As filed with the Securities and Exchange Commission on April 15, 1998
Registration No. 33-66624
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 2 to
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SODEXHO MARRIOTT SERVICES, INC.
(Exact name of Registrant as specified in its charter)
Delaware 52-0936594
(State or jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
10400 Fernwood Road
Bethesda, Maryland 20817
(Address of principal Executive Offices, including zip code)
SODEXHO MARRIOTT SERVICES, INC. 1993 COMPREHENSIVE STOCK INCENTIVE PLAN
AND
SODEXHO MARRIOTT SERVICES, INC. 1998 COMPREHENSIVE STOCK INCENTIVE PLAN
(Full title of the plan)
Robert A. Stern
Senior Vice President and General Counsel
Sodexho Marriott Services, Inc.
10400 Fernwood Road
Bethesda, Maryland 20817
(Name and address of agent for service)
(301) 380-3100
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
==================================================================================================================================
Proposed Maximum Proposed
Offering Price Maximum Aggregate Amount of
Title of Securities to be Registered Amount to be Registered(3) Per Share Offering Price Registration Fee
- ----------------------------------------------------------------------------------------------------------------------------------
Common Stock, $1 par value per share(1)(2).. 10,000,000 shares (4) (4) (4)
==================================================================================================================================
(1) Includes rights ("Rights") issuable pursuant to that certain Rights
Agreement between the Registrant and Bank of New York dated as of
October 8, 1993, as amended, which Rights are currently carried and
traded with shares of the Registrant's Common Stock (including shares
registered hereunder). The value attributable to the Rights, if any,
is reflected in the value of the Registrant's Common Stock.
(2) In addition, pursuant to Rule 416 under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate
number of additional shares that may be offered or issued pursuant to
the SMS Plans (as defined below) as a result of stock splits, stock
dividends or similar transactions.
(3) The Registrant hereby amends this Registration Statement wherein
34,000,000 shares of Marriott International, Inc. common stock, $1.00 par
value, were registered for issuance under the Marriott International, Inc.
1993 Comprehensive Stock Incentive Plan (the "MI 1993 Plan") and the
Marriott International, Inc. 1996 Comprehensive Stock Incentive Plan
(the "MI 1996 Plan" and, together with the MI 1993 Plan, the
"Predecessor Plans"), on July 27, 1993 and October 31, 1997. On March
27, 1998, the Registrant (i) distributed to its stockholders all of the
outstanding shares of its wholly-owned subsidiary, New Marriott MI,
Inc. (the "Distribution"), (ii) effected a one-for-four reverse stock
split with respect to its common stock (the "Reverse Stock Split") and
(iii) effected a merger of its wholly-owned subsidiary, Marriott-ICC
Merger Corp., with and into International Catering Corporation (the
"Merger", and together with the Distribution and Reverse Stock Split,
the "Transactions"). On such date, the Registrant changed its name
from Marriott International, Inc. to Sodexho Marriott Services, Inc.,
and the MI 1993 Plan was amended and restated as the Sodexho Marriott
Services, Inc. 1993 Comprehensive Stock Incentive Plan (the "SMS 1993
Plan"), and the MI 1996 Plan was amended and restated as the Sodexho
Marriott Services, Inc. 1998 Comprehensive Stock Incentive Plan (the
"SMS 1998 Plan", and together with the SMS 1993 Plan, the "SMS Plans").
As a result of the Transactions, in accordance with the terms of the
Predecessor Plans, the Board of Directors of the Registrant has
adjusted the number of shares available for issuance under the SMS
Plans so that (i) no shares are reserved for issuance under the SMS
1993 Plan other than shares reserved for issuance upon the exercise of
outstanding awards under such plan and (ii) ten million (10,000,000)
shares are reserved for issuance under the SMS 1998 Plan, including
shares reserved for issuance upon the exercise of currently outstanding
awards under the SMS Plans.
(4) The filing fee for the registered securities was previously paid with the
MI 1993 Plan Registration Statement on July 23, 1993.
