Earthlink 2004 Annual Report Download - page 119

specified in Section 12.1 or incurred by any such director, officer, employee or agent in connection with any Proceeding referred to in such
Section, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the
DGCL. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or of any Covered Entity
providing indemnification and advancement of expenses and may create a trust fund, grant a security interest or use other means (including,
without limitation, a letter of credit) to ensure the payment of such amounts as may be necessary to effect indemnification as provided or
authorized in this Article XII, by statute, by agreement or otherwise.
12.4.
Indemnification Not Exclusive Right; Beneficiaries of Rights . The rights conferred on any Indemnitee by this Article XII
shall not be exclusive of any other rights to which an Indemnitee may otherwise be entitled or provided under any statute, provision of the
certificate of incorporation or these bylaws, agreement, vote of stockholders or Disinterested Directors (as hereinafter defined in Section 12.5
(e)) or otherwise, and the provisions of this Article XII shall inure to the benefit of the heirs and legal representatives of any Indemnitee under
this Article XII and shall be applicable to Proceedings commenced or continuing after the adoption of this Article XII, whether arising from
acts or omissions occurring before or after such adoption.
12.5.
Advancement of Expenses; Procedures; Presumptions and Effect of Certain Proceedings; Remedies
. In furtherance, but not
in limitation, of the foregoing provisions of this Article XII, the following procedures, presumptions and remedies shall apply with respect to
advancement of expenses and the right to indemnification under this Article XII:
(a)
Advancement of Expenses . All reasonable expenses (including attorneys’ fees) incurred by or on behalf of the
Indemnitee in connection with any Proceeding shall be advanced to the Indemnitee by the Corporation within 20 days after the receipt by the
Corporation of a statement or statements from the Indemnitee requesting such advance or advances from time to time, whether prior to or after
final disposition of such Proceeding. Such statement or statements shall reasonably evidence the expenses incurred by the Indemnitee and, shall
include or be accompanied by an undertaking by or on behalf of the Indemnitee to repay the amounts advanced if ultimately it should be
determined that the Indemnitee is not entitled to be indemnified against such expenses pursuant to this Article XII. Notwithstanding the
foregoing, unless a Change in Control has occurred, the Corporation may refrain from, or suspend, payment of expenses in advance if at any
time before the making of the determination described in subparagraph (b)(ii) of this Section 12.5, the Board or Independent Counsel (as
hereinafter defined in Section 12.5(e)), find by a preponderance of the evidence then available that the Indemnitee has not met the required
standards of conduct as specified in the DGCL.
(b)
Procedure for Determination of Entitlement to Indemnification .
(i)
To obtain indemnification under this Article XII, an Indemnitee shall submit to the Secretary a written
request, including such documentation and information as is reasonably available to the Indemnitee describing such
indemnification claim or loss as resulted from final disposition of the Proceeding and reasonably necessary to determine
whether and to what extent the Indemnitee
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