Exhibit 10.4
[Excess/401(a)(17) Plan - Rev
9/15/05]
LOCKHEED MARTIN
CORPORATION
SUPPLEMENTAL
RETIREMENT PLAN
(Effective
June 26, 2008)
ARTICLE
I
PURPOSES OF THE
PLAN
The purposes of
the Lockheed Martin Corporation Supplemental Retirement Plan (the
“Plan”) are:
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(a)
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to provide certain employees
of Lockheed Martin Corporation and its subsidiaries (the
“Company”) with those benefits that cannot be paid from
the Company’s tax-qualified plans because of the limitations
on contributions and benefits contained in Internal Revenue Code
section 415;
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(b)
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to provide certain key
management employees of the Company with those benefits that cannot
be paid from the Company’s tax-qualified plans because of
other limitations on contributions and benefits contained in the
Internal Revenue Code, such as the limitations contained in Code
section 401(a)(17); and
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(c)
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to provide certain key
management employees of the Company with other supplemental
benefits.
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The following
plans and predecessor plans were amended, restated and merged to
form a single Plan, effective July 1, 2004:
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1.
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Supplemental Retirement
Benefit Plan of Lockheed Martin Corporation (formerly the
Supplemental Retirement Benefit Plan of Lockheed
Corporation)
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2.
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Lockheed Martin Corporation
Supplemental Excess Retirement Plan (formerly the Martin Marietta
Corporation Supplemental Excess Retirement Plan)
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3.
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Lockheed Martin Supplemental
Retirement Income Plan (formerly the Martin Marietta Supplemental
Retirement Income Plan)
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4.
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Lockheed Martin Tactical
Systems Supplemental Executive Retirement Plan (formerly the Loral
Supplemental Executive Retirement Plan).
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The Plan is
amended and restated, effective January 1, 2005, in order to
comply with the requirements of Code section 409A. This amendment
and restatement of the Plan shall apply only to the portion of a
Participant’s benefit that accrued and vested on or after
January 1, 2005. The portion of a Participant’s benefit
that accrued and vested prior to January 1, 2005 shall be
governed by the terms of the Plan in effect on December 31,
2004, attached as Appendix B.
ARTICLE
II
DEFINITIONS
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Unless the context
indicates otherwise or the term is defined below, all terms shall
be defined in accordance with the Lockheed Martin Corporation
Retirement Program.
1. ACTUARIAL
EQUIVALENT — The Actuarial Equivalent shall mean a benefit
which has the equivalent value computed using the interest rate
which would be used by the Pension Benefit Guaranty Corporation to
determine the present value of an immediate lump sum distribution
on termination of a pension plan, as in effect on the first day of
the month of termination of employment plus one percent (1%), and
the 1983 Group Annuity Mortality Table with sex distinction;
provided that for Years beginning on or after January 1, 2011,
in no event shall the interest rate plus 1% exceed 7% or be less
than 4%.
2. BENEFICIARY
— The Beneficiary of a Participant shall be (a) the
Participant’s Spouse or (b) if there is no Spouse
surviving the Participant, the Participant’s
estate.
3. BOARD —
The Board of Directors of Lockheed Martin Corporation.
4. CODE —
The Internal Revenue Code of 1986, as amended.
5. COMMITTEE
— The committee described in Section 1 of Article
VIII.
6. COMPANY
— Lockheed Martin Corporation and its
Subsidiaries.
7. ELIGIBLE
EMPLOYEE — An employee of the Company who
(1) participates in a Qualified Pension Plan and whose
benefits thereunder are affected by the limitation on benefits
imposed by Section 415 or 401(a)(17) of the Code, or
(2) is designated by the Committee as eligible to participate
in the Plan; and who satisfies such additional requirements for
participation in this Plan as the Committee may from time to time
establish. The Lockheed Martin Pension Plans Administration
Committee (the “Pension Committee”) shall interpret the
participation requirements established by the Committee for all
participants except elected officers subject to Section 16(b)
of the Securities and Exchange Act of 1934. Determinations of
participation requirements for elected officers shall be made by
the Committee.
8. GRANDFATHERED
2004 BENEFIT — The benefit calculated under the terms of the
Plan in effect prior to January 1, 2005 (attached as Appendix
B), including benefits calculated under the Annexes to such Plan,
determined as if the Participant had terminated from employment on
December 31, 2005 (or the Participant’s actual
termination date, if earlier).
