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EXHIBIT 10.28
INDEMNIFICATION AGREEMENT
This Agreement is made effective as of the July 19, 2000, by and
between Equitable Resources, Inc., a Pennsylvania corporation (the "Company")
and Xxxxx X. Xxxx (the "Indemnitee"), a director and/or officer of the Company.
WHEREAS, it is essential that the Company retain and attract as
directors and officers the most capable persons available; and
WHEREAS, Indemnitee is a director and/or officer of the Company and in
that capacity is performing a valuable service for the Company; and
WHEREAS, Company Bylaws (the "Bylaw") contain a provision which
provides for indemnification of and advancement of expenses to the directors and
officers of the Company for liabilities and expenses they incur in their
capacities as such, and the Bylaws and the applicable indemnification statutes
of the Commonwealth of Pennsylvania provide that they are not exclusive; and
WHEREAS, in recognition of Indemnitee's need for protection against
personal liability in order to enhance Indemnitee's continued service to the
Company in an effective manner, the potential difficulty in obtaining
satisfactory Directors and Officers Liability Insurance ("D & O Insurance")
coverage, and Indemnitee's reliance on the Bylaws, and in part to provide
Indemnitee with specific contractual assurance that the protection promised by
the Bylaws will be available to Indemnitee (regardless of, among other things,
any amendment to or revocation of the Bylaws or any change in the composition of
the Company's Board of Directors or acquisition transaction relating to the
Company), the Company desires to provide in this Agreement for the
indemnification of and the advancing of expenses to Indemnitee to the fullest
extent permitted by law and as set forth in this Agreement, and, to the extent
insurance is maintained, for the continued coverage of Indemnitee under the
Company's D & O Insurance policies.
NOW, THEREFORE, in consideration of the premises and of Indemnitee
continuing to serve the Company directly or, at its request, another enterprise,
and intending to be legally bound hereby, the parties hereto agree as follows:
1. Indemnity of Indemnitee.
(a) The Company shall indemnify and hold harmless the Indemnitee
against any and all reasonable expenses, including fees and expenses of counsel,
and any and all liability and loss, including judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement, incurred or
paid by Indemnitee in connection with any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter "a proceeding") and whether or not by or in the right
of the Company or otherwise, to which the Indemnitee is, was or at any time
becomes a party, or is threatened to be made a party or is involved (as a
witness or otherwise) by reason of the fact that Indemnitee is or was a
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director or officer of the Company or is or was serving at the request of the
Company as director, officer, employee, trustee or representative of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the basis of
such proceeding is alleged action in an official capacity or in any other
capacity while serving as a director, officer, employee, trustee or
representative, unless the act or failure to act giving rise to the claim for
indemnification is determined by a court to have constituted willful misconduct
or recklessness; provided, however, that the Company shall indemnify the
Indemnitee in connection with a proceeding (or part thereof) initiated by the
Indemnitee (other than a proceeding to enforce the Indemnitee's rights to
indemnification under this Agreement or otherwise) prior to a Change of Control,
as defined in Section 2(e), only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Company.
(b) Subject to the foregoing limitation concerning certain proceedings
initiated by the Indemnitee prior to a Change of Control, the Company shall pay
the expenses (including fees and expenses of counsel) incurred by Indemnitee in
connection with any proceeding in advance of the final disposition thereof
promptly after receipt by the Company of a request therefor stating in
reasonable detail the expenses incurred or to be incurred.
(c) If a claim under paragraph (a) or (b) of this section is not paid
in full by the Company within forty-five (45) days after a written claim has
been received by the Company, the Indemnitee may, at any time thereafter, bring
suit against the Company to recover the unpaid amount of the claim. The burden
of proving that indemnification or advances are not appropriate shall be on the
Company. The Indemnitee shall also be entitled to be paid the expenses of
prosecuting such claim to the extent he or she is successful in whole or in part
on the merits or otherwise in establishing his or her right to indemnification
or to the advancement of expenses. The Company shall pay such fees and expenses
in advance of the final disposition of such action on the terms and conditions
set forth in Section 1(b).
