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This excerpt taken from the T 10-Q filed Aug 6, 2008. No Mitigation; Resolution of
Disputes and Costs.
(a) In no event shall the Participant be
obligated to seek other employment or take other action by way of mitigation of
the amounts payable to the Participant under any of the provisions of this Plan
and, except as provided in Section 4.2(c), such amounts shall not be reduced
whether or not the Participant obtains other employment.
(b) Participants may submit claims for
benefits by giving notice to the Company pursuant to Section 8.1. If
a Participant believes that he or she has not received coverage or benefits to
which he or she is entitled under the Plan, the Participant may notify the
Company in writing of a claim for coverage or benefits. If the claim
for coverage or benefits is denied in whole or in part, the Company shall notify
the applicant in writing of such denial within thirty (30) days (which may be
extended to sixty (60) days under special circumstances), with such notice
setting forth: (i) the specific reasons for the denial; (ii) the Plan provisions
upon which the denial is based; (iii) any additional material or information
necessary for the applicant to perfect his or her claim; and (iv) the procedures
for requesting a review of the denial. Upon a denial of a claim by
the Company, the Participant may: (i) request a review of the denial
by the Board or, where review authority has been so delegated, by such other
person or entity as may be designated by the Board for this purpose; (ii) review
any Plan documents relevant to his or her claim; and (iii) submit issues and
comments to the Board or its delegate that are relevant to the
review. Any request for review must be made in writing and received
by the Board or its delegate within sixty (60) days of the date the applicant
received notice of the initial denial, unless special circumstances require an
extension of time for processing. The Board or its delegate will make
a written ruling on the applicant’s request for review setting forth the reasons
for the decision and the Plan provisions upon which the denial, if appropriate,
is based. This written ruling shall be made within thirty (30) days
of the date the Board or its delegate receives the applicant’s request for
review unless special circumstances require an extension of time for processing,
in which case a decision will be rendered as soon as possible, but not later
than sixty (60) days after receipt of the request for review. All
extensions of time permitted by this Section 18 will be permitted at the sole
discretion of the Board or its delegate. If the Board does not
provide the Participant with written notice of the denial of his or her appeal,
the Participant’s claim shall be deemed denied.
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(c) Notwithstanding
anything in this Plan to the contrary, any court, tribunal or arbitration panel
that adjudicates any dispute, controversy or claim arising between a Participant
and any Employer, or any of their delegates or successors, in respect of a
Participant’s Qualifying Termination, will apply a denovo standard of
review to any determinations made by such person. Such denovo standard shall
apply notwithstanding the grant of full discretion hereunder to any such person
or characterization of any such decision by such person as final, binding or
conclusive on any party.
(d) If any
contest or dispute shall arise under this Plan involving a Participant’s Termination of
Employment or involving the failure or refusal of any Employer to perform fully
in accordance with the terms hereof, the Company shall or shall cause the
Employer to reimburse the Participant on a current basis for all reasonable
legal fees and related expenses, if any, incurred by the Participant at any time from the Effective Date of
this Plan through the Participant’s remaining lifetime (or, if longer, through
the 20th anniversary of the Change in Control) in connection with such contest or
dispute (regardless of the result thereof), together with interest at the rate
provided in section 1274(b)(2)(B) of the Code, such interest to accrue thirty
(30) days from the date the Company receives the Participant’s statement
for such fees and expenses through the date of payment thereof, regardless of
whether or not the Participant’s claim is upheld by a court of competent
jurisdiction or an arbitration panel; provided, however, that the
Participant shall be required to repay immediately any such amounts to the
Employer to the extent that a court or an arbitration panel issues a final and
non-appealable order setting forth the determination that the position taken by
the Participant was frivolous or
advanced by the Participant in bad faith. To comply with Section 409A, in no event
shall the payments by the Employer under this Section 8.2(d) be made later than
the end of the calendar year next following the calendar year in which such fees
and expenses were incurred, provided, that the Participant shall have submitted
an invoice for such fees and expenses at least ten (10) days before the end of
the calendar year next following the calendar year in which such fees and
expenses were incurred. The amount of such legal fees and expenses
that the Employer is obligated to pay in any given calendar year shall not
affect the legal fees and expenses that the Employer is obligated to pay in any
other calendar year, and the Participant’s right to have the Employer pay such
legal fees and expenses may not be liquidated or exchanged for any other
benefit.
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