MARTIN MARIETTA MATERIALS, INC.
AMENDED AND RESTATED
SUPPLEMENTAL EXCESS RETIREMENT PLAN
SECTION 1.
ESTABLISHMENT AND PURPOSE OF PLAN
The Martin
Marietta Materials, Inc. Supplemental Excess Retirement Plan
(“Plan”) is hereby established by Martin Marietta
Materials, Inc., a North Carolina corporation (the
“Corporation”). The purpose of this Plan is to provide
additional, supplemental benefits to employees of Martin Marietta
Materials, Inc. and certain of its subsidiaries or affiliates to
replace vested retirement and death benefits that would otherwise
be payable under certain other retirement plans of the Corporation
and such subsidiaries or affiliates but for:
(1) the
limitations of Sections 401(a)(17) and 415 of the Internal
Revenue Code of 1986, as amended (“Code”);
and
(2) the
incidental death benefit rule of Treas. Reg. §
1.401-1(b)(1)(i).
Lockheed Martin
Corporation, as successor to Martin Marietta Corporation,
maintained the Martin Marietta Corporation Supplemental Excess
Retirement Plan (the “Martin Marietta Corporation
Plan”) effective September 28, 1978. This Plan is
intended to supersede and replace the Martin Marietta Corporation
Plan with respect to Employees covered by this Plan.
This Plan is
intended to be unfunded and is maintained primarily for the purpose
of providing deferred compensation for a select group of management
or highly compensated employees.
The following
terms as used in this Plan shall have the following
meanings:
“
Administrator ” (within the meaning of
Section 3(16)(A) of ERISA) means Martin Marietta Materials,
Inc. Martin Marietta Materials, Inc.’s responsibilities as
Administrator, under this Plan and under law, shall, except as
otherwise provided in this Plan, be carried out by or under the
supervision of a Benefit Plan Committee appointed by and serving at
the pleasure of Martin Marietta Materials, Inc.
“ Base
Salary ” means the highest annual rate of base salary
that the Employee receives from the Corporation or its affiliates
in any pay period within the twelve-month period ending on the date
of a Change of Control.
“
Board ” means the Board of Directors of the
Corporation.
“
Cause ” means the Employee’s having been
convicted in a court of competent jurisdiction of a felony or has
been adjudged by a court of competent jurisdiction to be liable
for
fraudulent or
dishonest conduct, or gross abuse of authority or discretion, with
respect to the Company, and such conviction or adjudication has
become final and non-appealable. The Employee shall not be deemed
to have been terminated for Cause, unless the Corporation shall
have given the Employee (A) notice setting forth, in
reasonable detail, the facts and circumstances claimed to provide a
basis for termination for Cause, (B) a reasonable opportunity
for the Employee, together with his counsel, to be heard before the
Board and (C) a notice of termination stating that, in the
reasonable judgment of the Board, the Employee was guilty of
conduct set forth in the preceding sentence, and specifying the
particulars thereof in reasonable detail.
“ Change
of Control ” means:
(i) The
acquisition on or after October 18, 1996 by any individual,
entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)) (an “Acquiring Person”) of
beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 40% or more of either
(A) the fully diluted shares of common stock of the
Corporation, as reflected on the Corporation’s financial
statements (the “Outstanding Corporation Common
Stock”), or (B) the combined voting power of the then
outstanding voting securities of the Corporation entitled to vote
generally in the election of directors (the “Outstanding
Corporation Voting Securities”); provided, however, that for
purposes of this subsection (i), the following acquisitions shall
not constitute a Change of Control: (X) any acquisition by the
Corporation or any “affiliate” of the Corporation,
within the meaning of 17 C.F.R. § 230.405 (an
“Affiliate”), (Y) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the
Corporation or any Affiliate of the Corporation or (Z) any
acquisition by any entity pursuant to a transaction which complies
with clauses (A), (B) and (C) of subsection (iii) of
this definition; or
(ii) Individuals
who constitute the Incumbent Board cease for any reason to
constitute at least a majority of the Board; or
(iii) Consummation
of a reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of the
Corporation (a “Business Combination”), in each case,
unless, following such Business Combination, (A) all or
substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Corporation
Common Stock and Outstanding Corporation Voting Securities
immediately prior to such Business Combination beneficially own,
directly or indirectly, more than 50% of, respectively, the then
outstanding shares of common stock and the combined voting power of
the then outstanding voting securities entitled to vote generally
in the election of directors, as the case may be, of the
corporation resulting from such Business Combination (including,
without limitation, a corporation which as a result of such
transaction owns the Corporation or all or substantially all of the
Corporation’s assets either directly or through one or more
subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination, of the
Outstanding Corporation Common Stock and Outstanding Corporation
Voting Securities, as the case may be, and (B) no Person
(excluding any employee benefit plan (or related trust) sponsored
or maintained by the Corporation or any Affiliate of the
Corporation, or such corporation resulting from such Business
Combination or any Affiliate of
such
corporation) beneficially owns, directly or indirectly, 40% or more
of, respectively, the fully diluted shares of common stock of the
corporation resulting from such Business Combination, as reflected
on such corporation’s financial statements, or the combined
voting power of the then outstanding voting securities of such
corporation except to the extent that such ownership existed prior
to the Business Combination and (C) at least a majority of the
members of the board of directors of the corporation resulting from
such Business Combination were members of the Incumbent Board at
the time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination;
or
(iv) Approval
by the shareholders of the Corporation of a complete liquidation or
dissolution of the Corporation.