2. Maintenance of Insurance and Funding.
(a) The Company represents that a summary of the terms of the policies
of D&O Insurance in effect as of the date of this Agreement is attached hereto
as Exhibit A (the "Insurance Policies").
Subject only to the provisions of Section 2(b) hereof, the Company
agrees that, so long as Indemnitee shall continue to serve as an officer or
director of the Company (or shall continue at the request of the Company to
serve as a director, officer, employee, trustee or representative of another
corporation, partnership, joint venture, trust or other enterprise, including
service with respect to an employee benefit plan) and thereafter so long as
Indemnitee shall be subject to any possible claim or threatened, pending or
completed action, suit or proceeding, whether civil, criminal or investigative,
by reason of the fact that Indemnitee was a director or officer of the Company
(or served in any of said other capacities), the Company shall purchase and
maintain in effect for the benefit of Indemnitee one or more valid, binding and
enforceable policy or policies of D & O Insurance providing coverage at least
comparable to that provided pursuant to the Insurance Policies.
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(b) The Company shall not be required to maintain said policy or
policies of D & O Insurance in effect if, in the reasonable, good faith business
judgment of the then Board of Directors of the Company (i) the premium cost for
such insurance is substantially disproportionate to the amount of coverage, (ii)
the coverage provided by such insurance is so limited by exclusions that there
is insufficient benefit from such insurance or (iii) said insurance is not
otherwise reasonably available; provided, however, that in the event the then
Board of Directors makes such a judgment, the Company shall purchase and
maintain in force a policy or policies of D & O Insurance in the amount and with
such coverage as the then Board of Directors determines to be reasonably
available. Notwithstanding the general provisions of this Section 2(b),
following a Change of Control, any decision not to maintain any policy or
policies of D & O Insurance or to reduce the amount or coverage under any such
policy or policies shall be effective only if there are Disinterested Directors
(as defined in Section 2(e) hereof) and shall require the concurrence of a
majority of the Disinterested Directors.
(c) If and to the extent the Company, acting under Section 2(b), does
not purchase and maintain in effect the policy or policies of D & O Insurance
described in Section 2(a), the Company shall indemnify and hold harmless the
Indemnitee to the full extent of the coverage which would otherwise have been
provided by such policies. The rights of the Indemnitee hereunder shall be in
addition to all other rights of Indemnitee under the remaining provisions of
this Agreement.
(d) In the event of a Potential Change of Control or if and to the
extent the Company is not required to maintain in effect the policy or policies
of D & O Insurance described in Section 2(a) pursuant to the provisions of
Section 2(b), the Company shall, upon written request by Indemnitee, create a
"Trust" for the benefit of Indemnitee and from time to time, upon written
request by Indemnitee, shall fund such Trust in an amount sufficient to pay any
and all expenses, including attorneys' fees, and any and all liability and loss,
including judgments, fines, ERISA excise taxes or penalties and amounts paid or
to be paid in settlement actually and reasonably incurred by him or on his
behalf for which the Indemnitee is entitled to indemnification or with respect
to which indemnification is claimed, reasonably anticipated or proposed to be
paid in accordance with the terms of this Agreement or otherwise; provided that
in no event shall more than $100,000 be required to be deposited in any Trust
created hereunder in excess of the amounts deposited in respect of reasonably
anticipated expenses, including attorneys' fees. The amounts to be deposited in
the Trust pursuant to the foregoing funding obligation shall be determined by a
majority of the Disinterested Directors whose determination shall be final and
conclusive.