9. PARTICIPANT
— An Eligible Employee who meets the requirements for
participation contained in Article III or the Annexes; the term
shall include a former employee and survivors/beneficiaries whose
benefit has not been fully distributed. A Participant shall cease
to be an active Participant upon termination of employment, when he
otherwise ceases to be an
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Eligible Employee, or when he
otherwise ceases to meet the requirements for participation as
amended from time to time.
10. QUALIFIED
PENSION PLAN — A defined benefit plan specified in Appendix A
in which the Participant participates.
11. PLAN —
The Lockheed Martin Corporation Supplemental Retirement Plan, or
any successor plan.
12. SUBSIDIARY
— As to any person, any corporation, association,
partnership, joint venture or other business entity of which 50% or
more of the voting stock or other equity interests (in the case of
entities other than corporation), is owned or controlled (directly
or indirectly) by that entity, or by one or more of the
Subsidiaries of that entity, or by a combination
thereof.
13. YEAR —
The calendar year.
ARTICLE
III
EXCESS BENEFIT
PROVISIONS
1.
Introduction . This Article sets forth the terms of the Plan
relating to benefits determined by reference to the limitations
imposed by Code section 415 and/or Code section 401(a)(17). This
Article amends and restates the provisions relating to those
benefits previously contained in the following plans:
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(a)
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the Supplemental Retirement
Benefit Plan of Lockheed Martin Corporation (formerly known as the
Supplemental Benefit Plan of Lockheed Corporation);
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(b)
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the Lockheed Martin
Corporation Supplemental Excess Retirement Plan (formerly know as
the Martin Marietta Corporation Supplemental Excess Retirement
Plan); and
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(c)
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the Lockheed Martin Tactical
Systems Supplemental Executive Retirement Plan (formerly known as
the Loral Supplemental Executive Retirement Plan).
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2. Purpose
. Benefits under this Article III supplement the benefits of
Eligible Employees to the extent that such benefits cannot be paid
from the Company’s tax-qualified defined benefit plans
because of the limitations on benefits contained in Code section
415 and/or Code section 401(a)(17). It is intended that the
provisions of this Article which relate to the limitations imposed
by Code section 415 constitute a separate plan for purposes of
Section 3(36) of the Employee Retirement Income Security Act
of 1974 (ERISA).
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3.
Eligibility . An Eligible Employee who is entitled to
benefits under a Qualified Pension Plan, and whose retirement
income benefits are limited by the provisions of the Qualified
Pension Plan (as amended from time to time) relating to the limits
under Code section 415 and/or Code section 401(a)(17) shall receive
benefits pursuant to this Article III.
4. Amount of
Benefit . The benefit that each Participant shall be entitled
to receive under the Plan is the amount reasonably determined by
the Company to be the difference between the Participant’s
actual benefit under the applicable Qualified Pension Plan and the
benefits that would have been payable under that Plan
if:
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(a)
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the Qualified Pension Plan had
determined pensionable earnings on a “mix and match”
basis, as defined below; and
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(b)
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the Participant’s
benefit under the Qualified Pension Plan had not been limited by
Code section 415 and/or Code section 401(a)(17).
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If a
Participant’s compensation under the Management Incentive
Compensation Plan (“MICP”) is included in pensionable
earnings under a Qualified Pension Plan, the Participant’s
total pensionable earnings shall be determined on a “mix and
match” basis. The Participant’s annual compensation
earned under the MICP shall be calculated separately from other
annual pensionable earnings. The average of the three
(3) highest years of MICP compensation during the last 10
years shall be added to the average of the three (3) highest
years of other pensionable earnings during the last 10 years to
arrive at total final average pensionable earnings for the
applicable period under the Qualified Pension Plan.
