1
EXHIBIT 10.06
THE MARTIN MARIETTA MATERIALS, INC.
SHAREHOLDER VALUE ACHIEVEMENT PLAN
INTRODUCTION
The Martin Marietta Materials, Inc. Shareholder Value Achievement Plan
(the "Plan") is designed to foster and promote the long-term growth and
performance of the Company by enhancing the Company's ability to attract and
retain qualified key employees and motivating key employees through stock
ownership and performance-based incentives, and to more closely align the goals
of such employees with that of the Company's shareholders. To achieve this
purpose, this Plan provides authority for the grant of performance-based stock
awards.
ARTICLE 1 - DEFINITIONS
1.1 "Award" shall mean a performance-based stock award granted to a
Participant pursuant to Article 5.
1.2 "Award Agreement" shall mean the agreement between the Company and a
Participant that sets forth terms, conditions, and restrictions applicable to
an Award.
1.3 "Board of Directors" shall mean the Board of Directors of the Company.
1.4 "Cause" shall mean (a) the engaging by the Participant in willful
misconduct that is materially injurious to the Company, (b) the continued use
of drugs (including alcohol) by the Participant in violation of the Company's
then current Substance Abuse Policy, (c) the commission by the Participant of
an act of fraud or embezzlement against the Company or (d) the Participant's
having been convicted of, or pleaded guilty or no contest to, a felony. For
this purpose, no act, or failure to act, on the Participant's part shall be
considered "willful" unless done, or omitted to be done, by him not in good
faith and without reasonable belief that his action or omission was in the best
interest of the Company.
1.5 "Change of Control" shall mean, on or after the effective date of the
Plan, (a) The acquisition 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
2
amended (the "Exchange Act")) (a "Person") of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 40% or more of
either (i) the fully diluted shares of common stock of the Company, as
reflected on the Company's financial statements (the "Outstanding Company
Common Stock"), or (ii) the combined voting power of the then outstanding
voting securities of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities"); provided, however,
that for purposes of this subsection (a), the following acquisitions shall not
constitute a Change of Control: (A) any acquisition by the Company or any
"affiliate" of the Company, within the meaning of 17 C.F.R. Section 230.405
(an "Affiliate"), (B) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any Affiliate of the Company
or (C) any acquisition by any entity pursuant to a transaction which complies
with clauses (i), (ii) and (iii) of subsection (c) of this definition; or
(b) Individuals who constitute the Board on the effective date of the
Plan (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to such effective date whose election, or nomination for
election by the Company's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board; or
(c) Consummation of a reorganization, merger or consolidation or sale or
other disposition of all or substantially all of the assets of the Company (a
"Business Combination"), in each case, unless, following such Business
Combination, (i) all or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the Outstanding Company Common
Stock and Outstanding Company 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
2
3
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 Company or all or substantially all of the Company'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 Company Common Stock and Outstanding Company
Voting Securities, as the case may be, and (ii) no Person (excluding any
employee benefit plan (or related trust) sponsored or maintained by the Company
or any Affiliate of the Company, 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
(iii) 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
(d) Approval by the shareholders of the Company of a complete liquidation
or dissolution of the Company.
1.6 "Code" shall mean the Internal Revenue Code of 1986, or any law that
supersedes or replaces it, as amended from time to time.
1.7 "Committee" shall mean the Compensation Committee of the Board of
Directors, or any other committee of the Board of Directors that the Board of
Directors authorizes to administer this Plan. The Committee will be
constituted in a manner intended to cause Awards to be exempt from the
application of Section 16(b) of the Exchange Act pursuant to Rule 16b-3, and to
be qualified as "qualified performance-based compensation" for purposes of
Section 162(m).
1.8 "Common Stock " shall mean the common stock of the Company, $0.01 par
value per share, including authorized and unissued shares.
3
4
1.9 "Company" shall mean Martin Marietta Materials, Inc., a North Carolina
corporation.
1.10 "Disability" shall mean a medically determined physical or mental
impairment which qualifies the Participant for benefits under the Company's
long-term disability program. A Participant shall not be deemed to have
incurred a Disability until such benefits actually become payable (i.e., after
any applicable waiting period). If the Company does not maintain a long-term
disability program, or if a Participant does not elect coverage under such
program, Disability shall mean the incapacity of the Participant such that he
is unable to perform his duties to the Company for a period of 150 out of 180
consecutive days, as determined in the reasonable judgment of the Committee.
1.11 "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any law that supersedes or replaces it, as the same may be amended
from time to time.
