
Liability and Indemnification Provisions. Such description is intended as a
summary only and is qualified in its entirety by reference to the New Marriott
Certificate and the New Marriott Bylaws.
LIMITATION OF LIABILITY FOR DIRECTORS
Article Sixteenth of the New Marriott Certificate protects directors
against monetary damages for breaches of their fiduciary duty of care, except as
set forth below. Under
2
the DGCL, absent Article Sixteenth, directors could generally be held liable for
gross negligence for decisions made in the performance of their duty of care but
not for simple negligence. Article Sixteenth eliminates director liability for
negligence in the performance of their duties, including gross negligence. In a
context not involving a decision by the directors (i.e., a suit alleging loss to
the company due to the directors' inattention to a particular matter) a simple
negligence standard might apply. Directors remain liable for breaches of their
duty of loyalty to the company and its stockholders, as well as acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law and transactions from which a director derives improper
personal benefit. Article Sixteenth does not eliminate director liability under
Section 174 of the DGCL, which makes directors personally liable for unlawful
dividends or unlawful stock repurchases or redemptions and expressly sets forth
a negligence standard with respect to such liability.
While Article Sixteenth provides directors with protection from awards
of monetary damages for breaches of the duty of care, it does not eliminate the
directors' duty of care. Accordingly, Article Sixteenth will have no effect on
the availability of equitable remedies such as an injunction or rescission based
upon a director's breach of the duty of care. The provisions of Article
Sixteenth that eliminate liability as described above will apply to officers of
New Marriott only if they are directors of New Marriott and are acting in their
capacity as directors, and will not apply to officers of the New Marriott who
are not directors. The elimination of liability of directors for monetary
damages in the circumstances described above may deter persons from bringing
third-party or derivative actions against directors to the extent those actions
seek monetary damages.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the DGCL, directors and officers as well as other
employees and individuals may be indemnified against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement in connection
with specified actions, suits or proceedings, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
corporation --a "derivative action") if they acted in good faith and in a manner
they reasonably believed to be in or not opposed to the best interests of New
Marriott, and with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar standard of
care is applicable in the case of derivative actions, except that
indemnification only extends to expenses (including attorneys' fees) incurred in
connection with defense or settlement of such an action and the DGCL requires
court approval before there can be any indemnification where the person seeking
indemnification has been found liable to New Marriott.
Section 7.7 of the New Marriott Bylaws provides that New Marriott will
indemnify any person to whom, and to the extent, indemnification may be granted
pursuant to Section 145 of the DGCL.
Article Eleventh of the New Marriott Certificate provides that each
person who was or is made a party to, or is otherwise involved in any action,
suit or proceeding by reason of the fact that he or she is or was a director,
officer or employee of New Marriott or is or was serving at the request of New
Marriott as a director, officer, employee or agent of another
3
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan (an "indemnitee"),
whether the basis of such proceeding is alleged activity in an official capacity
as a director, officer, employee or agent or in any other capacity while serving
as a director, officer, employee or agent, shall be indemnified and held
harmless by New Marriott to the fullest extent authorized by the DGCL, as the
same exists or may be amended (but, in the case of any such amendment, only to
the extent that such amendment permits New Marriott to provide broader
indemnification rights than permitted prior thereto), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith and such indemnification
shall continue as to an indemnitee who has ceased to be a director, officer or
employee and shall inure to the benefit of the indemnitee's heirs, executors and
administrators; provided that except with respect to proceedings to enforce
rights to indemnification, New Marriott shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee only
if such proceeding (or part thereof) was authorized by the board of directors.
Article Eleven also provides that the right of indemnification will be in
addition to and not exclusive of all other rights to which that director,
officer or employee may be entitled.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Unless otherwise indicated below as being incorporated by reference to
another filing of the Registrant with the Commission, each of the following
exhibits is filed herewith:
5 The Company and the Employees' Profit Sharing, Retirement and
Savings Plan and Trust hereby undertake that they have submitted
and will submit the Plan and any amendments to the Plan to the
Internal Revenue Service in a timely manner and have made and will
make all changes required by the Internal Revenue Service in order
to qualify the Plan.
23.1 Consent of Arthur Andersen LLP.
24 Power of Attorney (included on signature page).
ITEM 9. UNDERTAKINGS.
(1) The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
4
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(2) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by
5
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons on behalf
of the Employees' Profit Sharing, Retirement and Savings Plan and Trust in the
capacities and on the date indicated below.
EMPLOYEES' PROFIT SHARING,
RETIREMENT AND SAVINGS PLAN AND TRUST
By: /s/
-----------------------------------------
Name: Michael A. Stein
---------------------------------------
Title: Member, Profit Sharing Plan Committee
--------------------------------------
Date: March 19, 1998
---------------------------------------
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the County of Montgomery, State of Maryland, on this 19th day of
March, 1998.
New Marriott MI, Inc.
By: /s/
-------------------------------
J.W. Marriott, Jr.
Chairman of the Board and
Chief Executive Officer
Each person whose signature appears below constitutes and appoints
J.W. Marriott, Jr. and Michael A. Stein as his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for such person
and in his name, place and stead, in any and all capacities, to sign any or all
further amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons on behalf
of the Company in the capacities and on the date indicated above.
Signature Title
- -------------------------------------------- ------------------------------------------
PRINCIPAL EXECUTIVE OFFICER: Chairman of the Board of Directors and
/s/ Chief Executive Officer
- --------------------------------------------
J.W. Marriott, Jr.
PRINCIPAL FINANCIAL OFFICER: Director, Executive Vice President and
/s/ Chief Financial Officer
- --------------------------------------------
Michael A. Stein
PRINCIPAL ACCOUNTING OFFICER: Vice President-Finance and Chief
/s/ Accounting Officer
- --------------------------------------------
Stephen E. Riffee
/s/ Director, President and Chief
- -------------------------------------------- Operating Officer
William J. Shaw
/s/ Director, Executive Vice President
- -------------------------------------------- and General Counsel
Joseph Ryan
EXHIBIT INDEX
Exhibit Description Sequentially
- ------- ----------- -------------
Number Numbered Page
- ------ -------------
5 Not filed pursuant to Item 8
23.1 Consent of Arthur Andersen LLP.
24 Power of Attorney (included on signature page)