Benefits under
this Article III are intended to supplement the Participant’s
actual benefit under the applicable Qualified Pension Plan as
necessary to provide the Participant with the full benefit the
Participant would have received under the applicable Qualified
Pension Plan on a “mix and match” basis and without
regard to the limitations of Code section 415 and Code section
401(a)(17). To prevent duplication of benefits, the full benefit
under the applicable Qualified Pension Plan (without regard of to
the portion of the benefit attributable to employee contributions,
if any) shall be calculated without reduction for Code section 415
and Code section 401(a)(17), then reduced by the benefit payable
from the applicable Qualified Pension Plan, and then reduced
further by the Grandfathered 2004 Benefit, then further reduced by
the benefit payable from other nonqualified pension plans of the
Company which corresponds to the benefit payable under the
applicable Qualified Pension Plan (including any benefit payable
under Annex B of this Plan and excluding any nonqualified plans
designed to supplement qualified defined contribution plans). The
remaining benefit shall be paid from this Plan pursuant to this
Article III. Participants have no right to duplicate benefits with
respect to the same period of service, and the Committee may make
such adjustments to the benefits under this Plan as the Committee
deems necessary to prevent duplication of benefits.
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The benefit
payable under this Article III shall be payable to the Participant
or Beneficiary who is receiving or entitled to receive benefits
with respect to the Participant under the Qualified Pension
Plan.
If the benefits
payable under the Qualified Pension Plan to any Participant are
increased following the Participant’s retirement as a result
of a general increase in the benefits payable to retired employees
under that Plan, no such increase will be made under this
Plan.
ARTICLE
IV
SUPPLEMENTAL
BENEFITS
In addition to
the benefits described in Article III, the Plan also provides
benefits to certain key management employees, as set forth in the
Annexes. Eligibility for, and the amount of, such benefits is set
forth in the applicable Annex. Payment options for such benefits
are described in Article V.
ARTICLE
V
PAYMENT OF
BENEFITS
1. Vesting
. Except as provided in Article VI, and subject to the
Company’s right to discontinue the Plan as provided in
Article VII, a Participant shall have a non-forfeitable benefit
payable under this Plan to the same extent as benefits are vested
under the applicable Qualified Pension Plan. As provided in Article
VI, if a Participant acquires a right to receive payments under
this Plan, such right shall be no greater than the right of any
unsecured general creditor of the Company.
2. Form and
Timing of Payment .
a. Regular
Form . A Participant may elect to receive benefits in any
annuity form that is available under the applicable Qualified
Pension Plan on the date of the Participant’s election that
has been designated by the Senior Vice President, Human Resources
as available for election under this Plan, provided (i) the
election is filed with the Company in writing no later than the
later of (a) December 16, 2005 and (b) the date that
is 30 days after the Participant commences participation in the
Plan, and (ii) the Participant’s employment has not
terminated prior to filing the election. All elections under this
Section 2.a. must be made in the form and manner prescribed by
the Company. If the Participant has not validly elected any annuity
form under this Section 2.a. or a lump sum payment as provided
in Section 2.b. of Article V, (i) an unmarried
Participant shall be deemed to have elected payment in the form of
a monthly annuity for the life of the Participant with no further
payments to anyone after his or her death, and
(ii) a
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married Participant shall be
deemed to have elected payment in the form of a reduced monthly
annuity for the life of the Participant with, after the
Participant’s death, a 50% survivor annuity for the life of
the Participant’s spouse. Actuarial adjustments shall be
based on the factors set forth in the Qualified Pension Plan.
Benefits paid in a form described in this Section 2.a. shall
commence as soon as administratively practicable following the
later of (i) the month in which the Participant terminates
employment, or (ii) the month in which the Participant attains
age fifty-five (55). Notwithstanding the foregoing sentence,
benefits paid in a form described in this Section 2.a. to a
Participant who is reasonably determined by the Company to be a
“specified employee” within the meaning of Code section
409A(2)(B)(i), shall not commence before six (6) months
following the later of (i) the month in which the Participant
terminates employment, or (ii) the month in which the
Participant attains age fifty-five (55). No interest shall be paid
between the date of termination of employment or attainment of age
fifty-five (55), as applicable, and the payment date.
b. Lump Sum
Option . In lieu of the forms described in Section 2.a. of
Article V, a Participant may make a one-time election to receive a
full lump sum payment in an amount which is the Actuarial
Equivalent of a monthly annuity for the life of the Participant
with no further payments to anyone after his or her death, provided
the election is filed with the Company in writing no later than
December 16, 2005 and the Participant’s employment has
not terminated prior to filing the election. For all Participants
who elect a lump sum under this Section 2.b., the lump sum
payment shall be made six (6) months following the later of
(i) the month in which the Participant terminates employment,
or (ii) the month in which the Participant attains age
fifty-five (55). No interest shall be paid between the date of
termination of employment or attainment of age fifty-five (55), as
applicable, and the payment date. All elections under this
Section 2.b. must be made in the form and manner prescribed by
the Company. This Section shall not apply to Participants who first
become eligible for participation in the Plan after
December 16, 2005.
