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Mcdonalds - Executive Retention Plan, As Amended & Restated
EXHIBIT 10(g)
EXECUTIVE RETENTION PLAN
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(as amended and restated October 29, 2002)
Introduction
McDonald's Corporation, a Delaware corporation (the "Company"), has established the Executive Retention Plan (this "Plan") effective as of October 1, 1998 (the "Effective Date"). This Plan was amended and restated on March 20, 2001, March 20, 2002 and October 29, 2002. The amendments made to this Plan by the amendment and restatement of October 29, 2002 (the "Current Restatement Date") are not applicable to any Executive (as defined in the Plan before the Current Restatement Date) whose termination of employment or Change-in-Status Date (as defined in the Plan before the Current Restatement Date) occurred before the Current Restatement Date, for whom the Plan provisions as in effect on the date of his or her termination of employment or Change-in-Status Date, as applicable, shall control.
Article 1
Purpose; Employment Periods Generally
1.01 Purpose. It is in the best interests of the Company and its shareholders to assure that the Company has the continued dedication of its key executives in a highly competitive global marketplace. This Plan is established to promote the retention of these key executives and provide the Company with a smooth succession process. This Plan is also intended to provide these key executives with incentives that are designed to focus their energy on contributing to the ultimate success of the Company.
1.02 Employment Periods. (a) Definition of Employment Periods. This Plan provides for the continued employment, subject to the terms and conditions of this Plan, of the individuals identified on Appendix A as "Tier I Executives," "Tier II Executives" and "Tier III Executives" (collectively, the "Executives") during three successive periods, each of which is defined below: the Retention Period; the Transition Period; and the Continued Employment Period (collectively referred to as the "Employment Periods").
(b) Requirement of Execution of Agreement and Continued Employment. In order to be eligible for continued employment during each successive Employment Period, with the pay and benefits set forth herein, an Executive must satisfy the requirements summarized in this Section 1.02(b) and more fully set forth below in the Plan. The Executive must properly execute the following agreements (each, an "Agreement") at the following times: (i) on or before the Executive's Change in Status Date, an Agreement substantially in the form set forth in Exhibit A (a "Transition Period Agreement"); (ii) on or before the first day of the Executive's Continued Employment Period, an Agreement substantially in the form set forth in Exhibit B (a "Continued Employment Period Agreement"); and (iii) upon a termination of the Executive's employment at the end of the Continued Employment Period or under circumstances described in Section 7.01 below, an Agreement substantially in the form set forth in Exhibit C (a "Termination
Agreement"). In addition, the Executive must not revoke, and must comply with, such Agreements. Finally, the Executive must otherwise comply with the requirements of this Plan. An Executive may also be eligible in some cases for certain pay and benefits upon termination of his or her employment, as more fully set forth in Articles 6 and 7 below (the "Termination Benefits"). Exhibit B to each Agreement shall be completed by the Company at the time of the Agreement's preparation by the insertion of a list of the "Specified Competitors," consisting of twenty-five (25) competitors of McDonald's determined by the Company in its sole discretion.
(c) Violations by the Executive. If an Executive commits a "Violation" (as defined below), the Company shall be entitled to cancel any and all future obligations of the Company to the Executive under this Plan and recoup the value of all Relevant Prior Benefits (as defined below), together with the Company's costs and reasonable attorney's fees. In addition, the Company shall be entitled to pursue any other remedy available to enforce the terms of the Executive's Agreements. A "Violation" shall have occurred if an Executive (i) files a lawsuit, charge, complaint or other claim asserting any claim or demand within the scope of the releases given in any of his or her Agreements, (ii) fails properly to execute and deliver a required Agreement, or (iii) purports to revoke any of his or her Agreements. The "Relevant Prior Benefits" means (i) in the case of a Violation committed by an Executive during an Employment Period, all payments and benefits that have been provided to the Executive under this Plan during that Employment Period, and (ii) in the case of a Violation committed by an Executive after termination of the Executive's employment, all Termination Benefits provided to the Executive under the Plan.
