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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
(Amendment No. 1)
MARTIN MARIETTA CORPORATION
(Name of Issuer)
COMMON STOCK
$1.00 PAR VALUE
(Title of Class of Securities)
572900 10 8
(CUSIP Number)
GENERAL ELECTRIC COMPANY
(Name of Persons Filing Statement)
BENJAMIN W. HEINEMAN, JR.
GENERAL ELECTRIC COMPANY
3135 Easton Turnpike
Fairfield, CT 06431
Tel. No.: 203-373-2492
(Name, Address and Telephone Number of
Person Authorized to Receive Notices and Communications)
August 29, 1994
(Date of Event which Requires Filing of
this Statement)
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GE hereby amends and supplements its Statement on Schedule 13D filed on
April 12, 1993 (the "Original Statement") with respect to the common stock,
$1.00 par value per share, of Martin Marietta Corporation as set forth in this
Amendment No. 1.
Unless otherwise indicated, each capitalized term used but not defined
herein shall have the meaning assigned to such term in the Original Statement.
Item 6. Contracts, Arrangements, Understandings or
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Relationships with Respect to Securities
----------------------------------------
of the Company
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The response set forth in Item 6 of the Original Statement is hereby
incorporated by reference and is amended and supplemented by the following:
On August 29, 1994, the Company, GE and Parent Corporation ("Parent")
entered into a Reconfiguration Agreement and an Agreement as to tax matters.
These agreements were signed in contemplation of the transactions set forth in
the Agreement and Plan of Reorganization dated as of August 29, 1994 (the
"Reorganization Agreement") among the Company, Lockheed Corporation and
Parent, providing for a combination of the businesses of the Company and
Lockheed. Such transactions would include a conversion of the Company
preferred stock held by GE into preferred stock of Parent.
The agreements with GE referred to above, among other matters, (i)
commit GE's management to support the proposed combination and to recommend to
GE's Board of Directors that (a) GE's preferred stock of the Company be voted
in favor of such transactions and (b) GE not assert any appraisal or
dissenter's rights in connection with such transactions; (ii) place
restrictions on GE's disposition of securities of the Company or Parent; (iii)
upon consummation of the transactions contemplated by the Reorganization
Agreement, modify the existing Standstill Agreement such that it will apply to
Parent; and (iv) protect GE against unfavorable tax consequences that it might
incur as a result of the foregoing.
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The terms of the GE agreements are incorporated herein by reference, and
the foregoing summary is qualified in its entirety by reference to the copies
thereof attached hereto.
Item 7. Material to be Filed as Exhibits
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The response set forth in Item 7 of the Original Statement is hereby
incorporated by reference and is hereby amended and supplemented by the
following:
Exhibit 99(c) Reconfiguration Agreement dated August 29, 1994
among GE, the Company and Parent Corporation
Exhibit 99(d) Agreement as to tax matters dated August 29, 1994
among GE, the Company and Parent Corporation
SIGNATURES
After reasonable inquiry and to the best knowledge and belief of the
undersigned. the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: September 1, 1994
GENERAL ELECTRIC COMPANY
By: Benjamin W. Heineman, Jr.
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Senior Vice President, General
Counsel and Secretary
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Exhibit 99(c)
August 29, 1994
Reconfiguration Agreement
Martin Marietta Corporation ("Martin Marietta"), Parent
Corporation ("Parent") and General Electric Company ("GE") agree as
follows:
1. GE has been furnished with a copy of the Agreement
and Plan of Reorganization, dated as of August 29, 1994 (as such Agreement
is effect on the date hereof, the "Agreement"), among Parent, Martin
Marietta and Lockheed Corporation ("Lockheed"). GE's management agrees to
support the transactions contemplated by the Agreement and to recommend to
GE's Board of Directors that (x) GE's shares of Martin Marietta Preferred
Stock be voted in favor thereof and (y) GE not assert any appraisal or
dissenter's rights under the General Corporation Law of Maryland in
connection with the transactions set forth in the Agreement.
2. (a) GE acknowledges that the Atlantic Sub Merger is
intended to qualify for pooling of interests accounting treatment, and
confirms as of the date hereof and with respect to the period beginning on
the date hereof and ending at such time following the Merger Date as
results covering at least 30 days of combined operations of Parent, Martin
Marietta and Lockheed have been published by Parent (which results will be
published by Parent as promptly as is practicable), that, except pursuant
to the Transaction Documents (as defined in the Transaction Agreement dated
November 22, 1992, as amended, among GE, Martin Marietta and Martin
Marietta Technologies, Inc. ("Technologies")) or any transactions
contemplated thereby (collectively, the "Excepted Transactions"), it will
not sell, exchange or otherwise dispose of any shares of Martin Marietta
Preferred Stock (or the Martin Marietta Common Stock into which it is
convertible) or the Parent Preferred Stock (including the Parent Common
Stock into which it will be convertible) to be received by it in connection
with the Atlantic Sub Merger.
