DATE HE BECOMES ENTITLED TO SUCH
PAYMENTS AND SHALL BE THE SOLE AMOUNT OF SEVERANCE PAY TO WHICH EXECUTIVE IS
ENTITLED FROM THE COMPANY AND ITS AFFILIATES UPON TERMINATION OF HIS
EMPLOYMENT.
EXECUTIVE SHALL HAVE NO DUTY TO MITIGATE HIS DAMAGES BY SEEKING
OTHER EMPLOYMENT AND, SHOULD EXECUTIVE ACTUALLY RECEIVE COMPENSATION FROM ANY
SUCH OTHER EMPLOYMENT, THE PAYMENTS REQUIRED HEREUNDER SHALL NOT BE REDUCED OR
OFFSET BY ANY SUCH OTHER COMPENSATION.
24.
LEGAL FEES.
ALL LEGAL FEES OF PAUL HASTINGS INCURRED BY
EXECUTIVE IN CONNECTION WITH NEGOTIATING THIS EMPLOYMENT AGREEMENT AND IN
CONNECTION WITH THE RESTRUCTURING WITHIN THE SCOPE OF ENGAGEMENT SET FORTH IN
THE LETTER OF ENGAGEMENT BETWEEN EXECUTIVE AND PAUL HASTINGS DATED JULY 6, 2004
SHALL BE PAID BY THE COMPANY.
25.
INDEMNIFICATION OF PRIOR PAYMENTS.
THE COMPANY HEREBY AGREES TO
DEFEND (OR REIMBURSE EXECUTIVE FOR REASONABLE COSTS OF DEFENSE), PROTECT AND
INDEMNIFY EXECUTIVE FROM AND AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS,
DAMAGES, JUDGMENTS, CLAIMS, COSTS, EXPENSES AND DISBURSEMENTS OF ANY KIND OR
NATURE WHATSOEVER ASSERTED AGAINST EXECUTIVE IN ANY MANNER RELATING TO OR
ARISING OUT OF OR IN CONNECTION WITH ANY PAYMENTS ("PRIOR PAYMENTS") PREVIOUSLY
PAID TO EXECUTIVE, INCLUDING, WITHOUT LIMITATION, THOSE PAYMENTS RESULTING AS OF
THE CHANGE IN CONTROL THAT OCCURRED ON FEBRUARY 17, 2004, AND ANY OBLIGATION OF
THE COMPANY TO MAKE SUCH PRIOR PAYMENTS CONTAINED IN ANY EMPLOYMENT AGREEMENT OR
OTHER AGREEMENT SHALL CONTINUE TO BE EFFECTIVE OR BE REINSTATED, AS THE CASE MAY
BE, IF AT ANY TIME PAYMENT AND PERFORMANCE OF SUCH PRIOR PAYMENTS OR ANY PART
THEREOF IS RESCINDED OR REDUCED IN AMOUNTS OR MUST OTHERWISE BE
24
RESTORED OR RETURNED TO THE COMPANY OR ITS SUCCESSORS BY EXECUTIVE, WHETHER AS A
"VOIDABLE PREFERENCE," "FRAUDULENT CONVEYANCE" OR OTHERWISE, ALL AS THOUGH SUCH
PAYMENT OR PERFORMANCE HAD NOT BEEN MADE (IN WHOLE OR IN PART, AS APPLICABLE).
IF ANY SUCH PRIOR PAYMENT, OR ANY PART THEREOF IS RESCINDED, REDUCED, RESTORED
OR RETURNED, THE AGREEMENT AND OBLIGATION TO MAKE SUCH PRIOR PAYMENTS SHALL BE
REINSTATED AND THE OBLIGATION TO MAKE SUCH PRIOR PAYMENT SHALL BE REDUCED ONLY
BY SUCH AMOUNT PAID AND NOT SO RESCINDED, REDUCED, RESTORED OR RETURNED.
ALL
OBLIGATIONS AND AMOUNTS PAYABLE PURSUANT TO THIS AGREEMENT, INCLUDING THOSE SET
FORTH IN THIS SECTION 25, SHALL, TO THE MAXIMUM EXTENT PERMITTED UNDER LAW,
CONSTITUTE ADMINISTRATIVE PRIORITY EXPENSES PURSUANT TO BANKRUPTCY CODE SECTIONS
503(B) AND 507(A)(1) OF THE COMPANY'S ESTATE IN THE EVENT OF A BANKRUPTCY FILING
BY OR AGAINST THE COMPANY.
26.
POAMI'S OBLIGATIONS.
ALL OF THE OBLIGATIONS OF THE COMPANY
HEREUNDER SHALL ALSO BE DIRECT OBLIGATIONS OF POAMI WITHOUT THE NEED FOR
EXECUTIVE TO SEEK OR EXHAUST REMEDIES AGAINST THE COMPANY.
27.
ENTIRE AGREEMENT.
THIS AGREEMENT CONSTITUTES THE ENTIRE
AGREEMENT OF THE PARTIES WITH RESPECT TO ITS SUBJECT MATTER AND SUPERSEDES AND
REPLACES ALL PREVIOUS VERBAL OR WRITTEN AGREEMENTS THAT THE PARTIES MAY HAVE
MADE, INCLUDING THE PRIOR EMPLOYMENT AGREEMENT.
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IN WITNESS WHEREOF,