c. Cash-out of
Small Benefits . Notwithstanding the above, if the Value of the
sum of the benefits payable to a Participant or Beneficiary under
this Plan does not exceed $10,000, all such benefits will be paid
in a single lump sum payment in full discharge of all liabilities
with respect to such benefits. For purposes of this Section, Value
shall be determined as of the Participant’s termination of
employment or attainment of age fifty-five (55), as applicable, and
shall mean the present value of a Participant’s or
Beneficiary’s benefits, excluding the Grandfathered 2004
Benefit, based (i) for terminations prior to January 1,
2008 upon the applicable mortality table and applicable interest
rate in Code section 417(e)(3)(ii), or for terminations on or after
January 1, 2008, upon the applicable mortality table and
applicable interest rate under Code section 417(e)(3), as amended
by the Pension Protection Act of 2006, for the calendar month
preceding the Plan Year in which the termination of employment or
attainment of age fifty-five (55) occurs. Notwithstanding the
foregoing sentence, benefits paid under this Section 2.c. to a
Participant who is reasonably determined by the Company to be a
“specified employee” within the meaning of Code section
409A(2)(B)(i), shall not commence before six (6) months
following the later of (i) the month in which the Participant
terminates
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employment, or (ii) the
month in which the Participant attains age fifty-five (55). No
interest shall be paid between the date of termination of
employment or attainment of age fifty-five (55), as applicable, and
the payment date.
d. Payment
Upon Death or Disability .
i. Death .
No other death benefits are provided under this Plan other than as
specified in this Section 2.d.i.
A.
Pre-Retirement Survivor Benefit . In the event the
Participant dies prior to terminating employment or attaining age
55, a pre-retirement survivor benefit will be payable to the
Participant’s surviving spouse (if any) (the
“Pre-Retirement Survivor Benefit” and the
“Surviving Spouse”) in the form elected by the
Participant under the terms of the Plan. If the Participant’s
benefit was payable in a lump sum, the lump sum shall be the
Actuarial Equivalent of a monthly annuity payable for the life of
the Surviving Spouse with no further payments to anyone after his
or her death. The Pre-Retirement Survivor Benefit shall commence as
soon as administratively practicable following the later of
(i) the month in which the Participant dies, or (ii) the
month in which the Participant would have attained age fifty-five
(55). No Pre-Retirement Survivor Benefit is payable to anyone other
than the Participant’s Surviving Spouse. Notwithstanding the
foregoing, with respect to all Participants who elected a lump sum
under Section 2.b., a lump sum Pre-Retirement Survivor Benefit
shall be paid to the Participant’s Surviving Spouse six
(6) months following the later of (i) the month in which
the Participant dies, or (ii) the month in which the
Participant would have attained age fifty-five (55).
B. Death After
Termination of Employment or Attainment of Age 55 . If a
Participant who is required to wait six (6) months for a lump
sum payment (in accordance with Section 2 of Article V) dies
after the Participant’s termination of employment or
attainment of age fifty-five (55), as applicable, but before
payment is made, the lump sum payment shall be made to the
Participant’s Beneficiary.
ii.
Disability . Notwithstanding the provisions of this Article
V, the benefit of a Disabled Participant who is eligible for a
disability pension from the Lockheed Martin Retirement Income Plan,
the KAPL Inc. Pension Plan for Salaried Employees, or the Lockheed
Martin Corporation Retirement Income Plan III shall be paid in the
form elected by the Participant under the terms of the Plan as soon
as administratively practicable following the date the Participant
is reasonably determined by the Company to be Disabled. For the
purposes of this Section 2.d.ii., the terms
“Disabled” or “Disability” shall have the
meaning set forth in the Lockheed Martin Retirement Income Plan,
the KAPL Inc. Pension Plan for Salaried Employees, or the Lockheed
Martin Corporation Retirement Income Plan III, as applicable, to
the extent consistent with the requirements of Code section
409A(a)(2(C).
