EXHIBIT 1.1
LOCKHEED XXXXXX CORPORATION
Debt Securities
Underwriting Agreement
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_________ __, ____
To the several Underwriters
named in the respective Pricing
Agreement hereinafter described
Ladies and Gentlemen:
From time to time Lockheed Xxxxxx Corporation, a Maryland corporation (the
"Corporation") proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, the Corporation proposes to issue and sell
to the firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain of its debt securities (the "Securities")
specified in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated Securities shall
be as specified in the Pricing Agreement relating thereto and in or pursuant to
the indenture (the "Indenture") identified in such Pricing Agreement.
1. Particular sales of Designated Securities may be made from time to time to
the Underwriters of such Designated Securities, for whom the firms designated as
representatives of the Underwriters of such Designated Securities in the Pricing
Agreement relating thereto will act as representatives (the "Representatives").
The term "Representatives" also refers to a single firm acting as sole
representative of the Underwriters and to Underwriters who act without any firm
being designated as their representative. The obligation of the Corporation to
issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be further evidenced by the
Pricing Agreement with respect to the Designated Securities specified therein.
Each Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters and the principal amount of
such Designated Securities to be purchased by each Underwriter and shall set
forth the date, time and manner of delivery of such
Designated Securities and payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in the Indenture and the registration
statement and prospectus with respect thereto) the terms of such Designated
Securities. A Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Corporation represents and warrants to, and agrees with, each
Underwriter that:
(a) The Corporation meets the requirements for the use of Form S-3 under
the Securities Act of 1933, as amended, and the rules and regulations adopted
thereunder (respectively, the "Securities Act" and the "Rules"). The Corporation
has filed with the Securities and Exchange Commission (the "Commission") a
registration statement or registration statements on Form S-3 (the file number
or numbers of which is or are set forth in Schedule II to the Pricing Agreement
relating to the applicable Designated Securities), which has become effective,
for the registration under the Securities Act of the Securities. Such
registration statement or registration statements, as amended at the date of
this Agreement, meet or meets, as the case may be, the requirements set forth in
Rule 415(a)(1)(x) under the Securities Act and complies in all other material
respects with such Rule. The Corporation proposes to file with the Commission
pursuant to Rule 424 under the Securities Act ("Rule 424") a supplement to the
form of prospectus included in such registration statement relating to such
Designated Securities and the plan of distribution thereof. The registration
statement as amended at the date of this Agreement, including the exhibits
thereto and all documents incorporated therein by reference pursuant to Item 12
of Form S-3 (the "Incorporated Documents"), is hereinafter referred to as the
"Registration Statement," and the prospectus as then amended in relation to the
applicable Designated Securities, including the Incorporated Documents, is
hereinafter referred to as the "Basic Prospectus"; and such supplemented form of
prospectus, in the form in which it shall be filed with the Commission pursuant
to Rule 424 (including the Basic Prospectus as so supplemented) is hereinafter
called the "Final Prospectus." Any preliminary form of the Final Prospectus
which has heretofore been filed pursuant to Rule 424 or included in the
Registration Statement is hereinafter called an "Interim Prospectus." If the
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Corporation has filed an abbreviated registration statement to register
additional Designated Securities pursuant to Rule 462(b) under the Securities
Act (the "Rule 462 Registration Statement"), then any reference hereunder to the
term "Registration Statement" also shall be deemed to include such Rule 462
Registration Statement. Any reference herein to the Registration Statement, the
Basic Prospectus, any Interim Prospectus or the Final Prospectus shall be deemed
to refer to and include the Incorporated Documents which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or before
the date of this Agreement, the date of the Pricing Agreement relating to such
Designated Securities or the issue date of the Basic Prospectus, any Interim
Prospectus or the Final Prospectus, as the case may be; and any reference herein
to the terms "amend," "amendment," or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Interim Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing of any
Incorporated Documents under the Exchange Act after the date of this Agreement,
the date of the Pricing Agreement relating to such Designated Securities or the
issue date of the Basic Prospectus, any Interim Prospectus or the Final
Prospectus, as the case may be.
(b) The Commission has not issued an order preventing or suspending the
use of the Basic Prospectus or any Interim Prospectus.
(c) The Basic Prospectus and any Interim Prospectus have complied in all
material respects with the requirements of the Securities Act and of the Rules
and, as of their respective dates, did not include any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein not misleading.
