INDEMNITY AGREEMENT
Exhibit 10.13
THIS AGREEMENT (this “Agreement”) effective as of July 17, 2006, by and between Windstream
Corporation, a Delaware corporation (the “Corporation”), and the undersigned director or officer of
the Corporation (the “Indemnified Party”).
Directors and officers of the Corporation are protected in certain respects against
liabilities that they may incur in connection with their services on behalf of the Corporation.
The Certificate of Incorporation of the Corporation (the “Certificate”) eliminates certain
liabilities of the directors (but not liabilities of officers who are not directors) for a breach
of their duty of care to the Corporation. The Certificate also provides for the indemnification of
present and former directors, officers, employees and agents of the Corporation to the fullest
extent expressly authorized by the Delaware General Corporation Law. In addition, the Corporation
maintains a policy of directors’ and officers’ liability insurance (“D & O insurance”) covering
certain liabilities that the directors and officers of the Corporation may incur in the performance
of their services on behalf of the Corporation.
The Corporation was formed as a result of the transactions contemplated by that certain
Agreement and Plan of Merger, dated as of December 8, 2005, as amended, by and among Alltel
Corporation (“Alltel”), Alltel Holding Corp., a wholly-owned subsidiary of Alltel (“Spinco”), and
Valor Communications Group, Inc. (“Valor”), pursuant to which Spinco merged with and into Valor
with Valor surviving and subsequently changing its name to Windstream Corporation (the “Merger”).
Certain of the directors and officers of the Corporation served as directors and officers of Spinco
prior to completion of the Merger.
The purpose of this Agreement, and counterparts of this Agreement between the Corporation and
certain other directors and officers, is to enable these directors and officers to continue to
serve the Corporation without undue risk of personal liability by (1) providing for the
continuation of the elimination of liability set forth in the Certificate, the indemnification
contained in the Certificate, and the D&O insurance or comparable insurance and (2) providing these
directors and officers with certain additional protection against liabilities that they may incur
in connection with their service to the Corporation or their past service to Spinco.
In consideration of the Indemnified Party’s services to the Corporation after the date of this
Agreement and to Spinco prior to the date of this Agreement, as applicable, and of his agreement to
cooperate with the Corporation in defending any claim against the Indemnified Party as set forth in
Section 4, the Corporation and the Indemnified Party agree as follows:
1. Continuation of Limitation of Liability and Indemnification. Except as
specifically required by law, the Corporation shall not approve, or propose that its stockholders
approve, an amendment to the Certificate that would delete, supplement or amend Article Eight of
the Certificate if the effect of the deletion, supplement or amendment would be to eliminate or
diminish the protection against liabilities afforded to the Indemnified Party thereunder. The
provisions of Article Eight the Certificate are incorporated in this Agreement by reference and
shall be deemed to be a contractual obligation of the Corporation for the benefit of the
Indemnified Party, enforceable by the Indemnified Party against the Corporation in accordance with
their terms.
2. Maintenance of D&O Insurance. The Corporation shall use its best effort to
maintain, for as long as the Indemnified Party continues to be a director or officer of the
Corporation and thereafter for the period of time specified in Section 7, D&O insurance covering
the Indemnified Party the terms of which (including limits of liability, retention amounts, and
scope of coverage) are at least as favorable to the Indemnified Party as the D&O insurance
maintained by the Corporation at the date of this Agreement. The Corporation will not, however, be
required to purchase and maintain such D&O insurance if it is unavailable or if the Board of
Directors of the Corporation, in its reasonable business judgment, determines that the amount of
the premium is substantially disproportionate to the amount or scope of the coverage provided.
3. Additional Indemnification of Indemnified Party.
(a) Subject only to the exclusions set forth in Section 3(b), and without limiting the
indemnification provided in Article Eight of the Certificate and Section 1 of this
Agreement, the Corporation shall indemnify the Indemnified Party against all expense,
liability and loss (including, without
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limitation, attorneys’ fees, judgments, fines, excise taxes or penalties and amounts paid in
settlement) (“Losses”) incurred or suffered by the Indemnified Party in connection with any
threatened, pending or completed action, suit or proceeding whether civil, criminal,
administrative or investigative (including, without limitation, any action by or in the
right of the Corporation or Spinco), to which the Indemnified Party is or was a party or is
threatened to be made a party by reason of the fact that he or she is or was a director or
officer of the Corporation or Spinco, or is or was serving at the request of the Corporation
or Spinco as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with respect to an
employee benefit plan, whether the basis of such proceeding is alleged action in an official
capacity as a director or officer or in any other capacity while serving as a director or
officer; provided, however, that, except as provided in Section 5 of this Agreement with
respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify
the Indemnified Party in connection with a proceeding (or part thereof) initiated by the
Indemnified Party only if such proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation or Spinco. In addition, the Corporation shall pay the expenses
incurred in defending any such proceeding in advance of its final disposition; provided,
however, that, if and to the extent that the Delaware General Corporation Law requires, an
advance of expenses incurred by the Indemnified Party in his or her capacity as a director
or officer (and not in any other capacity in which service was or is rendered by the
Indemnified Party, including, without limitation, service to an employee benefit plan) shall
be made only upon delivery to the Corporation of an undertaking, by or on behalf of the
Indemnified Party, to repay all amounts so advanced if it shall ultimately be determined by
final judicial decision from which there is no further right to appeal that the Indemnified
Party is not entitled to be indemnified for such expenses under this Section 3(a) or
otherwise.