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e. Prospective
Change of Payment Elections . Participants may elect to change
the form of payment of benefits or further delay the commencement
of benefits as provided in this Section 2.e. All elections
under this Section 2.e. must be made in the form and manner
prescribed by the Company. This Section 2.e. does not apply to
Surviving Spouses or Beneficiaries. Subject to the provisions of
Section 1 of Article VIII, other changes in the form of
benefit, including changes between actuarially equivalent forms of
benefit, if any, may be made only as determined by the Senior Vice
President, Human Resources, of the Company in accordance with Code
section 409A.
i. Form of
Payment . A Participant who is deemed to have elected payment
in a form described in Section 2.a. of Article V or has
validly elected a lump sum payment in accordance with
Section 2.b. of Article V may later elect to receive payment
in any other annuity form designated by the Senior Vice President,
Human Resources, of the Company, provided that such election is
made in writing not less than twelve (12) months before the
date the payment would have first commenced under the
Participant’s prior election. In addition, the first payment
under the new election must commence no earlier than sixty
(60) months from the date when the payment would have first
commenced under the Participant’s prior election. The timing
of the payment of any form available under this Section 2.e.i.
shall be governed by Section 2.a. of this Article
V.
ii. Timing of
Payment . Regardless of the form of payment, a Participant may
elect to delay payment of his benefit provided such election is
made in writing not less than twelve (12) months before the
date the payment would have first commenced under the
Participant’s prior election. In addition, the first payment
under the new election must commence no earlier than sixty
(60) months from when the payment would have first commenced
under the Participant’s prior election.
f.
Notwithstanding the above, for periods prior to January 1,
2009, (or such later date as may be provided by the Internal
Revenue Service in guidance of general applicability), the Senior
Vice President, Human Resources may provide alternative rules for
elections with respect to the commencement of payment and form of
payment, provided that such rules conform to Code section 409A and
Internal Revenue Service guidance issued thereunder.
g. If a
Participant participates in more than one supplemental pension plan
sponsored by the Corporation, the Participant must make a single
election that shall apply to his or her benefits under all such
plans with respect to the form of annuity (under Section 2.a.
of this Article 5) and with respect to prospective changes of
payment (under Section 2.e. of this Article 5).
3.
Deductibility of Payments . Subject to the provisions of
Section 1 of Article VIII, in the event that the payment of
benefits under Section 2 would prevent the Company from
claiming an income tax deduction with respect to any portion of the
benefits paid, the Committee shall have the right to modify the
form and timing of distributions as necessary to maximize the
Company’s tax deductions. In the exercise of its discretion
to adopt a modified distribution
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schedule, the Committee shall
undertake to have distributions made at such times and in such
amounts as most closely approximate the payment method described in
Section 2, consistent with the objective of maximum
deductibility for the Company. The Committee shall have no
authority to reduce a Participant’s accrued benefit under
this Plan or to pay aggregate benefits less than the
Participant’s accrued benefit in the event that all or a
portion thereof would not be deductible by the Company.
4. Change of
Law . Notwithstanding anything to the contrary herein, subject
to the provisions of Section 1 of Article VIII, if the
Committee determines in good faith, based on consultation with
counsel, that the federal income tax treatment or legal status of
this Plan has or may be adversely affected by a change in the Code,
Title I of the Employee Retirement Income Security Act of 1974, or
other applicable law or by an administrative or judicial
construction thereof, the Committee may direct that the benefits of
affected Participants or of all Participants be distributed as soon
as practicable after such determination is made, to the extent
deemed necessary or advisable by the Committee to cure or mitigate
the consequences, or possible consequences of, such change in law
or interpretation thereof.
5.
Acceleration upon Change in Control . Notwithstanding any
other provision of the Plan, the accrued benefit of each
Participant shall be one-hundred percent (100%) vested and be
distributed in a single lump sum within fifteen (15) calendar
days following a “Change in Control.”
For purposes of
this Plan, a Change in Control shall include and be deemed to occur
upon the following events:
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(a)
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A tender offer or exchange
offer is consummated for the ownership of securities of the Company
representing 25% or more of the combined voting power of the
Company’s then outstanding voting securities entitled to vote
in the election of directors of the Company.
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(b)
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The Company is merged,
combined, consolidated, recapitalized or otherwise reorganized with
one or more other entities that are not Subsidiaries and, as a
result of the merger, combination, consolidation, recapitalization
or other reorganization, less than 75% of the outstanding voting
securities of the surviving or resulting corporation shall
immediately after the event be owned in the aggregate by the
stockholders of the Company (directly or indirectly), determined on
the basis of record ownership as of the date of determination of
holders entitled to vote on the action (or in the absence of a
vote, the day immediately prior to the event).
