EXECUTIVE
LONG TERM DISABILITY PLAN
(Conformed
through October 31, 2008)
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PAGE
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1
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Introduction
and Definitions
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1
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1
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1
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4
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4
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2.1
Eligibility to Participate
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4
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2.2
Effective Date of Participation
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4
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2.3
Termination of Participation
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4
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4
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2.5
Successive Periods of Disability
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5
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5
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2.7
Entitlement to Benefits
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6
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2.8
Disability for Which Benefits Are Not Payable
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7
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2.9
Amount of Monthly Benefits
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8
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2.10
Minimum Amount of Monthly Benefits
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9
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2.11
Amount of Benefits for a Part of a Month
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9
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9
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2.13
Monthly Benefits for Periods of Disability Commencing Before the
Effective Date
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9
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9
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10
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10
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10
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3.2
Decisions and Actions of the Committee
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10
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3.3
Rules and Records of the Committee
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10
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10
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10
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11
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12
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12
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4.1
Presentation of Claim
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12
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4.2
Notification of Decision
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12
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4.3
Review of a Denied Claim
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13
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13
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14
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-i-
TABLE
OF CONTENTS
(continued)
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PAGE
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15
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15
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15
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5.2
Non-Assignability and Facility of Payment
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15
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15
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15
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5.5
No Guarantee of Employment
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15
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5.6
Information to be Furnished by Covered Employees
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15
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5.7
Company and Committee Decision Final
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15
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5.8
Action by Company or Employer
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16
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16
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5.10
Recovery of Benefits
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16
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5.11
Additional Employers
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16
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16
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17
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5.14
Investigation of Claims
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17
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18
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Amendment
and Termination
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18
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18
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18
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6.3
Mergers and Acquisitions
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18
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-ii-
HANESBRANDS
INC.
EXECUTIVE LONG TERM DISABILITY PLAN
(Effective as of January 1, 2006)
Introduction
and Definitions
Hanesbrands
Inc. (the “Company”) established the Hanesbrands Inc.
Executive Long Term Disability Plan (the “Plan”) in
order to provide long term disability benefits for persons employed
by its divisions and Subsidiaries as eligible Executives. The
Hanesbrands Inc. Executive Long Term Disability Plan, as set forth
herein, is established effective as of January 1, 2006. It is
the intent of the Company that the Plan, as set forth herein,
constitute a “Top-Hat Plan” as defined in DOL
Regulation Section 2520.104-24 for purposes of the
Employee Retirement Income Security Act of 1974, as amended
(“ERISA”).
As
used in the Plan or in any supplement or schedule hereto, the
following terms shall have the following meanings:
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(a)
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“Benefit” or “Benefits” means the
disability benefit or benefits for Executives of the Employers
under this Plan.
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(b)
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“Committee” means the Hanesbrands Inc. Employee
Benefits Administrative Committee appointed by the Board of
Directors of the Company, to administer the Plan, which committee
shall be a named fiduciary of the Plan as defined in
Section 402 of ERISA.
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(c)
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“Company” means Hanesbrands Inc., a Maryland
corporation and any successor thereto, including any corporation
that is a successor to all or substantially all of the
Company’s assets or business.
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(d)
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“Conclusive Medical Evidence” means a specific
diagnosis made by a Physician and supported by objective medical
documentation.
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(e)
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“Covered Employee” means an Executive who is
participating in the Plan in accordance with subsection 2.2 and
whose participation has not terminated in accordance with
subsection 2.3. For purposes of the Plan, a Covered Employee is
considered an employee only if specifically treated or classified
as an employee for purposes of withholding federal employment and
income taxes. If classified by an Employer as an independent
contractor, consultant, leased employee or similar position, an
individual is specifically excluded from Plan participation, even
if a court, the Internal Revenue Service, or any other third party
finds that an individual should be treated as a common-law employee
of an Employer.
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(f)
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“Disability Accommodation” means the Employer’s
reasonable accommodation of the Covered Employee’s Total
Disability to assist the Covered Employee to return to active
employment with the Covered Employer in either the Covered
Employee’s prior position or a position in the Covered
Employee’s regular occupation.