1.12 "Fair Market Value" shall mean the closing price of a share of Common
Stock on the relevant date or, if no sale was made on such date, then on the
next preceding day on which such a sale was made (a) if the Common Stock is
listed on the New York Stock Exchange ("NYSE"), as reported in the Wall Street
Journal or (b) if the Common Stock is not listed on the NYSE but is listed on
the NASDAQ National Market System, then as reported on such system, or (c) if
the Common Stock not listed on either the NYSE or the NASDAQ National Market
System, as determined by the Board of Directors or Committee.
1.13 "Fiscal Year" shall mean the fiscal year of the Company.
1.14 "Measurement Period" shall mean a period of three consecutive Fiscal
Years or any other period selected and established by the Committee at the time
the corresponding Awards are granted.
1.15 "Participant" shall mean any employee of the Company who has received
an Award in accordance with Article 2 which Award has neither been fully paid
out nor expired.
1.16 "Retirement" shall mean Participant's termination of employment with
the Company (a) at a time at which the Participant is entitled to immediately
commence receipt of
4
5
benefits from the Company's qualified defined benefit retirement plan or (b) if
the Company does not maintain such a plan at the time, either (i) at or after
age 55 if employed by the Company or an "Affiliate" (as defined in Section
1.5(a)) for at least five years or (ii) at or after age 65.
1.17 "Rule 16b-3" shall mean Rule 16b-3 promulgated under the Exchange Act
as the same may be amended, modified superseded or replaced from time to time.
1.18 "Section 162(m)" shall mean Section 162(m) of the Code, together with
any and all regulations promulgated by the Internal Revenue Service thereunder,
as the same may be amended, modified, superseded or replaced from time to time.
ARTICLE 2 - ELIGIBILITY
All key employees of the Company and any of its direct or indirect
subsidiaries, including officers whether or not members of the Board of
Directors, are eligible for the grant of Awards. The selection of key employees
to receive Awards will be within the discretion of the Committee.
ARTICLE 3 - COMMON STOCK AVAILABLE FOR AWARDS; ADJUSTMENT
3.1 Number of Shares of Common Stock. Subject to adjustment as provided
for in Section 3.3, the aggregate number of shares of Common Stock that may be
subject to Awards granted under this Plan shall be 250,000 shares of Common
Stock. The assumption of awards granted by an organization acquired by the
Company, or the grant of Awards under this Plan in substitution of any such
awards, will not reduce the number of shares of Common Stock available for the
grant of Awards under this Plan.
Common Stock subject to an Award that expires or is forfeited, terminated,
or canceled will again be available for grant under this Plan, without reducing
the number of shares of Common Stock available for grant of Awards under this
Plan.
3.2 No Fractional Shares. No fractional shares of Common Stock will be
issued under the Plan, and the Committee will round the number of shares to
which a Participant is entitled down to the nearest whole share.
5
6
3.3 Adjustment. The aggregate number of shares of Common Stock which may
be issued pursuant to Awards granted hereunder, the number of shares of Common
Stock covered by each outstanding Award and the price per share thereof shall
be appropriately adjusted for any increase or decrease in the number of
outstanding shares of Common Stock resulting from a stock split or other
subdivision or consolidation of shares of Common Stock or for other capital
adjustments or payments of stock dividends or distributions or other increases
or decreases in the outstanding shares of Common Stock without receipt of
consideration by the Company.
In the event of any change in the outstanding shares of Common Stock by
reason of any recapitalization, merger, consolidation, spin-off, combination or
exchange of shares or other corporate change, or any distributions to common
shareholders other than cash dividends, the Committee shall make such
substitution or adjustment, if any, as it deems to be equitable, as to the
number or kind of shares of Common Stock or other securities issued or reserved
for issuance pursuant to the Plan, and the number or kind of shares of Common
Stock or other securities covered by outstanding Awards, and the price thereof.
In instances where another corporation or other business entity is being
acquired by the Company, and the Company has assumed outstanding employee award
grants and/or the obligation to make future or potential grants under a prior
existing plan of the acquired entity, similar adjustments are permitted at the
discretion of the Committee. The adjustments provided for in this Section 3.3,
and the manner of their application, shall be determined by the Committee in
its sole discretion.
