North Carolina
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1-12744
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56-1848578
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(State or Other Jurisdiction of Incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Exhibit
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Description
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Date: December 18, 2018
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MARTIN MARIETTA MATERIALS, INC.
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By:
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/s/ Roselyn R. Bar | ||
Name: | Roselyn R. Bar | |||
Title: |
Executive Vice President, General Counsel
and Corporate Secretary
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MARTIN MARIETTA MATERIALS, INC., | ||||
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By:
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Name: | ||||
Title: | ||||
EMPLOYEE,
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Name: | ||||
1. |
GRANT
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2. |
GRANT DATE
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3. |
RESTRICTION PERIOD
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4. |
AWARD PAYOUT
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5. |
DIVIDEND EQUIVALENTS
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6. |
TRANSFERABLE ONLY UPON DEATH
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7. |
TERMINATION, RETIREMENT, DISABILITY OR DEATH
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(a) |
Termination. If the Employee’s employment with the Corporation is terminated prior to the Vesting Date for any reason other than on account of death, Disability or Retirement (in each case, as defined below), whether by the Employee or by the Corporation, and in the latter case whether with or without Cause (as defined below), then the Units will be forfeited upon such termination.
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(b) |
Retirement or Disability. If the Employee’s employment with the Corporation is terminated prior to the Vesting Date upon Retirement (as defined below) or as the result of a disability under circumstances entitling the Employee to the commencement of benefits under a long-term disability plan maintained by the Corporation (“Disability”), then the terms of all outstanding Units shall be unaffected by such Retirement or Disability; provided, however, that in the case of the Employee’s termination on account of Retirement or Disability, if the Vesting Date occurs following such termination but before the date which is six months following such termination, to the extent compliance with the requirements of Treas. Reg. § 1.409A-3(i)(2) (or any successor provision) is necessary to avoid the application of an additional tax under Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”), the date shares of Stock are delivered pursuant to Section 4 shall be postponed until the date that is six months following such termination. “Retirement” is defined as termination of employment with the Corporation after reaching age 62 under circumstances that qualify for normal retirement in accordance with the Martin Marietta Materials, Inc. Pension Plan; provided, that, the Committee may in its sole discretion classify an Employee’s termination of employment as Retirement under other circumstances.
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(c) |
Death. If, prior to the Vesting Date, the Employee dies while employed by the Corporation or after termination by reason of Retirement or Disability, then the Restriction Period shall lapse and the Vesting Period shall be accelerated and all outstanding Units shall be converted into shares of Stock and delivered to the Employee’s estate or beneficiary.
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(d) |
Committee Negative Discretion. The Committee may in its sole discretion decide to reduce or eliminate any amount otherwise payable with respect to Units under Sections 7(b) or 7(c).
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8. |
TAX WITHHOLDING
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9. |
CHANGE IN CONTROL
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(a) |
Notwithstanding anything to the contrary in the Plan or in this Award Agreement, in the event of a Change in Control, each unvested Restricted Stock Unit shall remain outstanding and continue to vest pursuant to its terms; provided that, in the event of a termination of the Employee’s employment or service during the 24-month period following such Change in Control (i) without Cause or (ii) by the Employee for Good Reason (in each case, as defined below), each such Restricted Stock Unit that remains unvested as of the date of such termination shall become fully vested and,
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(A) |
if such Change in Control is a “change in the ownership or effective control” of the Corporation or “a change in the ownership of a substantial portion of the assets of” the Corporation (in each case, within the meaning of Section 409A), the shares of Stock (or other property) then subject to such RSU will be distributed no later than 15 days following the date of the Employee’s “separation from service” (within the meaning of Section 409A); provided, however, that, to the extent compliance with the requirements of Treas. Reg. § 1.409A-3(i)(2) (or any successor provision) is necessary to avoid adverse tax consequences under Section 409A, the date shares of Stock (or other consideration) are delivered pursuant to this Section 9(a) shall be postponed until the date that is six months following such “separation from service”, or
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(B) |
if such Change in Control is not a “change in the ownership or effective control” of the Corporation or “change in the ownership of a substantial portion of the assets of” the Corporation (in each case, within the meaning of Section 409A), then the shares of Stock (or other property) then subject to such RSU will be distributed no later than 15 days following the regularly scheduled Vesting Date (or such earlier date as would not result in adverse tax consequences under Section 409A).
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(b) |
For the avoidance of doubt, pursuant to Section 9 of the Plan, the Company may, in connection with a Change in Control, provide that the Restricted Stock Units shall be deemed to represent the right to receive stock of another party to such transaction, cash or other property having a value equivalent to the shares of Stock otherwise subject to such Restricted Stock Units, as determined by the Committee.