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(c)
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Any person (as
this term is used in Sections 3(a)(9) and 13(d)(3) of the Exchange
Act, but excluding any person described in and satisfying the
conditions of Rule 13d-1(b)(1) thereunder), becomes the beneficial
owner (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company
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representing
25% or more of the combined voting power of the Company’s
then outstanding securities entitled to vote in the election of
directors of the Company.
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(d)
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At any time within any period
of two years after a tender offer, merger, combination,
consolidation, recapitalization, or other reorganization or a
contested election, or any combination of these events, the
“Incumbent Directors” shall cease to constitute at
least a majority of the authorized number of members of the Board.
For purposes hereof, “Incumbent Directors” shall mean
the persons who were members of the Board immediately before the
first of these events and the persons who were elected or nominated
as their successors or pursuant to increases in the size of the
Board by a vote of at least three-fourths of the Board members who
were then Board members (or successors or additional members so
elected or nominated).
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(e)
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The stockholders of the
Company approve a plan of liquidation and dissolution or the sale
or transfer of substantially all of the Company’s business
and/or assets as an entirety to an entity that is not a
Subsidiary.
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Notwithstanding
the foregoing, no distribution shall be made solely on account of a
Change in Control and prior to the benefit commencement date
specified in Section 2 of Article V unless the Change in
Control is an event qualifying for a distribution of deferred
compensation under Section 409A(a)(2)(A)(v) of the Code. This
Section 5 shall apply only to a Change in Control of Lockheed
Martin Corporation and shall not cause immediate payout of benefits
under this Plan in any transaction involving the Company’s
sale, liquidation, merger, or other disposition of any
subsidiary.
The Committee may
cancel or modify this Section 5 at any time prior to a Change
in Control. In the event of a Change in Control, this
Section 5 shall remain in force and effect, and shall not be
subject to cancellation or modification for a period of five years,
and any defined term used in Section 5 shall not, for purposes
of Section 5, be subject to cancellation or modification
during the five year period.
6. Tax
Withholding . To the extent required by law, the Company shall
withhold from benefit payments hereunder any Federal, state, or
local income or payroll taxes required to be withheld and shall
furnish the recipient and the applicable government agency or
agencies with such reports, statements, or information as may be
legally required. No benefit payments shall be made to the
Participant until the withholding obligation for taxes under Code
sections 3101(a) and 3101(b) has been satisfied with respect to the
Participant.
7. Retiree
Medical Withholding . A Participant may direct the Company to
withhold from the Participant’s benefit payments hereunder
all or a portion of the amount that the Participant is required to
pay for Company-provided retiree medical coverage.
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8.
Reemployment . Subject to the provisions of Section 1
of Article VIII, the retirement benefit otherwise payable hereunder
to any Participant who previously retired or otherwise had a
Termination of Employment and is subsequently reemployed shall be
treated in a manner consistent with the treatment of the benefit
under the applicable Qualified Plan.
9. Mistaken
Payments . No Participant or Beneficiary shall have any right
to any payment made (1) in error, (2) in contravention to
the terms of the Plan, the Code, or ERISA, or (3) because the
Committee or its delegates were not informed of any death. The
Committee shall have full rights under the law and ERISA to recover
any such mistaken payment, and the right to recover
attorney’s fees and other costs incurred with respect to such
recovery. Recovery shall be made from future Plan payments, or by
any other available means.
ARTICLE
VI
EXTENT OF
PARTICIPANTS’ RIGHTS
1. Unfunded
Status of Plan . This Plan constitutes a mere contractual
promise by the Company to make payments in the future, and each
Participant’s rights shall be those of a general, unsecured
creditor of the Company. No Participant shall have any beneficial
interest in any specific assets that the Company may hold or set
aside in connection with this Plan. Notwithstanding the foregoing,
to assist the Company in meeting its obligations under this Plan,
the Company may set aside assets in a trust or trusts described in
Revenue Procedure 92-64, 1992-2 C.B. 422, and the Company may
direct that its obligations under this Plan be satisfied by
payments out of such trust or trusts. The assets of any such trust
will remain subject to the claims of the general creditors of the
Company. It is the Company’s intention that the Plan be
unfunded for Federal income tax purposes and for purposes of Title
I of the Employee Retirement Income Security Act of
1974.
