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FORM 8-B/A
(AMENDMENT NO. 1)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
REGISTRATION OF SECURITIES OF CERTAIN SUCCESSOR ISSUERS
FILED PURSUANT TO SECTION 12(b) OR (g) OF
THE SECURITIES EXCHANGE ACT OF 1934
LOCKHEED MARTIN CORPORATION
(Exact name of registrant as specified in its charter)
MARYLAND 52-1893632
(State or other Jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6801 ROCKLEDGE DRIVE 20817
BETHESDA, MARYLAND (Zip Code)
(Address of principal
executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
COMMON STOCK, $1.00 PAR VALUE NEW YORK STOCK EXCHANGE, INC.
Securities to be registered pursuant to Section 12(g) of the Act:
None
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ITEM 1. GENERAL INFORMATION
(a) The Registrant was organized on August 29, 1994 as a
corporation under the laws of the State of Maryland.
(b) The Registrant's fiscal year ends December 31.
ITEM 2. TRANSACTION OF SUCCESSION
(a) Martin Marietta Corporation, a Maryland corporation
("Martin Marietta") and Lockheed Corporation, a Delaware corporation
("Lockheed") are each predecessors of the Registrant. The common stock of
Martin Marietta and the common stock of Lockheed are registered pursuant to
Section 12(b) of the Securities Exchange Act of 1934, as amended.
(b) On August 29, 1994, Martin Marietta, Lockheed and the
Registrant entered into an Agreement and Plan of Reorganization (as amended on
February 7, 1995, the "Reorganization Agreement") providing for the combination
of Martin Marietta and Lockheed. The Reorganization Agreement provides, among
other things, for (a) the merger of Atlantic Sub, Inc., a Maryland corporation
and wholly-owned subsidiary of the Registrant ("Atlantic Sub"), with and into
Martin Marietta (the "Atlantic Sub Merger") pursuant to a Plan and Agreement of
Merger, dated as of August 29, 1994, among Martin Marietta, Atlantic Sub and
the Registrant and (b) the merger of Pacific Sub, Inc., a Delaware corporation
and a wholly-owned subsidiary of the Registrant ("Pacific Sub"), with and into
Lockheed pursuant to a Plan and Agreement of Merger, dated as of August 29,
1994, among Lockheed, Pacific Sub and the Registrant (the "Pacific Sub Merger"
and together with the Atlantic Sub Merger, the "Mergers"). Martin Marietta
will be the surviving corporation in the Atlantic Sub Merger and will become a
wholly-owned subsidiary of the Registrant. Lockheed will be the surviving
corporation in the Pacific Sub Merger and will also become a wholly-owned
subsidiary of the Registrant.
Upon consummation of the Atlantic Sub Merger, (i) each
outstanding share of common stock, par value $1.00 per share, of Martin
Marietta ("Martin Marietta Common Stock") will be converted into the right to
receive one share of common stock, par value $1.00 per share, of the Registrant
("Registrant Common Stock"), (ii) each outstanding share of Series A Preferred
Stock, par value $1.00 per share, of Martin Marietta ("Martin Marietta Series A
Preferred Stock") will be converted into the right to receive one share of
Series A Preferred Stock, par value $1.00 per share, of the Registrant, the
terms of which are essentially the same as those of Martin Marietta Series A
Preferred Stock ("Lockheed Martin Series A Preferred Stock") and (iii) any
outstanding shares of Martin Marietta Common Stock owned by Lockheed or any
subsidiary of Lockheed will be cancelled and cease to exist.
Upon consummation of the Pacific Sub Merger, (i) each
outstanding share of common stock, par value $1.00 per share, of Lockheed
("Lockheed Common Stock") will be converted into the right to receive 1.63
shares of Registrant Common Stock and (ii) any outstanding shares of Lockheed
Common Stock owned by Martin Marietta or any subsidiary of Martin Marietta or
held by Lockheed in its treasury will be cancelled and cease to exist.
Fractional shares of Registrant Common Stock will not be issued in connection
with the Pacific Sub Merger. Holders of Lockheed Common Stock otherwise
entitled to a fractional share will be paid an amount in cash equal to the same
fraction of the fair market value of a whole share of Registrant Common Stock,
determined as set forth in the Reorganization Agreement.
The Mergers are subject to the terms and conditions specified
in the Reorganization Agreement, including obtaining the requisite approvals of
the stockholders of Martin Marietta and
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Lockheed. Martin Marietta and Lockheed have scheduled meetings of their
respective stockholders for March 15, 1995 for the purpose, among others, of
voting on the Mergers.
ITEM 3. SECURITIES TO BE REGISTERED
As to the Registrant Common Stock to be registered hereby, (1)
750,000,000 shares are presently authorized, (2) 100 shares are presently
issued and outstanding and held by Martin Marietta and 100 shares are presently
issued and outstanding and held by Lockheed, and (3) none of such issued shares
are held by or for the account of the Registrant. The Registrant Common Stock
owned by Martin Marietta and Lockheed will be cancelled on consummation of the
Mergers. It is anticipated that, after giving effect to the Mergers,
approximately 200,000,000 shares of Lockheed Martin Common Stock will be
outstanding and approximately 38,200,000 additional shares will be reserved for
issuance upon the exercise of options assumed by Lockheed Martin and upon
conversion of the Lockheed Martin Series A Preferred Stock.
ITEM 4. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
The Registrant hereby incorporates by reference and includes
as Exhibit 2(ii) hereto the information contained under the caption
"Description of Lockheed Martin Capital Stock," in the Joint Proxy Statement/
Prospectus dated February 9, 1995 (the "Joint Proxy Statement/Prospectus")
constituting part of the Registrant's Registration Statement on Form S-4 (Reg.
No. 33-57645).
ITEM 5. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements.
Pursuant to instruction (a) of the Instructions as to
Financial Statements, no financial statements are filed since the capital
structure and balance sheet of the Registrant immediately after consummation of
the transactions described in Item 2 will be substantially the same as those of
the combined capital structures and balance sheets of Martin Marietta and
Lockheed, the two predecessors of the Registrant. The unaudited pro forma
combined condensed financial statements reflecting the effects of the
transactions described above, as of fiscal month end September, 1994 and for
the nine months then ended are presented under the caption "Unaudited Pro Forma
Combined Condensed Financial Statements" and "Notes to Unaudited Pro Forma
Combined Condensed Financial Statements" in the Joint Proxy
Statement/Prospectus and are incorporated by reference herein.
(b) Exhibits.
1 (i) -- Agreement and Plan of Reorganization, dated as of August 29,
1994, among the Registrant, Martin Marietta Corporation and
Lockheed Corporation, as amended as of February 7, 1995
(attached as Appendix I to the Joint Proxy Statement/Prospectus
included as part of the Registrant's Registration Statement on
Form S-4 (Reg. No. 33-57645) and incorporated herein by
reference)
(ii) -- Plan and Agreement of Merger, dated as of August 29, 1994,
among Lockheed Corporation, Pacific Sub, Inc. and the
Registrant (attached as Exhibit D to Appendix I to the Joint
Proxy Statement/Prospectus included as part of the Registrant's
Registration Statement on Form S-4 (Reg. No. 33-57645) and
incorporated herein by reference)
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(iii) -- Plan and Agreement of Merger, dated as of August 29, 1994,
among Martin Marietta Corporation, Atlantic Sub, Inc. and the
Registrant (attached as Exhibit C to Appendix I to the Joint
Proxy Statement/Prospectus included as part of the Registrant's
Registration Statement on Form S-4 (Reg. No. 33- 57645) and
incorporated herein by reference)
2 (i) -- Joint Proxy Statement/Prospectus, dated February 9, 1995
(included as part of the Registrant's Registration Statement on
Form S-4 (Reg. No. 33-57645) and incorporated herein by
reference)
2 (ii) -- Selected pages from the Joint Proxy Statement/Prospectus, dated
February 9, 1995
3 -- Listed below are the other exhibits required by instruction 3
of the Instructions as to Exhibits:
3.1 -- Charter of the Registrant (attached as Exhibit A to Appendix I
to the Joint Proxy Statement/Prospectus included as part of the
Registrant's Registration Statement on Form S-4 (Reg. No.