(d) Status and Benefits Generally during Employment Periods. During an Executive's continued employment during each of his or her Employment Periods, except as otherwise specifically provided in this Plan: (i) the Executive shall be entitled to participate in the Company's employee compensation plans, practices, policies and programs as in effect from time to time, including without limitation all equity compensation, bonus and other incentive compensation plans, policies and programs (collectively, the "Compensation Plans"), to the extent that the Executive is eligible under, and in accordance with, the applicable terms and conditions thereof as modified by this Plan; and (ii) the Executive shall be entitled to participate in the Company's employee benefit plans, practices, policies and programs as in effect from time to time (collectively, the "Employee Plans"), to the extent that the Executive is eligible under, and in accordance with, the applicable terms and conditions thereof. Without limiting the generality of the foregoing, except as specifically provided in Section 7.01(b) below, during an Executive's Employment Periods and upon and following the termination of his or her employment for any reason, the Executive's stock options shall continue to vest, be exercisable, expire and otherwise be subject to the express terms of the related stock option plan and the applicable Golden M Certificate (or other applicable award agreement).
(e) Deferred Compensation Plans. Without limiting the generality of Section 1.02(d) above, except as specifically provided in Section 4.02(b) below, amounts paid to an Executive during the Executive's Employment Periods shall be treated as "compensation" for purposes of the McDonald's Corporation Profit Sharing and Savings Plan, McDonald's Corporation Supplemental Profit Sharing and Savings Plan and any successor or other deferred compensation plans for which the Executive may be eligible (collectively, the "Deferred
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Compensation Plans") and all life insurance benefit plans sponsored by McDonald's Corporation, in each case to the extent permitted by the terms of such plans as in effect from time to time. No requirement that the Company make payments under this Plan to an Executive shall be considered violated by the Company's crediting all or any portion thereof to the Executive's account under any Deferred Compensation Plan in which the Executive is eligible to participate, to the extent that the Executive has elected to defer such payment under the terms of such Deferred Compensation Plan.
Article 2
Plan Administration
2.01 The Committee. The Compensation Committee of the Board of Directors of the Company (the "Board"), as such committee is constituted from time to time (the "Committee"), shall have overall responsibility for the establishment, amendment, administration and operation of this Plan. The Committee shall have the responsibilities and duties and powers under this Plan which are not specifically delegated to anyone else, including without limitation the following powers:
(i) subject to any limitations under this Plan or applicable law, to make
and enforce such rules and regulations of this Plan and prescribe the use
of such forms as it shall deem necessary for the efficient administration
of this Plan;
(ii) to require any person to furnish such information as it may reasonably
request as a condition to receiving any benefit under this Plan;
(iii) to decide on questions concerning this Plan;
(iv) to amend Appendix A hereto to add additional Executives, to delete
Executives whose employment has terminated without the right to receive any
additional benefits under this Plan or whose rights hereunder have been
satisfied in full, and to reflect any changes that are agreed with the
affected Executives;
(v) to compute or cause to be computed the amount of benefits which shall
be payable to any person in accordance with the provisions of this Plan;
and
(vi) to appoint and remove, as it deems advisable, the Plan Administrator.
2.02 The Plan Administrator. The Committee may appoint a Plan Administrator who may (but need not) be a member of the Committee, and in the absence of such appointment, the Committee shall be the Plan Administrator. The Plan Administrator shall perform the administrative responsibilities delegated to the Plan Administrator from time to time by the Committee.
2.03 Discretionary Power of the Committee. The Committee from time to time may establish rules for the administration of this Plan. The Committee shall have the sole discretion to make decisions and take any action with respect to questions arising in connection with this Plan, including without limitation the construction and interpretation of this Plan and
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the determination of eligibility for and the amount of benefits under this Plan. The decisions or actions of the Committee as to any questions arising in connection with this Plan, including without limitation the construction and interpretation of this Plan, shall be final and binding upon all Executives and their respective beneficiaries.
2.04 Action of the Committee. The Committee may act at a meeting, including without limitation a telephonic meeting, by the consent of a majority of the members of the Committee at the time in office, or without a meeting, by the unanimous written consent of the individual members of the Committee. An executed document signed by an individual member of the Committee and transmitted by facsimile shall be valid as the original signed document for all purposes. Any person dealing with the Committee shall be entitled to rely upon a certificate of any member of the Committee, or the Secretary or any Assistant Secretary of the Company, as to any act or determination of the Committee.
