Exhibit 1.1
MARTIN MARIETTA MATERIALS, INC.
UNDERWRITING AGREEMENT
April 16, 2008
J.P. Morgan Securities Inc.
Banc of America Securities LLC
Wachovia Capital Markets, LLC
As Representatives of the
several Underwriters listed
in Schedule I hereto
c/o J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Banc of America Securities LLC
9 West 57
th
Street
New York, New York 10019
Wachovia Capital Markets, LLC
301 S. College Street
Charlotte, North Carolina 28288
Ladies and Gentlemen:
Martin Marietta Materials, Inc., a North Carolina corporation (the Company), proposes to
issue and sell to the several Underwriters listed in Schedule I hereto (the Underwriters), for
which J.P. Morgan Securities Inc., Banc of America Securities LLC and Wachovia Capital Markets, LLC
are acting as representatives (collectively, the Representatives), $300,000,000 principal amount
of its 6.60% Senior Notes due 2018 having the terms set forth in Schedule II hereto (the
Securities). The Securities will be issued pursuant to a base indenture dated as of April 30,
2007 (the Base Indenture) between the Company and Branch Banking & Trust Company, as trustee (the
Trustee) as supplemented by the supplemental indenture relating to the Securities to be dated as
of the Closing Date (the Supplemental Indenture and, together with the Base Indenture, the
Indenture).
The Company agrees to issue and sell the Securities to the several Underwriters as provided in
this Agreement, and each Underwriter, on the basis of the representations, warranties and
agreements set forth herein and subject to the conditions set forth herein, agrees, severally and
not jointly, to purchase from the Company the respective principal amount of Securities set forth
opposite such Underwriters name in Schedule I hereto at a price equal to 99.279% of the principal
amount thereof, plus accrued interest, if any, from April 21, 2008 to the Closing Date. The
Company will not be obligated to deliver any of the Securities except upon payment for all the
Securities to be purchased as provided herein.
The Company understands that the Underwriters intend to make a public offering of the
Securities as soon after the effectiveness of this Agreement as in the judgment of the
Representatives is advisable, and to offer the Securities on the terms set forth in the Time of
Sale Information and the Prospectus. Schedule III hereto sets forth the Time of Sale Information
made available at the Time of Sale. The Company acknowledges and agrees that the Underwriters may
offer and sell Securities to or through any affiliate of an Underwriter and that any such affiliate
may offer and sell Securities purchased by it to or through any Underwriter.
Payment for and delivery of the Securities shall be made at the offices of Simpson Thacher &
Bartlett LLP at 10:00 A.M. (New York City time) on April 21, 2008, or at such other time or place
on the same or such other date, not later than the fifth business day thereafter, as the
Representatives and the Company may agree upon in writing.
Payment for the Securities shall be made by wire transfer in immediately available funds to
the account(s) specified by the Company to the Representatives against delivery to the nominee of
The Depository Trust Company, for the account of the Underwriters, of a global note representing
the Securities (the Global Note), with any transfer taxes payable in connection with the sale of
the Securities duly paid by the Company. The Global Note will be made available for inspection by
the Representatives not later than 1:00 P.M. (New York City time) on the business day prior to the
Closing Date.
The Company and the Underwriters acknowledge and agree that the only information relating to
any Underwriter that has been furnished to the Company in writing by any Underwriter through the
Representatives expressly for use in the Registration Statement, the Prospectus (or any amendment
or supplement thereto) any Issuer Free Writing Prospectus or any Time of Sale Information and any
Preliminary Prospectus consists of the following: the list of underwriters for the offering set
forth in the table below the first paragraph, the second and third sentences of the third paragraph
and the sixth paragraph, in each case under the caption Underwriting in the Prospectus.
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All provisions contained in the document entitled Martin Marietta Materials, Inc. Debt
Securities Underwriting Agreement Standard Provisions (the Standard Provisions), annexed hereto, are incorporated by reference herein in their entirety and shall be deemed to be a
part of this Underwriting Agreement to the same extent as if such provisions had been set forth in
full herein. Terms defined in the Standard Provisions shall have the meanings specified therein,
except that if any term defined in the Standard Provisions is otherwise defined herein, the
definition set forth herein shall control.
This Agreement may be signed in counterparts (which may include counterparts delivered by any
standard form of telecommunication), each of which shall be an original and all of which together
shall constitute one and the same instrument.
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If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
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Very truly yours,
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MARTIN MARIETTA MATERIALS, INC.
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By:
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/s/ Anne H. Lloyd
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Name:
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Anne H. Lloyd
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Title:
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SVP, CFO and Treasurer
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Accepted:
BANC OF AMERICA SECURITIES LLC
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By:
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/s/ Lily Chang
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Name:
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Lily Chang
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Title:
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Principal
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J.P. MORGAN SECURITIES INC.
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By:
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/s/ Maria Sramek
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Name:
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Maria Sramek
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Title:
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Executive Director
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WACHOVIA CAPITAL MARKETS, LLC
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By:
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/s/ Carolyn Coan
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Name:
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Carolyn Coan
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Title:
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Vice President
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For themselves and on behalf of the
several Underwriters listed in
Schedule I hereto
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SCHEDULE I
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Principal
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Amount of
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Underwriter
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Securities
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J.P. Morgan Securities Inc.
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$
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72,000,000
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Banc of America Securities LLC
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69,000,000
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Wachovia Capital Markets, LLC
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69,000,000
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BB&T Capital Markets, a division of Scott & Stringfellow, Inc.
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33,000,000
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Wells Fargo Securities, LLC
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33,000,000
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Citigroup Global Markets Inc.
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24,000,000
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Total
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$
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300,000,000
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SCHEDULE II
Terms of the Securities:
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Title of Securities:
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6.60% Senior Notes due 2018
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Aggregate Principal
Amount of Securities:
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$300,000,000
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Maturity Date:
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April 15, 2018
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Interest Rate:
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6.60%
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Price to Public:
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99.929% of the principal amount, plus accrued interest, if any, from April 21, 2008
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Purchase Price to Underwriters:
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99.279% of the principal amount,
plus accrued interest, if any, from April 21, 2008
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Interest Payment Dates:
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April 15 and October 15, commencing October 15, 2008
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Record Dates:
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April 15 and October 15
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Redemption Provisions:
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The Company may redeem the notes in
whole or in part at any time prior to their maturity at the
make-whole redemption price described in the Prospectus.
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Repurchase upon Change of Control:
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Upon a change of control repurchase event, the Company will be required to make an offer to repurchase all outstanding notes of such series at a price in cash equal to 101% of the principal amount of the notes, plus
any accrued and unpaid interest to, but not including, the repurchase date.
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Designated Representatives:
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Banc of America Securities LLC
9 West 57
th
Street
New York, New York 10019
Wachovia Capital Markets, LLC
301 S. College Street
Charlotte, North Carolina 28288
Addresses for Notices:
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Attention: Investment Grade Syndicate Desk
Fax: (212) 834-6081
Banc of America Securities LLC
40 West 57th Street
NY1-040-27-03
New York, New York 10019
Attention: High Grade Transaction Management/Legal
Fax: (212) 901-7881
Wachovia Capital Markets, LLC
301 S. College Street
Charlotte, North Carolina 28288
Attention: Transaction Management Department
Fax: (704) 383-9165
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SCHEDULE III
Time of Sale:
3:20 p.m. (New York City time) on April 16, 2008
Time of Sale Information:
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Base Prospectus, dated April 25, 2007
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Preliminary prospectus supplement, dated April 16, 2008, included in the Preliminary
Prospectus
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Pricing Term Sheet for the Notes, dated April 16, 2008
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SCHEDULE IV
Martin Marietta Materials, Inc.
Pricing Term Sheet
$300,000,000 6.60% Senior Notes Due 2018
April 16, 2008
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Issuer:
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Martin Marietta Materials, Inc.
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Aggregate Principal Amount:
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$300,000,000
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Security Type:
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Fixed Rate Senior Notes
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Maturity:
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April 15, 2018
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Coupon (Interest Rate):
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6.60%
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Issue Price (Price to Public):
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99.929%
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Yield to maturity:
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6.61%
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Spread to Benchmark Treasury:
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2.95%; 295 bps
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Benchmark Treasury:
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3.50% due February 15, 2018
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Benchmark Treasury Spot and Yield:
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98-22; 3.66%
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Interest Payment Dates:
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April 15 and October 15, commencing October 15, 2008
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Day Count Convention:
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30/360
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Denominations:
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$2,000 x $1,000
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Redemption:
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At any time at the greater of 100% and the make-whole amount (the present value of principal and the remaining interest discounted at the Treasury Rate plus 45 basis points)
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Change of Control Offer:
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As described in the preliminary prospectus supplement, dated April 16, 2008
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Trade Date:
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April 16, 2008
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Settlement Date:
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April 21, 2008 (T+3)
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Net Proceeds Before Underwriting
Discount and Expenses:
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$299,787,000
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CUSIP:
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573284AK2
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ISIN:
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US573284AK25
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Anticipated Ratings:
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Baa1 (Moodys); BBB+ (S&P)
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Joint Book-Running Managers:
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J.P. Morgan Securities Inc.
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Banc of America Securities LLC
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Wachovia Capital Markets, LLC
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Co-Managers:
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BB&T Capital Markets, a
division of Scott & Stringfellow, Inc.
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Wells Fargo Securities, LLC
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Citigroup Global Markets Inc.
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A rating reflects only the view of a rating agency and is not a recommendation to buy, sell or hold
the Notes. Any rating can be revised upward or downward or withdrawn at any time by a rating
agency, if it decides that circumstances warrant that change.
The issuer has filed a registration statement (including a prospectus and a prospectus supplement)
with the SEC for the offering to which this communication relates. Before you invest, you should
read the prospectus and prospectus supplement in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the issuer and this offering.
You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov.
Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange
to send you the prospectus and prospectus supplement if you request it by calling J.P. Morgan
Securities Inc. collect 1-212-834-4533, Banc of America Securities LLC toll free 1-800-294-1322 or
Wachovia Capital Markets, LLC toll free 1-800-326-5897.
Any disclaimer or other notice that may appear below is not applicable to this communication and
should be disregarded. Such disclaimer or notice was automatically generated as a result of this
communication being sent by Bloomberg or another email system.
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April 16, 2008
MARTIN MARIETTA MATERIALS, INC.
DEBT SECURITIES UNDERWRITING AGREEMENT STANDARD PROVISIONS
From time to time, Martin Marietta Materials, Inc., a North Carolina corporation (the
Company), may enter into one or more underwriting agreements in the form of Annex A hereto that
incorporate by reference these Standard Provisions (collectively with these Standard Provisions, an
Underwriting Agreement) that provide for the sale of the securities designated in such
Underwriting Agreement (the Securities) to the several Underwriters named therein (the
Underwriters), for whom the Underwriter(s) named therein shall act as representative (the
Representative). The Underwriting Agreement, including these Standard Provisions, is sometimes
referred to herein as this Agreement. The Securities will be issued pursuant to a base indenture
dated as of April 30, 2007 (the Base Indenture), as may be amended or supplemented by a
supplemental indenture (the Supplemental Indenture and, together with the Base Indenture, the
Indenture) between the Company and Branch Banking & Trust Company, as trustee (the Trustee).
1.