33-57645) and incorporated herein by reference)
3.2 -- By-Laws of the Registrant (attached as Exhibit B to Appendix I
to the Joint Proxy Statement/Prospectus included as part of the
Registrant's Registration Statement on Form S-4 (Reg. No.
33-57645) and incorporated herein by reference)
4.1 -- See Exhibits 3.1 and 3.2
7.1 -- Opinion of Miles & Stockbridge, a Professional Corporation,
with respect to the preference upon liquidation of the Series A
Preferred Stock (included as Exhibit 7.1 to the Registrant's
Registration Statement on Form S-4 (Reg. No. 33-57645) and
incorporated herein by reference)
10.1 -- Standstill Agreement, dated April 2, 1993, between Martin
Marietta Corporation and General Electric Company (included as
Exhibit 10.1 to Registrant's Registration Statement on Form S-4
(Reg. No. 33-57645) and incorporated herein by reference)
10.2 -- Reconfiguration Agreement, dated August 29, 1994, among Martin
Marietta Corporation, the Registrant and General Electric
Company (included as Exhibit 10.2 to Registrant's Registration
Statement on Form S-4 (Reg. No. 33-57645) and incorporated
herein by reference)
10.3 -- Amendment to the Reconfiguration Agreement, dated November 30,
1994, among Martin Marietta Corporation, the Registrant and
General Electric Company (included as Exhibit 10.3 to
Registrant's Registration Statement on Form S-4 (Reg. No.
33-57645) and incorporated herein by reference)
10.4 -- Agreement Containing Consent Order, dated December 22, 1994,
among the Registrant, Lockheed Corporation, Martin Marietta
Corporation and the Federal Trade Commission (included as
Exhibit 10.4 to Registrant's Registration Statement on Form S-4
(Reg. No. 33-57645) and incorporated herein by reference)
10.5 -- Martin Marietta Corporation Financial Counseling Program for
directors, officers, company presidents, and other key
employees, as amended (included as Exhibit 10.6 to Registrant's
Registration Statement on Form S-4 (Reg. No. 33- 57645) and
incorporated herein by reference)
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10.6 -- Martin Marietta Corporation Executive Incentive Plan, as
amended (included as Exhibit 10.7 to Registrant's Registration
Statement on Form S-4 (Reg. No. 33- 57645) and incorporated
herein by reference)
10.7 -- Martin Marietta Corporation Directors Charitable Award Plan
(included as Exhibit 10.8 to Registrant's Registration
Statement on Form S-4 (Reg. No. 33- 57645) and incorporated
herein by reference)
10.8 -- Martin Marietta Corporation Post-Retirement Death Benefit Plan
for Senior Executives, as amended (included as Exhibit 10.9 to
Registrant's Registration Statement on Form S-4 (Reg. No.
33-57645) and incorporated herein by reference)
10.9 -- Martin Marietta Corporation Deferred Compensation Plan for
Selected Officers (included as Exhibit 10.10 to Registrant's
Registration Statement on Form S-4 (Reg. No. 33-57645) and
incorporated herein by reference)
10.10 -- Martin Marietta Corporation 1979 Stock Option Plan for Key
Employees, as amended (included as Exhibit 10.11 to
Registrant's Registration Statement on Form S-4 (Reg. No.
33-57645) and incorporated herein by reference)
10.11 -- Martin Marietta Corporation 1984 Stock Option Plan for Key
Employees, as amended (included as Exhibit 10.12 to
Registrant's Registration Statement on Form S-4 (Reg. No.
33-57645) and incorporated herein by reference)
10.12 -- Martin Marietta Corporation Amended Omnibus Securities Award
Plan, as amended March 25, 1993 (included as Exhibit 10.13 to
Registrant's Registration Statement on Form S-4 (Reg. No.
33-57645) and incorporated herein by reference)
10.13 -- Format of the agreements between Martin Marietta Corporation
and certain officers to provide for continuity of management in
the event of a change in control of Martin Marietta Corporation
(included as Exhibit 10.14 to Registrant's Registration
Statement on Form S-4 (Reg. No. 33-57645) and incorporated
herein by reference)
10.14 -- Martin Marietta Corporation Supplemental Excess Retirement
Plan, as amended (included as Exhibit 10.15 to Registrant's
Registration Statement on Form S-4 (Reg. No. 33-57645) and
incorporated herein by reference)
10.15 -- Martin Marietta Corporation Restricted Stock Award Plan, as
amended (included as Exhibit 10.16 to Registrant's Registration
Statement on Form S-4 (Reg. No. 33-57645) and incorporated
herein by reference)
10.16 -- Martin Marietta Corporation Directors' Life Insurance Program
(included as Exhibit 10.17 to Registrant's Registration
Statement on Form S-4 (Reg. No. 33- 57645) and incorporated
herein by reference)
10.17 -- Martin Marietta Corporation Executive Special Early Retirement
Option and Plant Closing Retirement Option Plan (included as
Exhibit 10.18 to Registrant's Registration Statement on Form
S-4 (Reg. No. 33-57645) and incorporated herein by reference)
10.18 -- Martin Marietta Corporation Supplementary Pension Plan for
Employees of Transferred GE Operations (included as Exhibit
10.19 to Registrant's Registration Statement on Form S-4 (Reg.
No. 33-57645) and incorporated herein by reference)
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10.19 -- Form of employment agreement between Martin Marietta
Corporation and certain officers (included as Exhibit 10.20 to
Registrant's Registration Statement on Form S-4 (Reg. No.
33-57645) and incorporated herein by reference)
10.20 -- Lockheed Corporation 1992 Employee Stock Option Program
(included in the Registration Statement (No. 33-49003) of
Lockheed Corporation, incorporated by reference as Exhibit
10.21 to Registrant's Registration Statement on Form S-4 (Reg.
No. 33-57645) and incorporated herein by reference)
10.21 -- Amendment to Lockheed Corporation 1992 Employee Stock Option
Plan (included as Exhibit 10.22 to Registrant's Registration
Statement on Form S-4 (Reg. No. 33- 57645) and incorporated
herein by reference)
10.22 -- Lockheed Corporation 1986 Employee Stock Purchase Program, as
amended (included as Exhibit 10.23 to Registrant's Registration
Statement on Form S-4 (Reg. No. 33-57645) and incorporated
herein by reference)
10.23 -- Lockheed Corporation 1982 Employee Stock Purchase Program, as
amended (included as Exhibit 10.24 to Registrant's Registration
Statement on Form S-4 (Reg. No. 33-57645) and incorporated
herein by reference)
10.24 -- Incentive Retirement Benefit Plan for Certain Executives of
Lockheed Corporation, as amended (included as Exhibit 10.25 to
Registrant's Registration Statement on Form S-4 (Reg. No.
33-57645) and incorporated herein by reference)
10.25 -- Supplemental Retirement Benefit Plan for Certain Transferred
Employees of Lockheed Corporation, as amended (included as
Exhibit 10.26 to Registrant's Registration Statement on Form
S-4 (Reg. No. 33-57645) and incorporated herein by reference)
10.26 -- Supplemental Benefit Plan of Lockheed Corporation, as amended
(included as Exhibit 10.27 to Registrant's Registration
Statement on Form S-4 (Reg. No. 33- 57645) and incorporated
herein by reference)
10.27 -- Long-Term Performance Plan of Lockheed Corporation and its
Subsidiaries (included as Exhibit 10.28 to Registrant's
Registration Statement on Form S-4 (Reg. No. 33-57645) and
incorporated herein by reference)
10.28 -- Supplemental Savings Plan of Lockheed Corporation, as amended
(included as Exhibit 10.29 to Registrant's Registration
Statement on Form S-4 (Reg. No. 33- 57645) and incorporated
herein by reference)
10.29 -- Deferred Compensation Plan for Directors of Lockheed
Corporation, as amended (included as Exhibit 10.30 to
Registrant's Registration Statement on Form S-4 (Reg. No.
