|
Exhibit 1.1
EXECUTION
COPY
Lockheed Martin
Corporation
4.121% Notes due
2013
Underwriting
Agreement
March 11,
2008
Goldman, Sachs &
Co.,
As
representative of the several Underwriters
named in
Schedule I hereto,
c/o Goldman, Sachs &
Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
Lockheed Martin Corporation,
a Maryland corporation (the “Company”), proposes,
subject to the terms and conditions stated herein, to issue and
sell to the Underwriters named in Schedule I hereto (the
“Underwriters”) an aggregate of $500,000,000 principal
amount of 4.121% Notes due 2013 of the Company (the
“Securities”).
1. The Company represents and
warrants to, and agrees with, each of the Underwriters
that:
(a) An “automatic shelf
registration statement” as defined under Rule 405 under the
Securities Act of 1933, as amended (the “Act”) on Form
S-3 (File No. 333-149630) in respect of the Securities has
been filed by the Company with the Securities and Exchange
Commission (the “Commission”) not earlier than three
years prior to the date hereof; such registration statement, and
any post-effective amendment thereto, became effective on filing;
and no stop order suspending the effectiveness of such registration
statement or any part thereof has been issued and no proceeding for
that purpose has been initiated or, to the knowledge of the
Company, has been threatened by the Commission, and no notice of
objection of the Commission to the use of such registration
statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Act has been received by the Company (the base
prospectus filed as part of such registration statement, in the
form in which it has most recently been filed with the Commission
on or prior to the date of this Agreement, is hereinafter called
the “Basic Prospectus”; any preliminary prospectus
supplement relating
to the Securities filed with
the Commission pursuant to Rule 424(b) under the Act together with
the Basic Prospectus is hereinafter called a “Preliminary
Prospectus”; the various parts of such registration
statement, including all exhibits thereto but excluding Form T-1
and including any prospectus supplement relating to the Securities
that is filed with the Commission and deemed by virtue of Rule 430B
under the Act to be part of such registration statement, each as
amended at the time such part of the registration statement became
effective, are hereinafter collectively called the
“Registration Statement”; the Basic Prospectus, as
amended and supplemented immediately prior to the Applicable Time
(as defined in Section 1(c) hereof), is hereinafter called the
“Pricing Prospectus”; the form of the final prospectus
relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the Act in accordance with Section 5(a)
hereof is hereinafter called the “Prospectus”; any
reference herein to the Registration Statement, the Basic
Prospectus, the Pricing Prospectus, any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Act, as of the date of the
Registration Statement or such prospectus; any reference herein to
any amendment or supplement to the Basic Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include any post-effective amendment to the Registration
Statement, any prospectus supplement relating to the Securities
filed with the Commission pursuant to Rule 424(b) under the Act and
any documents filed under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), and incorporated by
reference therein, in each case after the date of the Basic
Prospectus, such Preliminary Prospectus, or the Prospectus, as the
case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report
of the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Registration Statement
that is incorporated by reference in the Registration Statement;
and any “issuer free writing prospectus” as defined in
Rule 433 under the Act relating to the Securities is hereinafter
called an “Issuer Free Writing Prospectus”);
(b) No order preventing or
suspending the use of any Preliminary Prospectus or any Issuer Free
Writing Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in
all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder, and did not contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through
Goldman, Sachs & Co. expressly for use therein;
2
(c) For the purposes of this
Agreement, the “Applicable Time” is 1:00 pm (Eastern
time) on the date of this Agreement; the Pricing Prospectus as
supplemented by the final term sheet in the form attached as
Schedule III hereto and to be filed pursuant to Section 5(a)
hereof, taken together (collectively, the “Pricing Disclosure
Package”) as of the Applicable Time, did not include any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; and each Issuer Free Writing Prospectus listed on
Schedule II(a) hereto does not conflict with the information
contained or incorporated by reference in the Registration
Statement, the Pricing Prospectus or the Prospectus and each such
Issuer Free Writing Prospectus, as supplemented by and taken
together with the Pricing Disclosure Package as of the Applicable
Time, did not include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that this
representation and warranty shall not apply to statements or
omissions made in the Pricing Disclosure Package or an Issuer Free
Writing Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
through Goldman, Sachs & Co. expressly for use
therein;
(d) The documents
incorporated by reference in the Pricing Prospectus and the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the Act or the Exchange Act, as applicable,
and the applicable rules and regulations of the Commission
thereunder, and when read together with other information in the
Registration Statement, the Pricing Prospectus and the Prospectus,
at the respective times they became effective or were filed with
the Commission, did not contain an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the Commission,
as the case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through
Goldman, Sachs & Co. expressly for use therein; and no
such documents were filed with the Commission since the
Commission’s close of business on the business day