Registration Statement
. The Company has prepared and filed with the Securities and
Exchange Commission (the Commission) under the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the Securities Act), a registration
statement on Form S-3 (File No 333-142343), including a prospectus (the Base Prospectus),
relating to the debt securities to be issued from time to time by the Company. The Company has
also filed, or proposes to file, with the Commission pursuant to Rule 424 under the Securities Act
a prospectus supplement specifically relating to the Securities (the Prospectus Supplement). The
registration statement, as amended at the time it becomes effective, including the information, if
any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the
registration statement at the time of its effectiveness (Rule 430 Information), is referred to
herein as the Registration Statement; and as used herein, the term Prospectus means the Base
Prospectus as supplemented by the Prospectus Supplement specifically relating to the Securities in
the form first used (or made available upon request of purchasers pursuant to Rule 173 under the
Securities Act) in connection with confirmation of sales of the Securities and the term
Preliminary Prospectus means the preliminary prospectus supplement specifically relating to the
Securities together with the Base Prospectus. Capitalized terms used but not defined herein shall
have the meanings given to such terms in the Registration Statement and the Prospectus. References
herein to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under
the Securities Act which were filed under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (the Exchange Act) on or before the effective
date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary
Prospectus or the Prospectus, as the case may be. The terms supplement, amendment and amend
as used herein as with respect to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed by the Company under the
Exchange Act after the effective date of the Registration Statement or the issue date of the
Securities subsequent to the date of the Preliminary Prospectus or the Prospectus, as the case may
be, deemed to be incorporated by reference therein. For purposes of this Agreement, the term
Effective Time means the effective date of the Registration Statement with respect to the
offering of Securities, as determined for the Company pursuant to Section 11 of the Securities Act
and Item 512 of Regulation S-K, as applicable.
At or prior to the time when sales of the Securities will be first made (the Time of Sale)
(being the time listed on Schedule III hereto), the Company will prepare certain information
(collectively, the Time of Sale Information) which information will be identified in Schedule III
to the Underwriting Agreement for such offering of Securities as constituting the Time of Sale
Information.
2.
Purchase of the Securities by the Underwriters
. (a) The Company agrees to issue and
sell the Securities to the several Underwriters named in the Underwriting Agreement, and each
Underwriter, on the basis of the representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the
Company the respective principal amount of Securities set forth opposite such Underwriters name in
the Underwriting Agreement at the purchase price set forth in the Underwriting Agreement.
(b) Payment for and delivery of the Securities will be made at the time and place set forth in
the Underwriting Agreement. The time and date of such payment and delivery is referred to herein as
the Closing Date.
(c) The Company acknowledges and agrees that the Underwriters named in the Underwriting
Agreement are acting solely in the capacity of an arms length contractual counterparty to the
Company with respect to any offering of Securities contemplated hereby (including in connection
with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an
agent of, the Company or any other person. Additionally, no such Underwriter is advising the
Company or any other person as to any legal, tax, investment, accounting or regulatory matters in
any jurisdiction. The Company shall consult with its own advisors concerning such matters and
shall be responsible for making its own independent investigation and appraisal of the transactions
contemplated hereby, and such Underwriters shall have no responsibility or liability to the Company
with respect thereto. Any review by such Underwriters named in
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the Underwriting Agreement of the Company, the transactions contemplated thereby or other
matters relating to such transactions will be performed solely for the benefit of the Underwriters
and shall not be on behalf of the Company.
3.
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Representations and Warranties of the Company
. The Company represents and warrants
to each Underwriter that:
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(a)
Registration Statement and Prospectus.
The Registration Statement is an automatic shelf
registration statement (as defined under Rule 405 of the Securities Act) that has been filed with
the Commission not earlier than three years prior to the date hereof; and no notice of objection of
the Commission to the use of such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order
suspending the effectiveness of the Registration Statement has been issued by the Commission and,
to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the
Securities Act against the Company or related to the offering has been initiated or threatened by
the Commission; as of the Effective Time, the Registration Statement complied in all material
respects with the Securities Act and did not or will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary in order to make
the statements therein not misleading; and as of the date of the Prospectus and any amendment or
supplement thereto and as of the Closing Date, the Prospectus did not and will not contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading;
provided
that the Company makes no representation and
warranty with respect to (i) that part of the Registration Statement that constitutes the Statement
of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act of 1939,
as amended, and the rules and regulations of the Commission thereunder (collectively, the Trust
Indenture Act) or (ii) any statements or omissions in the Registration Statement and the
Prospectus and any amendment or supplement thereto made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representative expressly for use therein.
(b)
Time of Sale Information
. The Time of Sale Information, at the Time of Sale, did not
contain any untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not
misleading; provided that the Company makes no representation and warranty with respect to any
statements or omissions made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the Representative
expressly for use in such Time of Sale Information.
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(c)
Issuer Free Writing Prospectus
. The Company (including its agents and representatives,
other than the Underwriters in their capacity as such) has not prepared, made, used, authorized,
approved or referred to and will not prepare, make, use, authorize, approve or refer to any
written communication (as defined in Rule 405 under the Securities Act) that constitutes an offer
to sell or solicitation of an offer to buy the Securities (each such communication by the Company
or its agents and representatives (other than a communication referred to in clauses (i), (ii) and
(iii) below) an Issuer Free Writing Prospectus) other than (i) any document not constituting a
prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities
Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Schedule
III to the Underwriting Agreement as constituting the Time of Sale Information and (v) any
electronic road show or other written communications, in each case approved in writing in advance
by the Representative. Each such Issuer Free Writing Prospectus complied in all material respects
with the Securities Act does not include any information that conflicts with the information
contained in the Registration Statement, including any documents incorporated by reference therein
and any prospectus supplement deemed to be a part thereof that has not been specified or modified,
has been or will be (within the time period specified in Rule 433) filed in accordance with the
Securities Act (to the extent required thereby) and, when taken together with the Preliminary
Prospectus accompanying, or delivered prior to delivery of, or filed prior to the first use of such
Issuer Free Writing Prospectus, did not, and at the Closing Date will not, contain any untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided that the Company makes no representation and warranty with respect to any statements or
omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representative expressly for use in any Issuer Free Writing Prospectus.
(d)
Incorporated Documents
. The documents incorporated by reference in the Registration
Statement, the Prospectus and the Time of Sale Information, when filed with the Commission (after
giving effect to any amendment or supplement filed with the Commission prior to the Time of Sale),
conformed or will conform, as the case may be, in all material respects with the requirements of
the Exchange Act and did not and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(e)
Financial Statements.
The financial statements and the related notes thereto included or
incorporated by reference in the Registration Statement, the Time of Sale Information and the
Prospectus comply in all material respects with the applicable requirements of the Securities Act
and the Exchange Act, as applicable, and present in all material respects the consolidated
financial position of the Company and its subsidiaries as of the dates indicated and the results of
their operations and the
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changes in their cash flows for the periods specified; such financial statements have been
prepared in conformity with generally accepted accounting principles applied on a consistent basis
throughout the periods covered thereby, and the supporting schedules to such financial statements
included or incorporated by reference in the Registration Statement present in all material
respects the information required to be stated therein.
(f)
No Material Adverse Change.
Except in each case as otherwise disclosed in the Time of
Sale Information and the Prospectus, since the date of the most recent financial statements of the
Company included or incorporated by reference in the Registration Statement, the Time of Sale
Information and the Prospectus, (i) there has not been any material change in the long-term debt of
the Company or any of its subsidiaries and there has not been a Material Adverse Effect (as defined
below), (ii) neither the Company nor any of its subsidiaries has entered into any transaction or
agreement that is material to the Company and its subsidiaries taken as a whole or incurred any
liability or obligation, direct or contingent, except for such liabilities or obligations that
individually or in the aggregate, would not have a Material Adverse Effect and (iii) neither the
Company nor any of its subsidiaries has sustained any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor
disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or
regulatory authority, except for such losses that, individually or in the aggregate, would not have
a Material Adverse Effect.
(g)
Organization and Good Standing.
The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of North Carolina, with the
power and authority (corporate and other) to own its properties and conduct its business as
described in the Time of Sale Information and the Prospectus.
(h)
Certain Statements in the Time of Sale Information and the Prospectus
. The statements set
forth in the Time of Sale Information and the Prospectus under the caption Description of Notes,
insofar as they purport to constitute a summary of the terms of the Securities, and under the
captions Plan of Distribution and Underwriting, insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate, complete and fair in all
material respects.
(i)
Due Authorization.
The Company has full right, power and authority to execute and deliver
this Agreement, the Securities and the Indenture (collectively, the Transaction Documents) and to
perform its obligations hereunder and thereunder; and all action required to be taken for the due
and proper authorization, execution and delivery of each of the Transaction Documents and the
consummation of the transactions contemplated thereby has been duly and validly taken.
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(j)
Indenture.
The Indenture has been duly authorized by the Company and has been duly
qualified under the Trust Indenture Act; the Base Indenture constitutes a valid and legally binding
agreement of the Company enforceable against the Company in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors rights generally or by equitable principles relating to enforceability
(collectively, the Enforceability Exceptions); and the Supplemental Indenture when executed and
delivered by the Company and the Trustee will constitute a valid and legally binding agreement of
the Company enforceable against the Company in accordance with its terms, except as enforceability
may be limited by the Enforceability Exceptions.
(k)
Securities
. The Securities have been duly authorized by the Company and, when duly
executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided
herein, will be duly and validly issued and outstanding and will constitute valid and legally
binding obligations of the Company enforceable against the Company in accordance with their terms,
subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(l)
Underwriting Agreement
. This Agreement has been duly authorized, executed and delivered
by the Company.
(m)
Descriptions of the Transaction Documents
. Each Transaction Document conforms in all
material respects to the description thereof contained in the Time of Sale Information and the
Prospectus.
(n)
No Violation or Default.
Neither the Company nor any of its subsidiaries is (i) in
violation of its charter or by-laws or similar organizational documents; (ii) in default, and no
event has occurred that, with notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or
to which any of the property or assets of the Company or any of its subsidiaries is subject; or
(iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except, in the case of clauses (ii) and (iii)
above, for any such default or violation that would not, individually or in the aggregate, have a
material adverse effect on the business, properties, financial position, results of operations or
prospects of the Company and its subsidiaries taken as a whole or on the performance by the Company
of its obligations under the Securities (a Material Adverse Effect).
6
(o)
No Conflicts.
The execution, delivery and performance by the Company of each of the
Transaction Documents, the issue and sale of the Securities and the
compliance by the Company with all of the provisions of the Securities, the Indenture and this
Agreement and the consummation of the transactions herein and therein contemplated will not (i)
conflict with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any material indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument to which the Company is a party or by which the Company is
bound or to which any of the property or assets of the Company is subject, (ii) result in any
violation of the provisions of the charter or bylaws of the Company or (iii) result in the
violation of any law or statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii)
above, for any such conflict, breach, violation or default that would not, individually or in the
aggregate, have a Material Adverse Effect; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental agency or body is required
for the issue and sale of the Securities or the consummation by the Company of the transactions
contemplated by this Agreement or the Indenture except as have been made or obtained and except as
may be required by and made with or obtained from state securities laws or regulations, or, with
respect to filing the Prospectus with the Commission in accordance with Rule 424(b) under the
Securities Act.
(p)
Legal Proceedings.
Other than as set forth in the Time of Sale Information and the
Prospectus, there are no legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is
the subject which would, individually or in the aggregate, have a Material Adverse Effect
(q)
Exhibits, etc.
There are no contracts or other documents that are required under the
Securities Act to be filed as exhibits to the Registration Statement and described in the
Registration Statement or the Prospectus that are not so filed as exhibits to the Registration
Statement or described in the Registration Statement, the Time of Sale Information and the
Prospectus.
(r)
Independent Accountants
. Ernst & Young LLP, who has certified certain financial
statements of the Company and its subsidiaries is an independent registered public accounting firm
with respect to the Company and its subsidiaries within the applicable rules and regulations
adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as
required by the Securities Act.
(s)
Investment Company Act.
The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the net proceeds thereof as described in the Time of
Sale Information and the Prospectus, will not be an investment company within the meaning of the
Investment Company Act of 1940, as amended (Investment Company Act).
7
(t)
Forward-Looking Statements.
No forward-looking statement (within the meaning of Section
27A of the Securities Act and Section 21E of the Exchange Act) contained or incorporated by
reference in the Registration Statement, the Time of Sale Information and the Prospectus has been
made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(u)
Status under the Securities Act.