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10. |
AMENDMENT AND TERMINATION OF PLAN OR AWARDS
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11. |
EXECUTION OF AWARD AGREEMENT
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12. |
MISCELLANEOUS
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(a) |
Nothing contained in the Award Agreement confers on the Employee the rights of a shareholder with respect to this Restricted Stock Unit award during the Restriction Period and before the Employee becomes the holder of record of the shares of Stock payable. Except as provided in Section 9 of the Plan, no adjustment will be made for dividends or other rights, and grants of dividend equivalents pursuant to Section 5 will not be considered to be a grant of any other shareholder right.
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(b) |
For purposes of this Award Agreement, the Employee will be considered to be in the employ of the Corporation during an approved leave of absence unless otherwise provided in an agreement between the Employee and the Corporation.
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(c) |
Nothing contained in this Award Agreement or in any Restricted Stock Unit granted hereunder shall confer upon any Employee any right of continued employment by the Corporation, express or implied, nor limit in any way the right of the Corporation to terminate the Employee’s employment at any time.
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(d) |
Except as provided under Section 6 herein, neither these Units nor any of the rights or obligations hereunder shall be assigned or delegated by either party hereto.
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(e) |
In the event of a Change in Control in which the Restricted Stock Units are assumed or substituted, references in this Award Agreement to Shares, including for purposes of Section 8, shall be deemed to be references to the consideration (whether cash, shares of stock or otherwise) which replaces the Shares underlying the Restricted Stock Units following such Change in Control.
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(f) |
Capitalized terms used but not defined in this Award Agreement shall have the meanings assigned to such terms in the Plan.
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(g) |
To the extent there is a conflict between the terms of the Plan and this Award Agreement, the terms of the Plan shall govern.
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13. |
NOTICES
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14. |
GOVERNING LAW
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MARTIN MARIETTA MATERIALS, INC., | ||||
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By:
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Name: | Roselyn Bar | |||
Title: | Executive Vice President, General Counsel and Corporate Secretary | |||
EMPLOYEE | ||||
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By:
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(Employee’s Signature)
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1. |
GRANT
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(a) |
Vesting of Award. Unless forfeited or converted and paid earlier as provided in Section 7 or Section 9 below, the Performance Share Units granted hereunder will vest (“Vest” or “Vesting”) based on the achievement of the performance goals specified in Section 4(b) and, other than as provided in Section 7 or Section 9 below, provided that the Employee is employed by the Company or an Affiliate on the Vesting Date.
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(b) |
Performance Goals. The percentage of the Award that Vests and will be paid with respect to the Measurement Period in connection with the PSUs (the “Vesting Percentage”) is conditioned on the satisfaction of the performance goals set forth in the table below during the Measurement Period, which have been established by the Committee. The Vesting Percentage will be equal to the sum of the Achievement Percentage (as determined below) for each Measure identified in the table below multiplied by the Weight applicable to such Measure, as identified in the table below. The “Achievement Percentage” for a particular Measure is equal to the Company’s achievement of the Measure during the Measurement Period by reference to the Target value set forth in the table below, expressed as a percentage and as determined by the Committee in its sole discretion; provided that achievement below Threshold will result in an Achievement Percentage of 0% for such Measure, and achievement above Maximum will result in an Achievement Percentage of 200% for such Measure. For performance levels falling between the values as shown in the table below, the Achievement Percentage will be determined by interpolation. Payment will be made in Stock.
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1) |
[●] percent ([●]%) of the Award will vest based on [●] during the Measurement Period (“[PM 1]”) ;
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2) |
[●] percent ([●]%) of the Award will vest based on [●] during the Measurement Period (“[PM 2]”); and
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3) |
[●] percent ([●]%) of the Award will vest based on the total shareholder return during the Measurement Period (“TSR”) of the Company as compared to the TSR of the rTSR Peer Group (as defined below) (the “rTSR”). The calculation of TSR is the average daily closing price per share for the last twenty (20) trading days of the Measurement Period (the “Ending Stock Price”) minus the average daily closing price per share for the first twenty (20) trading days of the Measurement Period (the “Beginning Stock Price”), plus Reinvested Dividends, with the resulting amount divided by the Beginning Stock Price. “Reinvested Dividends” will be calculated by multiplying (i) the aggregate number of shares (including fractional shares) that could have been purchased during the Measurement Period had each cash dividend paid on a single share during that period been immediately reinvested in additional shares (or fractional shares) at the closing selling price per share on the applicable dividend payment date by (ii) the average daily closing price per share calculated for the entire duration of the Measurement Period. Each of the foregoing amounts will be equitably adjusted for stock splits, stock dividends, recapitalizations and other similar events affecting the shares. For companies in the rTSR Peer Group that are not on a calendar fiscal year, TSR will be measured on the basis of the companies’ four fiscal quarters each year that coincide with the Company’s calendar fiscal year. The peer group (“rTSR Peer Group”) for purposes of the rTSR consists of [●]. For the avoidance of doubt, the TSR formula is:
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TSR = |
(Ending Stock Price – Beginning Stock Price) + Reinvested Dividends
Beginning Stock Price
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Percentage of Target PSUs That Vest
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50%
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100%
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200%
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Measure
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Weight
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Threshold
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Target
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Maximum
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PM 1
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[●]%
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[●]
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[●]
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[●]
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PM2
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[●]%
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[●]
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[●]
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[●]
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Relative TSR
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[●]%
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[●]th percentile
of rTSR Peer Group
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[●]th percentile
of rTSR Peer Group
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[●]th percentile
of rTSR Peer Group
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(c)
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Shares Payable. On the Vesting Date, a number of PSUs equal to the target number of PSUs awarded in this Award Agreement multiplied by the Vesting Percentage will Vest and be converted into shares of Stock on a one-for-one basis. The resulting shares of Stock will be delivered to the Employee as soon as practicable following the Vesting Date (but in no event later than 60 days following the Vesting Date).
