9. Enforcement. Any right to indemnification or advances granted by this Agreement to the Agent shall be enforceable by or on behalf of the Agent in any court of competent jurisdiction if (a) the claim for indemnification or advances is denied, in whole or in part, or (b) no disposition of such claim is made within ninety (90) days of request therefor. The Agent, in such enforcement action, if successful in whole or in part, shall be entitled to be paid also the expense of prosecuting his claim. It shall be a defence to any action for which a claim for indemnification is made under Part 3 hereof (other than an action brought to enforce a claim for expenses pursuant to Part 8 hereof; provided that the required undertaking has been tendered to HD Faculty™) that the Agent is not entitled to indemnification because of the limitations set forth in Part 4 hereof. Neither the failure of HD Faculty (including its Board or its stockholders) to have made a determination prior to the commencement of such enforcement action that indemnification of the Agent is proper in the circumstances, nor an actual determination by HD Faculty™ (including its Board or its stockholders) that such indemnification is improper shall be a defence to the action or create a presumption that the Agent is not entitled to indemnification under this Agreement or otherwise.
10. Subrogation. In the event of payment under this Agreement, HD Faculty™ shall be subrogated to the extent of such payment to all of the rights of recovery of the Agent, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable HD Faculty™ effectively to bring suit to enforce such rights.
11. Non-Exclusivity. The rights conferred on the Agent by this Agreement shall not be exclusive of any other right which the Agent may have or hereafter acquire under any statute, provision of HD Faculty™’s Certificate of Incorporation or Bylaws, agreement, vote of stockholders or directors, or otherwise, both as to action in his official capacity and as to action in another capacity while holding office.
12. Survival of Rights
12.1 The rights conferred on the Agent by this Agreement shall continue after the Agent has ceased to be a director, officer, employee or other the Agent of HD Faculty™ or to serve at the request of HD Faculty™ as a director, officer, employee or other the Agent of another HD Faculty™, partnership, joint venture, trust, employee benefit plan or other enterprise and shall inure to the benefit of the Agent’s heirs, executors and administrators.
12.2 HD Faculty™ shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of HD Faculty™, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that HD Faculty™ would be required to perform if no such succession had taken place.
13. Severability. Each of the provisions of this Agreement is a separate and distinct agreement and independent of the others, so that if any provision hereof shall be held to be invalid for any reason, such invalidity or unenforceability shall not affect the validity or enforceability of the other provisions hereof. Furthermore, if this Agreement shall be invalidated in its entirety on any ground, then HD Faculty™ shall nevertheless indemnify the Agent to the fullest extent provided by the Bylaws, the Act or any other applicable law.
14. Governing Law. This Agreement shall be interpreted and enforced in accordance with the laws of Canada.
15. Amendment. No amendment, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by both parties hereto.
16. Identical Counterparts. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute but one and the same Agreement. Only one such counterpart need be produced to evidence the existence of this Agreement.
17. Headings. The headings of the various Parts of this Agreement are inserted merely for convenience only and shall not be deemed or construed to constitute part of this Agreement or to affect the construction hereof.
