Earthlink 2004 Annual Report Download - page 120

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is entitled to indemnification (the “Supporting Documentation”).
The Secretary shall, promptly upon receipt of such a request
for indemnification, advise the Board in writing that the Indemnitee has requested indemnification.
(ii)
The Indemnitee’s entitlement to indemnification under this Article XII shall be determined in one of the
following ways: (A) by a majority vote of the Disinterested Directors (as hereinafter defined in Section 12.5(e)), whether or
not they constitute a quorum of the Board, or by a committee of Disinterested Directors designated by a majority vote of the
Disinterested Directors; (B) by a written opinion of Independent Counsel (as hereinafter defined in Section 12.5(e)) if (x) a
Change in Control shall have occurred and the Indemnitee so requests, or (y) there are no Disinterested Directors or a
majority of such Disinterested Directors so directs; or (C) as provided in Section 12.5(c).
(iii)
In the event the determination of entitlement to indemnification is to be made by Independent Counsel
pursuant to Section 12.5(b)(ii), a majority of the Disinterested Directors shall select the Independent Counsel, but only an
Independent Counsel to which the Indemnitee does not reasonably object; provided, however, that if a Change in Control
shall have occurred, the Indemnitee shall select such Independent Counsel, but only an Independent Counsel to which a
majority of the Board does not reasonably object.
(c)
Presumptions and Effect of Certain Proceedings . Except as otherwise expressly provided in this Article XII, the
Indemnitee shall be presumed to be entitled to indemnification under this Article XII upon submission of a request for indemnification together
with the Supporting Documentation in accordance with Section 12.5(b)(i), and thereafter the Corporation shall have the burden of proof to
overcome that presumption in reaching a contrary determination. In any event, if the person or persons empowered under Section 12.5(b) to
determine entitlement to indemnification shall not have been appointed or shall not have made a determination within 45 days after receipt by
the Corporation of the request therefor, together with the Supporting Documentation, the Indemnitee shall be deemed to be, and shall be,
entitled to indemnification unless such indemnification is prohibited by law. The termination of any Proceeding described in Section 1 of this
Article XII, or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the Indemnitee did not meet the required standards of conduct as specified in the
DGCL.
(d)
Remedies of Indemnitee .
(i)
In the event that a determination is made pursuant to Section 12.5(b) that the Indemnitee is not entitled to
indemnification under this Article XII, (A) the Indemnitee shall be entitled to seek an adjudication of entitlement to such
indemnification either, at the Indemnitee’s sole option, in (x) the Chancery Court of the State of Delaware or any other court
of competent jurisdiction or (y) an arbitration to be conducted by a single arbitrator pursuant to the rules of the American
Arbitration Association; (B) any such judicial proceeding or arbitration shall be de novo and the Indemnitee shall not be
prejudiced by reason of such
14