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.