(i) At the time of filing the Registration Statement and,
(ii) at the time of the most recent amendment or supplement thereto, if applicable, for the
purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange
Act or form of prospectus) or determining compliance under Rule 405 of the Securities Act, and
(iii) at the time the Company or any person acting on its behalf (within the meaning, for this
clause only, of Rule 163(c) of the Securities Act) made any offer relating to the Securities in
reliance on the exemption of Rule 163 of the Securities Act, the Company was and is a well-known
seasoned issuer (as defined in Rule 405 of the Securities Act). (i) At the earliest time after
the filing of the Registration Statement relating to the Securities that the Company or another
offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the
Securities Act) and (ii) at the time of the most recent amendment or supplement thereto, if
applicable, for the purposes of (whether such amendment or supplement was by post-effective
amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of
prospectus) determining compliance under Rule 405 of the Securities Act, the Company was not an
Ineligible Issuer (as defined in Rule 405 of the Securities Act), without taking account of any
determination by the Commission pursuant to Rule 405 of the Securities Act that it is not necessary
that the Company be considered an Ineligible Issuer.
(v)
Disclosure Controls
. The Company and its subsidiaries maintain an effective system of
disclosure controls and procedures (as defined in Rule 13a-15(e) under the Exchange Act) that is
designed to ensure that information required to be disclosed by the Company in reports that it
files or submits under the Exchange Act is recorded, processed, summarized and reported within the
time periods specified in the Commissions rules and forms, including controls and procedures
designed to ensure that such information is accumulated and communicated to the Companys
management as appropriate to allow timely decisions regarding required disclosure. The Company and
its subsidiaries have carried out evaluations of the effectiveness of their disclosure controls and
procedures as required by Rule 13a-15 under the Exchange Act.
(w)
Accounting Controls
. The Company and its subsidiaries maintain systems of internal
control over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) that comply
with the requirements of the Exchange Act and have been designed by, or under the supervision of
their respective principal executive and principal financial officers, or persons performing
similar functions, to provide
8
reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted accounting
principles, including, but not limited to internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with managements general or
specific authorizations; (ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting principles and to maintain
asset accountability; (iii) access to assets is permitted only in accordance with managements
general or specific authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with respect to any
differences. Other than as disclosed in the Time of Sale Information and the Prospectus, as of
December 31, 2007, there were no material weaknesses in the Companys internal controls.
(x)
Compliance with OFAC
. None of the Company, any of its subsidiaries or, to the knowledge
of the Company, any director, officer, agent or employee of the Company or any of its subsidiaries
is currently included on the List of Specially Designated Nationals and Blocked Persons (the SDN
List) maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury
(OFAC); and the Company will not directly or indirectly use the proceeds of the offering of the
Securities hereunder, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other person or entity, for the purpose of financing the
activities of any person currently included on the SDN List maintained by OFAC.
(y)
Compliance with the Foreign Corrupt Practices Act.
Neither the Company nor any of its
subsidiaries nor, to the knowledge of the Company, any director, officer, agent or employee of the
Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly,
that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as
amended, and the rules and regulations thereunder (the FCPA), including, without limitation,
making use of the mails or any means or instrumentality of interstate commerce corruptly in
furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or
other property, gift, promise to give, or authorization of the giving of anything of value to any
foreign official (as such term is defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in contravention of the FCPA; and the
Company, its subsidiaries and, to the knowledge of the Company, its affiliates have conducted their
businesses in compliance with the FCPA and have instituted and maintain policies and procedures
designed to ensure, and which are reasonably expected to continue to ensure, continued compliance
therewith.
(z)
Sarbanes-Oxley Act
. There is and has been no failure on the part of the Company or any of
the Companys directors or officers, in their capacities as such, to comply in all material
respects with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith
9
(the Sarbanes-Oxley Act), including Section 402 related to loans and Sections 302 and 906 related to
certifications.
For purposes of this Section 3 as well as for Sections 5 and 6 hereof, references to the Time of
Sale Information and the Prospectus are to each of them as a separate or stand-alone document (and
not the two of them taken together), so that representations, warranties, agreements, conditions
and legal opinions will be made, given or measured independently in respect of each of the Time of
Sale Information and the Prospectus.
4.
Further Agreements of the Company
. The Company covenants and agrees with each
Underwriter that:
(a)
Filings with the Commission.
The Company will (i) pay the registration fees for this
offering within the time period required by Rule 456(b)1(i) under the Securities Act (without
giving effect to the proviso therein) and in any event prior to the Closing Date and (ii) file the
Prospectus in a form approved by the Underwriters with the Commission pursuant to Rule 424 under
the Securities Act not later than the close of business on the second business day following the
date of determination of the public offering price of the Securities or, if applicable, such
earlier time as may be required by Rule 424(b) and Rule 430A, 430B or 430C under the Securities
Act. The Company will file any Issuer Free Writing Prospectuses (including the term sheets in the
form of Schedule IV to the Underwriting Agreement) to the extent required by Rule 433 under the
Securities Act; and the Company will furnish copies of the Prospectus and each Issuer Free Writing
Prospectus (to the extent not previously delivered) to the Underwriters in New York City prior to
10:00 A.M. (New York City time) on the business day that is two days following the date of this
Agreement in such quantities as the Representative may reasonably request.
(b)
Delivery of Copies.
The Company will deliver, without charge, to each Underwriter during
the Prospectus Delivery Period (as defined below), as many copies of the Prospectus (including all
amendments and supplements thereto and documents incorporated by reference therein) and each Issuer
Free Writing Prospectus (if applicable) as the Representative may reasonably request. As used
herein, the term Prospectus Delivery Period means such period of time, if any, after the first
date of the public offering of the Securities as a prospectus relating to the Securities is
required by law to be delivered (or required to be delivered but for Rule 172 under the Securities
Act) in connection with sales of the Securities by any Underwriter or dealer.
(c)
Amendments or Supplements; Issuer Free Writing Prospectuses.
Prior to the termination of
the Prospectus Delivery Period, before making, preparing, using, authorizing, approving, referring
to or filing any Issuer Free Writing Prospectus, and before filing any amendment or supplement to
the Registration Statement or the Prospectus, the Company will furnish to the Representative and
counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or
supplement for review and will not make, prepare, use, authorize, approve, refer to or
10
file any such Issuer Free Writing Prospectus or file any such proposed amendment or supplement
to which the Representative reasonably objects.
(d)
Notice to the Representative.
Prior to the termination of the Prospectus Delivery Period,
the Company will advise the Representative promptly, and confirm such advice in writing, (i) when
any amendment to the Registration Statement has been filed or becomes effective; (ii) when any
supplement to the Prospectus or any amendment to the Prospectus or any Issuer Free Writing
Prospectus has been filed; (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or the receipt of any
comments from the Commission relating to the Registration Statement or any other request by the
Commission for any additional information; (iv) of the issuance by the Commission of any order
suspending the effectiveness of the Registration Statement or preventing or suspending the use of
any Preliminary Prospectus or the Prospectus or the initiation or threatening of any proceeding for
that purpose or pursuant to Section 8A of the Securities Act; (v) of the occurrence of any event
within the Prospectus Delivery Period as a result of which the Prospectus, the Time of Sale
Information or any Issuer Free Writing Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the circumstances existing
when the Prospectus, the Time of Sale Information or any such Issuer Free Writing Prospectus is
delivered to a purchaser, not misleading; (vi) of the receipt by the Company of any notice of
objection of the Commission to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Securities Act and (vii) of the receipt by
the Company of any notice with respect to any suspension of the qualification of the Securities for
offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such
purpose; and the Company will use its reasonable best efforts to prevent the issuance of any such
order suspending the effectiveness of the Registration Statement, preventing or suspending the use
of any Preliminary Prospectus or the Prospectus or suspending any such qualification of the
Securities and, if any such order is issued, will use its reasonable best efforts to obtain as soon
as possible the withdrawal thereof.
(e)
Time of Sale Information
. If at any time prior to the Closing Date (i) any event shall
occur or condition shall exist as a result of which the Time of Sale Information as then amended or
supplemented would include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances, not
misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply
with law, the Company will immediately notify the Underwriters thereof and as promptly as
practicable prepare and, subject to Section 4(c) above, file with the Commission (to the extent
required) and furnish to the Underwriters and to such dealers as the Representative may designate,
such amendments or supplements to the Time of Sale Information as may be necessary so that the
statements in the Time of Sale Information as so amended or supplemented
11
will not, in the light of the circumstances, be misleading or so that the Time of Sale
Information will comply with law.
(f)
Ongoing Compliance.
If during the Prospectus Delivery Period (i) any event shall occur or
condition shall exist as a result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it
is necessary to amend or supplement the Prospectus to comply with law, the Company will immediately
notify the Underwriters thereof and as promptly as practicable prepare and, subject to Section 4(c)
above, file with the Commission and furnish to the Underwriters and to such dealers as the
Representative may designate, such amendments or supplements to the Prospectus as may be necessary
so that the statements in the Prospectus as so amended or supplemented will not, in the light of
the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so
that the Prospectus will comply with law.
(g)
Blue Sky Compliance.
The Company will use its reasonable best efforts to qualify the
Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the
Representative shall reasonably request and will continue such qualifications in effect so long as
required for distribution of the Securities; provided that the Company shall not be required to (i)
qualify as a foreign corporation or other entity or as a dealer in securities in any such
jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent
to service of process in any such jurisdiction or (iii) subject itself to taxation in any such
jurisdiction if it is not otherwise so subject.
(h)
Earning Statement.
The Company will make generally available to its security holders and
the Representative as soon as practicable an earning statement that satisfies the provisions of
Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering
a period of at least twelve months beginning with the first fiscal quarter of the Company occurring
after the effective date (as defined in Rule 158) of the Registration Statement.
(i)
Clear Market.
During the period from the date hereof through and including the Closing
Date or such later date as is specified in the Underwriting Agreement, the Company will not,
without the prior written consent of the Representative, offer, sell, contract to sell or otherwise
dispose of any debt securities issued or guaranteed by the Company and having a tenor of more than
one year.
12
(j)
Use of Proceeds.
The Company will apply the net proceeds from the sale of the Securities
as described in the Time of Sale Information and the Prospectus under the heading Use of
proceeds.
(k)
No Stabilization.
The Company will not take, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any stabilization or manipulation of
the price of the Securities.
(l)
Filing of Exchange Act Documents.
The Company will file when due any reports and any
definitive proxy or information statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act during the Prospectus Delivery
Period.
(m)
Record Retention
. The Company will, pursuant to reasonable procedures developed in good
faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission
in accordance with Rule 433 under the Securities Act.
5.
Certain Agreements of the Underwriters
. Each Underwriter hereby represents and agrees
that
(a) It has not and will not use, authorize use of, refer to, or participate in the planning
for use of, any free writing prospectus (as defined in Rule 405 under the Securities Act) (which
term includes use of any written information furnished to the Commission by the Company and not
incorporated by reference into the Registration Statement and any press release issued by the
Company) other than (i) a free writing prospectus that, solely a result of use by such underwriter,
would not trigger an obligation to file such free writing prospectus with the Commission pursuant
to Rule 433, (ii) the information contained in any Issuer Free Writing Prospectus listed on
Schedule III to the Underwriting Agreement or prepared pursuant to Section 3(c) or Section 4(c)
above (including any electronic road show), or (iii) any free writing prospectus prepared by such
underwriter and approved by the Company in advance in writing (each such free writing prospectus
referred to in clauses (i) or (iii), an Underwriter Free Writing Prospectus).
(b) Notwithstanding the foregoing the Underwriters may use term sheets substantially
consistent with the form of pricing term sheet set forth in Schedule IV to the Underwriting
Agreement without the consent of the Company.
