Form of] INDEMNIFICATION AGREEMENT (with officers)
Exhibit
10.5
[Form
of]
(with
officers)
This
Indemnification Agreement (the “Agreement”) is made as of the
1st day of July, 2009 (the “Effective Date”), by and
between CenturyTel, Inc., a Louisiana corporation (the “Corporation”), and
_______________ (“Indemnitee”).
In
consideration of Indemnitee’s service as an officer of the Corporation
commencing on or before the date hereof, the Corporation and Indemnitee do
hereby agree as follows:
1. Agreement to
Serve. Indemnitee agrees to serve or continue to serve as an
officer of the Corporation for so long as Indemnitee is elected or appointed or
until such earlier time as Indemnitee tenders a resignation in
writing.
2. Definitions. As
used in this Agreement:
(a) The
term “Change of Control”
shall mean (i) an acquisition by any person (within the meaning of
Section 13(d)(3) or l4(d)(2) of the Securities Exchange Act of 1934, as
amended) of beneficial ownership of 20% or more of the combined voting power of
the Corporation's then outstanding voting securities; (ii) during any period of
two consecutive years, individuals who at the beginning of such period
constitute the Board of Directors of the Corporation and any new director whose
election by the Board of Directors or nomination for election by the
Corporation's shareholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so approved,
cease for any reason to constitute a majority thereof; or (iii) the consummation
of a merger or consolidation involving the Corporation if the shareholders of
the Corporation, immediately before such merger or consolidation, do not own,
immediately following such merger or consolidation, more than 50% of the
combined voting power of the outstanding voting securities of the resulting
entity in substantially the same proportion as their ownership of voting
securities immediately before such merger or
consolidation. Notwithstanding the foregoing, a Change of Control
shall not be deemed to occur solely because 20% or more of the Corporation’s
then outstanding voting securities is acquired by (l) a trustee or other
fiduciary holding securities under one or more employee benefit plans maintained
by the Corporation or any of its subsidiaries or (2) any entity that,
immediately prior to such acquisition, is owned directly or indirectly by the
shareholders of the Corporation in the same proportion as their ownership of
shares in the Corporation immediately prior to such acquisition.
(b) The
term “Claim” shall mean
any threatened, pending or completed claim, action, suit, or proceeding,
including discovery, whether civil, criminal, administrative, arbitrative or
investigative and whether made judicially or extra-judicially, or any separate
issue or matter therein, as the context requires, but shall not include any
action, suit or proceeding initiated by Indemnitee against the
Corporation (other than to enforce the terms of this Agreement), or
initiated by Indemnitee against any director or officer of the Corporation
unless the Corporation has joined in or consented in writing to the initiation
of such action, suit or proceeding.
(c) The
term “Determining Body”
shall mean (i) the Board of Directors by a majority vote of a quorum of the
entire board consisting of directors who are not named as parties to the Claim
for which indemnification is being sought (“Disinterested Directors”), or (ii)
if such a quorum is not obtainable, independent legal counsel (A) selected by
the Disinterested Directors, or (B) if there are fewer than two Disinterested
Directors, selected by the Board of Directors (in which selection directors who
do not qualify as Disinterested Directors may participate); provided, however,
that following a Change of Control, with respect to all matters thereafter
arising out of acts, omissions or events occurring prior to or after the Change
of Control concerning the rights of Indemnitee to seek indemnification, such
determination shall be made by independent legal counsel selected by the Board
of Directors in the manner described above in this Section 2(c) (which
selection shall not be unreasonably delayed or withheld) from a panel of three
counsel nominated by Indemnitee. Such counsel shall not have
otherwise performed services for the Corporation, Indemnitee or their affiliates
(other than services as independent counsel in connection with similar matters)
within the five years preceding its engagement ("Independent
Counsel"). If Indemnitee fails to nominate Independent Counsel within
ten business days following written request by the Corporation, the Board of
Directors shall select Independent Counsel. Such counsel shall not be
a person who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing either the
Corporation or Indemnitee in an action to determine Indemnitee's rights under
this Agreement, nor shall Independent Counsel be any person who has been
sanctioned or censured for ethical violations of applicable standards of
professional conduct. The Corporation agrees to pay the reasonable
fees and costs of the Independent Counsel referred to above and to fully
indemnify such Independent Counsel against any and all expenses, claims,
liabilities and damages arising out of or relating to this Section 2(c) or
its engagement pursuant hereto. The Determining Body shall determine
in accordance with Section 6 whether and to what extent Indemnitee is
entitled to be indemnified under this Agreement and shall render a written
opinion to the Corporation and to Indemnitee to such effect.