The terms of the Trust shall provide that upon a Change of Control (i)
the Trust shall not be revoked or the principal thereof invaded, without the
written consent of the Indemnitee, (ii) the Trust shall advance, within two
business days of a request by the Indemnitee, any and all expenses, including
attorneys' fees, to the Indemnitee (and the Indemnitee hereby agrees to
reimburse the Trust under the circumstances under which the Indemnitee would be
required to reimburse the Company under Section 5 of this Agreement), (iii) the
Trust shall continue to be funded by the Company in accordance with the funding
obligation set forth above, (iv) the Trustee shall promptly pay to the
Indemnitee all amounts for which the Indemnitee shall be entitled to
indemnification pursuant to this Agreement or otherwise, and (v) all unexpended
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funds in such Trust shall revert to the Company upon a final determination by a
majority of the Disinterested Directors or a court of competent jurisdiction, as
the case may be, that the Indemnitee has been fully indemnified under the terms
of this Agreement. The Trustee shall be a bank or trust company or other
individual or entity chosen by the Indemnitee and reasonably acceptable and
approved of by the Company.
(e) For the purposes of this Agreement:
(i) a "Change of Control" shall mean any of the following
events (each of such events being herein referred to
as a "Change of Control"):
A. The sale or other disposition by the Company
of all or substantially all of its assets to
a single purchaser or to a group of
purchasers, other than to a corporation with
respect to which, following such sale or
disposition, more than eighty percent (80%)
of, respectively, the then outstanding
shares of Company common stock and the
combined voting power of the then
outstanding voting securities entitled to
vote generally in the election of the Board
of Directors is then owned beneficially,
directly or indirectly, by all or
substantially all of the individuals and
entities who were the beneficial owners,
respectively, of the outstanding Company
common stock and the combined voting power
of the then outstanding voting securities
immediately prior to such sale or
disposition in substantially the same
proportion as their ownership of the
outstanding Company common stock and voting
power immediately prior to such sale or
disposition;
B. The acquisition in one or more transactions
by any person or group, directly or
indirectly, of beneficial ownership of
twenty percent (20%) or more of the
outstanding shares of Company common stock
or the combined voting power of the then
outstanding voting securities of the Company
entitled to vote generally in the election
of the Board of Directors; provided,
however, that any acquisition by (x) the
Company or any of its subsidiaries, or any
employee benefit plan (or related trust)
sponsored or maintained by the Company or
any of its subsidiaries or (y) any person
that is eligible, pursuant to Rule 13d-1(b)
under the Exchange Act (as such rule is in
effect as of November 1, 1995) to file a
statement on Schedule 13G with respect to
its beneficial ownership of Company common
stock and other voting securities, whether
or not such person shall have filed a
statement on Schedule 13G, unless such
person shall have filed a statement on
Schedule 13D with respect to beneficial
ownership of fifteen percent or more of the
Company's voting securities, shall not
constitute a Change of Control;
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C. The Company's termination of its business
and liquidation of its assets;
D. There is consummated a merger,
consolidation, reorganization, share
exchange, or similar transaction involving
the Company (including a triangular merger),
in any case, unless immediately following
such transaction: (i) all or substantially
all of the persons who were the beneficial
owners of the outstanding common stock and
outstanding voting securities of the Company
immediately prior to the transaction
beneficially own, directly or indirectly,
more than 60% of the outstanding shares of
common stock and the combined voting power
of the then outstanding voting securities
entitled to vote generally in the election
of directors of the corporation resulting
from such transaction (including a
corporation or other person which as a
result of such transaction owns the Company
or all or substantially all of the Company's
assets through one or more subsidiaries (a
"Parent Company")) in substantially the same
proportion as their ownership of the common
stock and other voting securities of the
Company immediately prior to the
consummation of the transaction, (ii) no
person (other than the Company, any employee
benefit plan sponsored or maintained by the
Company or, if reference was made to equity
ownership of any Parent Company for purposes
of determining whether clause (i) above is
satisfied in connection with the
transaction, such Parent Company)
beneficially owns, directly or indirectly,
20% or more of the outstanding shares of
common stock or the combined voting power of
the voting securities entitled to vote
generally in the election of directors of
the corporation resulting from such
transaction and (iii) individuals who were
members of the Company's Board of Directors
immediately prior to the consummation of the
transaction constitute at least a majority
of the members of the board of directors
resulting from such transaction (or, if
reference was made to equity ownership of
any Parent Company for purposes of
determining whether clause, (i) above is
satisfied in connection with the
transaction, such Parent Company); or
E. The following individuals cease for any
reason to constitute a majority of the
number of directors then serving:
individuals who, on the date hereof,
constitute the entire Board of Directors and
any new director (other than a director
whose initial assumption of office is in
connection with an actual or threatened
election contest, including but not limited
to a consent solicitation, relating to the
election of directors of the Company) whose
appointment or election by the Board or
nomination for election by the Company's
shareholders was approved by a vote of at
least two-thirds (2/3) of the directors then
still in office who either were directors on
the
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date hereof or whose appointment, election
or nomination for election was previously so
approved.
