Exhibit 1
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AMENDMENT NO. 2 TO RIGHTS AGREEMENT
Amendment No. 2 dated as of March 27, 1998 to the Rights Agreement dated as
of October 8, 1993 and amended by Amendment No. 1 ("AMENDMENT NO. 1") thereto
dated as September 30, 1997 (as so amended, the "RIGHTS AGREEMENT") between
Marriott International, Inc., a Delaware corporation (the "COMPANY"), and The
Bank of New York, a New York banking corporation (the "RIGHTS AGENT"). Terms
not otherwise defined herein are used herein as defined in the Rights Agreement.
W I T N E S S E T H
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WHEREAS, pursuant to Amendment No. 1, the Rights Agreement was amended
such that the Rights are not and will not become exercisable as a result of the
transactions relating to and contemplated by the Agreement and Plan of Merger
(the "MERGER AGREEMENT") dated as of September 30, 1997 by and among the
Company, Marriott-ICC Merger Corp., New Marriott MI, Inc., Sodexho Alliance,
S.A. ("SODEXHO") and International Catering Corporation;
WHEREAS, pursuant to the Merger Agreement, the Company has agreed to enter
into amendments to the Rights Agreement, at Sodexho's request, the effect of
which would be to terminate the Rights Agreement or cause the Rights to be
extinguished, canceled, redeemed or otherwise made inapplicable; and
WHEREAS, pursuant to Sections 26 and 28 of the Rights Agreement, the
Company, at Sodexho's request, now desires to amend certain provisions of the
Rights Agreement in order to supplement certain provisions therein.
NOW, THEREFORE, the Rights Agreement is hereby amended as follows:
1. Section 1(a) is amended in its entirety to read as follows:
(a) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall be
the Beneficial Owner of 20% or more of the shares of Common Stock then
outstanding, but shall not include (i) the Company, (ii) any Subsidiary
of the Company, (iii) any employee benefit plan of the Company or of
any Subsidiary of the Company, (iv) any Person or entity organized,
appointed or established by the Company for or pursuant to the terms of
any such plan, or (v) Sodexho Alliance, S.A. ("Sodexho") or any of its
Affiliates; and, provided, further, that no Person who or which,
together with all Affiliates and Associates of such Person, becomes the
Beneficial Owner of 20% or more of the shares of Common Stock then
outstanding solely as a result of the transactions relating to and
contemplated by the Agreement and Plan of Merger dated as of
September 30, 1997, as amended, by and among the Company,
Marriott-ICC Merger Corp., New Marriott MI, Inc., Sodexho and
International Catering Corporation shall be deemed an Acquiring Person
for any purpose of this Agreement.
2. Section 1(t) is amended in its entirety to read as follows:
(t) "Final Expiration Date" shall mean the Close of Business on
September 26, 2003.
3. Section 1(ii) is amended in its entirety to read as follows:
"Specified Directors" shall mean those directors of the Board who
are not (i) officers of the Company, (ii) within a class constituting
of the issue of X. Xxxxxxx Marriott, Sr., living from time to time, a
spouse of such issue, or the spouse of X. Xxxxxxx Marriott, Sr., (iii)
an Acquiring Person, or an Affiliate or Associate of an Acquiring
Person, or a representative of an Acquiring Person or of any such
Affiliate or Associate, or (iv) any Person (other than Sodexho or any
of its Affiliates), or an Affiliate or Associate of such Person, who
has made a tender offer or exchange for which, upon consummation
thereof would make such Person the Beneficial Owner of 30% or more of
the shares of Common Stock then outstanding. An adopted child shall be
considered a child by blood of any such issue.