33-57645) and incorporated herein by reference)
10.30 -- Lockheed Corporation Retirement Plan for Directors, as amended
(included as Exhibit 10.31 to Registrant's Registration
Statement on Form S-4 (Reg. No. 33- 57645) and incorporated
herein by reference)
10.31 -- Form of Lockheed Corporation Termination Benefits Agreement
effective January 1, 1991 (included in Form 8, Amendment No. 1
to Exhibit 28 of Form 8-K dated November 5, 1990 of Lockheed
Corporation, incorporated by reference as Exhibit 10.32 to
Registrant's Registration Statement on Form S-4 (Reg. No.
33-57645) and incorporated herein by reference)
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10.32 -- Trust Agreement, as amended February 3, 1995, between Lockheed
Corporation and First Interstate Bank of California (included
as Exhibit 10.33 to Registrant's Registration Statement on Form
S-4 (Reg. No. 33-57645) and incorporated herein by reference)
10.33 -- Lockheed Corporation Directors' Deferred Compensation Plan
Trust Agreement, as amended (included as Exhibit 10.34 to
Registrant's Registration Statement on Form S-4 (Reg. No.
33-57645) and incorporated herein by reference)
10.34 -- Trust Agreement, dated December 22, 1994, between Lockheed
Corporation and J.P. Morgan California with respect to certain
employee benefit plans of Lockheed Corporation (included as
Exhibit 10.35 to Registrant's Registration Statement on Form
S-4 (Reg. No. 33-57645) and incorporated herein by reference)
10.35 -- Lockheed Martin Corporation 1995 Omnibus Performance Award Plan
(attached as Appendix IV to the Joint Proxy
Statement/Prospectus included as part of the Registrant's
Registration Statement on Form S-4 (Reg. No. 33-57645) and
incorporated herein by reference)
10.36 -- Lockheed Martin Marietta Corporation Directors Deferred Stock
Plan (attached as Appendix V to the Joint Proxy
Statement/Prospectus included as part of the Registrant's
Registration Statement on Form S-4 (Reg. No. 33-57645) and
incorporated herein by reference)
21.1 -- Subsidiaries of the Registrant (included as Exhibit 21.1 to
Registrant's Registration Statement on Form S-4 (Reg. No.
33-57645) and incorporated herein by reference)
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this Amendment to its
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized.
LOCKHEED MARTIN CORPORATION
By /s/ FRANK H. MENAKER, JR.
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Name: Frank H. Menaker, Jr.
Title: Vice President and
General Counsel
Dated: March 9, 1995
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INDEX TO EXHIBITS
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER EXHIBITS PAGE
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1 (i) -- Agreement and Plan of Reorganization, dated as of August 29,
1994, among the Registrant, Martin Marietta Corporation and
Lockheed Corporation, as amended as of February 7, 1995
(attached as Appendix I to the Joint Proxy Statement/Prospectus
included as part of the Registrant's Registration Statement on
Form S-4 (Reg. No. 33-57645) and incorporated herein by
reference)
(ii) -- Plan and Agreement of Merger, dated as of August 29, 1994,
among Lockheed Corporation, Pacific Sub, Inc. and the
Registrant (attached as Exhibit D to Appendix I to the Joint
Proxy Statement/Prospectus included as part of the Registrant's
Registration Statement on Form S-4 (Reg. No. 33-57645) and
incorporated herein by reference)
(iii) -- Plan and Agreement of Merger, dated as of August 29, 1994,
among Martin Marietta Corporation, Atlantic Sub, Inc. and the
Registrant (attached as Exhibit C to Appendix I to the Joint
Proxy Statement/Prospectus included as part of the Registrant's
Registration Statement on Form S-4 (Reg. No. 33- 57645) and
incorporated herein by reference)
2 (i) -- Joint Proxy Statement/Prospectus, dated February 9, 1995
(included as part of the Registrant's Registration Statement on
Form S-4 (Reg. No. 33-57645) and incorporated herein by
reference)
2 (ii) -- Selected pages from the Joint Proxy Statement/Prospectus, dated
February 9, 1995
3 -- Listed below are the other exhibits required by instruction 3
of the Instructions as to Exhibits:
3.1 -- Charter of the Registrant (attached as Exhibit A to Appendix I
to the Joint Proxy Statement/Prospectus included as part of the
Registrant's Registration Statement on Form S-4 (Reg. No.
33-57645) and incorporated herein by reference)
3.2 -- By-Laws of the Registrant (attached as Exhibit B to Appendix I
to the Joint Proxy Statement/Prospectus included as part of the
Registrant's Registration Statement on Form S-4 (Reg. No.
33-57645) and incorporated herein by reference)
4.1 -- See Exhibits 3.1 and 3.2
7.1 -- Opinion of Miles & Stockbridge, a Professional Corporation,
with respect to the preference upon liquidation of the Series A
Preferred Stock (included as Exhibit 7.1 to the Registrant's
Registration Statement on Form S-4 (Reg. No. 33-57645) and
incorporated herein by reference)
10.1 -- Standstill Agreement, dated April 2, 1993, between Martin
Marietta Corporation and General Electric Company (included as
Exhibit 10.1 to Registrant's Registration Statement on Form S-4
(Reg. No. 33-57645) and incorporated herein by reference)
10.2 -- Reconfiguration Agreement, dated August 29, 1994, among Martin
Marietta Corporation, the Registrant and General Electric
Company (included as Exhibit 10.2 to Registrant's Registration
Statement on Form S-4 (Reg. No. 33-57645) and incorporated
herein by reference)
10.3 -- Amendment to the Reconfiguration Agreement, dated November 30,
1994, among Martin Marietta Corporation, the Registrant and
General Electric Company (included as Exhibit 10.3 to
Registrant's Registration Statement on Form S-4 (Reg. No.
33-57645) and incorporated herein by reference)
10.4 -- Agreement Containing Consent Order, dated December 22, 1994,
among the Registrant, Lockheed Corporation, Martin Marietta
Corporation and the Federal Trade Commission (included as
Exhibit 10.4 to Registrant's Registration Statement on Form S-4
(Reg. No. 33-57645) and incorporated herein by reference)
10.5 -- Martin Marietta Corporation Financial Counseling Program for
directors, officers, company presidents, and other key
employees, as amended (included as Exhibit 10.6 to Registrant's
Registration Statement on Form S-4 (Reg. No. 33- 57645) and
incorporated herein by reference)
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INDEX TO EXHIBITS
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER EXHIBITS PAGE
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10.6 -- Martin Marietta Corporation Executive Incentive Plan, as
amended (included as Exhibit 10.7 to Registrant's Registration
Statement on Form S-4 (Reg. No. 33- 57645) and incorporated
herein by reference)
10.7 -- Martin Marietta Corporation Directors Charitable Award Plan
(included as Exhibit 10.8 to Registrant's Registration
Statement on Form S-4 (Reg. No. 33- 57645) and incorporated
herein by reference)
10.8 -- Martin Marietta Corporation Post-Retirement Death Benefit Plan
for Senior Executives, as amended (included as Exhibit 10.9 to
Registrant's Registration Statement on Form S-4 (Reg. No.