ARTICLE 4 - ADMINISTRATION
4.1 Committee. This Plan will be administered by the Committee. The
Committee will, subject to the terms of this Plan, have the authority to (a)
select the eligible employees who will receive Awards, (b) grant Awards, (c)
determine the number of Awards to be granted to Participants, (d) determine the
terms, conditions, and restrictions applicable to Awards (including the
establishment of Performance Goals pursuant to Section 5.3), (e) adopt, alter,
and repeal administrative rules and practices governing this Plan, (f)
interpret the terms and provisions of this Plan and any Awards granted under
this Plan, (g) prescribe the forms of any Award Agreement, or other instruments
relating to Awards, and (h) otherwise supervise the administration of this
6
7
Plan and exercise such rights and responsibilities as are delegated to it
thereunder. All decisions by the Committee will be made with the approval of
not less than a majority of its members.
4.2 Delegation. The Committee may delegate any of its authority to any
other person or persons that it deems appropriate, provided the delegation does
not cause this Plan or any Awards granted under this Plan to fail to qualify
for the exemption provided by Rule 16b-3 or Section 162(m).
4.3 Decisions Final. All decisions by the Committee, and by any other
person or persons to whom the Committee has delegated authority, will be final
and binding on all persons.
ARTICLE 5 - AWARDS
5.1 General. The Committee may, in its discretion, grant to Participants
Awards valued by reference to shares of Common Stock that are wholly contingent
on the attainment of performance goals established by the Committee in
accordance with the terms of this Plan.
5.2 Grant of Awards. (a) Awards shall be granted to Participants as of
the beginning of a Measurement Period. The payment with respect to the Awards
shall be conditioned on the satisfaction of the performance goals described in
Section 5.3 at the end of the applicable Measurement Period. Once established,
the Committee shall not have discretion to modify the terms of the Awards
except with respect to any discretion specifically granted to the Committee
under this Plan. It is intended that all payments hereunder to Participants
will satisfy the requirements for the exemption under Section 162(m) and
related regulations for "qualified performance-based compensation."
(b) Not later than 90 days after the beginning of the Measurement Period
(or, if earlier, the date on which 25% of the Measurement Period has elapsed),
the Committee shall grant a specified number of Awards to each Participant with
respect to that Measurement Period. No Participant may be granted Awards with
respect to a Measurement Period having as a target amount in excess of the
lesser of (i) an aggregate of 20,000 shares of Common Stock or (ii) a dollar
value of $500,000 based on the Fair Market Value of the target number of shares
of Common Stock
7
8
subject thereto on the first day of the applicable Measurement Period.
(c) At the end of the Measurement Period, the Committee shall determine
the percentage, if any, of the Awards granted to the Participant for that
Measurement Period that are earned by the Participant. That percentage shall
be based on the degree to which the performance goals for that Measurement
Period are satisfied. The formula for determining the correlation between the
percentage of the Awards earned and the level of performance for a Measurement
Period shall be established in writing by the Committee at the time the
performance goals are determined. Prior to the payment of any Awards, the
Committee must certify in writing the degree of attainment of the applicable
performance goals.
5.3 Performance Goals. Performance goals used to compute Awards shall be
adopted by the Committee in writing prior to the grant of any Awards to which
such performance goals apply. The performance goals shall be based on one or
more of the following performance measures: (a) total return to shareholders,
(b) cash flow, (c) return on equity, (d) return on assets, (e) stock price, and
(f) earnings per share. Any such performance goals and the applicable
performance measures will be reflected in each Award Agreement to which such
goals and measures relate. The number of Awards that will be paid out to any
Participant at the end of the applicable Measurement Period will depend on the
extent to which the Company attains the established performance goals, as
established pursuant to Section 5.2(c).
5.4 Nonforfeitability of the Award. (a) General. Except as provided in
Section 5.4(b) and (c) and Article 6, a Participant must remain employed by the
Company until the end of a Measurement Period to receive payment with respect
to any Award.
(b) Death or Disability. Subject to Section 5.4(d), if during a
Measurement Period a Participant terminates employment on account of death or
Disability, (together, a "Qualifying Termination"), such Participant (or in the
case of death, his estate) shall be entitled to a prorated payment with respect
to Awards held by the Participant with respect to that Measurement Period, as
described in the next sentence. The Participant shall be entitled to payment
with respect to a percentage of such
8
9
Awards as set forth below based on the Fiscal Year during the Measurement
Period in which his Qualifying Termination occurs:
FISCAL YEAR PERCENTAGE
----------- ----------
1st 0%
2nd 33-1/3%
3rd 66-2/3%
For purposes of determining the payment with respect to a Participant's Awards
under this Section 5.4(b), it shall be assumed that the Company has achieved
the target level of performance it established for the Measurement Period. If
the Measurement Period is other than three Fiscal Years, then the Committee
shall make appropriate adjustments to the above schedule in its sole
discretion.