“
Corporation ” means Martin Marietta Materials,
Inc.
“
Death ” means a death that occurs other than by reason
of suicide.
“
Disability ” means a medically determined physical or
mental impairment that qualifies the Employee for benefits under
the Company’s long-term disability program, provided that the
Employee would be considered “disabled” under Treas.
Reg. § 1.409A-3(i)(4) . An Employee shall not be deemed
to have incurred a Disability until such benefits actually become
payable (i.e., after any applicable waiting period). If the
Corporation does not maintain a long-term disability program, or if
the Employee does not elect coverage under such program, Disability
shall have the meaning ascribed to it by Treas. Reg. §
1.409A-3(i)(4) .
“
Employee ” means a person employed by the Corporation
or a subsidiary or affiliate and who is a participant of a
Retirement Plan of the Corporation.
“ Good
Reason ” means (i) a good faith determination by the
Employee that the Corporation or any of its officers has
(A) taken any action which materially and adversely changes
the Employee’s position (including titles), authority or
responsibilities with the Corporation or reduces the
Employee’s ability to carry out his duties and
responsibilities with the Corporation or (B) has failed to
take any action where such failure results in material and adverse
changes in the Employee’s position, (including titles),
authority or responsibilities with the Corporation or reduces the
Employee’s ability to carry out his duties and
responsibilities with the Corporation; (ii) a reduction in the
Employee’s Base Salary or other forms of compensation
(including, without limitation, any equity compensation) ;
or (iii) requiring the Employee to be employed at any location
more than 35 miles further from his principal residence than the
location at which the Employee was employed immediately preceding
the Change of Control, in any case of (i), (ii) or
(iii) without the Employee’s prior written
consent.
“
Incumbent Board ” means a member of the Board of
Directors of the Corporation who is not an Acquiring Person, or an
affiliate (as defined in Rule 12b-2 of the Exchange Act) or an
associate (as defined in Rule 12b-2 of the Exchange Act) of an
Acquiring Person, or a representative or nominee of an Acquiring
Person.
“ Lump
Sum Value ” means the actuarial present value of a
Participant’s benefits based upon the assumptions used to
determine lump sum value under the applicable provisions of the
Retirement Plan for the purpose of determining whether the
Retirement Plan benefit shall be paid in a lump-sum settlement,
provided that for the purposes of this Plan the applicable
look-back month shall be second calendar month immediately
preceding the calendar month that contains the annuity starting
date for the distribution . Notwithstanding anything in this
Plan to the contrary, the Corporation cannot amend this Plan to
revise the definition of “Lump Sum Value” or to revise
any of the assumptions, components or inputs used to calculate Lump
Sum Value.
“
Participant ” means an Employee to whom this Plan
applies as provided in Section 3 or, (except as otherwise
prohibited by the context) upon and following such
Participant’s death, his surviving spouse or
beneficiary(ies), if any, with respect to any death benefit payable
to them under this Plan.