33-57645) and incorporated herein by reference)
10.9 -- Martin Marietta Corporation Deferred Compensation Plan for
Selected Officers (included as Exhibit 10.10 to Registrant's
Registration Statement on Form S-4 (Reg. No. 33-57645) and
incorporated herein by reference)
10.10 -- Martin Marietta Corporation 1979 Stock Option Plan for Key
Employees, as amended (included as Exhibit 10.11 to
Registrant's Registration Statement on Form S-4 (Reg. No.
33-57645) and incorporated herein by reference)
10.11 -- Martin Marietta Corporation 1984 Stock Option Plan for Key
Employees, as amended (included as Exhibit 10.12 to
Registrant's Registration Statement on Form S-4 (Reg. No.
33-57645) and incorporated herein by reference)
10.12 -- Martin Marietta Corporation Amended Omnibus Securities Award
Plan, as amended March 25, 1993 (included as Exhibit 10.13 to
Registrant's Registration Statement on Form S-4 (Reg. No.
33-57645) and incorporated herein by reference)
10.13 -- Format of the agreements between Martin Marietta Corporation
and certain officers to provide for continuity of management in
the event of a change in control of Martin Marietta Corporation
(included as Exhibit 10.14 to Registrant's Registration
Statement on Form S-4 (Reg. No. 33-57645) and incorporated
herein by reference)
10.14 -- Martin Marietta Corporation Supplemental Excess Retirement
Plan, as amended (included as Exhibit 10.15 to Registrant's
Registration Statement on Form S-4 (Reg. No. 33-57645) and
incorporated herein by reference)
10.15 -- Martin Marietta Corporation Restricted Stock Award Plan, as
amended (included as Exhibit 10.16 to Registrant's Registration
Statement on Form S-4 (Reg. No. 33-57645) and incorporated
herein by reference)
10.16 -- Martin Marietta Corporation Directors' Life Insurance Program
(included as Exhibit 10.17 to Registrant's Registration
Statement on Form S-4 (Reg. No. 33- 57645) and incorporated
herein by reference)
10.17 -- Martin Marietta Corporation Executive Special Early Retirement
Option and Plant Closing Retirement Option Plan (included as
Exhibit 10.18 to Registrant's Registration Statement on Form
S-4 (Reg. No. 33-57645) and incorporated herein by reference)
10.18 -- Martin Marietta Corporation Supplementary Pension Plan for
Employees of Transferred GE Operations (included as Exhibit
10.19 to Registrant's Registration Statement on Form S-4 (Reg.
No. 33-57645) and incorporated herein by reference)
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INDEX TO EXHIBITS
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER EXHIBITS PAGE
- ------- -------- ------------
10.19 -- Form of employment agreement between Martin Marietta
Corporation and certain officers (included as Exhibit 10.20 to
Registrant's Registration Statement on Form S-4 (Reg. No.
33-57645) and incorporated herein by reference)
10.20 -- Lockheed Corporation 1992 Employee Stock Option Program
(included in the Registration Statement (No. 33-49003) of
Lockheed Corporation, incorporated by reference as Exhibit
10.21 to Registrant's Registration Statement on Form S-4 (Reg.
No. 33-57645) and incorporated herein by reference)
10.21 -- Amendment to Lockheed Corporation 1992 Employee Stock Option
Plan (included as Exhibit 10.22 to Registrant's Registration
Statement on Form S-4 (Reg. No. 33- 57645) and incorporated
herein by reference)
10.22 -- Lockheed Corporation 1986 Employee Stock Purchase Program, as
amended (included as Exhibit 10.23 to Registrant's Registration
Statement on Form S-4 (Reg. No. 33-57645) and incorporated
herein by reference)
10.23 -- Lockheed Corporation 1982 Employee Stock Purchase Program, as
amended (included as Exhibit 10.24 to Registrant's Registration
Statement on Form S-4 (Reg. No. 33-57645) and incorporated
herein by reference)
10.24 -- Incentive Retirement Benefit Plan for Certain Executives of
Lockheed Corporation, as amended (included as Exhibit 10.25 to
Registrant's Registration Statement on Form S-4 (Reg. No.
33-57645) and incorporated herein by reference)
10.25 -- Supplemental Retirement Benefit Plan for Certain Transferred
Employees of Lockheed Corporation, as amended (included as
Exhibit 10.26 to Registrant's Registration Statement on Form
S-4 (Reg. No. 33-57645) and incorporated herein by reference)
10.26 -- Supplemental Benefit Plan of Lockheed Corporation, as amended
(included as Exhibit 10.27 to Registrant's Registration
Statement on Form S-4 (Reg. No. 33- 57645) and incorporated
herein by reference)
10.27 -- Long-Term Performance Plan of Lockheed Corporation and its
Subsidiaries (included as Exhibit 10.28 to Registrant's
Registration Statement on Form S-4 (Reg. No. 33-57645) and
incorporated herein by reference)
10.28 -- Supplemental Savings Plan of Lockheed Corporation, as amended
(included as Exhibit 10.29 to Registrant's Registration
Statement on Form S-4 (Reg. No. 33- 57645) and incorporated
herein by reference)
10.29 -- Deferred Compensation Plan for Directors of Lockheed
Corporation, as amended (included as Exhibit 10.30 to
Registrant's Registration Statement on Form S-4 (Reg. No.
33-57645) and incorporated herein by reference)
10.30 -- Lockheed Corporation Retirement Plan for Directors, as amended
(included as Exhibit 10.31 to Registrant's Registration
Statement on Form S-4 (Reg. No. 33- 57645) and incorporated
herein by reference)
10.31 -- Form of Lockheed Corporation Termination Benefits Agreement
effective January 1, 1991 (included in Form 8, Amendment No. 1
to Exhibit 28 of Form 8-K dated November 5, 1990 of Lockheed
Corporation, incorporated by reference as Exhibit 10.32 to
Registrant's Registration Statement on Form S-4 (Reg. No.
33-57645) and incorporated herein by reference)
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INDEX TO EXHIBITS
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER EXHIBITS PAGE
- ------- -------- ------------
10.32 -- Trust Agreement, as amended February 3, 1995, between Lockheed
Corporation and First Interstate Bank of California (included
as Exhibit 10.33 to Registrant's Registration Statement on Form
S-4 (Reg. No. 33-57645) and incorporated herein by reference)
10.33 -- Lockheed Corporation Directors' Deferred Compensation Plan
Trust Agreement, as amended (included as Exhibit 10.34 to
Registrant's Registration Statement on Form S-4 (Reg. No.
33-57645) and incorporated herein by reference)
10.34 -- Trust Agreement, dated December 22, 1994, between Lockheed
Corporation and J.P. Morgan California with respect to certain
employee benefit plans of Lockheed Corporation (included as
Exhibit 10.35 to Registrant's Registration Statement on Form
S-4 (Reg. No. 33-57645) and incorporated herein by reference)
10.35 -- Lockheed Martin Corporation 1995 Omnibus Performance Award Plan
(attached as Appendix IV to the Joint Proxy
Statement/Prospectus included as part of the Registrant's
Registration Statement on Form S-4 (Reg. No. 33-57645) and
incorporated herein by reference)
10.36 -- Lockheed Martin Marietta Corporation Directors Deferred Stock
Plan (attached as Appendix V to the Joint Proxy
Statement/Prospectus included as part of the Registrant's
Registration Statement on Form S-4 (Reg. No. 33-57645) and
incorporated herein by reference)
21.1 -- Subsidiaries of the Registrant (included as Exhibit 21.1 to
Registrant's Registration Statement on Form S-4 (Reg. No.