4. Section 3(a) is amended in its entirety to read as follows:
Until the earliest of (i) the Close of Business on the tenth day
after the Stock Acquisition Date (or, if the tenth day after the Stock
Acquisition Date occurs before the Record Date, the Close of Business
on the Record Date) or (ii) the Close of Business on the tenth Business
Day after the date that a tender or exchange offer by any Person (other
than the Company, any Subsidiary of the Company, any employee benefit
plan of the Company or of any Subsidiary of the Company, any Person or
entity organized, appointed or established by the Company for or
pursuant to the terms of any such plan, or Sodexho or any of its
Affiliates) is first published or sent or given within the meaning of
Rule 14d-2(a) of the General Rules and Regulations under the Exchange
Act, if upon consummation thereof, such Person would be the Beneficial
Owner of 30% or more of the shares of Common Stock then outstanding
(the earliest of (i) and (ii) being herein referred to as the
"Distribution Date"), (x) the Rights will be evidenced (subject to the
provisions of paragraph (b) of this Section 3) by the certificates for
the Common Stock (which certificates for Common Stock shall be deemed
also to be certificates for Rights) and not be separate certificates,
and (y) the rights will be transferable only in connection with the
transfer of the underlying shares of Common Stock. As soon as
practicable
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after the Distribution Date, the Rights Agent will, at the expense of
the Company, send by first-class, insured, postage prepaid mail, to
each record holder of the Common Stock as of the Close of Business on
the Distribution Date, at the address of such holder shown on the
stockholder records of the Company, one or more rights certificates, in
substantially the form of Exhibit B hereto (the "Rights Certificates"),
evidencing one Right for each share of Common Stock so held, subject to
adjustment as provided herein. In the event that an adjustment in the
number of Rights per share of Common Stock has been made pursuant to
Section 11(p) hereof, at the time of distribution of the Rights
Certificates, the Company shall make the necessary and appropriate
rounding adjustments (in accordance with Section 14(a) hereof) so that
Rights Certificates representing only whole numbers of Rights are
distributed and cash is paid in lieu of any fractional Rights. As of
and after the Distribution Date, the Rights will be evidenced solely by
such Rights Certificates.
5. Section 11(a)(ii)(B) is amended in its entirety to read as follows:
(B) any Person (other than the Company, any Subsidiary of the
Company, any employee benefit plan of the Company or of any Subsidiary
of the Company, any Person or entity organized, appointed or
established by the Company for or pursuant to the terms of any such
plan, or Sodexho or any of its Affiliates), alone or together with its
Affiliates and Associates, shall, at any time after the Rights Dividend
Declaration Date, become the Beneficial Owner of 30% or more of the
shares of Common Stock then outstanding, unless the event causing the
30% threshold to be crossed is (x) a transaction set forth in Section
13(a) hereof, or (y) an acquisition of shares of Common Stock pursuant
to a tender offer or an exchange offer for all outstanding shares of
Common Stock at a price and on terms determined by at least a majority
of the members of the Board and who are not representatives, nominees,
Affiliates or Associates of an Acquiring Person, after receiving advice
from one or more investment banking firms, to be (a) at a price which
is fair to stockholders (taking into account all factors which such
members of the Board deem relevant including, without limitation,
prices which could reasonably be achieved if the Company or its assets
were sold on an orderly basis designed to realize maximum value) and
(b) otherwise in the best interests of the Company and its stockholders
then, promptly following five (5) days after the date of the occurrence
of an event described in Section 11(a)(ii)(B) hereof and promptly
following the occurrence of an event described in Section 11(a)(ii)(A)
hereof, proper provision shall be made so that each holder of a Right
(except as provided below and in Section 7(e) hereof) shall thereafter
have the right to receive, upon exercise
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thereof at the then current Purchase Price in accordance with the terms
of this Agreement, in lieu of a number of one one-thousandths of a
share of Preferred Stock, such number of shares of Common Stock of the
Company as shall equal the result obtained by (x) multiplying the then
current Purchase Price by the then number of one one-thousandths of a
share of Preferred Stock for which a Right was exercisable immediately
prior to the first occurrence of a Section 11(a)(ii) Event, and (y)
dividing that product (which, following such first occurrence, shall
thereafter be referred to as the "Purchase Price" for each Right and
for all purposes of this Agreement) by 50% of the Current Market Price
per share of Common Stock on the date of such first occurrence (such
number of shares being referred to as the "Adjustment Shares").
6. Except as expressly herein set forth, the remaining provisions of the
Rights Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, this Agreement No. 2 has been signed to be effective as
of this 27th day of March 1998 by authorized representatives of each of the
Company and the Rights Agent.
Marriott International, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President & Treasurer
The Bank of New York
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Vice President
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CERTIFICATE
Marriott International, Inc., a Delaware corporation (the "COMPANY"),
hereby certifies that:
1. Attached hereto as Exhibit A is a true and complete copy of Amendment
Xx. 0 ("XXXXXXXXX XX. 0") dated as of March 27, 1998 to the Rights
Agreement dated as of October 8, 1993, as amended by Amendment No. 1
thereto dated as of September 30, 1997, between the Company and The
Bank of New York, a New York banking corporation (the "RIGHTS
AGREEMENT").
2. Amendment No. 2 is in compliance with the terms of Section 26 of the
Rights Agreement.
IN WITNESS WHEREOF, I have signed this certificate this 27th day of March
1998.
MARRIOTT INTERNATIONAL, INC.
/s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President & Treasurer