“
Retirement Plan ” means the Martin Marietta Materials,
Inc. Pension Plan for Salaried Employees as in effect from time to
time (including such plan as it may be renamed and including any
successor plan thereto for salaried employees or the portion of a
plan which portion is a separate benefit structure for salaried
employees and is a successor thereto).
“
Termination of Employment ” means any cessation of a
Participant’s employment by the Corporation that constitutes
a “separation from service” within the meaning of
Treas. Reg. 1.409A-1(h), including any such cessation by reason of
death, which shall be deemed to occur immediately following the
date on which the Participant separates from service.
“ Tier
One Participants ” means the Participants listed on
Exhibit A to this Plan.
This Plan shall
apply to any Employee who is a participant in the Retirement Plan
and whose benefits under the Retirement Plan are limited or reduced
by the limitations of Section 401(a)(17) or 415 of the Code,
and, in the case of death, whose death benefits under the
Retirement Plan are limited or reduced by the incidental death
benefit rule of Treas. Reg. § 1.401-1(b)(1)(i).
SECTION 4.
AMOUNT OF BENEFITS
4.1 A Participant
shall receive a retirement from this Plan equal to the excess, if
any, of (1) the benefit (adjusted by Section 11 if
applicable) that would have been paid under the Retirement Plan (as
the same may be in effect from time to time) if the Retirement Plan
did not include the limitations imposed by Sections 401(a)(17)
and 415 of the Code over (2) the benefit actually payable
under the Retirement Plan.
4.2 The designated
Retirement Plan beneficiary of a Participant who is entitled to
receive a death benefit under Article VIII, Pre-Retirement
Death Benefit, of the Retirement Plan shall receive a lump sum
pre-retirement death benefit from this Plan equal to the excess, if
any, of (1) the lump sum pre-retirement death benefit which would
have been paid to such designated
beneficiary
pursuant to the Retirement Plan if such payment were not limited by
(i) Section 401(a)(17) of the Code and (ii) the
incidental death benefit rule of Treas. Reg. §
1.401-1(b)(1)(i) (as interpreted in Revenue Ruling 85-15) over
(2) the lump sum death benefit actually payable under
Article VIII of the Retirement Plan.
4.3 The surviving
spouse of a Participant who is entitled to receive a death benefit
under Article VII, Pre-Retirement Surviving Spouse Benefit, of
the Retirement Plan shall receive a lump sum pre-retirement death
benefit actuarially equivalent to the pre-retirement surviving
spouse annuity from this Plan equal to the excess, if any, of
(1) the pre-retirement surviving spouse annuity benefit which
would have been paid to such surviving spouse pursuant to the
Retirement Plan if such payment were not limited by
(i) Sections 401(a)(17) and 415 of the Code and
(ii) the incidental death benefit rule of Treas. Reg. §
1.401-1(b)(1)(i) (as interpreted in Revenue Ruling 85-15) over
(2) the pre-retirement surviving spouse annuity benefit
actually payable under Article VII of the Retirement
Plan.
4.4 In no event
shall the computation of benefits under this Plan take into account
any service performed by a Participant after separation from
employment with the Corporation or its subsidiaries and affiliates.
(This limitation is not intended to prevent the addition of years
of credited service as provided in Section 11.)
4.5 Benefits shall
be payable under this Plan only to Participants who retire or
otherwise terminate employment from the Corporation or any
designated subsidiary or affiliate after the effective date of this
Plan or, with respect to death benefits under Sections 4.2 and
4.3, who die after the effective date of this Plan. (Any former
Employee who was covered under the Martin Marietta Corporation Plan
and whose benefits commenced prior to such effective date under the
Martin Marietta Corporation Plan shall continue to receive from
this Plan the same benefits such former Employee was receiving
under the Martin Marietta Corporation Plan.) The benefit payable to
or with respect to a Participant under this Plan shall be
determined based on the Participant’s entire Retirement Plan
benefit without distinction as to what part of such benefit, if
any, may have accrued before and what part after the effective date
of this Plan.
4.6 Except as
otherwise provided in Section 11.3, a Participant shall be entitled
to receive vested retirement and death benefits under this Plan if
and only if the Participant’s retirement benefit under the
Retirement Plan is vested.
SECTION 5.
PAYMENTS OF BENEFITS
5.1 Any benefit
payable under the Plan shall be paid upon the lapse of six months
following the Participant’s Termination of Employment in the
form of a cash lump sum payment equal to
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