SECTION 4(A)
AND TO BE REIMBURSED
FOR REASONABLE OUT-OF-POCKET EXPENSES, INCLUDING COUNSEL FEES.
(C)
THE COMPANY HAS FURNISHED TO COOPER, NYSTROM AND KZC A TRUE,
CORRECT AND COMPLETE COPY OF THE DIRECTORS, OFFICERS AND CORPORATE LIABILITY
INSURANCE POLICY NO.
, EMPLOYMENT PRACTICES INSURANCE, POLICY
NO.
, AND FIDUCIARY LIABILITY INSURANCE, POLICY
NO.
COLLECTIVELY (THE "POLICIES") ISSUED TO THE COMPANY
BY
(THE "INSURER").
THE COMPANY REPRESENTS THAT THE POLICIES ARE IN FULL FORCE AND
EFFECT AND THAT NO EVENT HAS OCCURRED THAT CONSTITUTES OR, WITH THE PASSAGE OF
TIME OR NOTICE WOULD CONSTITUTE, AN EVENT OF DEFAULT THEREUNDER OR THAT WOULD
OTHERWISE GIVE THE INSURER ANY RIGHT TO CANCEL SUCH POLICIES.
PROMPTLY AND IN
ANY EVENT WITHIN TWO BUSINESS DAYS OF THE COMPANY APPROVING THIS AGREEMENT, THE
COMPANY SHALL NOTIFY THE INSURER OF THE ELECTION OF COOPER AS THE CHIEF
EXECUTIVE OFFICER AND NYSTROM AS THE CHIEF OPERATING OFFICER AND OF THE
APPOINTMENT OF ANY ASSOCIATE DIRECTORS WHO BECOME AN OFFICER OF THE COMPANY.
THE COMPANY SHALL CAUSE ITS INSURANCE BROKER TO SEND COPIES OF ALL DOCUMENTATION
AND OTHER COMMUNICATIONS REGARDING THE POLICIES, INCLUDING WITHOUT LIMITATION
ANY RENEWAL OR CANCELLATION THEREOF, TO THE ATTENTION OF KZC, IN THE MANNER SET
FORTH HEREIN, AND COOPER, NYSTROM AND ANY ASSOCIATE DIRECTORS WHO BECOME
OFFICERS OF THE COMPANY SHALL HAVE ALL INDEMNITIES AVAILABLE TO THE OFFICERS OF
THE COMPANY PURSUANT TO THE COMPANY'S CONSTITUTIVE DOCUMENTS.
AS LONG AS THE
SAME CAN BE DONE AT A COMMERCIALLY REASONABLE COST, DURING THE TERM OF THIS
AGREEMENT, THE COMPANY SHALL MAINTAIN DIRECTORS AND OFFICERS LIABILITY INSURANCE
COVERAGE, EMPLOYMENT PRACTICES INSURANCE COVERAGE AND FIDUCIARY LIABILITY
INSURANCE COVERAGE COMPARABLE AS TO TERMS (INCLUDING WITHOUT LIMITATION THE
PROVISIONS OR ANY SIMILAR PROVISION REGARDING EXTENSION OF THE DISCOVERY PERIOD
THEREUNDER) AND AMOUNTS AS THAT PROVIDED UNDER THE POLICIES DURING THE TERM OF
THIS AGREEMENT, WITH ANY SUCH REPLACEMENT COVERAGE BEING OBTAINED FROM AN
INSURER WITH A RATING FROM A NATIONALLY RECOGNIZED RATING AGENCY NOT LOWER THAN
THAT OF THE INSURER.
UPON ANY CANCELLATION OR NONRENEWAL OF THE POLICIES BY THE
INSURER, AS LONG AS THE SAME CAN BE DONE AT A COMMERCIALLY REASONABLE COST, THE
COMPANY SHALL EXERCISE ITS RIGHTS UNDER THE APPLICABLE CLAUSE OF THE POLICIES TO
EXTEND THE CLAIM PERIOD FOR A ONE-YEAR "DISCOVERY PERIOD"
7
AND SHALL EXERCISE SUCH RIGHTS AND PAY THE PREMIUM REQUIRED THEREUNDER WITHIN
THE 30-DAY PERIOD SPECIFIED THEREIN.
THE COMPANY SHALL USE COMMERCIALLY
REASONABLE EFFORTS, IN CONNECTION WITH THE NEXT RENEWAL OF THE POLICY, TO
NEGOTIATE TO EXTEND THE DISCOVERY PERIOD SET FORTH IN THE POLICIES FROM ONE TO
THREE YEARS, AS LONG AS THE SAME CAN BE OBTAINED AT A COMMERCIALLY REASONABLE
COST.
8.
Limitations on Liability.
The Company agrees that Cooper,
Nystrom, Associate Directors, KZC and its personnel will not be liable to the
Company for any claims, liabilities, or expenses relating to this engagement in
excess of the fees paid by them to KZC pursuant to this Agreement, unless there
is a final non-appealable order of a Court of competent