==============================================================================
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
On March 27, 1998, Marriott International, Inc. ("Marriott")
distributed to its stockholders all of the outstanding shares of its
wholly-owned subsidiary, New Marriott MI, Inc. ("New Marriott") (the
"Distribution"), (ii) effected a one-for-four reverse stock split with
respect to its common stock (the "Reverse Stock Split") and (iii) effected
a merger of its wholly-owned subsidiary, Marriott-ICC Merger Corp., with
and into International Catering Corporation (the "Merger", and together
with the Distribution and Reverse Stock Split, the "Transactions"). In
connection with the Transactions, Marriott changed its name to Sodexho
Marriott Services, Inc. ("SMS"). References in this Amendment No. 2 to
the Registration Statement (the "Registration Statement") to the "Company"
are to Marriott prior to the Transactions and to SMS upon and following the
effective time of Transactions. The following documents filed by the
Company with the Securities and Exchange Commission (the "Commission") are
incorporated by reference into this Amendment No. 2 to Registration
Statement and made a part thereof:
(a) Annual Report on Form 10-K of the Company for the fiscal
year ended January 2, 1998.
(b) Current Report on Form 8-K of the Company filed April 3,
1998.
(c) Description of the Company's Common Stock and Rights
contained in the Company's registration statement on Form 8-A dated September
30, 1993, as amended by the Company's registration statement on Form 8-A/A
dated October 15, 1997.
In addition to the foregoing, all documents subsequently filed
by the Company under Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (before the filing of a post-effective
amendment to the registration statement which indicates that all securities
offered hereby have been issued or that deregisters all securities then
remaining hereunder) 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
documents.
Item 5. Interest of Named Experts and Counsel.
The consolidated financial statements of the Company included
in the Annual Report on Form 10-K under the Exchange Act for the fiscal year
ended January 2, 1998 which is incorporated in this Registration Statement by
reference, have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their reports with respect thereto, and are
incorporated herein by reference in reliance upon the authority of said firm
as experts in giving said reports.
Joseph Ryan, who in October 1997 issued the opinion of the
Company's Law Department on the legality of the common stock of the Company
offered hereby, was at that time Executive Vice President and General Counsel
of the Company. At such time, Mr. Ryan owned Company common stock and
restricted and deferred Company common stock. He also held employee stock
options to purchase Company common stock. As a result of the Transactions,
Mr. Ryan's stock options were converted into options to purchase shares of
stock of New Marriott. Mr. Ryan does not currently hold any positions
with the Company.
William O. Kafes, who in 1993 issued the opinion of Marriott
Corporation's Law Department on the legality of the common stock of the
Company offered hereby, was at that time Vice President and Associate General
Counsel of Marriott Corporation. At such time, Mr. Kafes held employee stock
options to purchase shares of common stock of Marriott Corporation, and upon
retirement or other termination of employment with Marriott Corporation, Mr.
Kafes was entitled under the employee deferred stock incentive plan to receive
shares of common stock of Marriott Corporation. In connection with Marriott
Corporation's distribution to stockholders, on October 8, 1993, on a share-
for-share basis, of all the outstanding shares of common stock of the Company
following approval by the stockholders at an Annual Meeting (the "1993
Distribution"), Mr. Kafes' employee stock options were converted into two
separate exercisable options, one of which was the right to purchase common
stock of the Company. In connection with the 1993 Distribution, Mr. Kafes had
a one time election to convert each deferred share of common stock of Marriott
Corporation reserved for him under the employee deferred stock incentive plan
to either (i) one share each of the common stock of Host Marriott Corporation
(as Marriott Corporation was renamed as of the 1993 Distribution) and the
common stock of the Company or (ii) the number of shares of common stock of
the Company necessary to reflect the value of his deferred shares immediately
before the 1993 Distribution. Mr. Kafes does not currently own any options or
other awards with respect to shares of the Company.
Item 6. Indemnification of Directors and Officers.
