PROMPT
NOTICE OF SUCH PROCEEDING TO ALL INSURERS PROVIDING LIABILITY INSURANCE IN
ACCORDANCE WITH THE PROCEDURES SET FORTH IN ALL APPLICABLE OR POTENTIALLY
APPLICABLE POLICIES.
THE COMPANY SHALL THEREAFTER TAKE ALL NECESSARY ACTION TO
CAUSE SUCH INSURERS TO PAY ALL AMOUNTS PAYABLE IN ACCORDANCE WITH THE TERMS OF
SUCH POLICIES.
7.
EXCULPATION, ETC.
(A)
LIMITATION OF LIABILITY.
INDEMNITEE SHALL NOT BE PERSONALLY
LIABLE TO THE COMPANY OR ANY OF ITS SUBSIDIARIES OR TO THE STOCKHOLDERS OF THE
COMPANY OR ANY SUCH SUBSIDIARY FOR MONETARY DAMAGES FOR BREACH OF FIDUCIARY DUTY
AS A DIRECTOR OF THE COMPANY OR ANY SUCH SUBSIDIARY; PROVIDED, HOWEVER, THAT THE
FOREGOING SHALL NOT ELIMINATE OR LIMIT THE LIABILITY OF INDEMNITEE (I) FOR ANY
BREACH OF INDEMNITEE'S DUTY OF LOYALTY TO THE COMPANY OR SUCH SUBSIDIARY OR THE
STOCKHOLDERS THEREOF; (II) FOR ACTS OR OMISSIONS NOT IN GOOD FAITH OR WHICH
INVOLVE INTENTIONAL MISCONDUCT OR A KNOWING VIOLATION OF THE LAW; (III) UNDER
SECTION 174 OF THE DGCL OR ANY SIMILAR PROVISION OF OTHER APPLICABLE
CORPORATIONS LAW; OR (IV) FOR ANY TRANSACTION FROM WHICH INDEMNITEE DERIVED AN
IMPROPER PERSONAL BENEFIT.
IF THE DGCL OR SUCH OTHER APPLICABLE LAW SHALL BE
AMENDED TO PERMIT FURTHER ELIMINATION OR LIMITATION OF THE PERSONAL LIABILITY OF
DIRECTORS, THEN THE LIABILITY OF INDEMNITEE SHALL, AUTOMATICALLY, WITHOUT ANY
FURTHER ACTION, BE ELIMINATED OR LIMITED TO THE FULLEST EXTENT PERMITTED BY THE
DGCL OR SUCH OTHER APPLICABLE LAW AS SO AMENDED.
(B)
PERIOD OF LIMITATIONS.
NO LEGAL ACTION SHALL BE BROUGHT AND NO
CAUSE OF ACTION SHALL BE ASSERTED BY OR IN THE RIGHT OF THE COMPANY OR ANY OF
ITS SUBSIDIARIES AGAINST INDEMNITEE OR INDEMNITEE'S ESTATE, SPOUSES, HEIRS,
EXECUTORS, PERSONAL OR LEGAL REPRESENTATIVES, ADMINISTRATORS OR ASSIGNS AFTER
THE EXPIRATION OF TWO YEARS FROM THE DATE OF ACCRUAL OF SUCH CAUSE OF ACTION,
AND ANY CLAIM OR CAUSE OF ACTION OF THE COMPANY SHALL BE EXTINGUISHED AND DEEMED
RELEASED UNLESS ASSERTED BY THE TIMELY FILING OF A LEGAL ACTION WITHIN SUCH
TWO-YEAR PERIOD, PROVIDED THAT IF ANY SHORTER PERIOD OF
9
LIMITATIONS IS OTHERWISE APPLICABLE TO ANY SUCH CAUSE OF ACTION, SUCH SHORTER
PERIOD SHALL GOVERN.
8.
MISCELLANEOUS.
(A)
SEVERABILITY.
IF ANY PROVISION OR PROVISIONS OF THIS AGREEMENT
SHALL BE HELD TO BE INVALID, ILLEGAL OR UNENFORCEABLE FOR ANY REASON
WHATSOEVER:
(I) THE VALIDITY, LEGALITY AND ENFORCEABILITY OF THE REMAINING
PROVISIONS OF THIS AGREEMENT (INCLUDING WITHOUT LIMITATION, EACH PORTION OF ANY
SECTION OF THIS AGREEMENT CONTAINING ANY SUCH PROVISION HELD TO BE INVALID,
ILLEGAL OR UNENFORCEABLE, THAT IS NOT ITSELF INVALID, ILLEGAL OR UNENFORCEABLE)
SHALL NOT IN ANY WAY BE AFFECTED OR IMPAIRED THEREBY AND SHALL REMAIN
ENFORCEABLE TO THE FULLEST EXTENT PERMITTED BY LAW; (II) SUCH PROVISION OR
PROVISIONS SHALL BE DEEMED REFORMED TO THE EXTENT NECESSARY TO CONFORM TO
APPLICABLE LAW AND TO GIVE THE MAXIMUM EFFECT TO THE INTENT OF THE PARTIES
HERETO; AND (III) TO THE FULLEST EXTENT POSSIBLE, THE PROVISIONS OF THIS
AGREEMENT (INCLUDING, WITHOUT LIMITATION, EACH PORTION OF ANY SECTION OF THIS
AGREEMENT CONTAINING ANY SUCH PROVISION