(ii) a "Disinterested Director" means any member of the Board of
Directors of the Company who is unaffiliated with, and not a
representative of, an Interested Shareholder and who was a
member of the Board of Directors prior to the time that the
Interested Shareholder became an Interested Shareholder or
became a member subsequently to fill a vacancy created by an
increase in the size of the Board of Directors and did receive
the favorable vote of two-thirds (2/3) of the Disinterested
Directors in connection with being nominated for election by
the shareholders to fill such vacancy or in being elected by
the Board of Directors to fill such vacancy, and any successor
of a Disinterested Director who is unaffiliated with, and not
a representative of, the Interested Shareholder and is
recommended or elected to succeed a Disinterested Director by
a majority of the Disinterested Directors then on the Board of
Directors.
(iii) "Interested Shareholder" means any person (other than the
Company or any subsidiary of the Company and other than any
profit sharing, employee stock ownership, or other employee
benefit plan of the Company or any subsidiary of the Company
or any trustee of or fiduciary with respect to any such plan
when acting in such capacity) who or which:
A. is at such time the beneficial owner, directly or
indirectly, of more then ten percent (10%) of the
voting power of the outstanding common stock of the
Company;
B. was at any time within the two-year period
immediately prior to such time the beneficial owner,
directly or indirectly, of more than ten percent
(10%) of the voting power of the then outstanding
common stock of the Company;
C. is at such time an assignee of or has otherwise
succeeded to the beneficial ownership of any shares
of common stock of the Company which were at any time
within the two-year period immediately prior to such
time beneficially owned by any Interested
Shareholder, if such assignment or succession has
occurred in the course of a transaction or series of
transactions not involving a public offering within
the meaning of the Securities Act of 1933, as
amended.
(iv) a "person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust,
unincorporated organization or government (or any subdivision,
department, commission or agency thereof), and includes
without limitation any "person", as such term is used in
Sections 13(d) of 14(d) of the Securities Exchange Act of
1934, as amended.
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(v) a "Potential Change of Control" shall occur if:
A. the Company enters into an agreement or arrangement
the consummation of which would result in the
occurrence of a Change of Control;
B. any Person (including the Company) publicly announces
an intention to take or to consider taking actions
which if consummated would constitute a Change in
Control; or
C. the Board of Directors of the Company adopts a
resolution to the effect that, for purposes of this
Agreement, a Potential Change of Control has
occurred.
3. Continuation of Indemnity.
The Company's obligations hereunder shall be applicable to any and all
claims made after the date hereof regardless of when the facts upon which such
claims are based occurred, including times prior to the date hereof. All
agreements and obligations of the Company contained in this Agreement shall
continue during the period the Indemnitee is a director or officer of the
Company (or is or was serving at the request of the Company as a director,
officer, employee, trustee or representative of another corporation,
partnership, joint venture, trust or other enterprise, including any employee
benefit plan) and shall continue thereafter so long as the Indemnitee shall be
subject to any possible claim or threatened, pending or completed action, suit
or proceeding, whether civil, criminal or investigative, by reason of the fact
that the Indemnitee was a director or officer of the Company or serving in any
other capacity referred to herein.