(c) It is not subject to any pending proceeding under Section 8A of the Securities Act with
respect to the offering (and will promptly notify the Company if any such proceeding against it is
initiated during the Prospectus Delivery Period).
13
6.
Conditions of Underwriters Obligations.
The obligation of each Underwriter to purchase
Securities on the Closing Date as provided herein is subject to the performance by the Company of
its covenants and other obligations hereunder and to the following additional conditions:
(a)
Registration Compliance; No Stop Order.
If a post-effective amendment to the Registration
Statement is required to be filed under the Securities Act, such post-effective amendment shall
have become effective, and the Representative shall have received notice thereof, not later than
5:00 P.M. (New York City time) on the date of the Underwriting Agreement; no order suspending the
effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose,
pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending
before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus
shall have been timely filed with the Commission under the Securities Act (in the case of an Issuer
Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in
accordance with Section 4(a) hereof; and all requests by the Commission for additional information
shall have been complied with to the reasonable satisfaction of the Representative.
(b)
Representations and Warranties.
The representations and warranties of the Company
contained herein shall be true and correct on the date hereof and on and as of the Closing Date;
and the statements of the Company and its officers made in any certificates delivered pursuant to
this Agreement shall be true and correct on and as of the Closing Date.
(c)
No Downgrade.
Subsequent to the earlier of (A) the Time of Sale and (B) the execution and
delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the
Securities or any other debt securities of or guaranteed by the Company by Moodys Investors
Service, Inc. or Standard & Poors (a division of the McGraw Hill Companies, Inc.) and (ii) neither
organization shall have publicly announced that it has under surveillance or review, or has changed
its outlook with negative implications with respect to, its rating of the Securities or of any
other debt securities of or guaranteed by the Company or any of its subsidiaries (other than an
announcement with positive implications of a possible upgrading).
(d)
No Material Adverse Change.
No event or condition of a type described in Section 3(f)
hereof shall have occurred or shall exist, which event or condition is not described in the Time of
Sale Information (excluding any amendment or supplement thereto) and the Prospectus (excluding any
amendment or supplement thereto) and the effect of which in the judgment of the Representative
makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the
Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale
Information and the Prospectus.
14
(e)
Officers Certificate.
The Representative shall have received on and as of the Closing
Date a certificate of an executive officer of the Company who has specific knowledge of the
Companys financial matters and is reasonably satisfactory to the Representative (i) confirming
that such officer has carefully reviewed the Registration Statement, the Time of Sale Information
and the Prospectus and, to the best knowledge of such officer and on behalf of the Company and not
in his or her individual capacity, the representations set forth in Sections 3(a) and 3(b) hereof
are true and correct, (ii) confirming that the other representations and warranties of the Company
in this Agreement are true and correct and that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date and (iii) to the effect set forth in Sections 6(a), 6(c) and 6(d) above.
(f)
Comfort Letters.
On the date of this Agreement and on the Closing Date, Ernst & Young LLP
shall have furnished to the Representative, at the request of the Company, letters, dated the
respective dates of delivery thereof and addressed to the Underwriters, substantially in the form
and substance provided to the Representative, prior to the date hereof, containing statements and
information of the type customarily included in accountants comfort letters to underwriters with
respect to the financial statements and certain financial information contained or incorporated by
reference in the Registration Statement, the Time of Sale Information and the Prospectus;
provided
that the letter delivered on the Closing Date shall use a cut-off date no more
than three business days prior to the Closing Date.
(g)
Opinion and Negative Assurance Letter of Counsel for the Company.
Skadden, Arps, Slate,
Meagher & Flom LLP, counsel for the Company, shall have furnished to the Representative, at the
request of the Company, their written opinions and negative assurance letter, dated the Closing
Date and addressed to the Underwriters, in form and substance substantially to the effect set forth
in Annex B hereto.
(h)
Opinion of North Carolina Counsel for the Company.
Robinson, Bradshaw & Hinson, P.A.,
special North Carolina counsel for the Company, shall have furnished to the Representative, at the
request of the Company, their written opinion, dated the Closing Date and addressed to the
Underwriters, in form and substance substantially to the effect set forth in Annex C hereto.
(i)
Opinion and Negative Assurance Letter for the Underwriters.
The Representative shall have
received on and as of the Closing Date an opinion and negative assurance letter of Simpson Thacher
& Bartlett LLP, counsel for the Underwriters, with respect to such matters as the Representative
may reasonably request, and such counsel shall have received such documents and information as they
may reasonably request to enable them to pass upon such matters.
15
(j)
No Legal Impediment to Issuance.
No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any federal, state or foreign
governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or
sale of the Securities; and no injunction or order of any federal, state or foreign court shall
have been issued that would, as of the Closing Date, prevent the issuance or sale of the
Securities.
(k)
Good Standing
. The Representative shall have received on and as of the Closing Date
satisfactory evidence of the good standing of the Company and its significant subsidiaries set
forth on Annex D hereto in the jurisdictions set forth on Annex D hereto, in each case in writing
or any standard form of telecommunication from the appropriate governmental authorities of such
jurisdictions.
(l)
Additional Documents.
On or prior to the Closing Date, the Company shall have furnished
to the Representative such further certificates and documents as the Representative may reasonably
request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
7.
Indemnification and Contribution
.
(a)
Indemnification of the Underwriters.
The Company agrees to indemnify and hold harmless
each Underwriter, its affiliates, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities (including, without
limitation, reasonable legal fees and other expenses incurred in connection with any suit, action
or proceeding or any claim asserted as such fees and expenses are incurred), joint or several, that
arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, or any omission or alleged omission to state therein
a material fact required to be stated therein or necessary in order to make the statements therein,
not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing
Prospectus or any Time of Sale Information, or any omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, in each case except insofar as such losses, claims,
damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with any information relating
to any Underwriter furnished to the Company in writing by such Underwriter through the
Representative expressly for use therein.
16
(b)
Indemnification of the Company.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in
Section 7(a) above, but only with respect to any losses, claims, damages or liabilities that arise
out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any information relating to such Underwriter furnished
to the Company in writing by such Underwriter through the Representative expressly for use in the
Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free
Writing Prospectus or any Time of Sale Information, it being understood and agreed that the only
such information consists of the information identified in the Underwriting Agreement as being
provided by the Underwriters.
(c)
Notice and Procedures.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to either Section 7(a) or 7(b) above, such
person (the Indemnified Person) shall promptly notify the person against whom such
indemnification may be sought (the Indemnifying Person) in writing;
provided
that the
failure to notify the Indemnifying Person shall not relieve it from any liability that it may have
under this Section 7 except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and
provided
,
further
, that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under this Section 7. If any
such proceeding shall be brought or asserted against an Indemnified Person and it shall have
notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably
satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified
Person, be counsel to the Indemnifying Person) to represent the Indemnified Person and any others
entitled to indemnification pursuant to this Section 7 that the Indemnifying Person may designate
in such proceeding and shall pay the reasonable fees and expenses of such proceeding and shall pay
the fees and expenses of counsel related to such proceeding as incurred. In any such proceeding,
any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person
and the Indemnified Person shall have mutually agreed to the contrary, (ii) the Indemnifying Person
has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those available to the
Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded
parties) include both the Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall not, in connection
with any proceeding or related proceeding in the same jurisdiction, be liable for the reasonable
fees and expenses of more than
17
one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such separate firm for any
Underwriter, its affiliates, directors and officers and any control persons of such Underwriter
shall be designated in writing by the Representative and any such separate firm for the Company,
its directors, its officers who signed the Registration Statement and any control persons of the
Company shall be designated in writing by the Company. The Indemnifying Person shall not be liable
for any settlement of any proceeding effected without its prior written consent, but if settled
with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees
to indemnify each Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. No Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party and indemnification could have been
sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional
release of such Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of such proceeding and
(y) does not include any statement as to or any admission of fault, culpability or a failure to act
by or on behalf of any Indemnified Person.
(d)
Contribution.
If the indemnification provided for in Sections 7(a) or 7(b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such Section, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) but also the
relative fault of the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other shall be deemed to be in the same respective
proportions as the net proceeds (before deducting expenses) received by the Company from the sale
of the Securities and the total underwriting discounts and commissions received by the Underwriters
in connection therewith, in each case as set forth in the table on the cover of the Prospectus,
bear to the aggregate offering price of the Securities. The relative fault of the Company on the
one hand and the Underwriters on the other 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 Company or by the
Underwriters and the parties relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
18
(e)
Limitation on Liability.
The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 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 that does not take account of the equitable considerations
referred to in Section 7(d) above. The amount paid or payable by an Indemnified Person as a result
of the losses, claims, damages and liabilities referred to in Section 7(d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of
this Section 7, in no event shall an Underwriter be required to contribute any amount in excess of
the amount by which the total underwriting discounts and commissions received by such Underwriter
with respect to the offering of the Securities exceeds the amount of any damages that 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 Underwriters obligations to
contribute pursuant to this Section 7 are several in proportion to their respective purchase
obligations hereunder and not joint.
(f)
Non-Exclusive Remedies.
The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any Indemnified Person
at law or in equity.
8.
Termination
. This Agreement may be terminated in the absolute discretion of the
Representative, by notice to the Company, if after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or materially limited on
the New York Stock Exchange; (ii) trading of any securities issued or guaranteed by the Company
shall have been suspended on any exchange or in any over-the-counter market; (iii) a general
moratorium on commercial banking activities shall have been declared by federal or New York State
authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis, either within or outside the United States,
that, in the judgment of the Representative, is material and adverse and makes it impracticable or
inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in
the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.
9.
Defaulting Underwriter
. (a) If, on the Closing Date, any Underwriter defaults on its
obligation to purchase the Securities that it has agreed to purchase hereunder, the non-defaulting
Underwriters may in their discretion arrange for the purchase of such Securities by other persons
satisfactory to the Company on the terms contained in this Agreement. If, within 36 hours after
any such default by any Underwriter, the non-defaulting Underwriters do not arrange for the
purchase of such Securities, then the
19
Company shall be entitled to a further period of 36 hours within which to procure other persons
satisfactory to the non-defaulting Underwriters to purchase such Securities on such terms. If
other persons become obligated or agree to purchase the Securities of a defaulting Underwriter,
either the non-defaulting Underwriters or the Company may postpone the Closing Date for up to five
full business days in order to effect any changes that in the opinion of counsel for the Company or
counsel for the Underwriters may be necessary in the Registration Statement and the Prospectus or
in any other document or arrangement, and the Company agrees to promptly prepare any amendment or
supplement to the Registration Statement and the Prospectus that effects any such changes. As used
in this Agreement, the term Underwriter includes, for all purposes of this Agreement unless the
context otherwise requires, any person not listed in the Underwriting Agreement that, pursuant to
this Section 9, purchases Securities that a defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in Section 9(a) above, the aggregate principal amount of such Securities that remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities,
then the Company shall have the right to require each non-defaulting Underwriter to purchase the
principal amount of Securities that such Underwriter agreed to purchase hereunder plus such
Underwriters
pro
rata
share (based on the principal amount of Securities that such
Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in Section 9(a) above, the aggregate principal amount of such Securities that remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the
Company shall not exercise the right described in Section 9(b) above, then this Agreement shall
terminate without liability on the part of the non-defaulting Underwriters. Any termination of
this Agreement pursuant to this Section 9 shall be without liability on the part of the Company,
except that the Company will continue to be liable for the payment of expenses as set forth in
Section 10 hereof and except that the provisions of Section 7 hereof shall not terminate and shall
remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company or any non-defaulting Underwriter for damages caused by its default.
10.
Payment of Expenses
.