Article 8 of the Company's Amended and Restated Certificate of
Incorporation (the "Certificate") and Section 6.09 of the Company's Amended
and Restated Bylaws ("Bylaws") define the rights of individuals, including
directors and officers of the Company, to indemnification by the Company in
the event of personal liability or expenses incurred by them as a result of
pending or threatened claims against them. Article 9 of the Certificate
limits the personal liability of directors to the Company and its stockholders
for monetary damages for breach of fiduciary duty. These provisions of the
Certificate and Bylaws are collectively referred to herein as the "Director
Liability and Indemnification Provisions."
The Director Liability and Indemnification Provisions are
consistent with Section 102(b)(7) of the Delaware General Corporation Law
("Delaware Law"), 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 Delaware Law provisions permitting
indemnification of certain individuals, including directors and officers.
In performing their duties, directors of a Delaware corporation
are obligated as fiduciaries to exercise their business judgment and act in
what they reasonably determine in good faith, after appropriate consideration,
to be the best interests of the corporation and its stockholders. Decisions
made on that basis are protected by the so-called "business judgment rule."
However, the expense of defending lawsuits means that, as a practical matter,
adequate insurance and indemnity provisions are often a condition of an
individual's willingness to serve as director of a Delaware corporation.
Delaware Law has for some time specifically permitted corporations to provide
indemnity and procure insurance for its directors and officers.
Set forth below is a description of the Director Liability and
Indemnification Provisions. Such description is intended as a summary only
and is qualified in its entirety by reference to the Certificate and the
Bylaws.
Elimination of Liability in Certain Circumstances. Article 9
of the Certificate protects each director against monetary damages for breach
of fiduciary duty, except for liability (i) for any breach of the director's
duty of loyalty to the Company or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware Law or (iv) for any
transaction from which the director derived an improper personal benefit.
Under Delaware Law, absent provisions such as are in Article 9, directors
could generally be held liable for gross negligence for decisions made in the
performance of their duty of care. Article 9 eliminates such liability.
Under Section 174 of Delaware Law, however, directors remain personally liable
for unlawful dividends or unlawful stock repurchases or redemptions and a
negligence standard applies to such liability.
While the Director Liability and Indemnification Provisions
provide directors with protection from liability for monetary damages for
breaches of the duty of care, they do not eliminate a director's duty of care.
Accordingly, these provisions 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. Article 9 will apply to officers of the Company
only if they are directors of the Company and are acting in their capacity as
directors, and will not apply to officers of the Company 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 such actions seek
monetary damages.
Indemnification and Insurance. Under Section 145 of Delaware
Law, 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 the company, 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
the derivative actions, except that indemnification only extends to expenses
(including attorneys' fees) incurred in connection with defense or settlement
of such an action, and Delaware Law requires court approval before there can
be any indemnification where the person seeking indemnification has been found
liable to the Company.
Section 6.09 of the Bylaws provides as follows:
(a) Each person who was or is a party or is threatened to be
made a party to, or is involved in any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "Proceeding"), by reason of the fact that he or she or a
person of whom he or she is the legal representative, is or was a director,
officer, employee or agent of the Company or a Subsidiary, or is or was
serving at the request of the Company or a Subsidiary as a director, officer,
partner, member, employee or agent of another corporation, partnership,
limited liability company, joint venture, trust or other enterprise, shall be
indemnified and held harmless by the Company to the fullest extent permitted
from time to time by Delaware Law as the same exists or may hereafter be
amended (but, if permitted by applicable law, in the case of any such
amendment, only to the extent that such amendment permits the Company to
provide broader indemnification rights than said law permitted the Company to
provide prior to such amendment) or any other applicable laws as presently or
hereafter in effect, and such indemnification shall continue to a person who
has ceased to be such a director, officer, employee or agent and shall inure
to the benefit of his or her heirs, executors and administrators; provided,
that the Company shall indemnify any such person seeking indemnification in
connection with a Proceeding (or part thereof) initiated by such person only
if such Proceeding (or part thereof) was authorized by the Board of Directors
or is a Proceeding to enforce such person's claim to indemnification pursuant
to the rights granted by this Bylaw. The Company shall pay the expenses
incurred by such person in defending any such Proceeding in advance of its
final disposition upon receipt (unless the Company upon authorization of the
Board of Directors waives such requirement to the extent permitted by
applicable law) of an undertaking by or on behalf of such person to repay such
amount if it shall ultimately be determined that such person is not entitled
to be indemnified by the Company as authorized by this Bylaw or otherwise.