(d) The
term "Disbursing
Officer" shall mean, with respect to a Claim, the Chief Executive Officer
of the Corporation or, if the Chief Executive Officer is a party to the Claim as
to which advancement or indemnification is being sought, any officer who is not
a party to the Claim and who is designated by the Chief Executive Officer, which
designation shall be made promptly after the Corporation's receipt of
Indemnitee's initial request for advancement or indemnification and communicated
to Indemnitee.
(e) The
term “Expenses” shall
mean any reasonable expenses or costs (including, without limitation, attorney’s
fees, fees of experts retained by attorneys, judgments, punitive or exemplary
damages, fines and amounts paid in settlement) actually and reasonably incurred
by Indemnitee with respect to a Claim, except that Expenses shall not include
any amount paid in settlement of a Claim against Indemnitee (i) by or in the
right of the Corporation, or (ii) that the Corporation has not approved, which
approval will not be unreasonably delayed or withheld.
(f) The
term “Standard of
Conduct” shall mean conduct by an Indemnitee with respect to which a
Claim is asserted that was in good faith and that Indemnitee reasonably believed
to be in, or not opposed to, the best interest of the Corporation, and, in the
case of a Claim that is a criminal action or proceeding, conduct that the
Indemnitee had no reasonable cause to believe was unlawful. The
termination of any Claim by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that Indemnitee did not meet the Standard of Conduct.
3. Limitation
of Liability.
To the
fullest extent permitted by Article VII of the Articles of Incorporation of
the Corporation in effect on the Effective Date and, if and to the extent the
Articles of Incorporation are amended to permit further limitations, in effect
at any time prior to the determination of liability, Indemnitee shall not be
personally liable in damages for breach of Indemnitee’s fiduciary duty as a
director or officer. The Board of Directors of the Corporation will
not take any action to effect any amendment to the Articles of Incorporation the
effect of which would be to deny, diminish or encumber Indemnitee’s right to
exculpation under this Section 3.
4. Maintenance
of Insurance.
(a) The
Corporation represents that it presently maintains in force and effect directors
and officers liability insurance (“D&O Insurance”) policies
that provide primary and excess coverage on behalf of the Corporation’s
directors and officers on the terms and conditions specified therein (the “Insurance
Policies”). Subject only to the provisions of
Section 4(b) hereof, the Corporation hereby agrees that, so long as
Indemnitee shall continue to serve as a director or officer (or shall continue
at the request of the Corporation to serve in any capacity referred to in
Section 6(a) hereof) and thereafter so long as Indemnitee shall be subject
to any possible Claim, the Corporation shall purchase and maintain in effect for
the benefit of Indemnitee one or more valid and enforceable policy or policies
of D&O Insurance providing, in all respects, coverage reasonably comparable
(including Side A) to that currently provided pursuant to the Insurance
Policies, provided that the Corporation shall have no obligation to provide
primary coverage or excess coverage in excess of the amount of coverage provided
on the Effective Date.
(b) The
Corporation shall not be required to purchase and maintain the Insurance
Policies in effect if D&O Insurance is not reasonably available or if, in
the reasonable business judgment of a majority of the directors of the
Corporation, either (i) the premium cost for such insurance is excessive in
light of the amount of coverage or (ii) the coverage provided by such insurance
is so limited by exclusions, retentions, deductibles or otherwise that there is
insufficient benefit from such insurance.
5. Advancement
of Expenses.
(a) Subject
to Indemnitee’s furnishing the Corporation with a written undertaking, in a form
reasonably satisfactory to the Corporation, to repay such amount if it is
ultimately determined that Indemnitee is not entitled under this Agreement to
indemnification therefor, the Corporation shall advance Expenses to Indemnitee
in advance of the final disposition of any Claim involving Indemnitee; provided,
however, that Indemnitee will return, without interest, any such advance that
remains unspent at the disposition of the Claim to which the advance related,
and provided further, that advances of such Expenses by the Corporation's
D&O Insurance carrier shall be treated, for purposes of this
Section 5(a), as advances by the Corporation. The written
undertaking by Indemnitee must be an unlimited general obligation of Indemnitee
but need not be secured and will be accepted by the Corporation without
reference to the financial ability of Indemnitee to make repayment.