(a) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid
all costs and expenses incident to the performance of its obligations
20
hereunder, including without limitation, (i) the costs incident to the authorization, issuance,
sale, preparation and delivery of the Securities and any taxes payable in that connection; (ii) the
costs incident to the preparation, printing and filing under the Securities Act of the Registration
Statement, the Preliminary Prospectus, any Issuer Free Writing Prospectus, any Time of Sale
Information and the Prospectus (including all exhibits, amendments and supplements thereto) and the
distribution thereof; (iii) the costs of reproducing and distributing each of the Transaction
Documents; (iv) the fees and expenses of the Companys counsel and independent accountants; (v) the
fees and expenses incurred in connection with the registration or qualification and determination
of eligibility for investment of the Securities under the laws of such jurisdictions as the
Representative may designate and the preparation, printing and distribution of a Blue Sky
Memorandum (including the related fees and expenses of counsel for the Underwriters in an amount
not to exceed $10,000); (vi) any fees charged by rating agencies for rating the Securities; (vii)
the fees and expenses of the Trustee and any paying agent (including related fees and expenses of
any counsel to such parties); (viii) all expenses and application fees incurred in connection with
any filing with, and clearance of any offering by, the Financial Industry Regulatory Authority,
Inc. (including related fees and expenses of any counsel to the Underwriters in an amount not to
exceed $10,000); and (ix) all expenses incurred by the Company in connection with any road show
presentation to potential investors. Except as set forth in this Section 10(a) and in Section
10(b) below, the Underwriters shall be responsible for their fees and expenses related to the
offering of the Securities.
(b) If (i) this Agreement is terminated pursuant to Section 8(ii), (ii) the Company for any
reason fails to tender the Securities for delivery to the Underwriters or (iii) the Underwriters
decline to purchase the Securities because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied, the Company agrees to reimburse the Underwriters for
all out-of-pocket costs and expenses (including the fees and expenses of their counsel) reasonably
incurred by the Underwriters in connection with this Agreement and the offering contemplated
hereby.
11.
Persons Entitled to Benefit of Agreement
. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors and the officers and
directors and any controlling persons referred to herein, and the affiliates of each Underwriter
referred to in Section 7 hereof. Nothing in this Agreement is intended or shall be construed to
give any other person any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein. No purchaser of Securities from any Underwriter shall
be deemed to be a successor merely by reason of such purchase.
12.
Survival
. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company and the Underwriters contained in this
Agreement or made by or on behalf of the Company or the Underwriters pursuant to this Agreement or
any certificate delivered pursuant hereto shall survive the delivery of and
21
payment for the Securities and shall remain in full force and effect, regardless of any termination
of this Agreement or any investigation made by or on behalf of the Company or the Underwriters.
13.
Certain Defined Terms
. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term affiliate has the meaning set forth in Rule 405 under the Securities
Act; (b) the term business day means any day other than a day on which banks are permitted or
required to be closed in New York City; and (c) the term subsidiary has the meaning set forth in
Rule 405 under the Securities Act.
14.
Miscellaneous
. (a)
Authority of the Representatives.
Any action by the Underwriters
hereunder may be taken by one or more of the Representatives on behalf of the Underwriters, and any
such action taken by any such Representatives shall be binding upon the Underwriters.
(b)
Notices.
All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the Representative at the address
set forth in the Underwriting Agreement. Notices to the Company shall be given to it at 2710
Wycliff Road, Raleigh, North Carolina, 27607, (fax: 919-783-4535); Attention: Roselyn R. Bar, Esq.,
or if different, to the address set forth in the Underwriting Agreement.
(c)
Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
(d)
Amendments or Waivers.
No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(e)
Headings.
The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
22
ANNEX A
[Form of Underwriting Agreement]
MARTIN MARIETTA MATERIALS, INC.
UNDERWRITING AGREEMENT
[Name(s) of Representative(s)]
As Representative(s) of the
several Underwriters listed
in Schedule I hereto
c/o [Name(s) and Address(es) of Representative(s)]
Ladies and Gentlemen:
Martin Marietta Materials, Inc., a North Carolina corporation (the Company), proposes to
issue and sell to the several Underwriters listed in Schedule I hereto (the Underwriters), for
whom you are acting as representative (the Representative), $
principal amount of its
% [Senior] [Subordinated] Notes due 20___having the terms set forth in Schedule II
hereto (the
Securities). The Securities will be issued pursuant to an Indenture dated as of April 30, 2007
(as may be amended or supplemented, the Indenture) between the Company and Branch Banking and
Trust Company, Inc., as trustee (the Trustee).
The Company agrees to issue and sell the Securities to the several Underwriters as provided in
this Agreement, and each Underwriter, on the basis of the representations, warranties and
agreements set forth herein and subject to the conditions set forth herein, agrees, severally and
not jointly, to purchase from the Company the respective principal amount of Securities set forth
opposite such Underwriters name in Schedule I hereto at a price equal to
% of the principal
amount thereof plus accrued interest, if any, from
, 200___to the Closing Date (as
defined below). The Company will not be obligated to deliver any of the Securities except upon
payment for all the Securities to be purchased as provided herein.
A-1
The Company understands that the Underwriters intend to make a public offering of the
Securities as soon after the effectiveness of this Agreement as in the judgment of the
Representative is advisable, and initially to offer the Securities on the terms set forth in the
Time of Sale Information and the Prospectus. Schedule III hereto sets forth the Time of Sale
Information made available at the Time of Sale. The Company acknowledges and agrees that the
Underwriters may offer and sell Securities to or through any affiliate of an Underwriter and that
any such affiliate may offer and sell Securities purchased by it to or through any Underwriter.
Payment for and delivery of the Securities shall be made at the offices of
at
10:00 A.M. (New York City time) on
, 200___, or at such other time or place on the same
or such other date, not later than the fifth business day thereafter, as the Representative and the
Company may agree upon in writing.
Payment for the Securities shall be made by wire transfer in immediately available funds to
the account(s) specified by the Company to the Representative against delivery to the nominee of
The Depository Trust Company, for the account of the Underwriters, of one or more global notes
representing the Securities (collectively, the Global Note), with any transfer taxes payable in
connection with the sale of the Securities duly paid by the Company. The Global Note will be made
available for inspection by the Representative not later than 1:00 P.M. (New York City time) on the
business day prior to the Closing Date.
The Company and the Underwriters acknowledge and agree that the only information relating to
any Underwriter that has been furnished to the Company in writing by any Underwriter through the
Representative expressly for use in the Registration Statement, the Prospectus (or any amendment or
supplement thereto) any Issuer Free Writing Prospectus or any Time of Sale Information and any
Preliminary Prospectus consists of the following:
.
All provisions contained in the document entitled Martin Marietta Materials, Inc. Debt
Securities Underwriting Agreement Standard Provisions (the Standard Provisions), attached as
Annex I hereto, are incorporated by reference herein in their entirety and shall be deemed to be a
part of this Underwriting Agreement to the same extent as if such provisions had been set forth in
full herein. Terms defined in the Standard Provisions shall have the meanings specified therein,
except that if any term defined in the Standard Provisions is otherwise defined herein, the
definition set forth herein shall control.
This Agreement may be signed in counterparts (which may include counterparts delivered by any
standard form of telecommunication), each of which shall be an original and all of which together
shall constitute one and the same instrument.
A-2
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
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Very truly yours,
MARTIN MARIETTA MATERIALS, INC.
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By
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Title:
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Accepted:
[NAME(S) OF REPRESENTATIVE(S)]
For [itself] [themselves] and on behalf of the
several Underwriters listed
in Schedule I hereto.
A-3
SCHEDULE I
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Underwriter
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Principal Amount
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$
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Total
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$
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A-I-1
SCHEDULE II
Terms of the Securities:
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Title of Securities:
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% [Senior][Subordinated] Notes due 20___
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Aggregate Principal
Amount of Securities:
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$
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Maturity Date:
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, 20___
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Interest Rate:
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%
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Price to Public:
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% of the principal amount, plus accrued
interest, if any, from
, 20___
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Purchase Price to
Underwriters:
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% of the principal amount, plus accrued
interest, if any, from
, 20___
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Interest Payment Dates:
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and
, commencing
, 200_
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Record Dates:
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and
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Redemption Provisions:
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[Other Provisions:]
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Representative(s) and Address(es) for Notices:
A-II-1
SCHEDULE III
Time of Sale:
[a.m.][p.m.] (New
York City time) on
, 20__
Time of Sale Information:
A-III-1
SCHEDULE IV
Martin Marietta Materials, Inc.
Pricing Term Sheet
$
Notes Due
, 20
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Issuer:
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Martin Marietta Materials, Inc.
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Aggregate Principal Amount:
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$
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Security Type:
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Maturity:
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, 20
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Coupon (Interest Rate):
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%
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Issue Price (Price to Public):
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%
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Yield to maturity:
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%
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Spread to Benchmark Treasury:
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%;
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Benchmark Treasury:
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% due
,
20
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Benchmark Treasury Spot and Yield:
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-
+
%
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Interest Payment Dates:
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and
, commencing
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, 200
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Day Count Convention:
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/
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Denominations:
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$
x
$
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[Redemption:]
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[Change of Control Offer:]
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Trade Date:
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, 20
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Settlement Date:
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,
20
(T +
)
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Net Proceeds Before Underwriting Discount and Expenses:
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$
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CUSIP:
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ISIN:
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Anticipated Ratings:
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(Moodys);
(S&P)
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Joint Book-Running Managers:
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Co-Managers:
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A rating reflects only the view of a rating agency and is not a recommendation to buy, sell or hold
the Notes. Any rating can be revised upward or downward or withdrawn at any time by a rating
agency, if it decides that circumstances warrant that change.
The issuer has filed a registration statement (including a prospectus and a prospectus supplement)
with the SEC for the offering to which this communication relates. Before you invest, you should
read the prospectus in that registration statement, the prospectus supplement and other documents
the issuer has filed with the SEC for more complete information about the issuer and this offering.
You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov.
Alternatively, the issuer, any
underwriter or any dealer participating in the offering will arrange to send you the prospectus if
you request it by calling toll-free 1-8[xx-xxx-xxxx] [or emailing [ ] at [. ]]
A-IV-I
ANNEX B
Form of Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
B-1
ANNEX C
Form of Opinion of Robinson, Bradshaw & Hinson, P.A.
C-1
ANNEX D
Good Standing
The list of jurisdictions for which certificates of good standing for Martin Marietta Materials,
Inc. and its subsidiaries will be received by the date of closing are below.
Martin Marietta Materials, Inc
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Jurisdiction
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Alabama
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Arkansas
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Florida
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Georgia
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Illinois
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Indiana
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Iowa
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Kansas
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Kentucky
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Louisiana
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Maryland
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Minnesota
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Mississippi
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Missouri
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Nebraska
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North Carolina
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Ohio
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Oklahoma
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Pennsylvania
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South Carolina
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Tennessee
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Texas
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Virginia
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Wisconsin
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D-1
Exhibit 4.1
MARTIN MARIETTA MATERIALS, INC.
as Issuer
and
BRANCH BANKING AND TRUST COMPANY,
as Trustee
THIRD SUPPLEMENTAL INDENTURE
Dated as of April 21, 2008
to
INDENTURE
Dated as of April 30, 2007
6.60% Senior Notes due 2018
TABLE OF CONTENTS
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Page
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ARTICLE 1. DEFINITIONS
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1
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Section 1.1. Definition of Terms
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1
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ARTICLE 2. GENERAL TERMS AND CONDITIONS OF THE Senior Notes
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2
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Section 2.1. Designation and Principal Amount
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2
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Section 2.2. Maturity
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2
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Section 2.3. Further Issues
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2
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Section 2.4. Form and Payment
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2
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Section 2.5. Global Securities
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2
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Section 2.6. Interest
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2
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Section 2.7. Authorized Denominations
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3
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Section 2.8. Redemption
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3
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Section 2.9. Change of Control
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3
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Section 2.10. Appointment of Agents
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6
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ARTICLE 3. FORM OF NOTES
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6
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Section 3.1. Form of Senior Notes
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6
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ARTICLE 4. ORIGINAL ISSUE OF NOTES
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6
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Section 4.1. Original Issue of Senior Notes
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6
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ARTICLE 5. Defaults and Remedies
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6
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Section 5.1. Acceleration
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6
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ARTICLE 6. MISCELLANEOUS
|
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7
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Section 6.1. Ratification of Indenture
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7
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Section 6.2. Trustee Not Responsible for Recitals
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7
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Section 6.3. Governing Law
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7
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Section 6.4. Separability
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7
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Section 6.5. Counterparts
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7
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EXHIBIT A Form Of Senior Notes
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A-1
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ii
THIRD SUPPLEMENTAL INDENTURE
, dated as of April 21, 2008 (this Supplemental
Indenture), between Martin Marietta Materials, Inc., a corporation duly organized and existing
under the laws of the State of North Carolina, having its principal office at 2710 Wycliff Road,
Raleigh, North Carolina 27607-3033 (the Corporation), and Branch Banking and Trust Company, a
North Carolina state banking association, as trustee (the Trustee).