(d) As of the date hereof, when the Final Prospectus is first filed with
the Commission pursuant to Rule 424, when, before the Time of Delivery (as
hereinafter defined) for any Designated Securities, any amendment to the
Registration Statement becomes effective, when, before such Time of Delivery,
any document incorporated by reference in the Registration Statement is filed
with the Commission, when any supplement to the Final Prospectus is filed with
the Commission and at such Time of Delivery, the Registration Statement, the
Final Prospectus and any such amendment or supplement will comply in all
material respects with the requirements of the Securities Act and the Rules, the
Incorporated Documents will comply in all material respects with the
requirements of the Securities Act or the Exchange Act, as the case may be, and
the rules and regulations adopted by the Commission thereunder, and no part of
the Registration Statement, the Final Prospectus or any such amendment or
supplement will include an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make
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the statements therein not misleading; except that this representation and
warranty does not apply to (i) statements or omissions in the Registration
Statement or Final Prospectus (or in amendments or supplements thereto) made in
reliance upon information furnished in writing to the Corporation by the
Representatives on behalf of any Underwriter of such Designated Securities
expressly for use therein or (ii) that part of the Registration Statement which
shall constitute the Statement of Eligibility and Qualification of the Trustee
under the Trust Indenture Act of 1939 on Form T-1, except statements or
omissions in such statement made in reliance upon information furnished in
writing to the Trustee by or on behalf of the Corporation for use therein.
(e) The certificates delivered pursuant to paragraph (e) of Section 5
hereof and all other documents delivered by the Corporation or any of their
representatives in connection with the issuance and sale of the applicable
Designated Securities were on the dates on which they were delivered, or will be
on the dates on which they are delivered, in all material respects true and
complete.
(f) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the Corporation
of the transactions contemplated by this Agreement or the Pricing Agreement
relating to the applicable Designated Securities, except those which have been
obtained or which may be required under the Securities Act and such
qualifications as may be required under state laws in connection with the
purchase and distribution of such Designated Securities by the Underwriters, and
consummation of such transactions will not result in the material breach of any
terms of, or constitute a material default under, any other material agreement
or undertaking of the Corporation.
3. Upon the execution of the Pricing Agreement applicable to any Designated
Securities and authorization by the Representatives of the release of such
Designated Securities, the several Underwriters propose to offer such Designated
Securities for sale upon the terms and conditions set forth in the Final
Prospectus as amended or supplemented. The Corporation hereby confirms that the
Underwriters of any Designated Securities have been authorized to distribute any
Interim Prospectus and are authorized to distribute the Final Prospectus, each
in such form as shall be provided to the Underwriters by the Corporation (as
they may be amended or supplemented from time to time if the Corporation
furnishes amendments or supplements thereto to such Underwriters).
4. Designated Securities to be purchased by each Underwriter pursuant to the
Pricing Agreement relating thereto, in definitive form to the extent
practicable, and in such authorized
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denominations and registered in such names as the Representatives may request
upon at least forty-eight hours' prior notice to the Corporation, shall be
delivered by or on behalf of the Corporation to the Representatives for the
account of such Underwriter, against payment by such Underwriter or on its
behalf of the purchase price therefor by certified or official bank check or
checks or wire transfer payable in immediately available, same-day funds or any
other method specified in the Pricing Agreement, payable to the order of the
Corporation in the funds specified in such Pricing Agreement, all at the place
and time and date specified in such Pricing Agreement or at such other place and
time and date as the Representatives and the Corporation may agree upon in
writing, such time and date being herein called the "Time of Delivery" for such
Securities.
5. The obligations of the Underwriters of any Designated Securities under the
Pricing Agreement relating to such Designated Securities shall be subject, in
the discretion of the Representatives, to the condition that all representations
and warranties and statements of officers of the Corporation made pursuant to
the provisions hereof are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Corporation shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Final Prospectus shall have been filed or mailed for filing with
the Commission in accordance with Rule 424(b).
(b) No order suspending the effectiveness of the Registration Statement,
as amended from time to time, shall be in effect and no proceedings for such
purpose shall be pending before or threatened by the Commission and any requests
for additional information on the part of the Commission (to be included in the
Registration Statement or the Final Prospectus) shall have been complied with to
the reasonable satisfaction of the Representatives.
(c) Since the respective dates as of which information is given in the
Registration Statement and the Final Prospectus, other than in connection with
the transactions contemplated by or discussed under the heading "Recent
Developments" in the Final Prospectus, or in connection with the adoption of new
accounting standards, (i) there shall not have been any material adverse change
in the capital stock or long-term debt of the Corporation and its subsidiaries
taken as a whole, (ii) there shall not have been any material adverse change in
the general affairs, management, financial position or results of operations of
the Corporation and its subsidiaries taken as a whole, whether or not arising
from transactions in the ordinary course of business, in
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each case other than as included or incorporated in or contemplated by the Final
Prospectus and (iii) the Corporation and its subsidiaries taken as a whole shall
not have sustained any material loss or interference with their business taken
as a whole from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or any court or legislative or other
governmental action, order or decree that is not set forth in the Final
Prospectus if, in the judgment of the Representatives, any such development
referred to in clauses (i), (ii) or (iii) makes it impracticable or inadvisable
to proceed with the offering and delivery of such Designated Securities as
contemplated by the Registration Statement and the Final Prospectus.