(b) Any
request for advancement of Expenses shall be submitted by Indemnitee to the
Disbursing Officer in writing and shall be accompanied by a written description
of the Expenses for which advancement is requested. The Disbursing
Officer shall, within 20 days after receipt of Indemnitee's request for
advancement, advance such Expenses unsecured, interest-free and without regard
to Indemnitee's ability to make repayment, provided that if the Disbursing
Officer questions the reasonableness of any such request, that officer shall
promptly advance to the Indemnitee the amount deemed by that officer to be
reasonable and shall forward immediately to the Determining Body a copy of the
Indemnitee's request and of the Disbursing Officer’s response, together with a
written description of that officer’s reasons for questioning the reasonableness
of a portion of the advancement sought. The Determining Body shall,
within 20 days after receiving such a request from the Disbursing Officer,
determine the reasonableness of the disputed Expenses and notify Indemnitee and
the Disbursing Officer of its decision, which shall be final, subject to
Indemnitee’s right under Section 7 to seek a judicial adjudication of
Indemnitee’s rights.
(c) Indemnitee's
right to advancement under this Section 5 shall include the right to
advancement of Expenses incurred by Indemnitee in a suit against the Corporation
under Section 7 to enforce Indemnitee's rights under this
Agreement. Such right of advancement shall, however, be subject to
Indemnitee's obligation pursuant to Indemnitee’s undertaking described in
Section 5(a) to repay such advances, to the extent provided in
Section 7, if it is ultimately determined in the enforcement suit that
Indemnitee is not entitled to indemnification for a Claim.
6. Indemnification.
(a) The
Corporation shall, in the manner provided in this Section 6, indemnify and
hold harmless Indemnitee against Expenses incurred in connection with any Claim
against Indemnitee (whether as a subject of or party to, or a proposed or
threatened subject of or party to, the Claim) or in which Indemnitee is involved
solely as a witness or person required to give evidence, by reason of
Indemnitee’s position:
(A) as
a director or officer of the Corporation,
(B) as
a director or officer of any subsidiary of the Corporation or as a fiduciary
with respect to any employee benefit plan of the Corporation, or
(C) as
a director, officer, employee or agent of another corporation, partnership,
limited liability company, joint venture, trust, employee benefit plan or other
for profit or not for profit entity or enterprise, if such position is or was
held at the request of the Corporation,
whether
relating to service in such position before or after the Effective Date, if (x)
Indemnitee is successful in defense of the Claim on the merits or otherwise, as
provided in Section 6(d), or (y) Indemnitee has been found by the
Determining Body to have met the Standard of Conduct; provided that no
indemnification shall be made in respect of any Claim by or in the right of the
Corporation as to which Indemnitee shall have been adjudged by a court of
competent jurisdiction, after exhaustion of all appeals therefrom, to be liable
to the Corporation unless, and only to the extent, a court shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnity for such Expenses as the court shall deem proper, and provided
further, that Expenses incurred in connection with a Claim for which Indemnitee
has been reimbursed or indemnified by the Corporation’s D&O Insurance
carrier shall be credited against the Corporation’s obligation under this
Section 6(a) with respect to such Claim.
(b) Promptly
upon becoming aware of the existence of any Claim with respect to which
Indemnitee may seek indemnification hereunder, Indemnitee shall notify the Chief
Executive Officer (or, if the Chief Executive Officer is the Indemnitee, the
next ranking executive officer who is not an Indemnitee with respect to the
Claim) of the existence of the Claim, who shall promptly advise the Board of
Directors that establishing the Determining Body will be a matter presented at
the next regularly scheduled meeting of the Board of Directors. Delay
by Indemnitee in giving such notice shall not excuse performance by the
Corporation hereunder unless, and only to the extent that, the Corporation did
not otherwise learn of the Claim and such failure results in forfeiture by the
Corporation of substantial defenses, rights or insurance
coverage. After the Determining Body has been established, the Chief
Executive Officer or that officer’s delegate shall inform Indemnitee thereof and
Indemnitee shall promptly notify the Determining Body, to the extent requested
by it, of all facts relevant to the Claim known to Indemnitee.