2.05 Advisors and Agents of the Committee. The Committee may, subject to periodic review, (a) authorize one or more of its members or an agent to execute or deliver any instrument, and make any payment on its behalf, and (b) utilize the services of associates and engage accountants, agents, legal counsel, record keepers, professional consultants (any of whom may also be serving the Company) or authorized Company personnel to assist in the administration of this Plan or to render advice with regard to any responsibility or issue arising under this Plan.
2.06 Records and Reports of the Committee. The Committee shall maintain records and accounts relating to the administration of this Plan. An Executive shall be entitled to review any records relating to his or her individual participation in this Plan and to make copies of such records upon written request to the Committee.
2.07 Liability of the Committee; Indemnification. The members of the Committee and the Plan Administrator shall have no liability with respect to any action or omission made by them in good faith nor from any action or omission made in reliance upon (a) the advice or opinion of any accountant, legal counsel, medical adviser or other professional consultant, or (b) any resolutions of the Committee or the Board certified by the Secretary or Assistant Secretary of the Company. Each member of the Committee and the Plan Administrator shall be indemnified, defended and held harmless by the Company and its respective successors against all claims, liabilities, fines and penalties and all expenses (including without limitation reasonable attorneys' fees and disbursements and other professional costs incurred in enforcing this provision) reasonably incurred by or imposed upon such individual which arise as a result of his or her actions or failure to act in connection with the operation and administration of this Plan, to the extent lawfully allowable and to the extent that such claim, liability, fine, penalty or expense is not paid for by liability insurance purchased by or paid for by the Company or an affiliate thereof. Notwithstanding the foregoing, the Company shall not indemnify any person for any such amount incurred through any settlement or compromise of any action unless the Company consents in writing to such settlement or compromise, which consent shall not be unreasonably withheld.
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2.08 Plan Expenses. All expenses under or relating to this Plan shall be paid from the general assets of the Company. To the extent required by applicable law, the Company may require any member of the Committee to furnish a fidelity bond satisfactory to the Company.
2.09 Service in More than One Capacity. Any person or group of persons may serve this Plan in more than one capacity.
2.10 Named Fiduciary. The named fiduciary of this Plan shall be the Committee.
2.11 Delegation of Responsibility. The Committee shall have the authority to delegate from time to time, in writing, all or any part of its responsibilities under this Plan to one or more members of the Committee. The Committee may also delegate administrative functions to the Plan Administrator pursuant to Section 2.02 above. The Committee may in the same manner revise or revoke any such delegation of responsibility. Any action of the delegate in the exercise of such delegated responsibilities shall have the same force and effect for all purposes hereunder as if such action had been taken by the Committee. The Committee shall not be liable for any acts or omissions of any such delegate. The delegate shall periodically report to the Committee concerning the discharge of the delegated responsibilities.
2.12 Filing a Claim. (a) Each individual eligible for benefits under this Plan ("Claimant") may submit a claim for benefits ("Claim") to the Plan Administrator in writing on a form provided or approved by the Plan Administrator or, if no such form has been so provided or approved, in a written document that specifies, in reasonable detail, facts and circumstances and the applicable Plan provisions which the Claimant believes entitle him or her to compensation or benefits under this Plan. A Claimant shall have no right to seek review of a denial of benefits, or to bring any action in any court to enforce a Claim, prior to his or her filing a Claim and exhausting his or her rights to review under this Article 2.
(b) When a Claim has been filed properly, it shall be evaluated and the Claimant shall be notified of the approval or the denial of the Claim within 45 days after the receipt of such Claim unless special circumstances require an extension of time for processing the Claim. If such an extension is required, written notice of the extension shall be furnished to the Claimant prior to the end of the initial 45-day period, which notice shall specify the special circumstances requiring an extension and the date by which a final decision will be reached (which date shall not be later than 90 days after the date on which the Claim was filed). A Claimant shall be given a written notice in which the Claimant shall be advised as to whether the Claim is granted or denied, in whole or in part. If a Claim is denied, in whole or in part, the notice shall contain (i) the specific reasons for the denial, (ii) references to pertinent Plan provisions upon which the denial is based, (iii) a description of any additional material or information necessary to perfect the Claim and an explanation of why such material or information is necessary, and (iv) the Claimant's right to seek review of the denial.