(d) The representations and warranties of the Corporation contained
herein shall be true and correct as of the date hereof, on and as of the date of
the Pricing Agreement for such Designated Securities, as of the date of the
effectiveness of any amendment to the Registration Statement filed before the
Time of Delivery for such Designated Securities, as of the date of the filing of
any document incorporated by reference therein before the Time of Delivery for
such Designated Securities and at and as of the Time of Delivery for such
Designated Securities and the Corporation shall have performed all covenants and
agreements herein contained to be performed on its part at or prior to the Time
of Delivery for such Designated Securities.
(e) The Representatives shall have received at the Time of Delivery for
such Designated Securities certificates, dated the date of the Time of Delivery
for such Designated Securities, of the chief executive officer or a vice
president and the principal financial or accounting officer or the treasurer of
the Corporation, each of which shall certify that (i) no order suspending the
effectiveness of the Registration Statement or prohibiting the sale of such
Designated Securities has been issued and no proceedings for such purpose are
pending before or, to the knowledge of such officers, threatened by the
Commission and (ii) the representations and warranties of the Corporation
contained herein are true and correct at and as of such Time of Delivery and the
Corporation has performed all covenants and agreements herein contained to be
performed on its part at or prior to such Time of Delivery.
(f) On the date of the Pricing Agreement for such Designated Securities
and at the Time of Delivery for such Designated Securities, the independent
accountants of the Corporation shall have furnished to the Representatives a
letter dated the date of the Pricing Agreement and a letter dated such Time of
Delivery, respectively, as to such matters as the Representatives may reasonably
request and in form and substance satisfactory to the Representatives.
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(g) Counsel for the Corporation reasonably satisfactory to the
Representatives shall have furnished to the Representatives their written
opinion, dated the Time of Delivery for such Designated Securities, as to such
matters as the Representatives may reasonably request and in form and in
substance satisfactory to the Representatives.
(h) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated the Time of Delivery for such
Designated Securities, with respect to the validity of the Indenture, such
Designated Securities, the Registration Statement, the Prospectus as amended or
supplemented and other related matters as the Representatives may reasonably
request, and such counsel shall have been given access to such papers and
information as they may reasonably request to enable them to pass upon such
matters.
(i) Subsequent to the date of the Pricing Agreement related to such
Designated Securities, no downgrading by Xxxxx'x Investors Service, Inc.,
Standard & Poor's Corporation or Duff & Xxxxxx shall have occurred in the rating
accorded to the debt securities of the Corporation.
(j) Subsequent to the execution of the Pricing Agreement relating to
such Designated Securities, the Corporation shall not have filed an Incorporated
Document under the Exchange Act unless a copy thereof shall have first been
submitted to the Representatives within a reasonable period of time prior to the
filing thereof and the Representatives shall not have promptly and reasonably
objected thereto in writing.
6. The Corporation agrees with each of the Underwriters of any Designated
Securities:
(a) To make no further amendment or any supplement to the Registration
Statement or the Basic Prospectus as amended or supplemented after the date of
the Pricing Agreement relating to such Designated Securities and prior to the
Time of Delivery for such Designated Securities which shall be reasonably
disapproved in writing by the Representatives for such Designated Securities
promptly after reasonable notice thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Corporation with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act; and to advise the Representatives promptly of any such
amendment or supplement after such Time of Delivery and furnish the
Representatives with copies thereof for so long as the delivery of a prospectus
is required in connection with the offering or sale of such Designated
Securities, and during such same period to advise the Representatives, promptly
after it receives notice thereof, of
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the time when any amendment to the Registration Statement has been filed or
become effective or any supplement to the Basic Prospectus has been filed, or
mailed for filing, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any prospectus relating to the
Securities, 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 purpose, or of any request by the Commission for the
amendment or supplementing of the Registration Statement or the Basic Prospectus
or for additional information; and, in the event of the issuance of any such
stop order or of any such order preventing or suspending the use of any
prospectus relating to the Securities or suspending any such qualification, to
promptly use all reasonable efforts to obtain its withdrawal. The Corporation
promptly will cause the Final Prospectus to be filed or mailed for filing with
the Commission in accordance with Rule 424(b).