33-57645) and incorporated herein by reference)
1
Dividends. The DGCL permits a corporation to declare and pay dividends out
of surplus or, if there is no surplus, out of net profits for the fiscal year in
which the dividend is declared and/or for the preceding fiscal year as long as
the amount of capital of the corporation following the declaration and payment
of the dividend is not less than the aggregate amount of the capital represented
by the issued and outstanding stock of all classes having a preference upon the
distribution of assets. In addition, the DGCL generally provides that a
corporation may redeem or repurchase its shares only if such redemption or
repurchase would not impair the capital of the corporation or if it repurchases
shares having a preference upon the distribution of any of its assets that it
retires such shares upon acquisition (and provided, that after any reduction in
capital made in connection with such retirement of shares, the corporation's
remaining assets are sufficient to pay any debts not otherwise provided for).
The MGCL permits a corporation to make a distribution, including dividends,
redemptions or stock repurchases, unless prohibited by its charter or if
following such distribution, the corporation would not be able to pay its debts
in the ordinary course as they become due or the corporation's total assets
would be less than the sum of its liabilities and, unless the charter provides
otherwise, senior liquidation preferences. For purposes of determining whether a
distribution is lawful, the corporation's assets may be based upon fair value or
any other method of valuation that is reasonable under the circumstances.
Right to Examine Stockholder List. In compliance with the requirements of
the DGCL, the Lockheed Bylaws provide that stockholders have a right for a
period of ten days prior to any stockholder meeting and during such meeting, to
examine a list of stockholders of Lockheed, arranged in alphabetical order and
showing the address and the number of shares held by such stockholder, for any
purpose germane to such meeting. Further, under the DGCL, any stockholder,
following a written request, has the right to inspect the corporation's books
and records, including the stockholder list, during usual business hours for a
proper purpose.
Under the MGCL, any one or more persons who for at least six months have
been the record holders of at least 5% of any class of stock are entitled to
inspect and copy (among other things) the corporation's stock ledger and if the
corporation does not maintain its stock ledger at its principal place of
business, to request in writing a stockholder list. Following such request, the
corporation has 20 days to produce a stockholder list with names, addresses and
number of shares owned. In addition, under the Lockheed Martin Bylaws, the
Secretary of the corporation must furnish a stockholder list at each meeting.
Interested Director Transactions. Under both the DGCL and the MGCL, certain
contracts or transactions in which one or more of a corporation's directors has
an interest are not void or voidable because of such interest provided that
certain conditions are met. Under the DGCL and the MGCL, any such contract or
transaction may be ratified by the stockholders (as set forth below) or a
majority of disinterested members of the board of directors or a committee
thereof if (a) the material facts are disclosed or known thereto, or (b) the
contract or transaction was fair (and under the MGCL, reasonable) to the
corporation at the time it was approved. Under the DGCL, any ratification of
such a contract or transaction by the stockholders must be made by a majority of
all stockholders in good faith. Under the MGCL, such ratification must be made
by a majority of the disinterested stockholders.
Preemptive Rights. Under the DGCL, stockholders have no preemptive rights
unless such rights are provided for in the certificate of incorporation. Under
the MGCL, subject to several statutory exceptions and the power of the
corporation to deny preemptive rights in its charter, stockholders have
preemptive rights. The Lockheed Martin Charter denies preemptive rights to
holders of any class of stock.
DESCRIPTION OF LOCKHEED MARTIN CAPITAL STOCK
The summary of the terms of the stock of Lockheed Martin set forth below
does not purport to be complete and is subject to and qualified in its entirety
by reference to the Lockheed Martin Charter and the Lockheed Martin Bylaws.
Copies of the Lockheed Martin Charter and the Lockheed Martin Bylaws, in
substantially the forms to be adopted prior to the consummation of the
Combination, are attached as
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Exhibits A and B, respectively, to the Reorganization Agreement which is
attached to this Joint Proxy Statement/Prospectus as Appendix I.
AUTHORIZED CAPITAL STOCK
Under the Lockheed Martin Charter, the total number of shares of all
classes of stock that Lockheed Martin has authority to issue is 820,000,000
shares, of which 750,000,000 are shares of Lockheed Martin Common Stock,
20,000,000 are shares of Lockheed Martin Series A Preferred Stock, and
50,000,000 are shares of Lockheed Martin Series Preferred Stock.
The additional shares of authorized stock available for issuance by
Lockheed Martin might be issued at such times and under such circumstances as to
have a dilutive effect on earnings per share and on the equity ownership of the
holders of Lockheed Martin Common Stock. The ability of the Lockheed Martin
Board to issue additional shares of stock could enhance the Lockheed Martin
Board's ability to negotiate on behalf of the stockholders in a takeover
situation and also could be used by the Lockheed Martin Board to make a change
in control more difficult, thereby denying stockholders the potential to sell
their shares at a premium and entrenching current management.
COMMON STOCK
Subject to any preferential rights of the Lockheed Martin Series A
Preferred Stock or any series of Lockheed Martin Series Preferred Stock, holders
of shares of Lockheed Martin Common Stock will be entitled to receive dividends
on such stock out of assets legally available for distribution when, as and if
authorized and declared by the Lockheed Martin Board and to share ratably in the
assets of Lockheed Martin legally available for distribution to its stockholders
in the event of its liquidation, dissolution or winding-up. Lockheed Martin will
not be able to pay any dividend or make any distribution of assets on shares of
Lockheed Martin Common Stock until cumulative dividends on shares of the
Lockheed Martin Series A Preferred Stock and on any other shares of Lockheed
Martin Series Preferred Stock then outstanding with dividend or distribution
rights senior to the Lockheed Martin Common Stock have been paid. See "THE
REORGANIZATION AGREEMENT -- Lockheed Martin Following Combination" with respect
to the anticipated initial quarterly dividend on the Lockheed Martin Common
Stock.
Holders of Lockheed Martin Common Stock will be entitled to one vote per
share on all matters voted on generally by the stockholders, including the
election of directors, and, except as otherwise required by law or except as
provided with respect to the Lockheed Martin Series A Preferred Stock or any
series of Lockheed Martin Series Preferred Stock, the holders of such shares
will possess all voting power. See "-- Series A Preferred Stock -- Voting
Rights." The Lockheed Martin Charter does not provide for cumulative voting for
the election of directors except as described under "-- Certain Antitakeover
Effects of Lockheed Martin Charter and Bylaws and Maryland Law -- Prohibition on
Payment of Greenmail; Cumulative Voting for Directors." Thus, the holders of
more than one-half of the outstanding shares of Lockheed Martin Common Stock
generally will be able to elect all the directors of Lockheed Martin then
standing for election and holders of the remaining shares will not be able to
elect any director.
The shares of Lockheed Martin Common Stock, when issued to holders of
outstanding shares of Lockheed Common Stock or Martin Marietta Common Stock in
connection with the Combination, or when issued upon conversion of shares of the
Lockheed Martin Series A Preferred Stock, will be validly issued, fully paid and
non-assessable.
Holders of Lockheed Martin Common Stock will have no preferences,
preemptive, conversion, or exchange rights.
SERIES A PREFERRED STOCK
The shares of Lockheed Martin Series A Preferred Stock, when issued to the
holder of the outstanding shares of Martin Marietta Series A Preferred Stock in
connection with the Combination, will be validly issued, fully paid and
non-assessable.
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Designation and Amount
The Lockheed Martin Series A Preferred Stock will have a par value of $1.00
per share and a liquidation preference of $50 per share, plus accrued and unpaid
dividends. The authorized number of shares of Lockheed Martin Series A Preferred
Stock is 20,000,000. The terms of the Lockheed Martin Marietta Series A
Preferred Stock are essentially the same as those of the Martin Marietta Series
A Preferred Stock issued to GE on April 2, 1993.
Rank
With respect to dividend rights and rights on liquidation, dissolution and
winding up, the Lockheed Martin Series A Preferred Stock will rank senior to all
other classes of stock of Lockheed Martin except those classes of preferred
stock expressly designated as ranking on a parity with the Lockheed Martin
Series A Preferred Stock.
