EXHIBIT 10.22
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 1.1. 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/▇▇▇▇▇ 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.
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"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
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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 2.1. 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).
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(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 ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇.
(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 ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.
(d) "NEW MARRIOTT DIRECTORS" shall mean (i) initially, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
and ▇▇▇▇ ▇. 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:
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(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 2.2. 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 2.3. 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.
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Section 2.4. 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 ▇. ▇▇▇▇▇▇ (Chairman), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇.
Section 2.5. 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 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (Chairman), Doctor
▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇.
Section 2.6. 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 2.7. 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 3.1. 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."
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(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 4.1. 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
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days) referred to in clause (ii) above (or, if earlier, at such time as it in
good ▇▇▇▇▇ ▇▇▇▇▇ 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
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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 4.2. 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
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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 4.3. 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 4.4. 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).
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(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.
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(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.
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Section 4.5. 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 4.6. 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
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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 4.7. 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 4.8. Contribution. If the indemnification provided for in this
Article 4 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
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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 4.9. 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.
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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 5.1. 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 5.2. 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 5.3. 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 5.4. 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.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
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with a copy to:
Sodexho Marriott Services, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
If to Sodexho, to:
Sodexho Alliance, S.A.
▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ - ▇▇ - ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopy: 011-331-3085-5088
with a copy to:
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
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 5.5. 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.
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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 5.6. 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 5.7. 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 5.8. 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 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 5.9. 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,
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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/▇▇▇▇▇ 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SODEXHO MARRIOTT SERVICES, INC.
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President &
Chief Financial Officer
SODEXHO ALLIANCE, S.A.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President &
Chief Financial Officer
20