(b) As soon as the Corporation is advised thereof, to advise the
Representatives (i) when the Final Prospectus shall have been filed with or
mailed to the Commission for filing in accordance with Rule 424(b), (ii) when
any amendment to the Registration Statement relating to the Designated
Securities shall have become effective, (iii) of the initiation or threatening
by the Commission of any proceedings for the issuance of any order suspending
the effectiveness of the Registration Statement or the qualification of the
Indenture, (iv) of receipt by the Corporation or any representative of or
attorney for the Corporation of any other communication from the Commission
relating to the Corporation, the Registration Statement, the Basic Prospectus,
any Interim Prospectus or the Final Prospectus and (v) of the receipt by the
Corporation or any representative of or attorney for the Corporation of any
notification with respect to the suspension of the qualification of such
Designated Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Corporation will make every
reasonable effort to prevent the issuance of an order suspending the
effectiveness of the Registration Statement or the qualification of the
Indenture and if any such order is issued to obtain as soon as possible the
lifting thereof.
(c) To deliver to the Representatives, without charge, (i) a signed copy
of the Registration Statement and of any amendments thereto (including conformed
copies of all exhibits filed with, or incorporated by reference in, any such
document), and (ii) as many conformed copies of the Registration Statement and
of any amendments thereto which shall become effective on or before the Time of
Delivery for such Designated Securities (excluding exhibits) as the
Representatives may reasonably request.
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(d) During such period as a prospectus is required by law to be
delivered by an Underwriter or dealer, to deliver, without charge to the
Representatives and to Underwriters and dealers, at such office or offices as
the Representatives may designate, as many copies of any Interim Prospectus and
the Final Prospectus as the Representatives may reasonably request.
(e) During the period in which copies of the Final Prospectus are to be
delivered as provided in paragraph (d) above, if any event occurs as a result of
which it shall be necessary to amend or supplement the Final Prospectus in order
to ensure that no part of the Final Prospectus contains an untrue statement of a
material fact or omits to state a material fact necessary to make the statements
therein, in light of the circumstances existing when the Final Prospectus is to
be delivered to a purchaser, not misleading, forthwith to prepare, deliver to
the Representatives, file with the Commission and deliver without charge, to the
Underwriters and to dealers (to the extent requested and at the addresses
furnished by the Representatives to the Corporation) to whom such Designated
Securities may have been sold by the Underwriters, and to other dealers upon
request, either amendments or supplements to the Final Prospectus so that the
statements in the Final Prospectus, as so amended or supplemented, will comply
with the standards set forth in this paragraph (e). Delivery by Underwriters of
any such amendments or supplements to the Final Prospectus shall not constitute
a waiver of any of the conditions set forth in Section 5 hereof.
(f) To make generally available to its security holders as soon as
practicable an earnings statement of the Corporation and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Securities Act and the
Rules thereunder (including, at the option of the Corporation, Rule 158).
(g) Promptly from time to time to take such action as the
Representatives may request in order to qualify such Designated Securities for
offer and sale under the securities or "blue sky" laws of such jurisdictions as
the Representatives may reasonably request; provided that in no event shall the
Corporation be obligated to subject itself to taxation or to qualify to do
business in any jurisdiction where it is not now so qualified or to take any
action that would subject it to service of process in suits, other than those
arising out of the offering or sale of such Designated Securities, in any
jurisdiction where it is not now so subject.
(h) For a period of five years following the date of issuance of such
Designated Securities, to supply to the Representatives and to each other
Underwriter who may so request in writing copies of such financial statements
and other periodic
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and special reports as the Corporation may from time to time distribute
generally to the holders of any class of its capital stock and to furnish to the
Representatives copies of each annual or other report it shall be required to
file with the Commission. The Corporation shall be deemed to have satisfied the
obligations under this Section 6(h) if such documents are available through the
Commission's XXXXX system.
(i) During the period beginning from the date of the Pricing Agreement
for such Designated Securities and continuing to and including the earlier of
(i) the termination of trading restrictions for such Designated Securities, as
notified to the Corporation by the Representatives, or (ii) the Time of Delivery
for such Designated Securities, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of the Corporation that mature more
than one year after such Time of Delivery and that are substantially similar to
such Designated Securities, without the prior written consent of the
Representatives.
(j) If the Final Prospectus states that such Designated Securities will
be listed on a stock exchange, to use its best efforts to cause such Designated
Securities to be listed on such stock exchange.