immediately prior to the date of this Agreement and prior to the
execution of this Agreement, except as set forth on Schedule II(b)
hereto;
3
(e) The Registration
Statement conforms, and the Prospectus and any further amendments
or supplements to the Registration Statement and the Prospectus
will conform, in all material respects to the requirements of the
Act and the Trust Indenture Act of 1939, as amended (the
“Trust Indenture Act”), and the rules and regulations
of the Commission thereunder and do not and will not, as of the
applicable effective date as to each part of the Registration
Statement and as of the applicable filing date and as of the Time
of Delivery as to the Prospectus and any amendment or supplement
thereto, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to (i) any
statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an
Underwriter through Goldman, Sachs & Co. expressly for use
therein or (ii) any statements in or omissions from the part
of the Registration Statement that shall constitute the Statement
of Eligibility and Qualification under the Trust Indenture Act
(Form T-1) of the Trustee under the Indenture;
(f)(i) The Company and its
subsidiaries taken as a whole have not sustained since the date of
the latest audited financial statements included or incorporated by
reference in the Pricing Prospectus any material loss or material
interference with their business from fire, explosion, flood or
other calamity or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or
contemplated in the Pricing Prospectus; and (ii) since the
respective dates as of which information is given in the
Registration Statement and the Pricing Prospectus, there has not
been any material adverse change in the capital stock or long-term
debt of the Company and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Pricing
Prospectus and (iii) since the respective dates as of which
information is given in the Registration Statement and the Pricing
Prospectus there shall not have been any material adverse change,
or any development involving a prospective material adverse change,
in or affecting the general affairs, management, financial
position, stockholders’ equity or results of operations of
the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business,
otherwise than as set forth or contemplated in the Pricing
Prospectus;
(g) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Maryland, with the
corporate power and authority to own its properties and conduct its
business as described in the Pricing Prospectus;
4
(h) The Securities have been
duly authorized and, when issued pursuant to the Indenture and
delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the indenture to be dated as of March 11, 2008
(the “Indenture”) between the Company and The Bank of
New York, as Trustee (the “Trustee”), under which they
are to be issued, which is substantially in the form filed as an
exhibit to the Registration Statement; the Indenture has been duly
authorized by the Company and duly qualified under the Trust
Indenture Act and, when executed and delivered by the Company and
the Trustee, the Indenture will constitute a valid and legally
binding instrument, enforceable against the Company in accordance
with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
the rights and remedies of creditors and to the effect of general
principles of equity;
(i) The issue and sale of the
Securities and the compliance by the Company with all of the
provisions of the Securities, the Indenture and this Agreement and
the consummation of the transactions herein and therein
contemplated (i) will not conflict with or result in a breach
of, or constitute a default under, any of the terms or provisions
of, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or is bound, (ii) will not result in
any violation of the provisions of the Charter or Bylaws of the
Company or (iii) will not result in any violation of any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their properties, except in the
case of clauses (i) and (iii) where the effect of such
conflict, breach or default would not be material to the Company
and its subsidiaries taken as a whole and would not adversely
affect the consummation of the transactions contemplated thereby;
and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Securities or the
consummation by the Company of the transactions contemplated by
this Agreement or the Indenture, except for those that have been
obtained or that may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the
Securities by the Underwriters;
(j) The Company is not in
violation of its Charter or Bylaws or in breach of any terms of, or
in default under, any agreement or undertaking of the Company in
any such case in which the violation, breach or default would have
a material adverse effect on the Company and its subsidiaries taken
as a whole;
(k) Other than as set forth
in the Pricing Prospectus, there are no legal or governmental
proceedings pending to which the Company is a party or of which any
property of the Company is the subject which reasonably could be
expected individually, or in the aggregate, to have a material
adverse effect on
5
the financial position,
stockholders’ equity or results of operations of the Company
and its subsidiaries, taken as a whole; and, to the Company’s
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and
(l)(A) (i) At the time
of filing the Registration Statement, (ii) at the time of the
most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to
Section 13 or 15(d) of the Exchange Act or form of
prospectus), and (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of
Rule 163(c) under the Act) made any offer relating to the
Securities in reliance on the exemption of Rule 163 under the Act,
the Company was a “well-known seasoned issuer” as
defined in Rule 405 under the Act; and (B) at the earliest
time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer
(within the meaning of Rule 164(h)(2) under the Act) of the
Securities, the Company was not an “ineligible issuer”
as defined in Rule 405 under the Act.