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(g)
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“Effective Date” means January 1, 2006, the
effective date of this Plan document.
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(h)
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“Elimination Period” means a continuous period of
180 days commencing with the day following an employee’s
last day of active employment or work prior to commencement of an
absence on account of disability during which the employee is
continuously Totally Disabled, as defined in subsection 2.6.
Successive periods of absence on account of disability due to the
same or related cause or causes shall be considered a single period
of absence unless separated by a return to active employment or
work with the Employer of at least thirty (30) consecutive work
days. For purposes of this thirty (30) consecutive work days
provision, a Covered Employee shall be considered to have worked
one “work day” if the Covered Employee performs any
duties for the Employer during any portion of a work
day.
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(i)
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“Employer” means the Company, its divisions and any
Subsidiary of the Company designated a Covered Employer under the
Plan, which Employer adopts the Plan, as provided in the Plan or as
set forth in a Schedule to the Plan.
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(j)
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“Executive” means an employee in Salary Bands one
(1) through five (5) and the Chief Executive Officer and
Chairman of the Board.
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(k)
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“Physician” or “Doctor” means a person
legally licensed to practice medicine, psychiatry, psychology or
psychotherapy, who is neither a Covered Employee nor a member of a
Covered Employee’s immediate family. A licensed medical
practitioner is a doctor as applicable state law requires that such
practitioner be recognized for purposes of certification of
disability, and the treatment provided by the practitioner is
within the scope of his or her license.
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(l)
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“Plan” means the Hanesbrands Inc. Executive Long Term
Disability Plan, effective as of January 1, 2006, including
any supplements or schedules thereto.
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(m)
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“Plan Year” means the consecutive twelve-month period
commencing each January 1 and ending on the next following
December 31.
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(n)
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“Subsidiary” or “Subsidiaries” means any
corporation more than fifty percent of the voting stock of which is
owned, directly or indirectly, by the Company.
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(o)
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“Vocational Rehabilitation Services” means such
services as the Committee determines in its discretion will assist
the Covered Employee in returning to an occupation for wage or
profit that he or she is reasonably qualified to do by education,
training or experience or that he or she may become reasonably
qualified to do by education, training or experience. Vocational
Rehabilitation Services may include job modification, job
retraining, and job placement services.
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2.1
Eligibility to Participate
Each
Executive in the employ of an Employer shall, subject to the terms
and conditions of the Plan, be eligible to participate in this Plan
on the later of the Effective Date or as of the first day of active
service as an Executive with his or her Employer. Part time,
seasonal, and temporary employees are not eligible to participate
in the Plan.
2.2
Effective Date of Participation
Each
Executive may elect to participate in, and become a Covered
Employee under, the Plan by signing an application form provided by
his or her Employer, and the effective date of his or her
participation will be the date on which he or she first becomes
eligible to participate.
2.3
Termination of Participation
A
Covered Employee will cease to be a Covered Employee on the
earliest of the following dates:
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(a)
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The date he or she ceases to be employed by an Employer as an
Executive.
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(b)
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The date of his or her retirement from his or her employment with
all Employers, or the last day worked, whichever is
later.
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(c)
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The date of his or her termination of employment with all
Employers, or the last day worked, whichever is later.
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(d)
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The date he or she is no longer actively at work due to an unpaid
leave of absence. Notwithstanding the foregoing, an unpaid leave
qualifying as a leave under the Family and Medical Leave Act of
1993 (“FMLA”) or the Uniformed Services Employment and
Reemployment Rights Act of 1994, as amended (“USERRA”)
shall be administered in accordance with the benefits requirements
of the FMLA and USERRA and the regulations thereunder.