7. The Corporation covenants and agrees with each Underwriter that the
Corporation will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of their counsel and accountants in connection with
the registration of the Securities under the Securities Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, the Basic Prospectus, any Interim Prospectus and the
Final Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement among Underwriters, this Agreement, any
Pricing Agreement, any Indenture, any Blue Sky and Legal Investment Memoranda
and any other documents in connection with the offering, purchase, sale and
delivery of the Securities; (iii) all expenses in connection with the
qualification of the Securities for offering and sale under state securities
laws as provided in Section 6(g) hereof, including the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and legal investment surveys;
(iv) any fees charged by securities rating services for rating the Securities;
(v) any filing fees incident to any required review by the National Association
of Securities Dealers, Inc. of the terms of the sale of the Securities; (vi) the
cost of preparing the Securities; (vii) the fees and expenses of any Trustee in
connection with any Indenture and the Securities; (viii) the fee, if any, for
listing the Securities on any national
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securities exchange; and (ix) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, Section 8 and Section 12 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
8. (a) The Corporation agrees to indemnify and hold harmless each
Underwriter against any and all losses, claims, damages and liabilities, joint
or several (including any reasonable investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted, provided that legal expenses relate to
counsel acceptable to the Corporation), to which they, or any of them, may
become subject under the Securities Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities arise solely out of or are based solely
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Basic Prospectus, any Interim
Prospectus or the Final Prospectus, or any amendment or supplement thereto, or
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as any such untrue statement or omission or alleged untrue
statement or omission was made in (i) the Registration Statement, the Basic
Prospectus, any Interim Prospectus or the Final Prospectus, or such amendment or
supplement, in reliance upon and in conformity with information furnished in
writing to the Corporation by the Representatives on behalf of any Underwriter
of Designated Securities expressly for use in the Registration Statement, the
Basic Prospectus, the Interim Prospectus or the Final Prospectus as amended or
supplemented relating to such Designated Securities or (ii) that part of the
Registration Statement which shall constitute the Statement of Eligibility and
Qualification on Form T-1 of any Trustee under the Trust Indenture Act, except
statements or omissions in such Statement made in reliance upon information
furnished in writing to such Trustee by or on behalf of the Corporation for use
therein; provided, however, that such indemnity with respect to the Basic
Prospectus or any Interim Prospectus shall not inure to the benefit of any
Underwriter of Designated Securities (or any person controlling such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased Designated Securities that are the subject thereof if such
person did not receive a copy of the Final Prospectus (not including the
Incorporated Documents) at or prior to the confirmation of the sale of such
Designated Securities to such person in any case where such delivery is required
by the
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Securities Act and the untrue statement or omission of a material fact contained
in the Basic Prospectus or any Interim Prospectus was corrected in the Final
Prospectus, unless such failure to deliver the Final Prospectus was a result of
noncompliance by the Corporation with Section 6(d) hereof.
(b) Each Underwriter of Designated Securities agrees to indemnify and
hold harmless the Corporation to the same extent as the foregoing indemnity from
the Corporation to each Underwriter, but only insofar as such losses, claims,
damages or liabilities arise solely out of or are based upon any untrue
statement or omission or alleged untrue statement or omission that was made in
the Registration Statement, the Basic Prospectus, any Interim Prospectus or the
Final Prospectus, or any amendment or supplement thereto, in reliance upon and
in conformity with information furnished in writing to the Corporation by the
Representatives on behalf of such Underwriter expressly for use in the
Registration Statement, the Basic Prospectus, any Interim Prospectus or the
Final Prospectus as amended or supplemented relating to such Designated
Securities; provided, however, that the obligation of each such Underwriter to
indemnify the Corporation hereunder shall be limited to the total price at which
the Designated Securities purchased by such Underwriter hereunder were offered
to the public.
(c) Any party that proposes to assert the right to be indemnified under
this Section 8 will, promptly after receipt of notice of commencement of any
action, suit or proceeding against any such party in respect of which a claim is
to be made against an indemnifying party under this Section 8, notify each such
indemnifying party of the commencement of such action, suit or proceeding,
enclosing a copy of all papers served, but the omission so to notify such
indemnifying party of any such action, suit or proceeding shall not relieve it
from any liability that it may have to any indemnified party otherwise than
under this Section 8 (it being understood that the omission so to notify such
indemnifying party shall relieve it from any liability it may have to any
indemnified party under this Section 8; provided, however, that timely notice
hereunder to the Representatives made pursuant to Section 13 hereof shall be
deemed timely notice to any Underwriter that is an indemnifying party). In case
any such action, suit or proceeding shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
such indemnifying party or parties shall be entitled to participate in, and, to
the extent that it or they shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party, and after notice from the indemnifying party or parties
to such indemnified party of its or their election so to assume the defense
thereof, the indemnifying party
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or parties shall not be liable to such indemnified party for any legal or other
expenses, other than reasonable costs of investigation subsequently incurred by
such indemnified party in connection with the defense thereof. The indemnified
party shall have the right to employ its counsel in any such action, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the employment of counsel by such indemnified party has been
authorized by the indemnifying party or parties, (ii) the indemnified party
shall have reasonably concluded that there may be a conflict of interest between
the indemnifying party or parties and the indemnified party in the conduct of
the defense of such action (in which case the indemnifying party or parties
shall not have the right to direct the defense of such action on behalf of the
indemnified party), or (iii) the indemnifying party or parties shall not in fact
have employed counsel to assume the defense of such action, in each of which
cases the fees and expenses of counsel shall be at the expense of the
indemnifying party or parties. In the event that the indemnified party retains
separate counsel pursuant to clauses (i), (ii), or (iii) of the previous
sentence, such counsel shall be reasonably acceptable to the indemnifying party.