(b) The indemnification and the advancement of expenses incurred
in defending a Proceeding prior to its final disposition provided by, or
granted pursuant to this Bylaw shall not be exclusive of any other right which
any person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, other provision of these bylaws, agreement, vote
of stockholders or Disinterested Directors or otherwise. No repeal,
modification or amendment of, or adoption of any provision inconsistent with,
this Section 6.09, nor to the fullest extent permitted by applicable law, any
modification of law, shall adversely affect any right or protection of any
person granted pursuant hereto existing at or with respect to any events that
occurred prior to, the time of such repeal, amendment adoption or modification.
(c) The Company may maintain insurance, at its expense, to
protect itself and any person who is or was a director, officer, partner,
member, employee, or agent of the Company or a Subsidiary or of another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the Company would have the power to
indemnify such person against such expense, liability or loss under Delaware
Law.
(d) If any provision or provisions of this Bylaw shall be held
to be invalid, illegal or unenforceable for any reason whatsoever: (i) the
validity, legality and enforceability of the remaining provisions of this
Bylaw (including, without limitation, each portion of any paragraph of this
Bylaw containing any such provision held to be invalid, illegal or
unenforceable, that is not itself held to be invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby; and (ii)
to the fullest extent possible, the provisions of this Bylaw (including,
without limitation, each such portion of any paragraph of this Bylaw
containing any such provision held to be invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested by the
provision held invalid, illegal or unenforceable.
(e) For purposes of these Bylaws:
(i) "Disinterested Director" means a director of the Company who
is not and was not a party to the proceeding or matter in respect of which
indemnification is sought by the claimant.
(ii) "Subsidiary" means a corporation, a majority of the capital
stock of which is owned directly or indirectly by the Company.
Article 8 of the Company Certificate provides that a person who was or
is made a party to, or is involved in, any action, suit or proceeding by
reason of the fact that he or she is or was a director or officer of the
Company will be indemnified by the Company to the fullest extent provided by
Delaware Law. Article 8 also provides that the Company may enter into one or
more agreements with any person which provide for indemnification greater or
different than that provided in Article 8.
Item 8. Exhibits.
No. Description
- --- -----------
(4) (a) Sodexho Marriott Services, Inc. 1993 Comprehensive Stock
Incentive Plan.
(b) Sodexho Marriott Services, Inc. 1998 Comprehensive Stock
Incentive Plan.
(c) Amended and Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit No. 3(a) to Report on
Form 8-K dated April 3, 1998).
(d) Amended and Restated By-Laws of the Company (incorporated by
reference to Exhibit No. 3(b) to Report on Form 8-K dated April
3, 1998).
(e) Rights Agreement between the Company and the Bank of New York
(incorporated by reference to Exhibit No. 4.2 to Report on Form
8-K dated October 25, 1993).
(f) Amendment No. 1 to Rights Agreement between the Company and Bank
of New York (incorporated by reference to Exhibit 1 to Form 8-
A/A dated October 15, 1997).
(g) Amendment No. 2 to Rights Agreement between the Company and Bank
of New York.
(5) (a) Opinion of Marriott Corporation's Law Department regarding
the legality of the securities being registered (incorporated
by reference to exhibit 5(a) to Registration Statement No.
33-66624, filed on July 27, 1993).
(b) Opinion of Marriott International, Inc.'s Law Department
regarding the legality of the securities registered
(incorporated by reference to exhibit 5(b) to Registration
Statement No. 33-66624, filed on October 31, 1997).
(23) (a) Consent of Arthur Andersen LLP.
(b) The consents of Marriott International Inc.'s Law Department are
contained in the opinions of such counsel incorporated by
reference as Exhibits 5(a) and 5(b) to this Registration
Statement.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement 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.