(c) An election to become a Transition Officer pursuant to Section 4.01 shall not be considered a Claim and shall not be subject to this Section 2.12.
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2.13 Review of Claim Denial. (a) If a Claim is denied, in whole or in part, the Claimant shall have the right to (i) request a review of the denial by the Committee or its delegate, (ii) review pertinent documents, (iii) submit issues and comments in writing to the Committee, and (iv) appear before the Committee in person to present such issues and comments; provided that the Claimant files a written request for review with the Committee within 60 days after the Claimant's receipt of written notice of the denial. Within 60 days after the Committee receives a request for review, the review shall be made and the Claimant shall be advised in writing of the decision on review, unless special circumstances require an extension of time for such review, in which case the Claimant shall be given a written notice within such initial 60-day period specifying the reasons for the extension and when such review shall be completed; provided that such review shall be completed within 120 days after the filing of the request for review. The Committee's decision on review shall be sent to the Claimant in writing and shall include (i) specific reasons for the decision, and (ii) references to Plan provisions upon which the decision is based. A decision on review shall be binding on all persons for all purposes.
If a Claimant shall fail to file a request for review in accordance with the procedures herein outlined, such Claimant shall have no right to obtain such a review or to bring an action in any court, and the denial of the Claim shall become final and binding on all persons for all purposes except upon a showing of good cause for such failure.
Article 3
Retention Period
During an Executive's Retention Period (as defined in the next sentence), the Executive shall remain employed by the Company as an officer, on an at-will basis. Each Executive's "Retention Period" shall mean the period commencing on the Executive's Plan Start Date and ending on the later of the Executive's End Date (as specified on Appendix A) or the day before the Executive's Change-in-Status Date (as determined pursuant to Section 4.01 below).
Article 4
Transition Period
4.01 Election to Become a Transition Officer. (a) Transition Officer. Subject to the conditions set forth below, each Executive may elect to become a "Transition Officer" entitled to the benefits provided to Transition Officers hereunder (the "Transition Benefits"), effective on a date (hereinafter referred to as the Executive's "Change-in-Status Date") not earlier than the day after the Executive's End Date.
(b) Conditions. The conditions that must be satisfied in order for an Executive's election to become a Transition Officer to be effective are as follows: (i) the Executive must remain employed by the Company through the end of his or her Retention Period; (ii) the Executive must properly execute a Transition Period Agreement not later than the Change-in-Status Date; (iii) the Executive must not revoke such Transition Period Agreement; (iv) in the case of a Tier II Executive or a Tier III Executive whose Change-in-Status Date occurs before his or her 62nd birthday, a successor to the Executive must have been selected by the Company and approved by the Chief Executive Officer of the Company (the "CEO") in the CEO's sole
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discretion; and (v) in the case of an Executive whose Change-in-Status Date occurs before his or her 62nd birthday, the Committee or the CEO, as applicable, must consent to the Executive's becoming a Transition Officer, in accordance with Section 4.01(c) below.
(c) Election. An Executive shall make an election to become a Transition Officer by delivering to the Committee (in the case of an election by the CEO) or to the CEO (in the case of an election by any other Executive) a written notice indicating the proposed Change-in-Status Date, on such form as the Committee may from time to time prescribe. If the proposed Change-in-Status Date occurs before the Executive's 62nd birthday, the Committee or the CEO, as applicable, shall notify the Executive whether such election is accepted. If the proposed Change-in-Status Date occurs on or after the Executive's 62nd birthday, such election shall automatically be deemed accepted. If such election is accepted or deemed accepted, the Committee or the CEO, as applicable, shall also (1) notify the Executive whether the actual Change-in-Status Date will be the date proposed by the Executive or a later or earlier date reasonably selected by the Committee or the CEO, as applicable (but in no event earlier than the Executive's End Date), and (2) enclose with such notice the Transition Period Agreement for execution by the Executive.