(c) Indemnitee
shall be entitled to conduct the defense of the Claim and to make all decisions
with respect thereto, with counsel of Indemnitee’s choice, provided that in the
event the defense of the Claim has been assumed by the Corporation through its
D&O Insurance carrier or otherwise, then (i) Indemnitee will be entitled to
retain separate counsel from the Corporation’s Counsel (but not more than one
law firm plus, if applicable, local counsel at the Corporation’s expense if, but
only if, Indemnitee shall reasonably conclude that one or more legal defenses
may be available to Indemnitee that are different from, or in addition to, those
available to the Corporation or other defendants represented by the Corporation
through its D&O Insurance carrier or otherwise, and (ii) the Corporation
will not, without the prior written consent of Indemnitee, effect any settlement
of the Claim unless such settlement (x) includes an unconditional release of
Indemnitee from all liability that is the subject matter of such Claim, (y) does
not impose penalties or post-settlement obligations on Indemnitee (except for
customary confidentiality obligations), and (z) does not require payment by
Indemnitee of money in settlement.
(d) To
the extent Indemnitee is successful on the merits or otherwise in defense of any
Claim, Indemnitee shall be indemnified against Expenses incurred by Indemnitee
with respect to the Claim, regardless of whether Indemnitee has met the Standard
of Conduct, and without the necessity of any determination by the Determining
Body as to whether Indemnitee has met the Standard of Conduct. In the
event Indemnitee is not entirely successful on the merits or otherwise in
defense of any Claim, but is successful on the merits or otherwise in defense of
any claim, issue or matter involved in the Claim, Indemnitee shall be
indemnified for the portion of Indemnitee’s Expenses incurred in such successful
defense that is determined by the Determining Body to be reasonably and properly
allocable to the claims, issues, or matters as to which Indemnitee was
successful.
(e) Except
as otherwise provided in Section 6(d), the Corporation shall not indemnify
any Indemnitee under Section 6(a) unless a determination has been made by
the Determining Body (or by a court upon application or in a proceeding brought
by Indemnitee under Section 7) with respect to a specific Claim that
indemnification of Indemnitee is permissible because Indemnitee has met the
Standard of Conduct. In the event settlement of a Claim to which
Indemnitee is a party has been proposed (“Proposed Settlement”), the Determining
Body shall, promptly after submission to it but prior to consummation of the
Proposed Settlement, make a determination whether Indemnitee shall have met the
Standard of Conduct. In the event such determination is adverse to
Indemnitee, Indemnitee shall be entitled to reject the Proposed
Settlement. In the event of final disposition of a Claim other than
by settlement, the Determining Body shall, promptly after but not before such
final disposition, make a determination whether Indemnitee has met the Standard
of Conduct. In all cases, the determination shall be in writing and
shall set forth in reasonable detail the basis and reasons
therefor. The Determining Body shall, promptly after making such
determination, provide a copy thereof to both the Disbursing Officer and
Indemnitee and shall instruct the former to (i) reimburse Indemnitee as soon as
practicable for all Expenses, if any, to which Indemnitee has been so determined
to be entitled and which have not previously been advanced to Indemnitee under
Section 5 (or otherwise recovered by Indemnitee through an insurance or
other arrangement provided by the Corporation), and (ii) seek reimbursement from
Indemnitee (subject to Indemnitee's rights under Section 7) of all
advancements that have been made pursuant to Section 5 as to which it has
been so determined that Indemnitee is not entitled to be
indemnified.
(f) Indemnitee
shall cooperate with the Determining Body at the expense of the Corporation by
providing to the Determining Body, upon reasonable advance request, any
documentation or information that is not privileged or otherwise protected from
disclosure and that is reasonably available to Indemnitee and reasonably
necessary to make such determination.
(g) If
the Determining Body makes a determination pursuant to Section 6(e) that
Indemnitee is entitled to indemnification, the Corporation shall be bound by
that determination in any judicial proceeding, absent a determination by a court
that such indemnification contravenes applicable law.
(h) In
making a determination under Section 6(e), the Determining Body shall
presume that the Standard of Conduct has been met unless the contrary shall be
shown by a preponderance of the evidence.
(i) The
Corporation and Indemnitee shall keep confidential, to the extent permitted by
law and their fiduciary obligations, all facts and determinations provided
pursuant to or arising out of the operation of this Agreement, and the
Corporation and Indemnitee shall instruct their respective agents to do
likewise.
7. Enforcement.
(a) The
rights provided by this Agreement shall be enforceable by Indemnitee in any
court of competent jurisdiction.
