Advancement rights of an officer or director of a Delaware corporation are set forth in Section 145 of the Delaware General Corporation Law (“DGCL”).  Section 145(e) grants authority to a Delaware corporation to pay to or for the benefit of any individual that may be eligible to receive indemnification, expenses and attorney’s fees, incurred by such director or officer incurred for suits brought by or in the right of the corporation, along with third-party proceedings.  Such claims are brought in advance of the final disposition of such action.

Section 145(e) provides for an undertaking to repay by such director or officer if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized in that section.  Regardless of whether such undertaking is provided, however, a corporation is entitled to recover amounts advanced to such directors and officers who are ultimately found not to be entitled to indemnification.

If you would like to speak to a litigator in Fox Rothschild’s Delaware office, please reach out to Sid Liebesman (302) 622-4237 or Seth Niederman (302) 622-4238.