(d) Transition Period. If an Executive properly executes and returns the Transition Period Agreement, does not revoke the Transition Period Agreement and satisfies the other conditions set forth above, his or her election to become a Transition Officer shall become effective upon the applicable Change-in-Status Date, and the Executive shall thereafter serve as a Transition Officer during a number of months (the "Transition Period") equal to the lesser of (i) the number of the Executive's Years of Service (as defined below), or (ii) 18 months, subject to the provisions of this Plan. An Executive's "Years of Service" shall equal the number of 12-month intervals during the period beginning on the earlier of the Executive's historical service date or company service date and ending on the Change-in-Status Date, rounded down to the nearest complete 12-month interval (e.g., a period of 128 months and 3 days shall equal 10 "Years of Service").
4.02 Transition Benefits. (a) Base Salary. During an Executive's Transition Period, the Company shall pay the Executive a base salary at the annualized rate in effect on the day immediately preceding the Change-in-Status Date, but in no event lower than the highest base salary in effect at any time between the Executive's Plan Start Date and Change-in-Status Date, provided that the base salary payable under this Section 4.02(a) shall be reduced in accordance with any across-the-board reductions approved by the Committee prior to the Change-in-Status Date, which reductions affect Company officers generally. (The annualized amount of such base salary as in effect from time to time is referred to as the "Annual Base Salary.") In no event shall an Executive be eligible for merit increases in base salary during his or her Transition Period.
(b) Annual Bonus. In respect of each calendar year which ends during or on the last day of an Executive's Transition Period, the Company shall pay to the Executive an Annual Bonus (as defined below) in a lump sum on April 1st of the following year (or such other date on which bonuses for such year are paid to participants in the Company's Target Incentive Program or any successor plan ("TIP") generally). If the Transition Period ends on a date other than the last day of a calendar year, the Company shall pay to the Executive (in lieu of an Annual Bonus)
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a Prorated Annual Bonus (as defined below) in a lump sum in cash within 60 days after the end of the Transition Period. The Executive shall not be entitled to elect to defer any portion of the Prorated Annual Bonus under any Deferred Compensation Plan.
For purposes of this Plan,
(i) "Annual Bonus" shall mean an annual bonus equal to the product of
the Annual Base Salary and the Full Target Percentage (as defined
below);
(ii) "Full Target Percentage" shall mean the target percentage which
the Executive was eligible to receive under TIP on the day immediately
preceding the Change-in-Status Date without any adjustment, but in no
event lower than the Executive's highest target percentage in effect
at any time between the Executive's Plan Start Date and
Change-in-Status Date, provided that the target percentage shall be
reduced in accordance with any across-the-board reductions approved by
the Committee prior to the Change-in-Status Date which reductions
affect Company officers generally; and
(iii) "Prorated Annual Bonus" shall mean a bonus in an amount equal to
the Annual Bonus multiplied by a fraction, the numerator of which is
the number of days which have elapsed during the calendar year in
question through the last day of the Transition Period, and the
denominator of which is 365.
(c) Three-Year Incentive Plan Awards. During an Executive's Transition Period, any outstanding awards that the Executive has been granted under the Company's Three-Year Incentive Plan or any successor plan ("LTIP") shall continue to vest and become payable in accordance with the Company's policies as in effect from time to time; provided, that such LTIP awards ("LTIP Awards") shall be computed by reference to 100% of the target percentage the Executive would have received pursuant to the terms of the original LTIP grant without any adjustment; and provided, further, that in the case of a Tier III Executive, such an LTIP Award shall not be paid unless the minimum corporate performance thresholds for the applicable performance period are met.
(d) Benefit Programs and Policies. During an Executive's Transition Period, he or she shall participate in Employee Plans and Compensation Plans as provided in Section 1.02(d) above, except that: (i) the Executive shall not be eligible to participate in TIP except to the extent and on the terms provided for above in this Section 4.02; (ii) no new stock option grants shall be made to the Executive; (iii) no new awards shall be granted to the Executive under LTIP; (iv) no other new awards shall be granted to the Executive under any Compensation Plans; (v) the Executive shall not be entitled to participate in any other Compensation Plans; and (vi) the effect of the Executive's entering the Transition Period for any incentive awards that the Executive holds immediately before his or her Change in Status Date that are not specifically provided for above shall be as provided in the applicable plans and/or agreements.