Dividends
Preferential cash dividends at the per share rate of $.75 per quarter will
accrue (whether or not declared and whether or not funds are legally available
for payment) from the last quarterly dividend payment date on which dividends
have been paid with respect to the Martin Marietta Series A Preferred Stock,
will be cumulative and will compound quarterly, to the extent they are unpaid,
at the rate of 6% per annum computed on the basis of a 360-day year of twelve
30-day months. Holders of shares of Lockheed Martin Series A Preferred Stock are
not entitled to any other dividends.
Redemption
Upon the giving of specified notice, on or after April 2, 1998, Lockheed
Martin, at its option, will be entitled to redeem any or all shares of Lockheed
Martin Series A Preferred Stock, at a redemption price of $50 per share, plus an
amount equal to accrued and unpaid dividends thereon to and including the date
of redemption (the "Redemption Price"), but only if the Average Closing Price
(as described below) of Lockheed Martin Common Stock (calculated as of the
record date fixed for notifying holders of such redemption) equals or exceeds
the applicable percentage of the Conversion Price (as described below) set forth
opposite the date that occurs on or that immediately preceded such record date:
PERCENTAGE OF
APRIL 2 CONVERSION PRICE
-------------------------------------------------------------- ----------------
1998.......................................................... 130.0%
1999.......................................................... 122.5%
2000.......................................................... 115.0%
2001.......................................................... 107.5%
2002 and thereafter........................................... 100.0%
The "Average Closing Price" per share of Lockheed Martin Common Stock on
any day shall be deemed to be the average of the closing prices for Lockheed
Martin Common Stock for the 20 consecutive trading days commencing 30 trading
days before the day in question, with each day's closing sale price being the
reported last sale price regular way or, in case no such reported sale takes
place on such day, the average of the reported closing bid and asking prices, in
either case on the NYSE.
In lieu of paying the Redemption Price in cash, Lockheed Martin may, at its
sole option, pay such Redemption Price in shares of Lockheed Martin Common
Stock. The number of shares of Lockheed Martin Common Stock issuable in lieu of
a cash payment of the Redemption Price will be the number of fully paid and
nonassessable shares of Lockheed Martin Common Stock as will have an aggregate
Average Closing Price as of the redemption date equal to the aggregate
liquidation preference of the shares of Lockheed Martin Series A Preferred Stock
being redeemed.
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Within 15 days of its receipt of notice of a redemption payable in shares
of Lockheed Martin Common Stock, each holder of Lockheed Martin Series A
Preferred Stock will have the right to elect not to retain such Lockheed Martin
Common Stock and to request a Backstop Registration (as described below) of some
or all of the shares of Lockheed Martin Common Stock to be received in the
redemption (the "Redemption Common Stock"). A holder's failure to timely so
request Backstop Registration will be deemed to be an election by the holder to
retain such Lockheed Martin Common Stock.
A Backstop Registration for shares of Lockheed Martin Common Stock issued
in lieu of a redemption in cash will be conducted substantially in the manner
described under "STANDSTILL AGREEMENT -- Special Liquidity
Provisions -- Backstop Registration."
When the Backstop Registration has been completed, the net proceeds thereof
will be distributed to the holders who requested the Backstop Registration pro
rata in respect of their interests in the Lockheed Martin Common Stock subject
to the Backstop Registration. Any such Backstop Registration not consummated
within six months will be deemed to have been abandoned. To the extent the net
proceeds per share from such Backstop Registration are less than the sum of the
Redemption Price and the interest on such Redemption Price (at an annual rate
published by the Board of Governors of the Federal Reserve System for U.S.
Treasury Bonds maturing 10 years from the applicable redemption date) from the
applicable redemption date to and including the date of payment in respect of a
requesting holder's redeemed shares of Lockheed Martin Series A Preferred Stock,
Lockheed Martin will pay to the requesting holder an amount in cash equal to the
applicable difference.
Conversion Rights
The holders of shares of Lockheed Martin Series A Preferred Stock will have
the right, at their option, to convert each share into such number of fully paid
and nonassessable shares of Lockheed Martin Common Stock as is determined by
dividing $50 by the Conversion Price (as defined below) in effect at the time of
conversion. As of the Merger Date, the "Conversion Price" for the Lockheed
Martin Series A Preferred Stock will be $34.5525. The Conversion Price will be
subject to anti-dilution adjustments as described below under "Anti-Dilution
Provisions."
Anti-Dilution Provisions
The number of shares of stock into which each share of Lockheed Martin
Series A Preferred Stock is convertible will be subject to certain anti-dilution
adjustments upon the occurrence of certain events such as (i) stock dividends or
other distributions on the Lockheed Martin Common Stock or other stock of
Lockheed Martin payable in Lockheed Martin Common Stock, (ii) stock splits,
reverse stock splits, share exchanges or reclassifications affecting the
Lockheed Martin Common Stock, (iii) certain issuances of Lockheed Martin Common
Stock (or rights, warrants or securities convertible or exchangeable into
Lockheed Martin Common Stock) at a price per share (or having a conversion or
exercise price per share) less than the Average Closing Price of Lockheed Martin
Common Stock on the date of issuance, (iv) distributions to holders of Lockheed
Martin Common Stock or any other class of stock of Lockheed Martin of evidences
of indebtedness or assets of Lockheed Martin (excluding any regular quarterly
dividend of Lockheed Martin paid in cash out of the consolidated earnings or
consolidated retained earnings of Lockheed Martin in an amount not exceeding
125% of the average of the four regular quarterly dividends paid by Lockheed
Martin for the immediately preceding four quarters (including for this purpose
dividends paid by Martin Marietta prior to the Merger Date)), and (v)
repurchases, by Lockheed Martin or any of its subsidiaries, by self tender offer
or otherwise, of any shares of Lockheed Martin Common Stock at a weighted
average purchase price in excess of the Average Closing Price immediately prior
to such repurchase.
Voting Rights
Except as otherwise provided below or as required by law, the holders of
shares of Lockheed Martin Series A Preferred Stock will not be entitled to vote
on any matter on which the holders of any voting securities of Lockheed Martin
will be entitled to vote.
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Upon a default with respect to Lockheed Martin's senior bank facility (if
any) or any successor thereto or replacement thereof (as amended from time to
time, the "Senior Bank Facility") that is not substantially cured within six
months from the declaration thereof pursuant to the Senior Bank Facility (but
without regard to any waivers granted by the lenders under such Senior Bank
Facility) (a "Bank Debt Default"), the holders of the Lockheed Martin Series A
Preferred Stock, voting as a separate class, will be entitled to elect the
smallest number of directors of the Lockheed Martin Board that shall constitute
no less than 25% of the authorized number of directors of the Lockheed Martin
Board until the Bank Debt Default is cured, or until GE is no longer entitled to
designate any directors of Lockheed Martin pursuant to the Standstill Agreement,
whichever first occurs. Following expiration of such rights of GE under the
Standstill Agreement, the holders of the Lockheed Martin Series A Preferred
Stock will have only the voting rights described below and as otherwise required
by law. See "THE STANDSTILL AGREEMENT -- Voting."
In the event that dividends payable on the Lockheed Martin Series A
Preferred Stock are in arrears for six quarters (whether or not consecutive)(a
"Preferred Dividend Default") and if the holders of the Lockheed Martin Series A
Preferred Stock are not then represented on the Lockheed Martin Board by
directors elected as a result of a Bank Debt Default, until the Preferred
Dividend Default is cured, a majority in interest of the holders of Lockheed
Martin Series A Preferred Stock, voting separately as a class with holders of
shares of any other class of preferred stock upon which like voting rights have
been conferred, will be entitled to elect two additional directors of Lockheed
Martin.