Payment with respect to Awards under this Section 5.4(b), if any, will be made
as soon as practicable after the Participant's Qualifying Termination occurs.
(c) Retirement and Certain Terminations. Subject to Section 5.4(d), if a
Participant holding Awards terminates employment on account of Retirement, or
is involuntarily terminated by the Company without Cause before the end of the
applicable Measurement Period, the Participant shall be entitled to payment
with respect to such Awards at the end of such Measurement Period as if he had
remained employed until that time.
(d) Committee Negative Discretion. The Committee may, in its sole
discretion, decide to reduce or eliminate any amount otherwise payable with
respect to an Award under Section 5.4(b) or (c).
5.5 Payment of the Award. A Participant's Award shall be paid as soon as
practicable after the end of the Measurement Period (or, in the case of a
Participant who dies or incurs a Disability and becomes entitled to payment
with respect to an Award pursuant to Section 5.4(b), as soon as practicable
following death or the determination of Disability). Payment shall be made in
shares of Common Stock or, in the discretion of the Committee, all or in part
cash, based on the Fair Market Value of the applicable number of shares of
Common Stock on the payment date.
9
10
ARTICLE 6 - CHANGE OF CONTROL
6.1 Effect of Change of Control. Notwithstanding any provision of this
Plan to the contrary, in the event that a Change of Control occurs, all
conditions applicable to outstanding Awards will be deemed to have been
satisfied at the target level as of the date of the Change of Control. Payment
with respect to such Awards shall be made as soon as practicable after the
Change of Control in accordance with the last sentence of Section 5.5.
ARTICLE 7 - GENERAL
7.1 Nonassignability of Awards. No right or interest of a Participant
under the Plan shall be subject in any manner to anticipation, alienation,
sale, assignment, transfer, encumbrance, pledge, attachment, garnishment by
creditors of the Participant or his successors, or shall be transferable by a
Participant otherwise than by will or the laws of intestate succession. Any
attempt to take an action with respect to an Award which is prohibited by the
preceding sentence shall render such Award null and void.
7.2 No Right or Obligation of Continued Employment. Nothing contained in
this Plan shall require the Company or a related company to continue to employ
a Participant, nor shall the Participant be required to remain in the
employment of the Company or a related company.
7.3 Withholding. The Company shall withhold all required local, state and
federal taxes from any amount payable in respect of an Award, including
withholding of shares of Common Stock otherwise payable pursuant to the Plan.
7.4 Effective Date. This Plan shall be effective as of the latest to
occur of (a) approval by the Company's shareholders and (b) the distribution by
Lockheed Martin Corporation of such number of shares of Common Stock which
results in Lockheed Martin Corporation no longer owning, directly or
indirectly, more than fifteen percent (15%) of the outstanding Common Stock
(the "Split-Off"). If both of the above conditions do not occur by December
31, 1997, all Awards previously granted shall become null and void. Moreover,
no payment shall be made to a Participant pursuant to an Award prior to such
shareholder
10
11
approval being obtained and the Split-Off having occurred. This Section 7.4
shall supersede any other provision of the Plan.
7.5 Amendment and Termination of the Plan. The Plan may be amended or
terminated at any time by the Board of Directors or by the Committee as
delegated by the Board of Directors, provided that such termination or
amendment shall not, without the consent of the Participant, adversely affect
such Participant's rights with respect to Awards previously awarded to him.
Shareholder approval for any amendment is required to the extent necessary to
preserve the exemption for "qualified performance-based compensation" under
Section 162(m). With the consent of the Participant affected, the Board of
Directors, or by delegation of authority by the Board of Directors, the
Committee, may amend outstanding Award Agreements in a manner not inconsistent
with the Plan.
7.6 Binding on Successors. The obligations of the Company under the Plan
shall be binding upon any organization which shall succeed to all or
substantially all of the assets of the Company, or into which the Company may
merge, and the term "Company," whenever used in the Plan, shall mean and
include any such organization after the succession.
7.7 References. Any masculine personal pronoun shall be considered to
mean also the corresponding feminine or neuter personal pronoun, as the context
requires.
7.8 Applicable Law. The Plan shall be governed by and construed in
accordance with the laws of the State of North Carolina.
11
12
IN WITNESS WHEREOF, the Martin Marietta Materials, Inc. Performance Share
Plan is, by the authority of the Board of Directors of the Corporation,
executed as of the 21st day of October, 1996.
MARTIN MARIETTA MATERIALS, INC.
By: /s/ Stephen P. Zelnak, Jr.
---------------------------
Chief Executive Officer
12