Agreement and Plans of Merger and Complete Liquidation - Lockheed Martin Corp., Lockheed Corp., Lockheed Missiles and Space Company Inc., Lockheed Sanders Inc., Martin Marietta Corp., and Martin Marietta Technologies Inc.
AGREEMENT AND PLANS OF MERGER
AND COMPLETE LIQUIDATION
dated as of January 25, 1996
among
LOCKHEED MARTIN CORPORATION,
LOCKHEED CORPORATION,
LOCKHEED MISSILES AND SPACE COMPANY, INC.,
LOCKHEED SANDERS, INC.
MARTIN MARIETTA CORPORATION,
and
MARTIN MARIETTA TECHNOLOGIES, INC.
<PAGE>
AGREEMENT AND PLANS OF MERGER
AND COMPLETE LIQUIDATION
This AGREEMENT AND PLANS OF MERGER AND COMPLETE LIQUIDATION (this
"Agreement") dated as of January 25, 1996, is among Lockheed Martin Corporation,
a Maryland corporation ("LMC"), Lockheed Corporation, a Delaware corporation
("Lockheed"), Lockheed Missiles and Space Company, Inc., a California
corporation ("LM&SC"), Lockheed Sanders, Inc., a Delaware corporation
("Sanders"), Martin Marietta Corporation, a Maryland corporation ("Martin
Marietta"), and Martin Marietta Technologies, Inc., a Maryland corporation
("MMTI").
RECITALS
WHEREAS, the Board of Directors of each of LMC, Lockheed, LM&SC and
Sanders deems it advisable and in the best interests of their respective
stockholders that LM&SC merge with and into Lockheed (the "LM&SC-Lockheed
Merger") and that Sanders merge with and into Lockheed (the "Sanders-Lockheed
Merger");
WHEREAS, the Board of Directors of each of LMC, Martin Marietta and
MMTI deems it advisable and in the best interests of their respective
stockholders that MMTI merge with and into Martin Marietta (the "MMTI-MMC
Merger");
WHEREAS, the Board of Directors of each of LMC, Lockheed and Martin
Marietta deems it advisable and in the best interests of their respective
stockholders that, following the consummation of the last to occur of the LM&SC-
Lockheed Merger, the Sanders-Lockheed Merger and the MMTI-Martin Marietta
Merger, Martin Marietta merge with and into LMC (the "MMC-LMC Merger") and that,
following the MMC-LMC Merger, Lockheed merge with and into LMC (the "Lockheed-
LMC Merger"); and
WHEREAS, each of the LM&SC-Lockheed Merger, the Sanders-Lockheed
Merger, the MMTI-MMC Merger, the Lockheed-LMC Merger and the MMC-LMC Merger
(collectively referred to herein as the "Mergers"), respectively, is intended to
qualify as a complete liquidation under Section 332 of the Internal Revenue Code
of 1986, as amended;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained in this Agreement, the parties hereby agree as follows:
ARTICLE I
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The Mergers
Section 1.1. The Lockheed Heritage Mergers.
-----------------------------
(a) LM&SC and Lockheed shall execute and cause to be filed a
certificate of merger in the form attached to this Agreement as Exhibit A (the
"LM&SC-Lockheed Certificate) with the Secretary of State of the State of
Delaware and the Secretary of State of the State of California. The LM&SC-
Lockheed Certificate shall provide that the LM&SC-Lockheed Merger shall be
effective at 11:57 p.m. Eastern Standard Time on the Merger Date as hereinafter
defined. LM&SC and Lockheed shall take all actions necessary or appropriate to
consummate the LM&SC-Lockheed Merger in accordance with the provisions of the
LM&SC-Lockheed Certificate.
(b) Sanders and Lockheed shall execute and cause to be filed a
certificate of merger in the form attached to this Agreement as Exhibit B (the
"Sanders-Lockheed Certificate) with the Secretary of State of the State of
Delaware. The Sanders-Lockheed Certificate shall provide that the Sanders-
Lockheed Merger shall be effective at 11:57 p.m. Eastern Standard Time on the
Merger Date as hereinafter defined. Sanders and Lockheed shall take all actions
necessary or appropriate to consummate the Sanders-Lockheed Merger in accordance
with the provisions of the Sanders-Lockheed Certificate.