In the event of any merger, consolidation, business combination or share
exchange involving Lockheed Martin or any sale, lease or conveyance of all or
substantially all of the assets of Lockheed Martin upon which the holders of
Lockheed Martin Common Stock are entitled to vote, the holder of each share of
Lockheed Martin Series A Preferred Stock will be entitled to vote together with
the holders of shares of Lockheed Martin Common Stock and to cast the number of
votes equal to the number of shares of Lockheed Martin Common Stock into which
such shares of Lockheed Martin Series A Preferred Stock are then convertible;
provided, however, that the holders of the Lockheed Martin Series A Preferred
Stock will not be entitled to vote upon acquisitions which, within any 12-month
period, do not (i) involve greater than an aggregate of $25 million of
transaction value (including assumed liabilities, whether contingent or not) or
(ii) adversely affect the economic or legal position of the holders of Lockheed
Martin Series A Preferred Stock or their rights, preferences, privileges or
voting powers.
So long as any shares of the Lockheed Martin Series A Preferred Stock
remain outstanding, the consent of the holders of at least 66 2/3% of the shares
of Lockheed Martin Series A Preferred Stock then outstanding (voting separately
as a class) given in person or by proxy, at any special or annual meeting called
for such purpose, or by written consent as permitted by law and the Lockheed
Martin Charter and Lockheed Martin Bylaws, will be necessary to amend, alter or
repeal any of the provisions of the Lockheed Martin Charter which would
adversely affect any right, preference, privilege, or voting power of Lockheed
Martin Series A Preferred Stock or of the holders thereof; provided, however,
that any such amendment, alteration or repeal that would authorize, create or
issue any additional shares of preferred stock or any other shares of stock
(whether or not already authorized) ranking on a parity with or junior to the
Lockheed Martin Series A Preferred Stock as to dividends and on the distribution
of assets upon liquidation, dissolution or winding up, will be deemed not to
materially and adversely affect such rights, preferences, privileges or voting
powers.
Liquidation Rights
Subject to the rights of holders of Lockheed Martin Series Preferred Stock
ranking on a parity with the Lockheed Martin Series A Preferred Stock, upon any
dissolution, liquidation or winding up of the affairs of Lockheed Martin,
whether voluntary or involuntary (collectively, a "Liquidation"), the holders of
shares of Lockheed Martin Series A Preferred Stock will be entitled to receive
liquidating distributions in the amount of $50 per share, plus an amount equal
to all dividends accrued and unpaid thereon to the date of Liquidation, before
any distribution or payment is made to holders of Lockheed Martin Common Stock
or on any other class of stock of Lockheed Martin ranking junior as to dividends
or assets distributable upon Liquidation to the holders of shares of Lockheed
Martin Series A Preferred Stock. After the payment to the holders of the
Lockheed Martin Series A Preferred Stock of the full preferential amounts
described above, the holders of the
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Lockheed Martin Series A Preferred Stock will not be entitled to any further
participation in any distribution or payment by Lockheed Martin.
Neither the merger or consolidation of Lockheed Martin into or with any
other corporation, nor the merger or consolidation of any other corporation into
or with Lockheed Martin, nor a sale, transfer or lease of all or any part of the
assets of Lockheed Martin, will, without further corporate action, be deemed to
be a Liquidation.
Tax Provisions
Lockheed Martin will treat the Lockheed Martin Series A Preferred Stock as
equity (not debt) for all federal, state, local and other tax purposes. Lockheed
Martin will use its reasonable best efforts to ensure that it has adequate
earnings and profits, within the meaning of Section 312 of the Code, or any
successor provision, to ensure that all dividend distributions on the Lockheed
Martin Series A Preferred Stock and all distributions in redemption of the
Lockheed Martin Series A Preferred Stock that are treated as distributions with
respect to stock under Section 302(d) of the Code (or any successor provisions)
will be treated as dividends within the meaning of Section 316 of the Code (or
any successor provision); provided that such reasonable best efforts do not
require Lockheed Martin to incur any material out-of-pocket costs unless such
costs are reimbursed by GE.
Certain Potential Antitakeover Effects of the Lockheed Martin Series A
Preferred Stock
Although the issuance of shares of Lockheed Martin Series A Preferred Stock
to GE in connection with the Combination is not intended as an antitakeover
device, it should be noted that such issuance, and the issuance of Lockheed
Martin Common Stock or other securities into which the Lockheed Martin Series A
Preferred Stock is convertible or exchangeable and the provisions of the
Standstill Agreement, may have certain antitakeover effects. It may discourage
or render more difficult a merger, tender offer or proxy contest involving
Lockheed Martin or deter a third party from seeking to acquire control of
Lockheed Martin. See "THE STANDSTILL AGREEMENT -- Voting" and "-- Certain
Antitakeover Effects of Lockheed Martin Charter and Bylaws and Maryland Law."
SERIES PREFERRED STOCK
The Lockheed Martin Board is authorized to issue shares of Lockheed Martin
Series Preferred Stock, in one or more series or classes, and to fix for each
such series or class the preferences, conversion or other rights, voting powers,
restrictions, limitations as to dividends, qualifications, or terms or
conditions of redemption, as are permitted by Maryland law. The Lockheed Martin
Board could authorize the issuance of shares of Lockheed Martin Series Preferred
Stock with terms and conditions which could discourage a takeover or other
transaction that holders of some or a majority of shares of Lockheed Martin
Common Stock might believe to be in their best interests or in which such
holders might receive a premium for their shares of stock over the then market
price of such shares. As of the date hereof, no shares of Lockheed Martin Series
Preferred Stock are outstanding and the Lockheed Martin Board has no present
intent to issue any shares of Lockheed Martin Series Preferred Stock after the
Merger Date.
PREEMPTIVE RIGHTS
No holder of any shares of any class of stock of Lockheed Martin will have
any preemptive or preferential right to acquire or subscribe for any unissued
shares of any class of stock or any authorized securities convertible into or
carrying any right, option or warrant to subscribe for or acquire shares of any
class of stock.
TRANSFER AGENT AND REGISTRAR
The principal transfer agent and registrar for Lockheed Martin Common Stock
will be First Chicago Trust Company of New York.
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CERTAIN ANTITAKEOVER EFFECTS OF LOCKHEED MARTIN CHARTER AND BYLAWS AND MARYLAND
LAW
General
Certain provisions of the Lockheed Martin Charter and Bylaws may have the
effect of impeding the acquisition of control of Lockheed Martin by means of a
tender offer, a proxy fight, open market purchases or otherwise in a transaction
not approved by the Lockheed Martin Board.
The provisions of the Lockheed Martin Charter and Bylaws described below
are designed to reduce the vulnerability of Lockheed Martin to an unsolicited
proposal for the restructuring or sale of all or substantially all of the assets
of Lockheed Martin or an unsolicited takeover attempt which does not provide
that all of Lockheed Martin's outstanding shares will be acquired or which is
otherwise unfair to Lockheed Martin stockholders. The summary of such provisions
set forth below does not purport to be complete and is subject to and qualified
in its entirety by reference to the Lockheed Martin Charter and Bylaws.
The Lockheed Martin Board is not presently aware of any attempt to bring
about a change in control of Lockheed Martin and has no present intention to
introduce additional measures which might have an anti-takeover effect. The
Lockheed Martin Board, however, expressly reserves the right to introduce such
measures in the future.
Removal of Directors
The Lockheed Martin Charter provides that a director may be removed by the
stockholders only for cause and only by the affirmative vote of at least 80% of
the votes entitled to be cast in the election of directors. This provision
precludes stockholders from removing incumbent directors and filling the
vacancies created by such removal with their own nominees except upon a
substantial affirmative vote. This provision may be amended or repealed only by
the affirmative vote of at least 80% of the votes entitled to be cast in the
election of directors.