2.
Nonalienability of Benefits . A Participant’s rights
under this Plan shall not be assignable or transferable and any
purported transfer, assignment, pledge or other encumbrance or
attachment of any payments or benefits under this Plan, or any
interest therein shall not be permitted or recognized, other than
the designation of, or passage of payment rights to, a Beneficiary
or transfer of an interest in this Plan to a Participant’s
former spouse incident to divorce under a Qualified Domestic
Relations Order.
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3.
Forfeiture . If, following the date on which a Participant
shall retire under this Plan, a Participant shall engage in the
operation or management of a business, whether as owner,
stockholder, partner, officer, employee, consultant, or otherwise,
which at such time is in competition with the Company or any of its
subsidiaries, or shall disclose to unauthorized persons information
relative to the business of the Company or any of its subsidiaries
which the Participant shall have reason to believe is confidential,
or otherwise act, or conduct oneself, in a manner which the
Participant shall have reason to believe is contrary to the best
interest of the Company, or shall be found by the Committee to have
committed an act during the term of the Participant’s
employment which would have justified the Participant being
discharged for cause, the Participant’s retirement benefit
under this Plan shall terminate. Application of this Section will
be at the discretion of the Committee.
ARTICLE
VII
AMENDMENT OR
TERMINATION
1.
Amendment . The Board or its authorized delegate may amend,
modify, suspend or discontinue this Plan at any time subject to any
shareholder approval that may be required under applicable law,
provided, however, that no such amendment shall have the effect of
reducing a Participant’s accrued benefit or postponing the
time when a Participant is entitled to receive a distribution of
his accrued benefit unless each affected Participant consents to
such change.
2.
Termination . The Board reserves the right to terminate this
Plan at any time and, subject to the provisions of Section 1
of Article VIII, to pay all Participants their accrued benefits in
a lump sum or to make other provisions for the payment of benefits
(e.g. purchase of annuities) immediately following such termination
or at such time thereafter as the Board may determine.
3. Transfer of
Liability . The Board reserves the right to transfer to another
entity all of the obligations of Company with respect to a
Participant under this Plan if such entity agrees pursuant to a
binding written agreement with the Company or its subsidiaries to
assume all of the obligations of the Company under this Plan with
respect to such Participant.
4. Merger
. The Board reserves the right to merge all or part of this Plan
with or into another plan, provided (1) such other plan
preserves all of the obligations of the Company under this Plan
with respect to such Participant and (2) each Participant in
the Plan would (if the Plan then terminated) receive a benefit
immediately after the merger which is equal to or greater than the
benefit he would have been entitled to receive immediately before
the merger (if the Plan had then terminated).
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ARTICLE
VIII
ADMINISTRATION
1. The
Committee . This Plan shall be administered by the Management
Development and Compensation Committee of the Board or such other
committee of the Board as may be designated by the Board. The
members of the Committee shall be designated by the Board. A
majority of the members of the Committee (but not fewer than two)
shall constitute a quorum. The vote of a majority of a quorum or
the unanimous written consent of the Committee shall constitute
action by the Committee. The Committee and its delegates shall have
full discretion to construe and interpret the terms and provisions
of the Plan, which interpretation or construction shall be final,
conclusive and binding on all parties, including but not limited to
the Company and any Participant or Beneficiary, except as otherwise
provided by law. Notwithstanding anything contained in the Plan or
in any document issued under the Plan, it is intended that the Plan
will at all times conform to the requirements of Code section 409A,
including the rules for “grandfathered” benefits under
Code section 409A, and any regulations or other guidance issued
thereunder, and that the provisions of the Plan will be interpreted
to meet such requirements. If any provision of the Plan is
determined not to conform to such requirements, the Plan shall be
interpreted to omit such offending provision.
2. Delegation
and Reliance . The Committee may delegate to the officers or
employees of the Company the authority to execute and deliver those
instruments and documents, to do all acts and things, and to take
all other steps deemed necessary, advisable or convenient for the
effective administration of this Plan in accordance with its terms
and purpose. In making any determination or in taking or not taking
any action under this Plan, the Committee may obtain and rely upon
the advice of experts, including professional advisors to the
Company. Except as otherwise provided in Section 6, the
Committee delegates the authority to adjudicate claims to the
Pension Plans Admin