Earthlink 2004 Annual Report Download - page 121

Download and view the complete annual report

Please find page 121 of the 2004 Earthlink annual report below. You can navigate through the pages in the report by either clicking on the pages listed below, or by using the keyword search tool below to find specific information within the annual report.

Page out of 128

  • 1
  • 2
  • 3
  • 4
  • 5
  • 6
  • 7
  • 8
  • 9
  • 10
  • 11
  • 12
  • 13
  • 14
  • 15
  • 16
  • 17
  • 18
  • 19
  • 20
  • 21
  • 22
  • 23
  • 24
  • 25
  • 26
  • 27
  • 28
  • 29
  • 30
  • 31
  • 32
  • 33
  • 34
  • 35
  • 36
  • 37
  • 38
  • 39
  • 40
  • 41
  • 42
  • 43
  • 44
  • 45
  • 46
  • 47
  • 48
  • 49
  • 50
  • 51
  • 52
  • 53
  • 54
  • 55
  • 56
  • 57
  • 58
  • 59
  • 60
  • 61
  • 62
  • 63
  • 64
  • 65
  • 66
  • 67
  • 68
  • 69
  • 70
  • 71
  • 72
  • 73
  • 74
  • 75
  • 76
  • 77
  • 78
  • 79
  • 80
  • 81
  • 82
  • 83
  • 84
  • 85
  • 86
  • 87
  • 88
  • 89
  • 90
  • 91
  • 92
  • 93
  • 94
  • 95
  • 96
  • 97
  • 98
  • 99
  • 100
  • 101
  • 102
  • 103
  • 104
  • 105
  • 106
  • 107
  • 108
  • 109
  • 110
  • 111
  • 112
  • 113
  • 114
  • 115
  • 116
  • 117
  • 118
  • 119
  • 120
  • 121
  • 122
  • 123
  • 124
  • 125
  • 126
  • 127
  • 128

adverse determination; and (C) in any such judicial proceeding or arbitration, the Corporation shall have the burden of
proving by a preponderance of evidence that the Indemnitee is not entitled to indemnification under this Article XII.
(ii)
If a determination shall have been made or deemed to have been made, pursuant to Section 12.5(b) or (c),
that the Indemnitee is entitled to indemnification, the Corporation shall be obligated to pay the amounts constituting such
indemnification within five business days after such determination has been made or deemed to have been made. The
Corporation shall be conclusively bound by such determination or deemed determination unless (A) the Indemnitee
misrepresented or failed to disclose in the request for indemnification or in the Supporting Documentation a material fact that
if not misrepresented or failed to be disclosed would have established that the Indemnitee has not met the required standards
of conduct as specified by the DGCL or (B) such indemnification is prohibited by law. In the event that (X) advancement of
expenses is not timely made pursuant to Section 12.5(a) or (Y) payment of indemnification is not made within five business
days after a determination of entitlement to indemnification has been made or deemed to have been made pursuant to Section
12.5(b) or (c), the Indemnitee shall be entitled to seek judicial enforcement of the Corporation’s obligation to pay to the
Indemnitee such advancement of expenses or indemnification.
(iii)
The Corporation shall be precluded from asserting in any judicial proceeding or arbitration commenced
pursuant to this Section 12.5(d) that the procedures and presumptions of this Article XII are not valid, binding and
enforceable and shall stipulate in any such court or before any such arbitrator that the Corporation is bound by all the
provisions of this Article XII.
(iv)
In the event that the Indemnitee, pursuant to this Section 12.5(d), seeks a judicial adjudication of or an
award in arbitration to enforce rights under, or to recover damages for breach of, this Article XII, the Indemnitee shall be
entitled to recover from the Corporation, and shall be indemnified by the Corporation against, any expenses actually and
reasonably incurred by the Indemnitee if the Indemnitee prevails in such judicial adjudication or arbitration. If it shall be
determined in such judicial adjudication or arbitration that the Indemnitee is entitled to receive part but not all of the
indemnification or advancement of expenses sought, the expenses incurred by the Indemnitee in connection with such
judicial adjudication or arbitration shall be prorated accordingly.
(e)
Definitions . For purposes of this Article XII:
(i)
“Authorized Officer” means any one of the Chief Executive Officer, the President, or any Executive Vice
President.
(ii)
“Change in Control” means the occurrence of any of the following: (i)(a) the Corporation consolidates
with, or merges with or into, another Person,
15