(c) Lockheed and LMC shall execute and cause to be filed (i) a
certificate of merger in the form attached to this Agreement as Exhibit C (the
"Lockheed-LMC Certificate) with the Secretary of State of the State of Delaware
and (ii) articles of merger in the form attached hereto as Exhibit D (the
"Lockheed-LMC Articles") with the State Department of Assessments and Taxation
of the State of Maryland. The Lockheed-LMC Certificate and the Lockheed-LMC
Articles shall provide that the Lockheed-LMC Merger shall be effective at 11:59
p.m. Eastern Standard Time on the Merger Date as hereinafter defined. Lockheed
and LMC shall take all actions necessary or appropriate to consummate the
Lockheed-LMC Merger in accordance with the provisions of the Lockheed-LMC
Certificate and the Lockheed-LMC Articles.
Section 1.2. The Martin Marietta Heritage Mergers.
------------------------------------
(a) Martin Marietta and MMTI will cause articles of merger in the
form attached to this Agreement as Exhibit E (the "MMTI-MMC Articles") to be
filed with the State Department of Assessments and Taxation of the State of
Maryland. The MMTI-MMC Articles shall provide that the MMTI-MMC Merger shall be
effective at 11:57 p.m. Eastern Standard Time on the Merger Date as hereinafter
defined. MMTI and MMC shall take all actions necessary or appropriate to
consummate the MMTI-MMC Merger in accordance with the provisions of the MMTI-MMC
Articles.
(b) LMC and Martin Marietta will cause articles of merger in the form
attached to this Agreement as Exhibit F (the "MMC-LMC Articles") to be filed
with the State
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Department of Assessments and Taxation of the State of Maryland. The MMC-LMC
Articles shall provide that the MMC-LMC Merger shall be effective at 11:58 p.m.
Eastern Standard Time on the Merger Date as hereinafter defined. Martin Marietta
and LMC shall take all actions necessary or appropriate to consummate the MMC-
LMC Merger in accordance with the provisions of the MMC-LMC Articles.
ARTICLE II
Approvals
Section 2.01. Each of the parties to this Agreement covenants and
agrees for the benefit of each of the other parties to this Agreement to take
any and all action necessary or appropriate (including approval by their
respective boards of directors and shareholders, if necessary) to consummate the
Mergers in accordance with all applicable laws, including the Maryland General
Corporation Law, the General Corporation Law of the State of Delaware and the
California General Corporation Law.
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ARTICLE III
Effect of Mergers
Section 3.01. LM&SC-Lockheed Merger. Upon consummation of the LM&SC-
---------------------
Lockheed Merger, LM&SC shall immediately cease to exist and Lockheed shall
succeed to all rights and obligations of LM&SC. Each share of capital stock of
Lockheed which shall be outstanding at the effective time of this merger shall,
by virtue of the merger and without any action on the part of the holder
thereof, remain an outstanding share of capital stock of the corporation
surviving the merger provided for herein. Each share of capital stock of LM&SC
which shall be outstanding at the effective time of the merger shall, by virtue
of the merger and without any action on the part of the holder thereof, be
canceled and no consideration shall be paid in respect thereof. The Certificate
of Incorporation and Bylaws of Lockheed shall be the Certificate of
Incorporation and Bylaws of the surviving corporation and shall thereafter
continue to be its Certificate of Incorporation and Bylaws until changed as
provided therein and by law.
Section 3.02. Sanders-Lockheed Merger. Upon consummation of the
-----------------------
Sanders-Lockheed Merger, Sanders shall cease to exist and Lockheed shall succeed
to all rights and obligations of Sanders. Each share of capital stock of
Lockheed which shall be outstanding at the effective time of this merger shall,
by virtue of the merger and without any action on the part of the holder
thereof, remain an outstanding share of capital stock of the corporation
surviving the merger provided for herein. Each share of capital stock of
Sanders which shall be outstanding at the effective time of the merger shall, by
virtue of the merger and without any action on the part of the holder thereof,
be canceled and no consideration shall be paid in respect thereof. The
Certificate of Incorporation and Bylaws of Lockheed shall be the Certificate of
Incorporation and Bylaws of the surviving corporation and shall thereafter
continue to be its Certificate of Incorporation and Bylaws until changed as
provided therein and by law.
Section 3.03. MMTI-MMC Merger. Upon consummation of the MMTI-MMC
---------------
Merger, MMTI shall cease to exist and Martin Marietta shall succeed to all
rights and obligations of MMTI. Each share of capital stock of Martin Marietta
which shall be outstanding at the effective time of this merger shall, by virtue
of the merger and without any action on the part of the holder thereof, remain
an outstanding share of capital stock of the corporation surviving the merger
provided for herein. Each share of capital stock of MMTI which shall be
outstanding at the effective time of the merger shall, by virtue of the merger
and without any action on the part of the holder thereof, be canceled and no
consideration shall be paid in respect thereof. The Charter and Bylaws of
Martin Marietta shall be the Charter and Bylaws of the surviving corporation and
shall thereafter continue to be its Charter and Bylaws until changed as provided
therein and by law.