Any indemnifying party shall not be liable for any settlement of any action or
claim effected without its written consent.
(d) If the indemnification provided for in this Section 8 is unavailable
to hold harmless an indemnified party under subsection (a) or (b) above in
respect of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein (other than because such indemnification, by its
terms, does not apply), then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the
Corporation on the one hand and the Underwriters of the Designated Securities on
the other from the offering of the Designated Securities to which such loss,
claim, damage or liability (or actions in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Corporation on the one hand and the Underwriters of the Designated
Securities on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Corporation on the one hand and such Underwriters on
the other shall be deemed to be in the same proportion as the total
-13-
net proceeds from such offering (before deducting expenses) received by the
Corporation bear to the total underwriting discounts and commissions received by
such Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Corporation on the one hand or such Underwriters on
the other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Corporation
and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of Designated Securities
in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations with respect to such Designated Securities
and not joint.
(e) The obligations of the Corporation under this Section 8 shall be in
addition to any liability which the Corporation may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Securities Act; and the obligations of
the Underwriters under this Section 8 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Corporation and
to each person, if any, who controls the Corporation within the meaning of the
Securities Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Designated Securities which it has agreed to
-14-
purchase under the Pricing Agreement relating to such Designated Securities, the
Representatives may in their discretion arrange for themselves or another party
or other parties to purchase such Designated Securities on the terms contained
herein and in the Pricing Agreement. If within thirty-six hours after such
default by any Underwriter the Representatives do not arrange for the purchase
of such Designated Securities, then the Corporation shall be entitled to a
further period of thirty-six hours within which to procure another party or
other parties satisfactory to the Representatives to purchase such Designated
Securities on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Corporation that they have so arranged
for the purchase of such Designated Securities, or the Corporation notifies the
Representatives that it has so arranged for the purchase of such Designated
Securities, the Representatives or the Corporation shall have the right to
postpone the Time of Delivery for such Designated Securities for a period of not
more than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Final Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Corporation
agrees to file promptly any amendments or supplements to the Registration
Statement or the Final Prospectus which in the opinion of the Representatives
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section 9 with like effect as if
such person had originally been a party to the Pricing Agreement with respect to
such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Corporation as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-tenth of the aggregate principal amount of the
Designated Securities, then the Corporation shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each non-
defaulting Underwriter to purchase its pro rata share (based on the principal
amount of Designated Securities which such Underwriter agreed to purchase under
such Pricing Agreement) of the Designated Securities of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Corporation
-15-
as provided in subsection (a) above, the aggregate principal amount of
Designated Securities which remains unpurchased exceeds one-tenth of the
aggregate principal amount of the Designated Securities, as referred to in
subsection (b) above, or if the Corporation shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Designated Securities of a defaulting Underwriter or Underwriters, then
the Pricing Agreement relating to such Designated Securities shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter or
the Corporation, except for the expenses to be borne by the Corporation and the
Underwriters as provided in Section 7 hereof and the indemnity and contribution
agreements in Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. Any Pricing Agreement may be terminated by the Representatives or by
Underwriters who have agreed to purchase in the aggregate at least 50% of the
principal amount of the applicable Designated Securities by notifying the
Corporation at any time,
(a) prior to the earliest of (i) 11:00 a.m., New York time, on the day
following the date of the applicable Pricing Agreement, (ii) the time of
release by the Representatives for publication of the first newspaper
advertisement that is subsequently published with respect to such Designated
Securities or (iii) the time when such Designated Securities are first
generally offered by the Representatives to dealers by letter or telegram;
(b) at or prior to the Time of Delivery for such Designated Securities
if, in the judgment of the Representatives or in the judgment of such
Underwriters, as the case may be, payment for and delivery of such Designated
Securities is rendered impracticable or inadvisable because (i) additional
material governmental restrictions, not in force and effect on the date hereof
or on the date of such Pricing Agreement, shall have been imposed upon trading
in securities generally or minimum or maximum prices shall have been generally
established on the New York Stock Exchange, or trading in securities generally
shall have been suspended on such Exchange or a general banking moratorium
shall have been established by Federal or New York authorities, (ii) any event
shall have occurred or shall exist which makes untrue or incorrect in any
material respect any material statement or information contained in the
Registration Statement or the Final Prospectus or which is not reflected in
the Registration Statement or the Final Prospectus but should be reflected
therein in order to make the statements or information contained therein not
misleading in any material respect or (iii) hostilities involving the United
States or other national calamity shall have occurred or shall have
-16-
accelerated to such an extent as, in the judgment of the Representatives, to
affect adversely the marketability of such Designated Securities; or
(c) at or prior to the Time of Delivery for such Designated Securities,
if any of the conditions specified in Section 5 hereof shall not have been
fulfilled when and as required by this Agreement.