WHEREAS
, the Corporation executed and delivered the indenture, dated as of April 30, 2007, to
the Trustee (as heretofore supplemented, the Indenture), to provide for the issuance of the
Corporations debt securities (the Securities), to be issued in one or more series;
WHEREAS
, pursuant to the terms of the Indenture, the Corporation desires to provide for the
establishment of a new series of its notes under the Indenture to be known as its 6.60% Senior
Notes due 2018 (the Senior Notes), the form and substance and the terms, provisions and
conditions thereof to be set forth as provided in the Indenture and this Supplemental Indenture;
WHEREAS
, the Finance Committee of the Board of Directors of the Corporation pursuant to
resolutions duly adopted on April 14, 2008 and resolutions of the Chairman Finance Committee of the
Board of Directors of the Corporation duly adopted on April 16, 2008, have duly authorized the
issuance of the Senior Notes, and has authorized the proper officers of the Corporation to execute
any and all appropriate documents necessary or appropriate to effect each such issuance;
WHEREAS
, this Supplemental Indenture is being entered into pursuant to the provisions of
Section 9.1(4) of the Indenture;
WHEREAS
, the Corporation has requested that the Trustee execute and deliver this Supplemental
Indenture; and
WHEREAS
, all things necessary to make this Supplemental Indenture a valid agreement of the
Corporation, in accordance with its terms, and to make the Senior Notes, when executed by the
Corporation and authenticated and delivered by the Trustee, the valid obligations of the
Corporation, have been performed, and the execution and delivery of this Supplemental Indenture has
been duly authorized in all respects;
NOW THEREFORE
, in consideration of the premises and the purchase and acceptance of the Senior
Notes by the Holders thereof, and for the purpose of setting forth, as provided in the Indenture,
the forms and terms of the Senior Notes, the Corporation covenants and agrees, with the Trustee, as
follows:
ARTICLE 1.
DEFINITIONS
Section 1.1.
Definition of Terms
. Unless the context otherwise requires:
(a) each term defined in the Indenture has the same meaning when used in this Supplemental
Indenture;
(b) the singular includes the plural and vice versa; and
(c) headings are for convenience of reference only and do not affect interpretation.
ARTICLE 2.
GENERAL TERMS AND CONDITIONS OF THE SENIOR NOTES
Section 2.1.
Designation and Principal Amount
. There is hereby authorized and established a series of Securities under the Indenture,
designated as the 6.60% Senior Notes due 2018, which is not limited in aggregate principal
amount. The aggregate principal amount of the Senior Notes to be issued shall be as set forth in
any Corporation order for the authentication and delivery of the Senior Notes, pursuant to Section
2.1 of the Indenture.
Section 2.2.
Maturity
. The stated maturity of principal for the Senior Notes will be April 15, 2018.
Section 2.3.
Further Issues
. The Corporation may from time to time, without the consent of the Holders of the Senior
Notes, issue additional notes of such series. Any such additional notes will have the same
ranking, interest rate, maturity date and other terms as the Senior Notes. Any such additional
notes, together with the Senior Notes herein provided for, will constitute a single series of
Securities under the Indenture.
Section 2.4.
Form and Payment
. Principal of, premium, if any, and interest on the Senior Notes shall be payable in U.S.
dollars.
Section 2.5.
Global Securities
. Upon the original issuance, the Senior Notes will be represented by one or more Global
Securities registered in the name of Cede & Co., the nominee of The Depository Trust Company
(DTC). The Corporation will issue the Senior Notes in denominations of $2,000 and integral
multiples of $1,000 in excess thereof and will deposit the Global Securities with DTC or its
custodian and register the Global Securities in the name of Cede & Co. The provisions of the
fourth paragraph of Section 2.7 of the Indenture shall also apply if an Event of Default or Default
which entitles the Holders of the Senior Notes to accelerate the Senior Notes maturity shall have
occurred and be continuing.
Section 2.6.
Interest
. The Senior Notes will bear interest (computed on the basis of a 360-day year consisting of
twelve 30-day months) from April 21, 2008 at the rate of 6.60% per annum, payable semiannually in
arrears; interest payable on each interest payment date will include interest accrued from April
21, 2008, or from the most recent interest payment date to which interest has been paid or duly
provided for; the interest payment dates on which such interest shall be payable are April 15 and
October 15, commencing on October 15, 2008; and the record date for the interest payable on any
interest payment date is the close of business on April 1 or October 1, as the case may be, next
preceding the relevant Interest Payment Date.
2
Section 2.7.
Authorized Denominations
. The Senior Notes shall be issuable in denominations of $2,000 and integral multiples of
$1,000 in excess thereof.
Section 2.8.
Redemption
. The Senior Notes are subject to redemption at the option of the Corporation as set forth in
the form of Senior Note attached hereto as Exhibit A.
Section 2.9.
Change of Control
.
(a) Upon the occurrence of a Change of Control Repurchase Event, unless the Corporation has
exercised its right to redeem all Senior Notes in accordance with the redemption terms as set forth
in the Senior Notes, the Corporation shall make an irrevocable offer (Change of Control Offer) to
each Holder of Senior Notes to repurchase all or any part (in denominations of $2,000 and in
integral multiples of $1,000 in excess thereof) of such Holders Senior Notes at a repurchase price
in cash equal to 101% of the aggregate principal amount of Senior Notes repurchased plus any
accrued and unpaid interest on the Senior Notes repurchased to, but not including, the date of
repurchase (a Change of Control Payment).
(b) Within 30 days following any Change of Control Repurchase Event or, at the Corporations
option, prior to any Change of Control, but in either case, after the public announcement of such
Change of Control, the Corporation shall mail to each Holder of Senior Notes, with a copy to the
Trustee, a notice:
(i) describing the transaction or transactions that constitute or may constitute the
Change of Control Repurchase Event;
(ii) offering to repurchase all Senior Notes tendered on the payment date specified in
such notice;
(iii) setting forth the payment date for the repurchase of the Senior Notes, which date
will be no earlier than 30 days and no later than 60 days from the date such notice is
mailed (a Change of Control Payment Date); and
(iv) if mailed prior to the date of consummation of the Change of Control, stating that
the offer to repurchase is conditioned on a Change of Control Repurchase Event occurring on
or prior to the payment date specified in such notice.
(c) The Corporation shall comply with the requirements of Rule 14e-1 under the Exchange Act,
and any other securities laws and regulations thereunder to the extent those laws and regulations
are applicable in connection with the repurchase of the Senior Notes as a result of a Change of
Control Repurchase Event. To the extent that the provisions of any securities laws or regulations
conflict with the Change of Control Repurchase Event provisions of the Senior Notes, the
Corporation will comply with the applicable securities laws and regulations and will not be deemed
to have breached its obligations under this Section 2.9 by virtue of such conflict.
(d) In order to accept the Change of Control Offer, the Holder must deliver to the Paying
Agent, at least five Business Days prior to the Change of Control Payment Date, the Senior Note
together with the form entitled Election Form (which form is annexed as Annex A
3
to the Form of
Senior Note set forth in Exhibit A hereto) duly completed, or a telegram, telex, facsimile
transmission or a letter from a member of a national securities exchange or the Financial Industry
Regulatory Authority or a commercial bank or trust company in the United States setting forth:
(i) the name of the Holder of the Senior Note;
(ii) the principal amount of the Senior Note;
(iii) the principal amount of the Senior Note to be repurchased;
(iv) the certificate number or a description of the tenor and terms of the Senior Note;
(v) a statement that the Holder is accepting the Change of Control Offer; and
(vi) a guarantee that the Senior Note, together with the form entitled Election Form
duly completed, will be received by the Paying Agent at least five Business Days prior to
the Change of Control Payment Date.
Any exercise by a Holder of its election to accept the Change of Control Offer shall be
irrevocable. The Change of Control Offer may be accepted for less than the entire principal amount
of the Senior Note, but in that event the principal amount of the Senior Note remaining outstanding
after repurchase must be equal to $2,000 and in integral multiples of $1,000 in excess thereof.
(e) On the repurchase date following a Change of Control Repurchase Event, the Corporation
shall, to the extent lawful:
(i) accept for payment all Senior Notes or portions thereof properly tendered pursuant
to such offer;
(ii) deposit with the Paying Agent an amount equal to the aggregate purchase price in
respect of all Senior Notes or portions thereof properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the Senior Notes properly
accepted, together with an Officers Certificate of the Corporation stating the aggregate
principal amount of Senior Notes or portions thereof being repurchased by the Corporation.
(f) The Paying Agent will promptly mail to each Holder of Senior Notes properly tendered, the
purchase price for such Senior Notes, and the Trustee, upon the execution and delivery by the
Corporation of such Senior Notes, will promptly authenticate and mail (or cause to be transferred
by book-entry) to each Holder a new Fixed Rate Senior Note equal in principal amount to any
unpurchased portion of any Senior Notes surrendered; provided that each new Fixed Rate Senior Note
will be in a principal amount of an integral multiple of $1,000.
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(g) The Corporation shall not be required to make an offer to repurchase the Senior Notes upon
a Change of Control Repurchase Event if a third party makes such an offer in the manner, at the
times and otherwise in compliance with the requirements for an offer made by the Corporation and
such third party purchases all Senior Notes properly tendered and not withdrawn under its offer.
(h) Solely for purposes of this Section 2.9 in connection with the Senior Notes, the following
terms shall have the following meanings:
Below Investment Grade Rating Event means the rating on the Senior Notes is lowered by at
least two of the three Rating Agencies and the Senior Notes are rated below an Investment Grade
Rating by at least two of the three Rating Agencies on any day during the period (which period
shall be extended so long as the rating of the Senior Notes is under publicly announced
consideration for a possible downgrade by any of the Rating Agencies) commencing 60 days prior to
the first public notice of the occurrence of a Change of Control or the Corporations intention to
effect a Change of Control and ending 60 days following consummation of such Change of Control.
Change of Control means (i) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any person or group (as used
in Section 13(d)(3) of the Exchange Act), becomes the beneficial owner, directly or indirectly, of
more than 50% of the Corporations Voting Stock (as defined herein), measured by voting power
rather than number of shares, (ii) any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of all or substantially all of the assets of the Corporation
and its Subsidiaries, taken as a whole, to any person or group of related persons for the purpose
of Section 13(d)(3) of the Exchange Act, together with any affiliates thereof (whether or not
otherwise in compliance with the provisions of the Indenture), (iii) the replacement of a majority
of the Board of Directors over a two-year period from the directors who constituted the Board of
Directors at the beginning of such period, when such replacement shall have not been approved by a
vote of at least a majority of the Board of Directors then still in office who either were members
of such Board of Directors at the beginning of such period or whose election as members of such
Board of Directors was previously so approved, or (iv) the adoption of a plan relating to the
liquidation or dissolution of the Corporation.