Section 3.04. Lockheed-LMC Merger. Upon consummation of the
-------------------
Lockheed-LMC Merger, Lockheed shall cease to exist and LMC shall succeed to all
rights and obligations of Lockheed (including all rights and obligations to
which
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Lockheed succeeded pursuant to the LM&SC-Lockheed Merger and the Sanders-
Lockheed Merger, respectively). Each share of capital stock of LMC which shall
be outstanding at the effective time of this merger shall, by virtue of the
merger and without any action on the part of the holder thereof, remain an
outstanding share of capital stock of the corporation surviving the merger
provided for herein. Each share of capital stock of Lockheed which shall be
outstanding at the effective time of the merger shall, by virtue of the merger
and without any action on the part of the holder thereof, be canceled and no
consideration shall be paid in respect thereof. The Charter and Bylaws of LMC
shall be the Charter and Bylaws of the surviving corporation and shall
thereafter continue to be its Charter and Bylaws until changed as provided
therein and by law.
Section 3.05. MMC-LMC Merger. Upon consummation of the MMC-LMC
--------------
Merger, Martin Marietta shall cease to exist and LMC shall succeed to all rights
and obligations of Martin Marietta (including all rights and obligations to
which Martin Marietta succeeded pursuant to the MMTI-MMC Merger). Each share of
capital stock of LMC which shall be outstanding at the effective time of this
merger shall, by virtue of the merger and without any action on the part of the
holder thereof, remain an outstanding share of capital stock of the corporation
surviving the merger provided for herein. Each share of capital stock of Martin
Marietta which shall be outstanding at the effective time of the merger shall,
by virtue of the merger and without any action on the part of the holder
thereof, be canceled and no consideration shall be paid in respect thereof. The
Charter and Bylaws of LMC shall be the Charter and Bylaws of the surviving
corporation and shall thereafter continue to be its Charter and Bylaws until
changed as provided therein and by law.
Section 3.06. Complete Liquidation. Each of the Mergers is
--------------------
intended to qualify as a complete liquidation under Section 332 of the Internal
Revenue Code of 1986, as amended, of the entity merging out of existence.
ARTICLE IV
Miscellaneous
Section 4.01. Counterparts. The Agreement and any amendment thereof
------------
may be executed in two or more counterparts, all of which shall be considered
the same agreement.
Section 4.02. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of Maryland, without regard
to the principles of conflicts of laws thereof.
Section 4.03. Exhibits. All Exhibits to this Agreement referred to
--------
herein are intended to be and hereby are specifically made a part of this
Agreement.
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Section 4.04. Headings. All section headings contained in this
--------
Agreement are for convenience of reference only, do not form a part of this
Agreement and shall not effect in any way the meaning or interpretation of this
Agreement.
Section 4.05. No Third Party Beneficiaries. The terms and conditions
----------------------------
of this Agreement are for the sole benefit of the parties to this Agreement and
their successors and assigns only, and shall not be relied upon by, nor
construed as conferring any rights upon, any other persons.
Section 4.06. Condition Precedent and Merger Date. Notwithstanding
-----------------------------------
anything to the contrary contained herein, this Agreement shall become null and
void, the obligations of the parties to proceed with the Mergers contemplated
herein shall terminate and the Plans of Merger and Complete Liquidation
contained herein shall be rescinded unless, on or prior to the Merger Date as
hereinafter defined, one of the Chairman of the Board, the President and Chief
Executive Officer or the Vice President and General Counsel of LMC executes a
certificate to the effect that satisfactory agreements have been reached with
the United States Government concerning the transfer of contracts from each such
party to LMC and later lodges such certificate with the Corporate Secretary of
each party to this Agreement for inclusion with the minutes of that partyOs
Board of Directors. The Merger Date shall be January 28, 1996, provided,
however, that either the Chairman of the Board or the President of LMC may
extend this date to a date through and including May 1, 1996.
Section 4.07 Amendment. No amendment of any provision of this
---------
Agreement shall be valid unless the same shall be in writing and signed by all
the parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first written above.
ATTEST: LOCKHEED MARTIN
CORPORATION
_________________________ By:________________________
ATTEST: LOCKHEED CORPORATION
_________________________ By:________________________
ATTEST: MARTIN MARIETTA
CORPORATION
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_________________________ By:________________________
ATTEST: LOCKHEED MISSILES AND
SPACE COMPANY, INC.
_________________________ By:________________________
ATTEST: LOCKHEED SANDERS, INC.
_________________________ By:________________________
ATTEST: MARTIN MARIETTA
TECHNOLOGIES, INC.
_________________________ By:________________________
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