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Subject
to subsection 2.8, upon receipt by the Committee of due proof and
Conclusive Medical Evidence, in accordance with subsection 2.7,
that a Covered Employee has become Totally Disabled, as defined in
subsection 2.6, as a result of sickness or bodily injury, benefits
will be payable in the amount determined in accordance with
subsection 2.9. Such payment will commence with the first day
following the expiration of the Elimination Period. Benefits will
be payable for the period during which Total Disability continues
following the Elimination Period and during which the Covered
Employee is under the continuous care of a Physician and during
which a defined treatment plan specifically appropriate for the
disability is in progress. Benefits
shall
terminate with the payment for the month, or part of the month, in
which occurs the earlier of (i) the date the Covered Employee
ceases to be Totally Disabled, as defined in subsection 2.6; or
(ii) the applicable date described in (a) or
(b) next below:
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(a)
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if such disability first occurs at or before the Covered
Employee’s attainment of age sixty (60) years, the date
he or she attains age sixty-five (65) years; or
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(b)
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if such disability first occurs after the Covered Employee’s
attainment of age sixty (60) years, upon the fifth anniversary
of the date he or she first qualified for monthly disability
benefits.
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If a
Covered Employee fails or refuses to submit to a medical
examination requested by the Committee, his or her Benefit payments
shall be suspended, and payment of Benefits shall resume only when
the Covered Employee submits to such medical examination and then
only if such medical examination results in a finding of Conclusive
Medical Evidence and satisfactory to the Committee that the Covered
Employee continues to be Totally Disabled, as defined in subsection
2.6. Benefits may be denied, suspended or withheld if Plan assets
are not sufficient.
2.5
Successive Periods of Disability
After
completion of a Covered Employee’s Elimination Period,
successive periods of disability resulting from the same or related
cause or causes will be considered a single period of disability
unless the periods of disability are separated by his or her return
to the active service of his or her Employer for a period of at
least six (6) consecutive months.
During
the Elimination Period and thereafter, a Covered Employee shall be
deemed “Totally Disabled” if, due to sickness or bodily
injury, he or she is unable to perform each and all of the material
duties pertaining to his or her occupation, and is not engaged in
any occupation or employment for wage or profit for which he or she
is reasonably qualified by education, training or experience. This
means the Covered Employee cannot perform any of the material
duties of his or her position or a similar position available to
him or her with the Covered Employer. The term “material
duty” means a duty or responsibility that is designated as a
“key job element”, “essential function”,
“specific responsibility” or “major
responsibility” in a job or position description applicable
to the Covered Employee’s job or similar job of the Covered
Employee.
2.7
Entitlement to Benefits
Entitlement
to Benefits under the Plan is subject to the following:
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(a)
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A Covered Employee must support his initial entitlement to Benefits
by submitting, on a form provided by the Committee, written proof
of claim (including conclusive medical evidence) covering the
occurrence, character and extent of disability, which proof of
claim must be filed with the Committee not later than one year
measured from the last day the Covered Employee worked for the
Employer prior to incurring the alleged disability. Thereafter, as
requested by the Committee from time to time, the Covered Employee
may be required to submit Conclusive Medical Evidence of the
continuance of his or her disability. As a condition to a Covered
Employee’s entitlement to disability benefits, the Committee
shall have the right to direct such employee to submit, from time
to time, to an independent medical examination by a Physician
designated by the Committee.
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(b)
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A Covered Employee must be under the continuous care of a Physician
who with respect to the Covered Employee’s disability is
practicing within the scope of his or her license, and must be
under a defined course of treatment appropriate for the Covered
Employee’s disability. If a Covered Employee’s
disability is a mental or nervous disorder, his or her treatment
must include care by a board certified, licensed Physician who
specializes in psychiatric medicine.
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(c)
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No later than the expiration of a continuous period of ninety (90)
days during which a Covered Employee is disabled, the employee must
apply for initial disability benefits under the Social Security
Act. He or she must appeal initial and reconsideration level
denials of such Social Security benefits within the 60-day appeal
period, and he or she must supply the Committee with proof of
application for, and any denial of, disability benefits under the
Social Security Act and of any such appeal or award letters. As a
pre-condition to receiving benefits under the Plan, the Covered
Employee must execute a reimbursement agreement in which the
Covered Employee agrees in writing to reimburse his or her Employer
an amount equal to any overpayment of Benefits under the Plan due
to a retroactive award of Federal Social Security benefits
(Disability or Retirement). Any such overpayment shall be
reimbursed to the Employer by the participant in a lump sum within
thirty (30) days of the date the Covered Employee is notified
in writing of the amount of such overpayment. If a Covered Employee
fails to reimburse the Employer in a lump sum as required above,
the Committee, in its
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