2. Subject to the terms and
conditions herein set forth, the Company agrees to issue and sell
to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at a
purchase price of 99.50% of the principal amount thereof, plus
accrued interest, if any, from March 14, 2008 to the Time of
Delivery (as defined below) hereunder, the principal amount of
Securities set forth opposite the name of such Underwriter in
Schedule I hereto.
3. Upon the authorization by
you of the release of the Securities, the several Underwriters
propose to offer the Securities for sale upon the terms and
conditions set forth in this Agreement and the Prospectus. The
Underwriters shall give notice to the Company when all the
Securities are sold for purposes of Section 5(c).
4. (a) The Securities to be
purchased by each Underwriter hereunder will be represented by one
or more definitive global Securities in book-entry form that will
be deposited by or on behalf of the Company with The Depository
Trust Company (“DTC”) or its designated custodian. The
Company will deliver the Securities to Goldman, Sachs &
Co., for the account of each Underwriter, against payment by or on
behalf of such Underwriter of the purchase price therefor by wire
transfer in Federal (same day) funds to the account specified by
the Company to Goldman, Sachs & Co. at least forty-eight
hours in advance, by causing DTC to credit the Securities to the
account of Goldman, Sachs & Co. at DTC. The Company will
cause the certificates representing the Securities to be made
available to Goldman, Sachs & Co. for checking at least
twenty-four hours prior to the Time of Delivery (as defined below)
at the office of DTC or its designated custodian (the
“Designated Office”). The time and date of such
delivery and payment shall be 9:30 a.m., New York City time, on
March 14, 2008 or such other time and date as Goldman,
Sachs & Co. and the Company may agree upon in writing.
Such time and date are herein called the “Time of
Delivery”.
6
(b) The documents to be
delivered at the Time of Delivery by or on behalf of the parties
hereto pursuant to Section 8 hereof, including the
cross-receipt for the Securities and any additional documents
requested by the Underwriters pursuant to Section 8(i) hereof,
will be delivered at the offices of Davis Polk & Wardwell,
450 Lexington Avenue, New York, New York 10017 (the “Closing
Location”), and the Securities will be delivered at the
Designated Office, all at the Time of Delivery. A meeting will be
held at the Closing Location at 2 p.m., New York City time, on the
New York Business Day next preceding the Time of Delivery, at which
meeting the final drafts of the documents to be delivered pursuant
to the preceding sentence will be available for review by the
parties hereto. For the purposes of this Section 4, “New
York Business Day” shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York City are generally authorized or obligated
by law or executive order to close.
5. The Company agrees with
each of the Underwriters:
(a) To prepare the Prospectus
in a form approved by you and to file such Prospectus pursuant to
Rule 424(b) under the Act not later than the Commission’s
close of business on the second business day following the date of
this Agreement; to make no further amendment or any supplement to
the Registration Statement, the Basic Prospectus or the Prospectus
prior to the Time of Delivery which shall be disapproved by you in
your reasonable judgment promptly after reasonable notice thereof;
to advise you, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been
filed or becomes effective or any amendment or supplement to the
Prospectus has been filed and to furnish you with copies thereof;
to file the term sheet attached hereto as Schedule III pursuant to
Rule 433(d) under the Act within the time required by such Rule; to
file promptly all other material required to be filed by the
Company with the Commission pursuant to Rule 433(d) under the Act;
to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of the Prospectus and for
so long as the delivery of a prospectus (or in lieu thereof, the
notice referred to in Rule 173(a) under the Act) is required under
the Act in connection with the offering or sale of the Securities;
to advise you during the period the delivery of a prospectus (or in
lieu thereof, the notice referred to in Rule 173(a) under the Act)
is required under the Act in connection with the offering or sale
of the Securities, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or
other prospectus in respect of the Securities, of any notice of
objection of the Commission to the use of the Registration
Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Act, of the suspension of the qualification of
the Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such
7
purpose, or of any request by
the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or
of any order preventing or suspending the use of any Preliminary
Prospectus or other prospectus or suspending any such
qualification, to promptly use all reasonable efforts to obtain the
withdrawal of such order; and in the event of any such issuance of
a notice of objection, promptly to take such steps including,
without limitation, amending the Registration Statement or filing a
new registration statement, at its own expense, as may be necessary
to permit offers and sales of the Securities by the Underwriters
(references herein to the Registration Statement shall include any