Business Combinations
Under the MGCL, certain "business combinations" (including a merger,
consolidation, share exchange, or, in certain circumstances, an asset transfer
or issuance or reclassification of equity securities) between a Maryland
corporation and (i) any person who beneficially owns 10% or more of the voting
power of the corporation's shares, (ii) an affiliate of such corporation who, at
any time within the two-year period prior to the date in question, was the
beneficial owner of 10% or more of the voting power of the then-outstanding
voting stock of the corporation (in either case, an "interested stockholder"),
or (iii) any affiliate of an interested stockholder, are prohibited for five
years after the most recent date on which the interested stockholder became an
interested stockholder, and thereafter must be recommended by the board of
directors of the Maryland corporation and approved by the affirmative vote of at
least (a) 80% of the votes entitled to be cast by holders of its outstanding
voting shares, and (b) two-thirds of the votes entitled to be cast by holders of
such outstanding voting shares, other than shares held by the interested
stockholder with whom the business combination is to be effected; unless, among
other things, the corporation's stockholders receive a minimum price (as defined
in the MGCL) for their shares and the consideration is received in cash or in
the same form as previously paid by the interested stockholder for its shares.
These provisions of the MGCL do not apply to business combinations that are
approved or exempted by the board of directors of the corporation prior to the
time that the interested stockholder becomes an interested stockholder.
Lockheed Martin will generally be governed by the MGCL's business
combinations statute. However, the Lockheed Martin Board has exempted any
business combination with GE from its application.
In addition to the MGCL requirements, the Lockheed Martin Charter also
contains a provision requiring that any business combination between Lockheed
Martin and a Related Person must be approved by 80% of the outstanding shares of
Voting Stock and by two-thirds of the outstanding shares of Voting Stock not
owned by the Related Person. This provision does not apply to a business
combination approved by a two-thirds vote of the directors in office prior to
the time a Related Person becomes a Related Person (and certain other directors
designated from time to time as "Continuing Directors") or if the consideration
received by the
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stockholders other than the Related Person is not less than the highest price
per share paid by the Related Person prior to the business combination and a
proxy statement complying with the regulations of the Exchange Act shall have
been sent to all stockholders. Under the Lockheed Martin Charter, this provision
may be amended only by the same two supermajority votes required for approval of
a business combination. The Lockheed Martin Charter provides that Lockheed and
Martin Marietta and certain of their subsidiaries are not Related Persons for
purposes of this provision.
Control Share Acquisitions
The MGCL provides that "control shares" of a Maryland corporation acquired
in a "control share acquisition" have no voting rights except to the extent
approved by a vote of two-thirds of the votes entitled to be cast by
stockholders in the election of directors, excluding shares of stock as to which
the acquiring person, officers of the corporation and directors of the
corporation who are employees of the corporation are entitled to exercise or
direct the exercise of the voting power of the shares in the election of
directors. "Control shares" are voting shares of stock which, if aggregated with
all other shares of stock previously acquired by such person, would entitle the
acquiror to exercise voting power in electing directors within one of the
following ranges of voting power: (i) one-fifth or more but less than one-third,
(ii) one-third or more but less than a majority or (iii) a majority of all
voting power. Control shares do not include shares which the acquiring person is
entitled to vote as a result of having previously obtained stockholder approval.
A "control share acquisition" means the acquisition, directly or indirectly, of
control shares, subject to certain exceptions.
A person who has made or proposes to make a control share acquisition, upon
satisfaction of certain conditions (including an undertaking to pay expenses),
may compel the board of directors to call a special meeting of stockholders to
be held within 50 days of demand to consider the voting rights of the shares.
If voting rights are not approved at the meeting or if the acquiror does
not deliver an acquiring person statement as required by the statute, then
subject to certain conditions and limitations, the corporation may redeem any or
all of the control shares, except those for which voting rights have previously
been approved, for fair value determined, without regard to voting rights, as of
the date of the last control share acquisition or of any meeting of stockholders
at which the voting rights of such shares are considered and not approved. If
voting rights for control shares are approved at a stockholders' meeting and the
acquiror becomes entitled to vote a majority of the shares entitled to vote, all
other stockholders may exercise appraisal rights. The fair value of the shares
as determined for purposes of such appraisal rights may not be less than the
highest price per share paid in the control share acquisition, and certain
limitations and restrictions generally applicable to the exercise of appraisal
rights do not apply in the context of a control share acquisition.
The control share acquisition statute does not apply to shares acquired in
a merger, consolidation or share exchange if the corporation is a party to the
transaction or to acquisitions approved or excepted by the charter or the bylaws
of the corporation.
The business combination statute and the control share acquisition statute
could have the effect of discouraging unsolicited offers to acquire Lockheed
Martin and of increasing the difficulty of consummating any such offer.
Prohibition on Payment of Greenmail; Cumulative Voting for Directors
The Lockheed Martin Charter contains a provision requiring that any
purchase by Lockheed Martin of shares of Voting Stock from an Interested
Stockholder (as defined in such provision, any person who has been a beneficial
owner for less than two years of 5% or more of outstanding shares of Voting
Stock) other than pursuant to an offer to holders of all the outstanding shares
of the same class at a price in excess of the market price of the stock on the
day immediately preceding the purchase, must first be approved by the
affirmative vote of holders of a majority of outstanding shares of Voting Stock
not owned by such Interested Stockholder. Under the Lockheed Martin Charter,
this provision may be amended or repealed only by the affirmative vote of
holders of at least 80% of the outstanding shares of Voting Stock.
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The Lockheed Martin Charter further provides that if any person (other than
Lockheed Martin or certain of its affiliates) beneficially owns Voting Stock
representing 40% or more of the votes entitled to be cast by all the holders of
outstanding shares of Voting Stock, (i) the directors of Lockheed Martin will be
elected by cumulative voting, and (ii) one or more candidates may be nominated
by certain disinterested directors, or by any beneficial owner of Voting Stock
having an aggregate market price of $250,000 or more.
Advance Notice of Director Nominations and New Business
The Lockheed Martin Bylaws provide that (i) with respect to annual meetings
of stockholders, nominations of persons for election to the Lockheed Martin
Board and the proposal of business to be considered by stockholders may be made
only (a) pursuant to Lockheed Martin's notice of the meeting, (b) by or at the
direction of the Lockheed Martin Board or (c) by a stockholder who has complied
with the advance notice procedures set forth in the Lockheed Martin Bylaws and
is entitled to vote at the meeting; and (ii) with respect to special meetings of
stockholders, only the business specified in Lockheed Martin's notice of meeting
may be brought before the meeting. Nominations of persons for election to the
Lockheed Martin Board may be made at a special meeting of stockholders at which
directors are to be elected pursuant to Lockheed Martin's notice of meeting only
(i) by or at the direction of the Lockheed Martin Board, or (ii) by a
stockholder who has complied with the advance notice provisions set forth in the
Lockheed Martin Bylaws and is entitled to vote at the meeting.
Right to Examine Stockholder List
Under the MGCL, any one or more persons who for at least six months have
been the record holders of at least 5% of any class of stock are entitled to
inspect and copy the corporation's stock ledger and if the corporation does not
maintain its stock ledger at its principal place of business, to request in
writing a stockholder list. See "COMPARISON OF STOCKHOLDERS'
RIGHTS -- Comparison of Stockholder Rights with Respect to Lockheed Martin and
Lockheed -- Right to Examine Stockholder List."
Effect of Certain Provisions
The provisions in the Lockheed Martin Charter on removal of directors,
payment of greenmail, cumulative voting for directors in the event that a
stockholder owns 40% or more of the Voting Stock, and the business combinations,
control share acquisition and right to examine stockholder list provisions of
MGCL, and the advance notice provisions of the Lockheed Martin Bylaws, could
have the effect of delaying, deterring or preventing a change in control of
Lockheed Martin. In addition, the Lockheed Martin Omnibus Plan contains
provisions applicable to a change of control situation. See "LOCKHEED MARTIN
1995 OMNIBUS PERFORMANCE AWARD PLAN."
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