(b) GE acknowledges that the Atlantic Sub Merger is
intended to qualify as a tax-free transaction under Section 351 of the
Internal Revenue Code of 1986, as amended (the "Code"), and confirms as of
the date hereof that, except for the Excepted Transactions, (i) it is not a
party to any agreement to sell, exchange or otherwise dispose of any shares
of Martin Marietta Preferred Stock (or the Martin Marietta Common Stock
into which it is convertible) or the Parent Preferred Stock (including the
Parent Common Stock into which it will be convertible) to be received by it
in connection with the Atlantic Sub Merger at any time and (ii) it has no
plan or intention to sell, exchange or otherwise dispose of any such
shares. In addition, GE confirms that, as of the date hereof, it has no
plan or intention to sell any Martin Marietta Preferred Stock, Martin
Marietta Common Stock, Parent Preferred Stock or Parent Common Stock in
connection with a written demand on Martin Marietta or Parent to register
any shares of such stock under the Securities Act of 1933, as amended. At
the time of the closing of the Mergers, GE will confirm the accuracy of the
foregoing representations as of such time.
3. Unless and until there has been a Final Determination
(as defined in Section 1313(a) of the Code) or any other event which
finally and conclusively establishes the amount of any liability for taxes
to the contrary, GE, for all tax purposes including all tax returns and any
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tax controversies, will (and will cause any affiliate or successor to its
assets or businesses to) treat the Mergers as qualifying under Section
351(a) of the Code; provided that nothing herein will require GE or any
such successor or affiliate to take any position for which, in GE's
reasonable judgment, there is no reasonable basis in fact or law.
4. Martin Marietta, Parent and GE acknowledge and agree
that, from and after the Merger Date, and without any further act on the
part of any party, the Standstill Agreement between GE and Martin Marietta
shall continue in full force and effect, except that, effective as of the
Merger Date, the Standstill Agreement is hereby amended as follows: (i)
any reference therein to (A) "Parent", shall be a reference to Parent and
(B) "Preferred Stock" shall be a reference to Parent Preferred Stock, (ii)
any reference to "Initial Issuance Date for the Preferred Stock" in Article
VI thereof shall be a reference to April 2, 1993, (iii) the Standstill
Agreement shall be terminated as to Martin Marietta, and (iv) the clause
"five percent (5%)" in Section 2.01 of the Standstill Agreement shall be
amended to read "two and one-half percent (2 1/2%)." Without limiting the
generality of this Section 4, from and after the Merger Date, and without
any further act on the part of any party, (i) Parent shall assume and be
obligated to perform all obligations of "Parent" under the Standstill
Agreement and (ii) the representations and warranties set forth in Section
1.02 of the Standstill Agreement shall be deemed to be made by Parent.
From and after the Merger Date, the number of directors to be designated by
GE under Section 3.02 of the Standstill Agreement shall be two.
5. Parent agrees that from and after the Merger Date,
and until the later of (a) the date on which GE ceases to hold Parent
Preferred Stock with a liquidation value of at least $250,000,000 and
(b) April 2, 1998, (i) it will not sell or otherwise transfer its interests
in Martin Marietta or Technologies other than for fair value (determined in
the good faith judgment of the Board of Directors of Parent) and (ii) it
will not permit Martin Marietta or Technologies to become subject to or
bound by, or otherwise cause or suffer to exist or become effective, any
direct or indirect restriction on the ability of Martin Marietta or
Technologies to pay dividends or make any other distributions to Parent.
6. Parent and Martin Marietta jointly and severally
represent and warrant to GE that (i) the execution, delivery and
performance by Parent and Martin Marietta of this Agreement and the Tax
Indemnification Agreement among the parties hereto dated the date hereof
(the "Tax Agreement") and the consummation by Parent and Martin Marietta of
the transactions contemplated by this Agreement and the Tax Agreement to be
performed by Parent or Martin Marietta, as the case may be, are within the
corporate powers of Parent or Martin Marietta, as the case may be, and have
been duly authorized by all necessary corporate action on the part of
Parent or Martin Marietta, as the case may be (except for any required
Martin Marietta stockholder approval to be obtained in connection with the
Mergers), (ii) each of this Agreement and the Tax Agreement constitutes a
valid and binding agreement of Parent and Martin Marietta and (iii) upon
issuance of the Parent Preferred Stock to GE in accordance with the terms
of the Reorganization Agreement, the Parent Preferred Stock will have been
duly authorized, duly and validly issued, fully paid and non-assessable and
will have the rights, preferences, privileges and restrictions set forth in
Parent's charter provisions relating to Parent Preferred Stock.