such amendment or new registration statement);
(b) If required by Rule
430B(h) under the Act, to prepare a form of prospectus in a form
approved by you and to file such form of prospectus pursuant to
Rule 424(b) under the Act not later than may be required by Rule
424(b) under the Act; and to make no further amendment or
supplement to such form of prospectus which shall be disapproved by
you in your reasonable judgment promptly after reasonable notice
thereof;
(c) If by the third
anniversary (the “Renewal Deadline”) of the initial
effective date of the Registration Statement, any of the Securities
remain unsold by the Underwriters, the Company will file, if it has
not already done so and is eligible to do so, a new automatic shelf
registration statement relating to the Securities, in a form
satisfactory to you. If at the Renewal Deadline the Company is no
longer eligible to file an automatic shelf registration statement,
the Company will, if it has not already done so, file a new shelf
registration statement relating to the Securities, in a form
satisfactory to you and will use its best efforts to cause such
registration statement to be declared effective within 180 days
after the Renewal Deadline. The Company will take all other action
necessary or appropriate to permit the public offering and sale of
the Securities to continue as contemplated in the expired
registration statement relating to the Securities. References
herein to the Registration Statement shall include such new
automatic shelf registration statement or such new shelf
registration statement, as the case may be;
(d) Promptly from time to
time to take such action as you may reasonably request to qualify
the Securities for offering and sale under the securities laws of
such jurisdictions as you may request and to comply with such laws
so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of the Securities, provided that in connection
therewith the Company shall not be obligated to subject itself to
taxation or to qualify to do business in any jurisdiction where it
is not now so qualified or be required to qualify as a foreign
corporation or to file a general consent to service of process in
any jurisdiction;
8
(e) Prior to 10:00 a.m., New
York City time, on the New York Business Day next succeeding the
date of this Agreement and from time to time, to furnish the
Underwriters with written and electronic copies of the Prospectus
in New York City in such quantities as you may reasonably request,
and, if the delivery of a prospectus (or in lieu thereof, the
notice referred to in Rule 173(a) under the Act) is required at any
time prior to the expiration of nine months after the time of issue
of the Prospectus in connection with the offering or sale of the
Securities and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made when such Prospectus (or in lieu thereof, the notice referred
to in Rule 173(a) under the Act) is delivered, not misleading, or,
if for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify you and upon your request to file
such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many written and
electronic copies as you may from time to time reasonably request
of an amended Prospectus or a supplement to the Prospectus that
will correct such statement or omission or effect such compliance;
and in case any Underwriter is required to deliver a prospectus (or
in lieu thereof, the notice referred to in Rule 173(a) under the
Act) in connection with sales of any of the Securities at any time
nine months or more after the time of issue of the Prospectus, upon
your request but at the expense of such Underwriter, to prepare and
deliver to such Underwriter as many written and electronic copies
as you may reasonably request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the
Act;
(f) During the period
beginning from the date hereof and continuing to and including the
Time of Delivery, not to offer, sell, contract to sell or otherwise
dispose of any securities of the Company that are substantially
similar to the Securities, without the prior written consent of
Goldman, Sachs & Co.;
(g) To make generally
available to its securityholders as soon as practicable an earnings
statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules
and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(h) To pay the required
Commission filing fees relating to the Securities within the time
required by Rule 456(b)(1) under the Act without regard to the
proviso therein and otherwise in accordance with Rules 456(b) and
457(r) under the Act; and
9
(i) To use the net proceeds
received by it from the sale of the Securities pursuant to this
Agreement in the manner specified in the Pricing Prospectus under
the caption “Use of Proceeds”.
6. (a) (i) The Company
represents and agrees that, other than the final term sheet in the
form attached as Schedule III hereto and filed pursuant to
Section 5(a) hereof, without the prior consent of Goldman,
Sachs & Co., it has not made and will not make any offer
relating to the Securities that would constitute a “free
writing prospectus” as defined in Rule 405 under the
Act;
(ii) each Underwriter
represents and agrees that, without the prior consent of the
Company and Goldman, Sachs & Co., other than one or more
term sheets relating to the Securities, containing certain
information contemplated by the final term sheet in the form
attached as Schedule III here
|