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(d)
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Payment Determination. The Committee may exercise its discretion to reduce the Vesting Percentage (but not below 100%) if the Company’s TSR is less than zero (0).
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(e)
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Non-Recurring Events. The Committee shall exclude from the performance results any non-recurring expenses or gains/losses, such as acquisition costs.
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5. |
DIVIDEND EQUIVALENTS
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6. |
TRANSFERABLE ONLY UPON DEATH
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7. |
TERMINATION, RETIREMENT, DISABILITY OR DEATH
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(a) |
Termination. If the Employee’s employment with the Company is terminated prior to the Vesting Date for any reason other than on account of death, Disability or Retirement (in each case, as defined below), whether by the Employee or by the Company, and in the latter case whether with or without Cause (as defined below), then the Performance Share Units will be forfeited upon such termination.
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(b) |
Retirement or Disability. If the Employee’s employment with the Company is terminated prior to the Vesting Date upon Retirement (as defined below) or as the result of a disability under circumstances entitling the Employee to the commencement of benefits under a long-term disability plan maintained by the Company (“Disability”), then the terms of all outstanding PSUs will be unaffected by such Retirement or Disability and the PSUs will be paid in accordance with Section 4 above. “Retirement” is defined as termination of employment with the Company after reaching age 62 under circumstances that qualify for normal retirement in accordance with the Martin Marietta Materials, Inc. Pension Plan (“Retirement Eligible”); provided, that, the Committee may in its sole discretion classify an Employee’s termination of employment as Retirement under other circumstances.
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(c) |
Death. If, prior to the Vesting Date, the Employee dies while employed by the Company or after termination by reason of Disability, then the terms of all outstanding PSUs will be unaffected by such death and the PSUs will be paid in accordance with Section 4 above to the Employee’s estate or beneficiary.
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(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 Sections 7(b) or 7(c).
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8. |
TAX WITHHOLDING
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9. |
CHANGE IN CONTROL
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(a) |
Notwithstanding anything to the contrary in the Plan or in this Award Agreement, in the event of a Change in Control, each unvested PSU shall remain outstanding and continue to vest pursuant to its terms; provided that:
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10. |
AMENDMENT AND TERMINATION OF PLAN OR AWARDS
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11. |
EXECUTION OF AWARD AGREEMENT
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12. |
MISCELLANEOUS
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(a) |
Nothing contained in the Award Agreement confers on the Employee the rights of a shareholder with respect to this Performance Share Unit award prior to Vesting and before the Employee becomes the holder of record of the shares of Stock payable. Except as provided in Section 9 of the Plan, no adjustment will be made for dividends or other rights, and grants of dividend equivalents pursuant to Section 5 will not be considered to be a grant of any other shareholder right.
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(b) |
For purposes of this Award Agreement, the Employee will be considered to be in the employ of the Company during an approved leave of absence unless otherwise provided in an agreement between the Employee and the Company.
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(c) |
Nothing contained in this Award Agreement or in any Performance Share Unit granted hereunder shall confer upon any Employee any right of continued employment by the Company, expressed or implied, nor limit in any way the right of the Company to terminate the Employee’s employment at any time.
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(d) |
Except as provided under Section 6 herein, neither these PSUs nor any of the rights or obligations hereunder shall be assigned or delegated by either party hereto.
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(e) |
Capitalized terms used but not defined in this Award Agreement shall have the meanings assigned to such terms in the Plan.
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(f) |
To the extent there is a conflict between the terms of the Plan and this Award Agreement, the terms of the Plan shall govern.
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13. |
NOTICES
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14. |
GOVERNING LAW
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MARTIN MARIETTA MATERIALS, INC., | ||||
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By:
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Name: | Roselyn Bar | |||
Title: | Executive Vice President, General Counsel and Corporate Secretary | |||
EMPLOYEE | ||||
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By:
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(Employee’s Signature)
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