Mikhail Gorodetskiy v. Honeywell International Inc.

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

MIKHAIL GORODETSKIY, )
Plaintiff, )
)
v. ) C.A. No. 2025-1085-LM (MTZ)
)
)
HONEYWELL INTERNATIONAL INC.,
)
)
Defendant. )

ORDER DISMISSING EXCEPTIONS

WHEREAS:

A. On April 22, 2026, a Magistrate in Chancery issued a final report in this

matter concluding plaintiff Mikhail Gorodetskiy is not entitled to advancement (the

“Final Report”).1 The Final Report recommended granting defendant Honeywell

International Inc.’s (“Honeywell”) motion to dismiss, and denying Gorodetskiy’s

motion for summary judgment, motion for default judgment, and request for fees-

on-fees.

B. Gorodetskiy filed a notice of exceptions on April 27 (the

“Exceptions”).2 The matter was reassigned to the undersigned for the purpose of

1
Docket Item (“D.I.”) 27.
2
D.I. 28.
hearing the Exceptions,3 and the parties completed briefing the Exceptions on June

17.4

C. Gorodetskiy submitted an advancement demand dated February 11,

2025.5 That demand was not accompanied by an undertaking or by any

representations about an undertaking.6 Honeywell did not respond.7 Gorodetskiy

filed suit on September 24, stated he was “prepared to provide an undertaking in the

form attached hereto as Exhibit D,” and attached a blank form.8 Honeywell then

raised the lack of an undertaking, and Gorodetskiy submitted a signed undertaking

on October 14.9

D. Gorodetskiy seeks advancement under Honeywell’s certificate of

incorporation. The primary issue before the Magistrate and on exception is whether

Gorodetskiy was entitled to sue for advancement before he delivered an undertaking.

Article Eleven of Honeywell’s certificate states, in relevant part:

(A) Right to Indemnification . . . [I]f the Delaware General
Corporation Law requires, an advancement of expenses incurred by
an indemnitee in his or her capacity as a Director or officer . . . shall

3
D.I. 29.
4
D.I. 33; D.I. 35; D.I. 37.
5
D.I. 1 [hereinafter “Compl.”] Ex. C.
6
Id.
7
Compl. ¶ 8.
8
Id. ¶ 29, Ex. D.
9
See D.I. 8; D.I. 9, Ex. 1.
2
be made only upon delivery to the corporation of an undertaking . .
..

(B) Right of Indemnitee to Bring Suit. If a claim under paragraph
(A) of this Section is not paid in full by the corporation within sixty
days after a written claim has been received by the corporation,
except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be twenty days, the
indemnitee may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim.10

AND NOW, on this 22nd day of June, 2026, the Court finds and orders as

follows:

1. A hearing on the Exceptions is unnecessary. The Court has considered

the issue presented de novo.11

2. A Honeywell indemnitee is entitled to advancement only upon delivery

of an undertaking “if the Delaware General Corporation Law requires.”12 A

Honeywell indemnitee may bring suit to enforce his advancement right after a valid

claim for advancement goes unpaid in full for twenty days.13 So, before a Honeywell

indemnitee can sue for advancement, the indemnitee must first perfect his claim for

10
Compl. Ex. A, art. Eleventh ¶¶ 2(A), (B).
11
See DiGiacobbe v. Sestak, 743 A.2d 180, 184 (Del. 1999).
12
Compl. Ex. A, art. Eleventh ¶ 2(A); see Gentile v. SinglePoint Fin., Inc., 788 A.2d 111,
113 (Del. 2001) (“[A]ny agreement on the part of a corporation to provide advancement
rights should be construed according to its terms.”).
13
Id. art. Eleventh ¶ 2(B).
3
advancement—including by delivering an undertaking “if the Delaware General

Corporation Law requires”—and then twenty days must pass without that claim

being paid in full.14

3. The question is therefore what the Delaware General Corporation Law

requires. Under Section 145(e), if a corporation elects to provide advancement, that

advancement is conditioned “upon receipt of an undertaking.”15 In Freeman Family

LLC v. Park Avenue Landing LLC, this Court held that an advancement demand

accompanied by a commitment to comply with an undertaking requirement,

followed by an undertaking months later, was sufficient to satisfy an undertaking

requirement.16 The Court “g[a]ve the undertaking meaning based on its substance,

not its form.”17

14
Id. art. Eleventh ¶¶ 2(A), (B).
15
8 Del. C. § 145(e).
16
Freeman Fam. LLC v. Park Ave. Landing LLC, 2019 WL 1966808, at *9 (Del. Ch. Apr.
30, 2019); accord Delphi Easter P’rs Ltd. P’ship v. Spectacular P’rs, Inc., 1993 WL
328079, at *6–7 (Del. Ch. Aug. 6, 1993) (giving effect to counsel’s commitment to an
undertaking sent to limited partners, rather than the indemnifying partnership).
17
Freeman Fam., 2019 WL 1966808, at *9; accord Delphi Easter, 1993 WL 328079, at
*7 (forgiving a “simple oversight” in the absence of “any financial ill effects from the lack
of an enforceable undertaking”); In re Genelux Corp., 2015 WL 6390232, at *5 (Del. Ch.
Oct. 22, 2015) (declining to conclude a three-month delay in providing the requisite
undertaking defeated entitlement to advancement in part because the case was expedited).
4
4. Even under Freeman Family’s flexible framework and this Court’s

prioritization of substance over form in considering the undertaking requirement,18

Gorodetskiy did not do what he had to do before he could sue. His demand did not

commit to comply with the undertaking requirement.19 He did not indicate any

position on the undertaking until after he sued.20 Under Honeywell’s certificate,

Gorodetskiy sued before Honeywell was required to pay his advancement claim, and

before the twenty-day waiting period was triggered.21

5. Gorodetskiy’s Exceptions are DISMISSED.

18
See 2019 WL 1966808, at *9.
19
See Compl. Ex. C.
20
Honeywell raised Gorodetskiy’s failure to deliver the requisite undertaking when it first
spoke on the issue, after Gorodetskiy attempted to enforce his advancement right. D.I. 8;
see Underbrink v. Warrior Energy Servs. Corp., 2008 WL 2262316, at *14 (Del. Ch. May
30, 2008) (giving effect to an undertaking where the company “did not object” to its form
at the time of denying advancement and “did not specify, even generally, the basis for their
later objection until . . . shortly before trial”); Freeman Fam., 2019 WL 1966808, at *9
n.67 (noting the company “did not raise the issue of the undertaking until its reply brief”).
21
See Wong v. USES Hldg. Corp., 2016 WL 769043, at *1 (Del. Ch. Feb. 26, 2016) (“Until
Plaintiffs perfected their requests for advancement by providing the undertakings, they had
no right to advancement or to fees on fees because USES had no obligation to advance any
amount to Plaintiffs.” (citing Underbrink, 2008 WL 2262316, at *13)).
This holding does not speak to whether Gorodetskiy’s delay in presenting an
undertaking undermined his right to advancement. See id. (“Once the undertakings were
delivered, the Plaintiffs’ rights to advancement were established, and, from that point on,
they are entitled to recover their ‘fees on fees.’”); Delphi Easter, 1993 WL 328079, at *6–
7; Genelux, 2015 WL 6390232, at *5.
5
/s/ Morgan T. Zurn
Vice Chancellor Morgan T. Zurn

6