If this Agreement is terminated pursuant to any of the provisions hereof, the
Corporation shall not be under any liability (except as otherwise provided
herein) to any Underwriter and no Underwriter shall be under any liability to
the Corporation, except that (a) if this Agreement is terminated by the
Representatives or the Underwriters because of any failure or refusal on the
part of the Corporation to comply with the terms or to fulfill any of the
conditions of this Agreement, the Corporation will reimburse the Underwriters
for all reasonable out-of-pocket expenses (including the fees and disbursements
of their counsel) incurred by them and (b) no Underwriter who shall have failed
or refused to purchase Designated Securities agreed to be purchased by it
hereunder, without some reason sufficient hereunder to justify its cancellation
or termination of its obligations hereunder, shall be relieved of liability to
the Corporation or to the other Underwriters for damages occasioned by its
default.
11. The respective indemnities, agreements, representations, warranties and
other statements of the Corporation and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
termination of this Agreement, any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter or any controlling
person of any Underwriter, or the Corporation, or any officer or director or
controlling person of the Corporation, and shall survive delivery of and payment
for the Securities.
12. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Corporation shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Section 7 and Section 8 hereof; but, if for any other
reason Designated Securities are not delivered by or on behalf of the
Corporation as provided herein, the Corporation will reimburse the Underwriters
through the Representatives for all out-of-pocket expenses approved in writing
by the Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Corporation shall then be under
no further liability to any Underwriter with respect
-17-
to such Designated Securities except as provided in Section 7 and Section 8
hereof.
13. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All notices and other communications provided for or permitted hereunder
shall be in writing by hand delivery, first-class mail, facsimile transmission,
or air courier which guarantees overnight delivery: (a) if to the Underwriters
shall be sufficient in all respects if delivered or sent to the address of the
Representatives as set forth in the Pricing Agreement; and (b) if to the
Corporation shall be sufficient in all respects if delivered or sent to the
address of the Corporation set forth in the Registration Statement; Attention:
Senior Vice President and General Counsel; provided, however, that any notice to
an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent to
such Underwriter at its address set forth in its Underwriters' Questionnaire,
which address will be supplied to the Corporation by the Representatives upon
request. All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
14. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Corporation and, to the
extent provided in Section 8 and Section 11 hereof, the officers and directors
of the Corporation and each person who controls the Corporation or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement or any such Pricing Agreement. No purchaser of any of
the Securities from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
15. Time shall be of the essence of each Pricing Agreement.
16. This Agreement and each Pricing Agreement shall be construed in
accordance with the laws of the State of New York.
-18-
17. This Agreement and each Pricing Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and
return counterparts hereof.
Very truly yours,
LOCKHEED XXXXXX CORPORATION
By: ___________________________
Accepted as of the date hereof:
______________________________
______________________________
______________________________
______________________________
On behalf of itself and each of the
Underwriters
_________________________
By: ___________________________
-19-
LOCKHEED XXXXXX CORPORATION
Pricing Agreement
-----------------
_________________________
_________________________
_________________________
c/o _____________________
_____________________
_____________________
________ __, _____
Ladies and Gentlemen:
Lockheed Xxxxxx Corporation, a Maryland corporation (the "Corporation"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement dated ________ __, ______ (the "Underwriting Agreement"),
to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the "Designated
Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement. Each reference to the Representatives herein and in the provisions
of the Underwriting Agreement so incorporated by reference shall be deemed to
refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Representatives
designated to act on behalf of the Representatives and on behalf of each of the
Underwriters of the Designated Securities pursuant to Section 13 of the
Underwriting Agreement and the address of the Representatives referred to in
such Section 13 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the Final
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed, or, in the case of
a supplement, proposed to be filed or mailed for filing, with the Commission.