Change of Control Repurchase Event means the occurrence of both a Change of Control and a
Below Investment Grade Ratings Event.
Fitch means Fitch Inc. and its successors.
Investment Grade Rating means a rating equal to or higher than Baa3 (or the equivalent) by
Moodys, BBB-(or the equivalent) by S&P and BBB- (or the equivalent) by Fitch and the equivalent
investment grade credit rating from any replacement rating agency or rating agencies selected by
the Corporation.
Moodys means Moodys Investors Service, Inc. and its successors.
5
Rating Agency means (1) each of Moodys, S&P and Fitch; and (2) if any of Moodys, S&P or
Fitch ceases to rate the Senior Notes of this series or fails to make a rating of such Senior Notes
publicly available for reasons outside of the Corporations control, a nationally recognized
statistical rating organization within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange
Act selected by the Corporation (as certified by a resolution of the Corporations Board of
Directors) to act as a replacement agency for Moodys, S&P or Fitch, or all of them, as the case
may be.
S&P means Standard & Poors Ratings Services, a division of The McGraw-Hill Companies, Inc.
and its successors.
Voting Stock of any specified person (as that term is used in Section 13(d)(3) of the
Exchange Act) as of any date means the capital stock of such person that is at the time entitled to
vote generally in the election of the board of directors of such person.
Section 2.10.
Appointment of Agents
. The Trustee will initially be the Security Registrar and Paying Agent for the Senior Notes.
ARTICLE 3.
FORM OF NOTES
Section 3.1.
Form of Senior Notes
. The Senior Notes and the Trustees Certificate of Authentication to be endorsed thereon are to
be substantially in the form set forth in Exhibit A hereto.
ARTICLE 4.
ORIGINAL ISSUE OF NOTES
Section 4.1.
Original Issue of Senior Notes
. The Senior Notes may, upon execution of this Supplemental Indenture, be executed by the
Corporation and delivered to the Trustee for authentication, and the Trustee shall, upon
Corporation order, authenticate and deliver such Senior Notes as in such Corporation order
provided.
ARTICLE 5.
DEFAULTS AND REMEDIES
Section 5.1.
Acceleration
. For purposes of the Senior Notes, Section 6.2 of the Indenture shall be replaced with, and
superseded by, the following:
If an Event of Default with respect to a series of Securities occurs and is
continuing, the Trustee, by notice to the Corporation, or the Holders of at least 25% in
principal amount of the Securities of that series by notice to the Corporation and the
Trustee, may declare the principal (or, in the case of Discounted Securities, such amount
of principal as may be provided for in such Securities) of and accrued interest on all the
Securities of that series to be due and payable immediately, and upon a declaration such
7
principal and interest shall be due and payable immediately; provided, however, that if an
Event of Default specified in Section 6.1(4) or Section 6.1(5) of the Indenture with
respect to the Corporation shall occur and be continuing, the principal of, premium, if
any, and accrued and unpaid interest on all the Securities of that series will become
immediately due and payable without any declaration or other act on the part of the Trustee
or any Holders. The Holders of a majority in principal amount of the Securities of any
series by notice to the Trustee may rescind an acceleration (and upon such rescission any
Event of Default caused by such acceleration shall be deemed cured) with respect to that
series and its consequences if all existing Events of Default with respect to the series
have been cured or waived, if the rescission would not conflict with any judgment or
decree, and if all payments due to the Trustee and any predecessor Trustee under
Section 7.7 of the Indenture have been made.
ARTICLE 6.
MISCELLANEOUS
Section 6.1.
Ratification of Indenture
. The Indenture, as supplemented by this Supplemental Indenture, is in all respects ratified
and confirmed, and this Supplemental Indenture shall be deemed part of the Indenture in the manner
and to the extent herein and therein provided; provided, however, that the provisions of this
Supplemental Indenture (including, without limitation, Section 5.1 hereof) shall apply solely with
respect to the Senior Notes. Without limiting the foregoing, it is expressly affirmed that the
obligations of the Corporation set forth in Sections 4.3, 4.4 and 4.7 of the Indenture shall apply
with respect to the Notes.
Section 6.2.
Trustee Not Responsible for Recitals
. The recitals herein contained are made by the Corporation and not by the Trustee, and the
Trustee assumes no responsibility for the correctness thereof. The Trustee makes no representation
as to the validity or sufficiency of this Supplemental Indenture.
Section 6.3.
Governing Law
. This Supplemental Indenture, and each Senior Note shall be governed by and construed in
accordance with the laws of the State of New York.
Section 6.4.
Separability
. In case any one or more of the provisions contained in the Indenture, this Supplemental
Indenture or the Senior Notes shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect any other
provisions of the Indenture, this Supplemental Indenture or of the Senior Notes, but the Indenture,
this Supplemental Indenture and the Senior Notes shall be construed as if such invalid or illegal
or unenforceable provision had never been contained herein or therein.
Section 6.5.
Counterparts
. This Supplemental Indenture may be executed in any number of counterparts each of which
shall be an original; but such counterparts shall together constitute but one and the same
instrument.
7
IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to
be duly executed, all as of the day and year first above written.
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MARTIN MARIETTA MATERIALS, INC.
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By:
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/s/ Roselyn Bar
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Name:
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Roselyn B. Bar
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Title:
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Senior Vice President, General
Counsel and Secretary
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BRANCH BANKING AND TRUST COMPANY, as Trustee
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By:
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/s/ Pamela McGee
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Name:
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Pamela B. McGee
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Title:
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Vice President
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(A)
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[Do not delete this paragraph generates the automatic
page number]
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EXHIBIT A
FORM OF SENIOR NOTES
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED
IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART
MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
CUSIP No. 573284AK2
MARTIN MARIETTA MATERIALS, INC.
6.60% Senior Notes Due 2018
MARTIN MARIETTA MATERIALS, INC., a North Carolina corporation (the Corporation), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of
$
Dollars on April 15, 2018.
Interest Payment Dates: April 15 and October 15
Record Dates: April 1 and October 1
Additional provisions of this Security are set forth on the other side hereof. References herein
to the Securities are to the Corporations 6.60% Senior Notes Due 2018, which constitute a series
of Securities issued under the indenture referred to on the other side thereof.
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Attest: [SEAL]
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MARTIN MARIETTA MATERIALS, INC.
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By:
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Secretary
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Chief Financial Officer
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A-1
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Dated:
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Authenticated:
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This in one of the Securities of the series designated
herein and referred to in
the within-named Indenture.
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as Trustee
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By:
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,
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Authorized Officer
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A-2
MARTIN MARIETTA MATERIALS, INC.
6.60% Senior Notes Due 2018
Interest
. The Corporation promises to pay interest on the principal amount of this Security
at the rate per annum shown above. The Corporation will pay interest semi-annually on April 15 and
October 15 of each year, commencing on October 15, 2008. Interest on the Securities will accrue
from the most recent date to which interest has been paid, or if no interest has been paid, from
April 21, 2008. Unless otherwise specified, interest will be computed on the basis of a 360-day
year of twelve 30-day months.
Method of Payment
. Except as described above, the Corporation will pay interest on the
Securities (except defaulted interest, which shall be paid as set forth below) to the persons who
are registered holders of the Securities at the close of business on the record date for the next
interest payment date even though the Securities are cancelled after the record date and on or
before the interest payment date. Any such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on such regular record date and may either be paid
to the Person in whose name this Security (or one or more predecessor Securities) is registered at
the close of business on a special record date for the payment of such defaulted interest to be
fixed by the Trustee for the Securities, notice whereof shall be given to the Holders of Securities
not less than 15 days prior to such special record date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any Securities exchange on which this
Security may be listed, and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture. Payment of the principal of (and premium, if any) and interest on this
Securities will be made at the office or agency of the Corporation maintained for that purpose in
the Borough of Manhattan, The City of New York, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and private debts;
provided
,
however
, that at the option of the Corporation payment of interest may be made by check
mailed to a registered Holders address. All payments of principal and interest with respect to
this Security will be made by the Corporation in immediately available funds. To the extent
lawful, the Corporation shall pay interest on overdue principal at the rate borne by the Securities
and it shall pay interest on overdue installments of interest at the same rate.
Paying Agent and Registrar
. Initially, Branch Banking and Trust Company (Trustee),
Corporate Trust Services, 223 West Nash Street, Wilson, North Carolina 27893, will act as Paying
Agent and Registrar. The Corporation may change any Paying Agent, Registrar or co-registrar
without notice. The Corporation or any of its Subsidiaries (as defined in the Indenture) may act
as Paying Agent, Registrar or co-registrar.
Indenture
. The Corporation issued the Securities under an Indenture dated as of April 30,
2007, between the Corporation and the Trustee, as supplemented by the Third Supplemental Indenture
dated as of April 21, 2008, between the Corporation and the Trustee (as supplemented, the
Indenture). The terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code §§
77aaa-77bbbb) (Act). The Securities are subject to all such terms, and holders are referred to
the Indenture, all applicable supplemental indentures and the Act for a statement of those terms.
This Security is one of the series designated on the face hereof and will initially be offered in
the
A-3
principal amount of $300,000,000. The Corporation may, without the consent of the Holders,
issue additional Securities and thereby increase such principal amount in the future, on the same
terms and conditions and with the same CUSIP number as this Security.
Redemption
. The Securities will be redeemable at the option of the Corporation, in whole at
any time or in part from time to time, on at least 30 days but not more than 60 days prior written
notice mailed to the registered holders thereof, at a redemption price equal to the greater of (i)
100% of the principal amount of the Securities to be redeemed or (ii) the sum, as determined by the
Quotation Agent (as defined herein), of the present values of the principal amount of the
Securities to be redeemed and the remaining scheduled payments of interest thereon from the
redemption date to the maturity date of the Securities to be redeemed, exclusive of interest
accrued to the redemption date (the Remaining Life), discounted from their respective scheduled
payment dates to the redemption date on a semiannual basis (assuming a 360-day year consisting of
30-day months) at the Treasury Rate (as defined herein) plus 45 basis points plus accrued and
unpaid interest on the principal amount being redeemed to the date of redemption.
If money sufficient to pay the redemption price of and accrued interest on all the Securities
(or portions thereof) to be redeemed on the redemption date is deposited with the Trustee or paying
agent on or before the redemption date and certain other conditions are satisfied, then on and
after such redemption date, interest will cease to accrue on such Securities (or such portion
thereof) called for redemption.
business day means any day other than a Saturday, a Sunday or a day on which banking
institutions in The City of New York, New York are authorized or obligated by law, regulation,
executive order or governmental decree to close.
Comparable Treasury Issue means the United States Treasury security selected by the
Quotation Agent as having a maturity comparable to the Remaining Life that would be utilized, at
the time of selection and in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity with the Remaining Life.
Comparable Treasury Price means, with respect to any redemption date, the average of two
Reference Treasury Dealer Quotations for such redemption date.
Quotation Agent means the Reference Treasury Dealer appointed by the Corporation.
Reference Treasury Dealer means each of (1) J.P. Morgan Securities Inc., (2) Banc of America
Securities LLC, and (3) one other primary U.S. Government securities dealer in New York City (a
Primary Treasury Dealer) selected by Wachovia Capital Markets, LLC, and their respective
successors; provided, however, that if the foregoing ceases to be a Primary Treasury Dealer, we
will substitute therefor another Primary Treasury Dealer.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer
and any redemption date, the average, as determined by the Trustee, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City
time, on the third business day preceding such redemption date.
A-4
Treasury Rate means, with respect to any redemption date, the rate per annum equal to the
semiannual yield to maturity of the Comparable Treasury Issue, calculated on the third business day
preceding such redemption date using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for such redemption
date.