(b) If
Indemnitee seeks a judicial adjudication of Indemnitee’s rights under, or to
recover damages for breach of, this Agreement, Indemnitee shall be entitled to
recover from the Corporation, and shall be indemnified by the Corporation
against, any and all Expenses incurred by Indemnitee in connection with such
proceeding, but only if Indemnitee prevails therein. If it shall be
determined that Indemnitee is entitled to receive part but not all of the relief
sought, then Indemnitee shall be entitled to be reimbursed for all Expenses
incurred by Indemnitee in connection with such proceeding if the indemnification
amount to which Indemnitee is determined to be entitled exceeds 50% of the
amount of Indemnitee’s claim. Otherwise, the reimbursement of
Expenses incurred by Indemnitee in connection with such judicial adjudication
shall be appropriately prorated.
(c) In
any judicial proceeding described in this Section 7, the Corporation shall
bear the burden of proving that Indemnitee is not entitled to advancement or
reimbursement of Expenses sought with respect to any Claim.
8. Saving Clause. If
any provision of this Agreement is determined by a court having jurisdiction
over the matter to require the Corporation to do or refrain from doing any act
that is in violation of applicable law, the court shall be empowered to modify
or reform such provision so that, as modified or reformed, such provision
provides the maximum indemnification permitted by law and such provision, as so
modified or reformed, and the balance of this Agreement, shall be applied in
accordance with their terms. Without limiting the generality of the
foregoing, if any portion of this Agreement shall be invalidated on any ground,
the Corporation shall nevertheless indemnify Indemnitee to the full extent
permitted by any applicable portion of this Agreement that shall not have been
invalidated and to the full extent permitted by law with respect to that portion
that has been invalidated.
9. Non-Exclusivity. The
indemnification and payment of Expenses provided by or granted pursuant to this
Agreement shall not be deemed exclusive of any other rights to which Indemnitee
is or may become entitled under any statute, article of incorporation, by-law,
insurance policy, authorization of shareholders or directors, agreement or
otherwise, including, without limitation, any rights authorized by the
Determining Body in its discretion with respect to matters for which
indemnification is permitted under La. R.S. 12:83A. The parties
recognize that La. R. S. 12:83E presently provides that no such other
indemnification measure shall permit indemnification of any person for the
results of such person's willful or intentional misconduct.
10. Subrogation. In the
event of any payment under this Agreement, the Corporation shall be subrogated
to the extent of such payment to all of the rights of recovery of Indemnitee.
Following receipt of indemnification payments hereunder, as further assurance,
Indemnitee shall execute all papers reasonably required and, at the expense of
the Corporation, take all action reasonably necessary to secure such subrogation
rights, including execution of such documents as are reasonably necessary to
enable the Corporation to bring suit to enforce such rights.
11. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall
constitute the original.
12. Applicable
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Louisiana.
13. Successors and Binding
Agreement.
(a) The
Corporation shall require any successor (whether direct or indirect, by
purchase, merger, consolidation, reorganization or otherwise) to all or
substantially all the business or assets of the Corporation, by agreement in
form and substance satisfactory to Indemnitee, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent the Corporation
would be required to perform if no such succession had taken place.
(b) Indemnitee’s
right to indemnification and advancement of Expenses pursuant to this Agreement
shall continue regardless of the termination of Indemnitee’s status as a
director or officer of the Corporation, and this Agreement shall inure to the
benefit of and be enforceable by Indemnitee’s personal or legal representatives,
executors, administrators, spouses, heirs, assigns and other
successors.
(c) This
Agreement is personal in nature and neither of the parties hereto shall, without
the prior written consent of the other, assign or delegate this Agreement or any
rights or obligations hereunder except as expressly provided in Sections 13(a)
and 13(b).
(d) This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto and their respective successors (including any direct or
indirect successor by purchase, merger, consolidation, reorganization or
otherwise to all or substantially all of the business or assets of the
Corporation), permitted assigns, spouses, heirs, executors, administrators and
personal and legal representatives.
14. Amendment. No
amendment, modification, termination or cancellation of this Agreement shall be
effective unless made in writing signed by the Corporation and
Indemnitee. Notwithstanding any amendment or modification to or
termination or cancellation of this Agreement or any portion hereof, Indemnitee
shall be entitled to indemnification in accordance with the provisions hereof
with respect to any acts or omissions of Indemnitee which occur prior to such
amendment, modification, termination or cancellation.
15. Effective
Date. This Agreement is effective as of the Effective Date,
supersedes in its entirety any prior indemnity or indemnification agreements
between the Corporation and Indemnitee, and covers Claims based on acts,
occurrences and omissions occurring at any time prior to, on or after the
Effective Date.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and signed as of the date and year first above written.
[Signature lines intentionally omitted]