Subject to the terms and conditions set forth herein and in the Underwriting
Agreement incorporated herein by reference, the
Corporation agrees to issue and sell to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase from the
Corporation, at the time and place and at the purchase price to the Underwriters
set forth in Schedule II hereto, the principal amount of Designated Securities
set forth opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us counterparts hereof, and upon acceptance hereof by you, on behalf
of each of the Underwriters, this letter and such acceptance hereof, including
the provisions of the Underwriting Agreement incorporated herein by reference,
shall constitute a binding agreement between each of the Underwriters and the
Corporation. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is or will be pursuant to the authority set forth in a
form of Agreement among Underwriters, the form of which shall be submitted to
the Corporation for examination, upon request.
Very truly yours,
LOCKHEED XXXXXX CORPORATION
By:__________________________
Accepted as of the date hereof:
_________________________
_________________________
_________________________
On behalf of itself and each of the
Underwriters
_________________________
By:___________________________________
-2-
SCHEDULE I
Principal Amount of Designated Securities
Underwriter to be Purchased
----------- ------------------------------------------
SCHEDULE II
Registration Statement No.:
--------------------------
Title of Designated Securities:
------------------------------
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
Aggregate principal amount:
--------------------------
$
Price to Public:
---------------
% of the principal amount of the Designated Securities, plus accrued
interest from to [and accrued amortization, if any,
from to ]
Purchase Price by Underwriters:
------------------------------
% of the principal amount of the Designated Securities, plus accrued
interest from to [and accrued amortization, if any,
from to ]
Specified funds for payment of purchase price:
---------------------------------------------
[New York] Clearing House [Immediately available] funds
Indenture:
---------
Indenture, dated __________ __, ______ between the
Corporation and ____________________________________,
as Trustee
Maturity:
--------
Interest Rate:
-------------
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
----------------------
[months and dates, commencing , 19 ]
Redemption Provisions:
---------------------
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Corporation, in the
amount of $ or an integral multiple thereof,
[on or after , at the following redemption prices
(expressed in percentages of principal amount). If [redeemed on or before
, % and if] redeemed during the 12-month period beginning
,
Redemption
Year Price
---- ----------
and thereafter at 100% of their principal amount, together in each case with
accrued interest to the redemption date.]
[on any interest payment date falling on or after ,
, at the election of the Corporation, at a redemption price equal
to the principal amount thereof, plus accrued interest to the date of
redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
-----------------------
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund to
retire $ principal amount of Designated Securities on
in each of the years through at 100% of their principal
amount plus
II-2
accrued interest] [, together with [cumulative] [noncumulative]
redemptions at the option of the Corporation to retire an additional $
principal amount of Designated Securities in the years through
at 100% of their principal amount plus accrued interest. Any sinking fund
requirement shall be reduced by the aggregate principal amount of Debt
Securities delivered to the Trustee by the Corporation at least days
prior to the date on which payments are to be made under the sinking fund
and designated for that purpose.]
[If Securities are extendable debt Securities, insert--
------------------------------------------------------
Extendable provisions:
Securities are repayable on , [insert date and
years], at the option of the holders, at their principal amount with accrued
interest. Initial annual interest rate will be %, and thereafter annual
interest rate will be adjusted on , , and to a
rate not less than % of the effective annual interest rate on U.S.
Treasury obligations with -year maturities as of the [insert date
15 days prior to maturity date] prior to such [insert maturity date].]
[If Securities are Floating Rate debt Securities, insert--
---------------------------------------------------------
Floating rate provisions:
Initial annual interest rate will be % through [and
thereafter will be adjusted [monthly] [on each , ,
and ] [to an annual rate of % above the
average rate for -year [month] [securities] [certificates of
deposit] by and [insert names of banks].] [and the
annual interest rate [thereafter] [from through ] will
be the interest yield equivalent of the weekly average per annum
market discount rate for -month Treasury bills plus
% of Interest Differential (the excess, if any, of (i) then current weekly
average per annum secondary market yield for -month certificates of deposit
over (ii) then current interest yield equivalent of the weekly average per
annum market discount rate for -month Treasury bills); [from and thereafter
the rate will be the then current interest yield equivalent plus % of
Interest Differential].]
II-3
Time of Delivery:
----------------
Closing Location:
----------------
Names and addresses of Representatives:
--------------------------------------
Designated Representatives:
Address for Notice, etc.:
[Other Terms]*:
__________________
* A description of particular tax, accounting or other unusual features of
the Securities should be set forth, or referenced to an attached and
accompanying description, if necessary to the issuer's understanding of the
transaction contemplated. Such a description might appropriately be in the
form in which such features will be described in the Prospectus Supplement
for the offering.
II-4