Change of Control
. Upon the occurrence of a Change of Control Repurchase Event, unless the
Corporation has exercised its right to redeem the Securities as described above, the Corporation
shall make an irrevocable offer (Change of Control Offer) to each Holder of the Securities to
repurchase all or any part (in denominations of $2,000 and in integral multiples of $1,000 in
excess thereof) of such Holders Securities at a repurchase price in cash equal to 101% of the
aggregate principal amount of Securities repurchased plus any accrued and unpaid interest on the
Securities repurchased to, but not including, the date of repurchase (a Change of Control
Payment). Within 30 days following any Change of Control Repurchase Event or, at the
Corporations option, prior to any Change of Control, but in either case, after the public
announcement of such Change of Control, the Corporation shall mail to each Holder of Securities,
with a copy to the Trustee, a notice describing the transaction or transactions that constitute or
may constitute the Change of Control Repurchase Event and offering to repurchase all Securities
tendered on the payment date specified in such notice, which date will be no earlier than 30 days
and no later than 60 days from the date such notice is mailed (a Change of Control Payment Date).
To accept the Change of Control Offer, the Holder must deliver to the Paying Agent, at least
five Business Days prior to the Change of Control Payment Date, this Security together with the
form entitled Election Form (which form is annexed hereto as Annex A) duly completed, or a
telegram, telex, facsimile transmission or a letter from a member of a national securities exchange
or the Financial Industry Regulatory Authority, Inc. or a commercial bank or trust company in the
United States setting forth: (a) the name of the Holder of this Security; (b) the principal amount
of this Security; (c) the principal amount of this Security to be repurchased; (d) the certificate
number or a description of the tenor and terms of this Security; (e) a statement that the Holder is
accepting the Change of Control Offer; and (f) a guarantee that this Security, together with the
form entitled Election Form duly completed, will be received by the Paying Agent at least five
Business Days prior to the Change of Control Payment Date. Any exercise by a Holder of its election
to accept the Change of Control Offer shall be irrevocable. The Change of Control Offer may be
accepted for less than the entire principal amount of this Security, but in that event the
principal amount of this Security remaining outstanding after repurchase must be equal to $2,000
and in integral multiples of $1,000 in excess thereof.
On the repurchase date following a Change of Control Repurchase Event, the Corporation shall,
to the extent lawful: (a) accept for payment all Securities or portions thereof properly tendered
pursuant to such offer; (b) deposit with the Paying Agent an amount equal to the aggregate purchase
price in respect of all Securities or portions thereof properly tendered; and (c) deliver or cause
to be delivered to the Trustee the Securities properly accepted, together with an Officers
Certificate of the Corporation stating the aggregate principal amount of Securities or portions
thereof being repurchased by the Corporation.
A-5
The Corporation shall not be required to make an offer to repurchase the Securities upon a
Change of Control Repurchase Event if a third party makes such an offer in the manner, at the times
and otherwise in compliance with the requirements for an offer made by the Corporation and such
third party purchases all Securities properly tendered and not withdrawn under its offer.
For purposes of the Change of Control Offer provisions, the following terms are applicable:
Below Investment Grade Rating Event means the rating on the Securities is lowered by at
least two of the three Rating Agencies and the Securities are rated below an Investment Grade
Rating by at least two of the three Rating Agencies on any day during the period (which period
shall be extended so long as the rating of the Securities is under publicly announced consideration
for a possible downgrade by any of the Rating Agencies) commencing 60 days prior to the first
public notice of the occurrence of a Change of Control or the Corporations intention to effect a
Change of Control and ending 60 days following consummation of such Change of Control.
Change of Control means (i) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any person or group (as used
in Section 13(d)(3) of the Exchange Act), becomes the beneficial owner, directly or indirectly, of
more than 50% of the Corporations Voting Stock (as defined herein), measured by voting power
rather than number of shares, (ii) any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of all or substantially all of the assets of the Corporation
and its Subsidiaries, taken as a whole, to any person or group of related persons for the purpose
of Section 13(d)(3) of the Exchange Act, together with any affiliates thereof (whether or not
otherwise in compliance with the provisions of the Indenture), (iii) the replacement of a majority
of the Board of Directors over a two-year period from the directors who constituted the Board of
Directors at the beginning of such period, when such replacement shall have not been approved by a
vote of at least a majority of the Board of Directors then still in office who either were members
of such Board of Directors at the beginning of such period or whose election as members of such
Board of Directors was previously so approved, or (iv) the adoption of a plan relating to the
liquidation or dissolution of the Corporation.
Change of Control Repurchase Event means the occurrence of both a Change of Control and a
Below Investment Grade Ratings Event.
Fitch means Fitch Inc. and its successors.
Investment Grade Rating means a rating equal to or higher than Baa3 (or the equivalent) by
Moodys, BBB-(or the equivalent) by S&P and BBB- (or the equivalent) by Fitch and the equivalent
investment grade credit rating from any replacement rating agency or rating agencies selected by
the Corporation.
Moodys means Moodys Investors Service, Inc. and its successors.
Rating Agency means (1) each of Moodys, S&P and Fitch; and (2) if any of Moodys, S&P or
Fitch ceases to rate the Securities or fails to make a rating of such Securities publicly
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available for reasons outside of the Corporations control, a nationally recognized
statistical rating organization within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange
Act selected by the Corporation (as certified by a resolution of the Corporations Board of
Directors) to act as a replacement agency for Moodys, S&P or Fitch, or all of them, as the case
may be.
S&P means Standard & Poors Ratings Services, a division of The McGraw-Hill Companies, Inc.
and its successors.
Voting Stock of any specified person (as that term is used in Section 13(d)(3) of the
Exchange Act) as of any date means the capital stock of such person that is at the time entitled to
vote generally in the election of the board of directors of such person.
Denominations; Transfer; Exchange
. The Securities are in registered form without coupons in
denominations of $2,000 and any multiple of $1,000 in excess thereafter. A holder may transfer or
exchange Securities in accordance with the Indenture. The Registrar may require a holder, among
other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture. Also, it need not transfer or exchange any
Securities for a period of 15 days before a selection of Securities to be redeemed or before an
interest payment date.
Persons Deemed Owners
. The registered holder of this Security may be treated as the owner of
it for all purposes, and neither the Corporation, the Trustee, nor any Registrar, Paying Agent or
co-registrar shall be affected by notice to the contrary.
Unclaimed Money
. If money for the payment of principal or interest remains unclaimed for two
years, the Trustee or Paying Agent will pay the money back to the Corporation at its request.
After that, holders entitled to unclaimed money must look only to the Corporation and not the
Trustee for payment unless an abandoned property law designates another person.
Defeasance
. The Indenture contains provisions for defeasance at any time of the entire
principal of the Securities upon compliance by the Corporation with certain conditions set forth
therein.
Amendment; Supplement; Waiver
. Subject to certain exceptions as therein provided, the
Indenture or the Securities may be amended or supplemented with the consent of the Holders of not
less than a majority in principal amount of the Securities of each series affected, and, subject to
certain exceptions and limitations as provided in the Indenture, any past default or compliance
with any provision may be waived with the consent of the Holders of a majority in principal amount
of the Securities. Without the consent of any Holder, the Indenture or the Securities may be
amended or supplemented, for among other reasons, to cure any ambiguity, omission, defect or
inconsistency, to provide for uncertificated Securities in addition to or in place of certificated
Securities or to make any change that does not materially adversely affect the rights of any
Holder. Without the consent of any holder, the Trustee may waive compliance with any provision of
the Indenture or the Securities if the waiver does not materially adversely affect the rights of
any Holder of Securities.
Restrictive Covenants
. The Indenture does not limit unsecured debt of the Corporation or any
of its Subsidiaries. The Indenture does limit certain mortgages, liens and sale-leaseback
A-7
transactions. The limitations are subject to a number of important qualifications and
exceptions. The Corporation must, on an annual basis, report to the Trustee on compliance with the
limitations.
Successors
. When a successor entity assumes all the obligations of the Corporation or its
successors under, and in compliance with, the Securities and the Indenture, the predecessor
Corporation will be released from those obligations.
Defaults and Remedies
. An Event of Default is: default for 30 days in payment of any interest
on the Securities; default in payment of any principal on the Securities; failure by the
Corporation for 90 days after notice to it given in accordance with the terms of the Indenture to
comply with any of its other agreements in the Indenture or the Securities; and certain events of
bankruptcy or insolvency, all as more fully set forth in the Indenture. If an Event of Default
with respect to the Securities shall occur and be continuing, the principal of the Securities and
accrued interest thereon may be declared due and payable in the manner and with the effect provided
in the Indenture; provided, however, that if an Event of Default relating to certain events of
bankruptcy or insolvency with respect to the Corporation shall occur and be continuing, the
principal of, premium, if any, and accrued and unpaid interest on all the Securities will become
immediately due and payable without any declaration or other act on the part of the Trustee or any
Holders. Holders of Securities may not enforce the Indenture or the Securities except as provided
in the Indenture. The Trustee may refuse to enforce the Indenture or the Securities unless it
receives indemnity satisfactory to it. Subject to certain limitations, holders of a majority in
principal amount of the Securities may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from holders notice of any continuing default (except a default in payment
of principal or interest) if it determines in good faith that withholding notice is in the
interests of such holders.
Trustee Dealings with the Corporation
. Branch Banking and Trust Company, the Trustee under
the Indenture, in its individual or any other capacity is a lender under the Corporations credit
facility and a underwriter of the Securities and may make loans to, accept deposits from and
perform services for the Corporation or any of its affiliates, and may otherwise deal with the
Corporation or its affiliates as if it were not Trustee.
No Recourse Against Others
. A director, officer, employee or stockholder, as such, of the
Corporation shall not have any liability for any obligations of the Corporation under the
Securities or the Indenture or for any claim based on, in respect of, or by reason of such
obligations or their creation. Each holder by accepting a Security waives and releases all such
liability. This waiver and release are part of the consideration for the issue of the Securities.
Authentication
. This Security shall not be valid until the Trustee or other Authenticating
Agent manually signs the certificate of authentication on this Security.
Miscellaneous
. This Security shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
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The Corporation will furnish to any holder upon written request and without charge a copy of
the Indenture. Requests may be made to: Martin Marietta Materials, Inc., 2710 Wycliff Road,
Raleigh, North Carolina 27607-3033 Attention: Secretary.
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ANNEX A
ELECTION FORM
TO
BE COMPLETED ONLY IF THE HOLDER
ELECTS
TO ACCEPT THE CHANGE OF CONTROL OFFER
The undersigned hereby irrevocably requests and instructs the Corporation to repurchase the
within Security (or the portion thereof specified below), pursuant to its terms, on the Change of
Control Payment Date specified in the Change of Control Offer, for the Change of Control Payment
specified in the within Security, to the undersigned,
, at
(please print or typewrite name and address of the
undersigned).
For this election to accept the Change of Control Offer to be effective, the Corporation must
receive, at the address of the Paying Agent set forth below or at such other place or places of
which the Corporation shall from time to time notify the Holder of the within Security, either (i)
this Security with this Election Form form duly completed, or (ii) telegram, telex, facsimile
transmission or a letter from a member of a national securities exchange or the Financial Industry
Regulatory Authority or a commercial bank or trust company in the United States setting forth (a)
the name of the Holder of the Security, (b) the principal amount of the Security, (c) the principal
amount of the Security to be repurchased, (d) the certificate number or description of the tenor
and terms of the Security, (e) a statement that the Holder is accepting the Change of Control
Offer, and (f) a guarantee stating that the Security to be repurchased, together with this
Election Form duly completed will be received by the Paying Agent at least five Business Days
prior to the Change of Control Payment Date. The address of the Paying Agent is Branch Banking and
Trust Company, Corporate Trust Services, 223 West Nash Street, Wilson, North Carolina 27893.
If less than the entire principal amount of the within Security is to be repurchased, specify
the portion thereof (which principal amount must be $2,000 or an integral multiple of $1,000 in
excess thereof) which the Holder elects to have repurchased: $
.