4. Contribution.
The full indemnification provided in Section 2 hereof may not be paid
to an Indemnitee because such indemnification is prohibited by law, then in
respect of any actual or threatened proceeding in which the Company is jointly
liable with Indemnitee (or would be if joined in such proceeding) the Company
shall contribute to the amount of expenses incurred by the Indemnitee for which
indemnification is not available in such proportion as is appropriate to reflect
(i) the relative benefits received by the Company on the one hand and the
Indemnitee on the other hand from the transaction from which such proceeding
arose and (ii) the relative fault of the Company and the Indemnitee, as well as
any other relevant equitable considerations. The relative fault of the Company
(which shall be deemed to include its other directors, officers and employees)
on the one hand and of the Indemnitee on the other hand shall be determined by
reference to, among other things, the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent the circumstances
resulting in such expenses. The Company agrees that it would not be just and
equitable if contribution pursuant to this section were determined by any method
of allocation which does not take account of the foregoing equitable
considerations.
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5. Notification and Defense of Claim.
As soon as practicable after receipt by the Indemnitee of actual
knowledge of any action, suit or proceeding, the Indemnitee shall notify the
Company thereof if a claim in respect thereof may be or is being made by the
Indemnitee against the Company under this Agreement; provided, that the failure
of the Indemnitee to give such notice shall not relieve the Company of its
obligations hereunder except to the extent the Company is actually prejudiced by
such failure. With respect to any action, suit or proceeding as to which the
Indemnitee has so notified the Company:
(a) The Company will be entitled to participate therein at its own
expense; and
(b) Except as otherwise provided below, the Company may assume the
defense thereof, with counsel reasonably satisfactory to the Indemnitee. After
the Company notifies the Indemnitee of its election to so assume the defense,
the Company will not be liable to the Indemnitee under this Agreement for any
legal or other expenses subsequently incurred by the Indemnitee in connection
with the defense, other than reasonable costs of investigation, including an
investigation in connection with determining whether there exists a conflict of
interest of the type described in (ii) of this paragraph, or as otherwise
provided in this paragraph. The Indemnitee shall have the right to employ his or
her counsel in such action, suit or proceeding but the fees and expenses of such
counsel incurred after the Company notifies the Indemnitee of its assumption of
the defense shall be at the expense of the Indemnitee unless (i) the Company
authorizes the Indemnitee's employment of counsel, provided, that following a
Change of Control, the Indemnitee shall be entitled to employ his or her own
counsel at the Company's expense after giving not less than 30 days' notice to
the Company unless a majority of the Disinterested Directors determine that the
Indemnitee's interests are adequately represented by the counsel employed by the
Company; (ii) the Indemnitee shall have reasonably concluded that there may be a
conflict of interest between the Company and the Indemnitee in the conduct of
the defense or (iii) the Company shall not have employed counsel to assume the
defense of such action, in each of which cases the fees and expenses of counsel
shall be at the expense of the Company. The Company shall not be entitled to
assume the defense of any action, suit or proceeding brought by or on behalf of
the Company or as to which the Indemnitee shall have made the conclusion
described in (ii) of this paragraph.
(c) The Company shall not be obligated to indemnify the Indemnitee
under this Agreement for any amounts paid in settlement of any action or claim
effected without its written consent. The Company shall not settle any action or
claim in any manner which would impose any penalty or limitation on the
Indemnitee without the Indemnitee's written consent. Neither the Company nor the
Indemnitee shall unreasonably withhold their consent to any proposed settlement.
6. Undertaking to Repay Expenses.
In the event it shall ultimately be determined that the Indemnitee is
not entitled to be indemnified for the expenses paid by the Company pursuant to
Section 1(b) hereof or otherwise or was not entitled to be fully indemnified,
the Indemnitee shall repay to the Company such
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amount of the expenses or the appropriate portion thereof, so paid or advanced.