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4.03 Duties During Transition Period. During an Executive's Transition Period, the Executive shall serve as an officer of the Company in a position that is less senior than his or her position during the Retention Period (and in any case not an executive officer position), and shall devote substantially all of his or her normal business time and efforts to the business of the Company, its subsidiaries and its affiliates, the amount of such time to be sufficient to permit him or her to diligently and faithfully serve and endeavor to further its interests to the best of his or her ability. Subject to the foregoing, and to the requirements of the Executive's Agreement(s) then in effect, the Executive may participate in various civic and philanthropic activities, may serve on boards of directors and committees of not-for-profit organizations of the Executive's choice, and, to the extent consistent with the policies of the Company, may serve as a non-employee director of one or more corporations (unless the Committee concludes that such service would be inappropriate or not in the best interests of the Company).
Article 5
Continued Employment Period
5.01 Employee Status. For the five-year period beginning immediately following the end of the Transition Period (the "Continued Employment Period"), the Executive shall serve as a staff employee of the Company, with the pay and benefits provided for in this Article 5, provided that the Executive: (a) remains an employee of the Company through the end of his or her Transition Period; (b) properly executes a Continued Employment Period Agreement not later than the last day of the Transition Period; (c) does not revoke such Continued Employment Period Agreement; and (d) complies with all Agreements that he or she is required under this Plan to execute.
5.02 Continued Employment Benefits. (a) Base Salary. During an Executive's Continued Employment Period, the Company shall pay the Executive a base salary (the "Continued Employment Period Salary") at an annual rate equal to a percentage of his or her Annual Base Salary as in effect at the end of the Transition Period, which percentage is set forth opposite his or her name on Appendix A hereto. In no event shall an Executive be eligible for merit increases in base salary during his or her Continued Employment Period.
(b) Three-Year Incentive Plan Awards. During an Executive's Continued Employment Period, any outstanding awards under LTIP shall be treated as provided in Section 4.02(c) above.
(c) Benefit Programs and Policies. During an Executive's Continued Employment Period, he or she shall participate in Employee Plans and Compensation Plans as provided in Section 1.02(d) above, except that: (i) the Executive shall not be eligible to participate in TIP; (ii) no new stock option grants shall be made to the Executive; (iii) no new awards shall be granted to the Executive under LTIP; (iv) no other new awards shall be granted to the Executive under any Compensation Plans; (v) the Executive shall not be entitled to participate in any other Compensation Plans; and (vi) the effect of the Executive's entering the Continued Employment Period for any incentive awards that the Executive holds immediately before the beginning of his or her Continued Employment Period that are not specifically provided for above shall be as provided in the applicable plans and/or agreements.
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5.03 Time Devoted to Duties During Continued Employment Period. During an Executive's Continued Employment Period, the Executive shall devote such time to the business of the Company as may be reasonably requested by the Company from time to time, which requests shall be appropriate taking into account the compensation the Executive is receiving hereunder and the Executive's outside activities, services and arrangements permitted by the next sentence; provided, that in any event the Executive may be required by the Company to devote sufficient time to qualify for "part-time benefits-eligible" status (which is 20 hours per week, as of the Current Restatement Date). During the Continued Employment Period, the Executive may participate in various civic and philanthropic activities, may serve on boards of directors and committees of not-for-profit organizations of the Executive's choice, may serve as a member of one or more corporate boards of directors and may engage in a full-time employment arrangement with another organization of the Executive's choice, provided that such activities do not violate the Executive's obligations under the Executive's Agreement(s) then in effect.
5.04 No Offset. In the event that an Executive shall engage in any employment arrangement permitted by Section 5.03 above (including without limitation self-employment) during the Continued Employment Period, no amount paid to or earned by such Executive therefrom shall reduce any payments or other benefits due such Executive pursuant to this Plan.