7. Upon consummation of the Atlantic Sub Merger and
without any further act on the part of any party, Parent shall become
jointly and severally liable with Martin Marietta for all of Martin
Marietta's obligations set forth in (i) the Agreement Relating to Certain
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Tax Refund Claims to Be Filed by General Electric Company made as of June
14, 1994 by and among GE, Martin Marietta and Technologies and (ii) Exhibit
IV to the above-mentioned Transaction Agreement, except for any such
obligation to make any payment to GE.
Unless the transactions set forth in the Agreement have
been consummated, this Agreement shall terminate and be of no further force
or effect upon the earlier to occur of the termination of the Agreement and
May 31, 1995.
This Agreement is solely for the benefit of the parties
hereto, and no provision hereof shall create any third-party beneficiary
rights in any person. It is understood and agreed that the provisions of
this Agreement binding on GE are binding on GE exclusively and not on any
of GE's affiliates (including, without limitation, any affiliates of GE
within GE's Financial Services Group (as defined in the Standstill
Agreement)).
Capitalized terms used herein and not defined are
used herein as defined in the Agreement.
MARTIN MARIETTA CORPORATION
By Marcus C. Bennett
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PARENT CORPORATION
By John E. Montague
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GENERAL ELECTRIC COMPANY
By Pamela Daley
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Exhibit 99(d)
AGREEMENT
This agreement ("Agreement") made as of August 29, 1994,
by and among Martin Marietta Corporation ("Martin"), Parent Corporation
("Parent") and General Electric Company ("GE").
The parties hereto acknowledge and agree as follows:
1. Parent and Martin are entering into an Agreement and
Plan of Reorganization dated as of August 29, 1994, by and among Parent,
Martin and Lockheed Corporation (the "Reorganization Agreement"). In
connection with this transaction, Parent and Martin intend that the Series
A Preferred Stock of Parent to be issued in accordance with the terms of
the Reorganization Agreement (the "Parent Preferred Stock") not be treated
as disqualified preferred stock within the meaning of Section 1059(f) of
the Code ("Disqualified Preferred Stock").
2. Parent and Martin do not believe that the
transactions contemplated by the Reorganization Agreement should result in
the treatment of the Parent Preferred Stock as constituting Disqualified
Preferred Stock.
3. GE agrees to file all tax returns taking the position
that the Parent Preferred Stock is not Disqualified Preferred Stock;
provided, however, that nothing herein will require GE to take such
position unless, in the opinion of independent tax counsel to GE, there is
substantial authority (within the meaning of Section 6662 of the Code) for
such position. Parent agrees to indemnify and hold harmless GE from and
against any liability with respect to income or franchise tax, including
any interest, penalties, or additions to tax and including any reasonable
costs, relating to or arising out of (a) an assertion of the Internal
Revenue Service that the Parent Preferred Stock is Disqualified Preferred
Stock, or (b) any payment pursuant to clause (a) or (b) of this
Paragraph 3.
4. (a) GE will have the exclusive right to control any
audit or other administrative or judicial proceeding with respect to
treatment of the Parent Preferred Stock as Disqualified Preferred Stock;
provided that such right of control will be exercised reasonably and in
good faith, GE will consult reasonably and in good faith with Parent
relating to the conduct of any such audit or other proceeding, and GE will
reasonably and in good faith afford Parent the opportunity (at the expense
of Parent) to participate in such audit or other proceeding.
(b) GE agrees to keep Parent reasonably advised as to any
issue relating to the treatment of the Parent Preferred Stock as
Disqualified Preferred Stock.
5. The parties hereto acknowledge that Martin and
Lockheed are engaged in a transaction intended to qualify for pooling of
interests accounting treatment under generally accepted accounting
principles. The parties agree that nothing in this Agreement will be
construed in a manner inconsistent with the qualification of the Mergers
for pooling of interests accounting treatment. The parties further agree
that if the SEC determines (in discussions in which representatives of GE
and its independent accountants are entitled to be present and participate
fully) that some or all of the terms of this Agreement are inconsistent
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with pooling of interests accounting treatment, the parties will endeavor
reasonably and in good faith to modify such terms to resolve such
inconsistency. If the parties, acting reasonably and in good faith, are
unable to agree to such modifications, then without further action of the
parties such terms of this Agreement shall (to the extent inconsistent with
such treatment) be null and void ab initio.
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PARENT CORPORATION
By: John E. Montague
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MARTIN MARIETTA CORPORATION
By: Marcus C. Bennett
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GENERAL ELECTRIC COMPANY
By: John M. Samuels
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