Earthlink 2004 Annual Report Download - page 122

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(b) there is a merger, reorganization, consolidation, share exchange or other transaction involving the Voting Stock of the
Corporation, (c) the Corporation sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of
the assets of the Corporation to any Person, (d) any Person consolidates with, or merges with or into, the Corporation, or (e)
any similar event where with respect to each of the events described in (a) through (e) the outstanding Voting Stock of the
Corporation is converted into or exchanged for cash, securities or other property, except that none of the foregoing events
will constitute a Change in Control where the outstanding Voting Stock of the Corporation is converted into or exchanged for
Voting Stock of the surviving or transferee Person and the beneficial owners of the Voting Stock of the Corporation
immediately before such event own, directly or indirectly, Voting Stock representing more than 50 percent of the aggregate
voting power of the Voting Stock of the surviving or transferee Person immediately after such event; (ii) any transaction that
results in any Person, other than a trustee or other fiduciary holding securities under an employee benefit plan of the
Corporation, beneficially owning Voting Stock of the Corporation representing, directly or indirectly, more than 50 percent
of the aggregate voting power of the Voting Stock of the Corporation; (iii) the approval by the holders of the Voting Stock of
the Corporation of any plan or proposal for liquidation or dissolution of the Corporation; (iv) a majority of the Directors on
the Board are not Incumbent Directors; or (v) the consummation of any other transaction that a majority of the Board, in its
sole and absolute discretion, determines constitutes a Change in Control.
(iii)
“Disinterested Director” means a director of the Corporation who is not or was not a party to the
Proceeding in respect of which indemnification is sought by the Indemnitee.
(iv)
“Incumbent Directors”
means the individuals who, as of January 22, 2004, are directors of the Corporation
and any individual becoming a Director subsequent to such date whose election, nomination for election by the Corporation’
s
stockholders or appointment was approved by a majority of the Incumbent Directors.
(v)
“Independent Counsel,” with respect to a claim for indemnification as to any particular Proceeding, means
a law firm or a member of a law firm that neither presently is, nor in the past five years has been, retained to represent: (x) the
Corporation (other than in a similar role with respect to others determinations of eligibility for indemnification) or the
Indemnitee in any matter material to either such party or (y) any other party to the Proceeding giving rise to a claim for
indemnification under this Article XII. Notwithstanding the foregoing, the term “Independent Counsel”
shall not include any
person who, under the applicable standards of professional conduct then prevailing under the law of the State of Delaware,
would have a conflict of interest in representing either the Corporation or the Indemnitee in an action to determine the
Indemnitee’s rights under this Article XII.
16