Exhibit 10.22
LOCKHEED MARTIN
CORPORATION
SUPPLEMENTAL RETIREMENT
PLAN
(Effective December 31,
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 was amended and restated,
effective January 1, 2005, in order to comply with the
requirements of Code section 409A. The 2005 amendment and
restatement of the Plan, as further amended and restated from time
to time, 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. The Plan was amended and restated, effective
June 26, 2008, in order to clarify certain provisions in
accordance with the final Treasury Regulations issued under Code
section 409A and to make other clarifications with respect to
eligibility and benefits. The Plan is hereby amended and restated
effective December 31, 2008 to order to make further
clarifications in accordance with the final Treasury Regulations
issued under Code section 409A and to make other administrative
clarifications.
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ARTICLE II
DEFINITIONS
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, 2004 (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
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to be an active Participant upon termination of
employment, when he otherwise ceases to be an 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) to the extent permitted under
Code section 409A. 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
. Except as otherwise provided herein, a Participant may make an
initial payment election between an annuity and a lump sum payment
under the terms and conditions described in this Section 2.
All elections under this Section 2 must be made in the form
and manner prescribed by the Senior Vice President, Human
Resources. No election made pursuant to this Section 2 may
affect a payment due in the same calendar year in which the
election is made or accelerate payment into the calendar year in
which the election is made.
a. Regular Form . Unless a
Participant has elected a lump sum payment under Section 2.b
of this Article V, benefits under this Plan shall be paid in the
form of an annuity. Participants who first become eligible for
participation in the Plan after December 16, 2005 shall
receive their benefits in the form of an annuity. Benefits paid in
a form described in this Section 2.a. shall commence as soon
as administratively practicable (but no more than 90 days)
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
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409A(2)(B)(i), shall not commence before the
later of (i) six (6) months following 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.
i. Selection of Annuity Form
. Prior to his termination of employment, a Participant may elect
to receive benefits in any actuarially equivalent 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. If the Participant has not validly
elected an annuity form before his termination of employment 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 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.
b. Lump Sum Option . This
Section shall not apply to Participants who first become eligible
for participation in the Plan after December 16, 2005. In lieu
of the forms described in Section 2.a. of Article V, a
Participant may make a one-time initial 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 31,
2008 (or such other date determined by the Senior Vice President,
Human Resources and communicated to Participants) and the
Participant’s employment has not terminated employment 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.
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
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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 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 requirements of Code
section 409A, 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 has validly elected (or deemed to have elected)
payment as an annuity (as 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 form (annuity or lump sum) designated by the Senior Vice
President, Human Resources, of the Company, provided that such
election is made in the form and manner determined by the Senior
Vice President, Human Resources 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.
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 in
the form and manner determined by the Senior Vice President, Human
Resources, 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. 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.
This Section 2.e. does not
apply to Surviving Spouses or Beneficiaries.
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).
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h. No payment shall commence or be
made under this Section 2 on account of a Participant’s
termination of employment unless the termination of employment
constitutes a “separation from service” under Code
section 409A(a)(2)(a)(i).
3. Deductibility of Payments
. Subject to the requirements of Code section 409A, 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 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 herein to the contrary, if the Committee
determines in good faith, based on consultation with counsel and in
accordance with the requirements of Code section 409A, 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
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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 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 both an
event qualifying for a distribution of deferred compensation under
Section 409A(a)(2)(A)(v) of the Code and an event qualifying
under this Section 5. 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.
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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.
8. Reemployment . The
retirement benefit otherwise payable hereunder to any Participant
who previously retired or otherwise had a Termination of Employment
and is subsequently reemployed may not be suspended during the
Participant’s period of reemployment except as permitted
under Code section 409A.
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 spouse, former
spouse, or child incident to divorce under a Qualified Domestic
Relations Order (which shall be interpreted and administered in
accordance with Code sections 414(p)(1)(B) and 409A), provided that
the form of payment designated in such order is an annuity as
provided in Section 2.a. of Article V.
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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 at such
times that the Board reasonably determines in its discretion is
appropriate and conforms to the requirements of Code section 409A,
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
purp