(b) The indemnification provided by Section 3(a) shall not be paid by the Corporation
with respect to any claim:
(i) for which payment is actually made to the Indemnified Party under
any D&O insurance purchased and maintained by the Corporation, except to the
extent that the aggregate amount of the Losses for which the Indemnified
Party is otherwise entitled to indemnification under Section 3(a) exceeds
the amount of such payment;
(ii) based upon or attributable to the Indemnified Party gaining in
fact any personal profit or advantage which is finally adjudged to have been
illegal; provided that, the mere existence of a conflict of interest arising
out of any fiduciary duty of the Indemnified Party, including any fiduciary
duty imposed by the Employee Retirement Income Security Act of 1974, as
amended from time to time, will not, by itself, be deemed to be a personal
profit or advantage for purposes of this clause (ii);
(iii) for an accounting of profits made from the purchase or sale by
the Indemnified Party of securities of the Corporation within the meaning of
Section 16(b) of the Securities Act of 1934, as amended from time to time,
or similar provisions of any state statutory law or common law as
established by a suit in which final judgment is rendered against the
Indemnified Party; or
(iv) brought about or materially contributed to by acts of active and
deliberate dishonesty committed by the Indemnified Party with actual
dishonest purpose and intent as established by a suit in which final
judgment is rendered against the Indemnified Party.
4. Notification and Defense of Claims. The Indemnified Party shall give to the
Corporation, as soon as practicable, written notice of any claim made against the Indemnified Party
for which indemnification will or could be sought under this Agreement. The failure to give such
notice shall not, however, relieve the Corporation of its obligations under this Agreement. In
addition, the Indemnified Party and the Corporation shall reasonably cooperate with each other in
the defense of any such claim. Notice or written requests to the Corporation under this Agreement
shall be directed to the Corporation at 0000 Xxxxxx Xxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxx 00000,
Attention: Secretary, or to such other address as the Corporation shall designate in writing to
the Indemnified Party.
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5. Payment of Losses. The Corporation shall pay any Losses promptly, and in any event
within forty-five days (or, in the case of an advance of expenses, twenty days), upon the written
request of the Indemnified Party. If a determination by the Corporation that the Indemnified Party
is entitled to indemnification pursuant to this Agreement is required, and the Corporation fails to
respond within sixty days to a written request for indemnity, the Corporation shall be deemed to
have approved the request. If the Corporation denies a written request for indemnification or
advance of expenses, in whole or in part, or if payment in full pursuant to such request is not
made within forty-five days (or, in the case of an advance of expenses, twenty days), the right to
indemnification or advances as granted by this Agreement shall be enforceable by the Indemnified
Party in any court of competent jurisdiction. The Indemnified Party’s costs and expenses (including
fees and expenses of counsel) incurred in connection with successfully establishing his or her
right to indemnification, in whole or in part, in any such action shall also be indemnified by the
Corporation. It shall be a defense to any such action (other than an action brought to enforce a
claim for the advance of expenses where the undertaking required pursuant to Section 3(a) of this
Agreement, if any, has been tendered to the Corporation) that the Indemnified Party has not met the
standards of conduct which make it permissible under the Delaware General Corporation Law for the
Corporation to indemnify the Indemnified Party for the amount claimed, but the burden of such
defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the Indemnified Party is proper in the
circumstances because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the Corporation (including its
Board of Directors, independent legal counsel or its stockholders) that the Indemnified Party has
not met such applicable standard of conduct, shall be a defense to the action or create a
presumption that the claimant has not met the applicable standard of conduct.
6. Subrogation. In the event of payment, under this Agreement, the Corporation shall
be subrogated to the extent of such payment to all of the rights of recovery of the Indemnified
Party, who shall execute all documents and take all actions reasonably requested by the Corporation
to implement such right of subrogation.
7. Continuation of Indemnity. All agreements and obligations of the Corporation
contained herein shall cover services provided by the Indemnified Party following the date of this
Agreement and services provided by the Indemnified Party to Spinco prior to the date of this
Agreement and shall continue during the period the Indemnified Party is subject to any liability
for Losses by reason of the fact that the Indemnified Party is or was at any time a director,
officer, employee or agent of the Corporation or Spinco, or is or was at any time serving at the
request of the Corporation or Spinco in the capacities set forth in Section 3(a) of this Agreement.
8. Non-Exclusivity. Nothing in this Agreement shall be deemed to diminish or
otherwise restrict the right of the Indemnified Party to indemnification or recovery under the
Certificate, any D&O insurance maintained by the Corporation or otherwise.
9. Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of the parties hereto; provided, however, that the rights
of the Indemnified Party under this Agreement may be assigned only by will or to such person’s
personal representative or pursuant to the applicable laws of descent and distribution. It is
understood between the parties hereto that the term “Indemnified Party” shall include any such
successors and assigns.
10. Severability. If any provision or provisions of this Agreement are held to be
unenforceable, the other provisions of this Agreement shall remain in full force and effect.
11. Governing Law. This Agreement shall be governed by and construed in accordance
with Delaware law.
12. Supersedes any Prior Indemnity Agreement. This Agreement, as to acts and omissions
after the date of this Agreement, supersedes and replaces any prior Indemnity Agreement to which
the Indemnified Party and the Corporation may be parties.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the date first
above written.
| WINDSTREAM CORPORATION | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| INDEMNIFIED PARTY: | ||||||
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