2. That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
3. To remove from registration by means of a post-effective
amendment any of the securities being registered that remain unsold at the
termination of the offering.
4. That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report pursuant
to section 13(a) or section l5(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
under section l5(d) of the Securities Exchange Act of 1934) 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.
5. Insofar as indemnification for liabilities arising under
the Securities Act of 1933 (the "Act") may be permitted to directors, officers
and controlling persons of the Company pursuant to the foregoing provisions, or
otherwise, the Company has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in said Act and
therefore may be unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling persons of the Company
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 Company will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether or not such indemnification by
it is against public policy as expressed in the Act, and will be governed by
the final adjudication of such issue.
SIGNATURES
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
Amendment No. 2 to the Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the County of Montgomery, State
of Maryland, on this 15th day of April, 1998.
By /s/ Robert A. Stern
--------------------------------------
Robert A. Stern
Senior Vice President and General Counsel
POWERS OF ATTORNEY
Each person whose signature appears below constitutes and
appoints Charles D. O'Dell, Lawrence E. Hyatt and Robert A. Stern 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 Amendment No. 2 to the 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:
/s/ Charles D. O'Dell
- ---------------------------- President and Chief Executive Officer
Charles D. O'Dell
PRINCIPAL FINANCIAL OFFICER:
/s/ Lawrence E. Hyatt
- ---------------------------- Senior Vice President and Chief
Lawrence E. Hyatt Financial Officer
PRINCIPAL ACCOUNTING OFFICER:
/s/ Robert Drury
- ---------------------------- Corporate Treasurer
Robert Drury
DIRECTORS:
/s/ William J. Shaw
- ---------------------------- Chairman of the Board
William J. Shaw
/s/ Charles D. O'Dell
- ---------------------------- Director
Charles D. O'Dell
/s/ Pierre Bellon
- ---------------------------- Director
Pierre Bellon
/s/ Bernard Carton
- ---------------------------- Director
Bernard Carton
/s/ Edouard de Royere
- ---------------------------- Director
Edouard de Royere
/s/ John W. Marriott III
- ---------------------------- Director
John W. Marriott III
/s/ Doctor R. Crants
- ---------------------------- Director
Doctor R. Crants
/s/ Daniel J. Altobello
- ---------------------------- Director
Daniel J. Altobello
INDEX TO EXHIBITS
Subsequently
Exhibit Numbered
Number Exhibit Page
- ------- ------- ------------
(4) (a) Sodexho Marriott Services, Inc. 1993 Comprehensive
Stock Incentive Plan. 10
(b) Sodexho Marriott Services, Inc. 1998 Comprehensive
Stock Incentive Plan. 27
(c) Amended and Restated Certificate of Incorporation of
the Company (incorporated by reference to Exhibit
No. 3(a) to Report on Form 8-K dated April 3, 1998).
(d) Amended and Restated By-Laws of the Company
(incorporated by reference to Exhibit No. 3(b) to
Report on Form 8-K dated April 3, 1998).
(e) Rights Agreement between the Company and the Bank of
New York (incorporated by reference to Exhibit No. 4.2
to Form 8-K dated October 25, 1993).
(f) Amendment No. 1 to Rights Agreement between the Company
and Bank of New York (incorporated by reference to
Exhibit 1 to Form 8-A/A dated October 15, 1997).
(g) Amendment No. 2 to Rights Agreement between the Company
and Bank of New York. 54
(5) (a) Opinion of Marriott Corporation's Law Department regarding
the legality of the securities being registered (incorporated
by reference to exhibit 5(a) to Registration Statement No.
33-66624, filed on July 27, 1993).
(b) Opinion of Marriott International, Inc.'s Law Department
regarding the legality of the securities being registered
(incorporated by reference to exhibit 5(b) to Registration
Statement No. 33-66624, filed on October 31, 1997).
(23) (a) Consent of Arthur Andersen LLP. 59
(b) The consents of Marriott International Inc.'s Law Department
are contained in the opinions of such counsel incorporated by
reference as Exhibits 5(a) and 5(b) to this Registration
Statement.