AND KZC OF THIS
AGREEMENT, NEITHER THE EXECUTION AND DELIVERY OF THIS AGREEMENT NOR THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREIN OR THEREIN NOR COMPLIANCE
BY THE COMPANY WITH ANY OF THE PROVISIONS HEREOF OR THEREOF WILL: (I) VIOLATE
ANY ORDER, WRIT, INJUNCTION, DECREE, LAW, STATUTE, RULE OR REGULATION APPLICABLE
TO IT OR (II) REQUIRE THE CONSENT, APPROVAL, PERMISSION OR OTHER AUTHORIZATION
OF, OR QUALIFICATION OR NOTICE TO, ANY COURT, ARBITRATOR OR OTHER TRIBUNAL OR
ANY GOVERNMENTAL, ADMINISTRATIVE, REGULATORY OR SELF-REGULATORY AGENCY OR ANY
OTHER THIRD-PARTY.
(C)
SUBJECT TO EXECUTION BY COOPER, NYSTROM AND KZC OF THIS AGREEMENT,
THIS AGREEMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY THE COMPANY
AND CONSTITUTES THE LEGAL, VALID AND BINDING AGREEMENT OF THE COMPANY,
ENFORCEABLE IN ACCORDANCE WITH ITS TERMS.
7.
INDEMNIFICATION.
(A)
THE COMPANY SHALL INDEMNIFY AND HOLD HARMLESS COOPER, NYSTROM, THE
ASSOCIATE DIRECTORS, KZC AND ITS PRINCIPALS, AND OTHER KZC EMPLOYEES,
REPRESENTATIVES OR AGENTS (INCLUDING COUNSEL) (COLLECTIVELY, THE "KZC
INDEMNITEES") FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES,
PENALTIES, JUDGMENTS, AWARDS, COSTS, FEES, EXPENSES AND DISBURSEMENTS, INCLUDING
WITHOUT LIMITATION, THE REASONABLE COSTS, FEES, EXPENSES AND DISBURSEMENTS, AS
AND WHEN INCURRED, FROM THE FIRST DOLLAR, OF INVESTIGATING, PREPARING OR
DEFENDING ANY ACTION, SUIT, PROCEEDING OR INVESTIGATION (WHETHER OR NOT IN
CONNECTION WITH PROCEEDINGS OR LITIGATION IN WHICH ANY KZC INDEMNITEE IS A
PARTY)(ANY SUCH AMOUNT BEING HEREINAFTER SOMETIMES REFERRED TO AS AN
"INDEMNIFIABLE LOSS"), DIRECTLY OR INDIRECTLY CAUSED BY, RELATING TO, BASED
UPON, ARISING OUT OF OR IN CONNECTION WITH THIS ENGAGEMENT OF COOPER, NYSTROM
6
AND KZC BY THE COMPANY OR THE PERFORMANCE BY COOPER, NYSTROM AND KZC OF ANY
SERVICES RENDERED PURSUANT TO SUCH ENGAGEMENT, UNLESS THERE IS A FINAL
NON-APPEALABLE ORDER OF A COURT OF COMPETENT JURISDICTION, AT THE TRIAL LEVEL,
FINDING KZC INDEMNITEES DIRECTLY LIABLE FOR GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.
KZC SHALL PROVIDE THE COMPANY WITH PROMPT NOTICE OF ANY CLAIM UNDER
THIS PARAGRAPH.
THE COMPANY AND KZC SHALL JOINTLY CONTROL ANY SETTLEMENT ON ANY
ACTION FOR WHICH ANY KZC INDEMNITEE SEEKS INDEMNITY; PROVIDED, HOWEVER, THAT THE
COMPANY SHALL BE ENTITLED ON ITS OWN TO EFFECT THE SETTLEMENT OF ANY PENDING OR
THREATENED PROCEEDING SO LONG AS SUCH SETTLEMENT (I) INCLUDES AN UNCONDITIONAL
RELEASE OF KZC, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO KZC, FROM ALL
LIABILITY ON CLAIMS THAT ARE THE SUBJECT MATTER OF SUCH PROCEEDING AND (II) DOES
NOT INCLUDE ANY STATEMENT AS TO OR ANY ADMISSION OF FAULT, CULPABILITY OR
FAILURE TO ACT BY OR ON BEHALF OF KZC.
(B)
IF COOPER, NYSTROM, KZC, REPRESENTATIVES OR ANY PRINCIPAL OR AGENT
OF KZC IS REQUIRED TO TESTIFY, PREPARE FOR AND/OR APPEAR AT A DEPOSITION OR
PRODUCE DOCUMENTS AT ANY TIME AFTER THE EXPIRATION OR TERMINATION OF THIS
AGREEMENT AT ANY ADMINISTRATIVE OR JUDICIAL PROCEEDING RELATING TO ANY SERVICES
PROVIDED BY COOPER, NYSTROM AND KZC HEREUNDER, THEN KZC SHALL BE ENTITLED TO BE
COMPENSATED BY THE COMPANY FOR COOPER, NYSTROM AND KZC'S ASSOCIATED TIME CHARGES
AT RATES COMMENSURATE WITH THOSE SET FORTH IN