Article 6
Termination of Employment
6.01 Death or Disability. An Executive's employment shall terminate automatically upon his or her death during any Employment Period. In the event that (a) the Committee determines in good faith that an Executive is suffering from a "Disability" (together with its various cognates, as defined below) and (b) the appropriate decisionmaker under any applicable Company plan or program providing long-term disability benefits to the Executive (a "Disability Plan") similarly determines that the Executive is eligible for such benefits by virtue of the Executive's disability (as defined for purposes of such plan or program), the Company may deliver to the Executive written notice (a "Disability Termination Notice") in accordance with Section 6.05 above of the Company's intention to terminate the Executive's employment. In such event, the Executive's employment shall terminate effective on the later of (y) the 30th day after receipt of such Disability Termination Notice by the Executive or (z) the first date on which the Executive becomes eligible for long-term disability benefits under the principal Disability Plan applicable to the Executive, (the "Disability Effective Date"), provided, however, that (1) in the interim the Executive shall not have returned to full-time performance of the Executive's duties, and/or (2) the Executive shall not have delivered to the Committee within 30 days of receipt of a Disability Termination Notice a written objection thereto (an "Objection"). In the event of a timely Objection, any termination of the Executive shall be suspended and the Executive shall be promptly examined by two physicians or other professionals skilled in the relevant field, one selected by the Executive and one by the Committee. Each of the two professionals shall issue a written opinion within 15 days following the completion of his or her examination as to whether the Executive is Disabled in accordance with the definition provided in this Plan. If the two professionals agree, each of the Executive and the Company shall be bound by their joint conclusion. If the two professionals disagree, they shall jointly agree on a third professional to conduct a similar examination. Each of the Executive and the Company
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shall be bound by the conclusion of such third professional. The Executive agrees to each such examination and to waive any confidentiality rights necessary to allow each of the professionals conducting such examinations to do so. The Company shall pay all fees and costs of all such examinations. In the event of a disagreement as to the determination of the Executive's disability for purposes of a Disability Plan, such disagreement shall be resolved as provided for in such Disability Plan. For purposes of this Plan, the term "Disability" shall mean the material inability of the Executive, due to injury, illness, disease or bodily, mental or emotional infirmity, to carry out the job responsibilities which such Executive held or the tasks to which such Executive was assigned at the time of the incurrence of such Disability, which inability is reasonably expected to be permanent or of indefinite duration exceeding one year.
6.02 Cause. The Company may terminate an Executive's employment at any time for Cause. For purposes of this Plan, "Cause" means: (i) the willful failure of an Executive to perform substantially all of the Executive's material duties with the Company (other than any failure resulting from incapacity resulting from physical or mental illness), after written demand for substantial performance is delivered to the Executive by the Committee or the CEO; or (ii) a willful violation of the Company's material rules and policies (including without limitation the Standards of Business Conduct) as in effect from time to time; or (iii) the Executive's commission of any act or acts involving dishonesty, breach of fiduciary obligation to the Company, fraud, illegality, malfeasance or moral turpitude; or (iv) the Executive commits a criminal or civil violation or other improper act involving fraud or dishonesty; or (v) the Executive is found liable for or guilty in a civil matter of engaging in discriminatory conduct in violation of any labor or employment laws or in violating or contributing to a violation of an employee's civil rights; or (vi) the Executive materially breaches the terms of the Plan by revoking any Agreement that the Executive is required to execute, or by failing properly to execute, or violating any one or more of the provisions of, any Agreement that the Executive is required to execute; or (vii) the Executive refuses to carry out clearly assigned material duties or is otherwise insubordinate. Any act or failure to act, on the part of an Executive, that is described in clause (i), (ii), (vi) or (vii) of the preceding sentence of which the Committee receives actual notice shall not be considered "Cause" unless the Committee, the Board or an executive officer of the Company notifies the Executive that such act or failure to act is or may be considered "Cause" within one year after the Committee first receives such actual notice. For purposes of this provision, no act or failure to act, on the part of an Executive, shall be considered "willful," unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive's action or omission was in the best interests of the Company. Any act, or failure to act, on the part of an Executive, based upon authority given pursuant to a resolution duly adopted by the Board or upon the instructions of the CEO or an officer of the Company senior in rank to the Executive to whom the Executive reports or based upon the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the best interests of the Company....
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