Indemnitee shall reimburse the Company for any amounts paid by the Company as
indemnification of expenses to the extent Indemnitee receives payment for the
same expenses from any insurance carrier or from another party.
7. Notice.
Any notice to the Company shall be directed to Equitable Resources,
Inc., 000 Xxxxx Xxxxxx, Xxx Xxxxxx Xxxxxx Xxxxx 0000, Xxxxxxxxxx, Xxxxxxxxxxxx
00000-0000, Attention: Corporate Secretary (or such other address as the Company
shall designate in writing to the Indemnitee).
8. Enforcement.
In the event the Indemnitee is required to bring any action to enforce
rights or to collect monies due under this Agreement, the Company shall pay to
the Indemnitee the fees and expenses incurred by the Indemnitee in bringing and
pursuing such action if the Indemnitee is successful, in whole or in part, on
the merits or otherwise, in such action. The Company shall pay such fees and
expenses in advance of the final disposition of such action on the terms and
conditions set forth in Section 1(b).
9. Severability.
If any provision or provisions of this Agreement shall be held to be
invalid, illegal or unenforceable for any reason whatsoever:
(a) the validity, legality and enforceability of the remaining
provisions of this Agreement (including without limitation, each portion of any
Section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and
(b) to the fullest extent possible, the provisions of this Agreement
(including, without limitation, each portion of any Section of this Agreement
containing any such provision held to be invalid, illegal or unenforceable, that
is not itself invalid, illegal or unenforceable) shall be construed so as to
give effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
10. Indemnification Under this Agreement Not Exclusive.
(a) The indemnification provided by this Agreement shall not be deemed
exclusive of any other rights to which the Indemnitee may be entitled under the
Articles of Incorporation of the Corporation or its Bylaws, any other agreement,
any vote of stockholders or directors, or otherwise, both as to action in the
Indemnitee's official capacity and as to action in another capacity while
holding such office. The protection and rights provided by this Agreement and
all of such other protections and rights are intended to be cumulative.
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(b) It is the intention of the parties in entering into this Agreement
that the insurers under any D & O Insurance policy shall be obligated ultimately
to pay any claims by Indemnitee which are covered by such policy or to give such
insurers any rights against the Company under or with respect to this Agreement,
including, without limitation, any right to be subrogated to any of Indemnitee's
right hereunder, unless otherwise expressly agreed to by the Company in writing
and the obligation of such insurers to the Company or Indemnitee shall not be
deemed reduced or impaired in any respect by virtue of the provisions of this
Agreement.
11. Miscellaneous.
(a) This Agreement shall be interpreted and enforced in accordance with
the laws of the Commonwealth of Pennsylvania.
(b) This Agreement shall be binding upon the Indemnitee and upon the
Company, its successors and assigns, and shall inure to the benefit of the
Indemnitee and his or her heirs, executors, personal representatives and
assigns, and to the benefit of the Company, its successors and assigns. If the
Company shall merge or consolidate with another corporation or shall sell,
lease, transfer or otherwise dispose of all or substantially all of its assets
to one or more persons or groups (in one transaction or series of transactions),
(i) the Company shall cause the successor in the merger or consolidation or the
transferee of the assets that is receiving the greatest portion of the assets or
earning power transferred pursuant to the transfer of the assets, by agreement
in form and substance satisfactory to the Indemnitee, to expressly assume all of
the Company's obligations under and agree to perform this Agreement, and (ii)
the term "Company" whenever used in this Agreement shall mean and include any
such successor or transferee.
(c) No amendment, modification, termination or cancellation of this
Agreement shall be effective unless in writing signed by both of the parties
hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement on and as
of the day and year first above written.
EQUITABLE RESOURCES, INC.
By: /s/ XXXXX X. XXXXXX
--------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman, President and
Chief Executive Officer
INDEMNITEE
/s/ XXXXX X. XXXX
--------------------------------
By: Xxxxx X. Xxxx
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