Exhibit 10.03
CONFIDENTIAL AGREEMENT AND RELEASE
In consideration of their mutual promises set forth in this
Confidential Agreement and Release ("Agreement and Release"), Xxxxxx X. Xxxxx
and Equitable Resources, Inc. ("ERI"), intending to be legally bound, hereby
agree as follows:
1. The employment of Xxxxxx X. Xxxxx as Senior Vice President of
Marketing & Business Development has been terminated effective February 15, 1998
("Termination Date") as a result of the elimination of his position. It is
mutually agreed that the certain Employment Agreement dated as of January 16,
1997 between Xx. Xxxxx and ERI ("Employment Agreement") is hereby terminated as
of February 15, 1998, and ERI and Xx. Xxxxx shall have no further obligations to
each other thereunder, it being understood and agreed that, except as expressly
provided herein, the relationship between ERI and Xx. Xxxxx shall be governed
only by the terms of this Agreement and Release.
2. Xx. Xxxxx will continue to comply with his obligations of Non
Competition and Confidentiality as set forth in the Employment Agreement, which
provisions are incorporated herein by reference, for a one-year period after the
Termination Date. Xx. Xxxxx shall not, without the written consent of ERI, for a
period of one year after the Termination Date, directly or indirectly, for the
benefit of an employer or others, employ, attempt to employ, solicit for
employment, or in any other way, assist in employment or hire as an employee,
agent, consultant, contractor, or otherwise, any employee of ERI or any
affiliate nor solicit or induce any such employee to leave ERI or any affiliate
for any reason whatsoever. Xx. Xxxxx shall not act in any capacity, directly or
indirectly, to provide information or services to any third party for the
purposes of effecting a business combination or acquiring control of ERI without
ERI's prior written consent.
3. All stock grants or options granted to Xx. Xxxxx under any ERI plan,
whether vested or unvested, have been forfeited and are of no further force or
effect.
4. Conditioned upon Xx. Xxxxx'x compliance with the terms of this
Agreement and Release, ERI shall pay Xx. Xxxxx (i) the sum of $314,298 in a lump
sum, minus any required withholding taxes by February 15, 1998 or the tenth
(10th) day following execution hereof, whichever is later. The payment is
comprised of the following components:
Employment Agreement $220,500
Executive Retention Program $ 59,874 (only included in the lump
sum on condition that the
First Stock Award is
forfeited pursuant to
Paragraph 3)
Severance Program Benefit $ 16,962
1998 Unused Vacation $ 16,962
In addition, Xx. Xxxxx will be provided six (6) months of outplacement
assistance. Xx. Xxxxx has chosen the organization and the Company has negotiated
the appropriate level of service in accordance with the employee's specific
needs. No other payments will be forthcoming.
5. Xx. Xxxxx shall be entitled to receive all benefits accrued prior to
February 15, 1998 under the ERI's Employee Savings Plan, including vesting of
the Company match for that period in accordance with the provisions of the Plan.
Xx. Xxxxx is not eligible to participate in any of ERI's benefit plans,
including the above-referenced plans, after February 15, 1998, other than as
provided under COBRA.
6. Xx. Xxxxx irrevocably and unconditionally remises, releases and
forever discharges ERI and all of its affiliates, related companies,
subsidiaries, predecessors, past, present and future officers, directors,
agents, employees and shareholders, as well as the heirs, successors or assigns
of any of such persons or such entities (severally and collectively called
"Releasees"), jointly and individually, from any and all claims, demands,
issues, or causes of action arising out of, or in any way related to, Xx.
Xxxxx'x employment with Releasees or his separation from employment with
Releasees, whether asserted by him or on his behalf by any person or entity.
This release includes, but is not limited to, claims for back pay, front pay,
compensatory damages, liquidated damages, punitive damages, fringe benefits,
reinstatement, attorneys' fees, interest, costs, and/or other remedies or relief
of any sort whatsoever under any possible legal, equitable, tort, contract, or
statutory theory, including, but not limited to, any claims under the Age
Discrimination in Employment Act of 1967, as amended, Title VII of the Civil
Rights Act of 1964, as amended, the Pennsylvania Human Relations Act, the
Americans With Disabilities Act, and other federal, state, and local statutes,
ordinances, executive orders or regulations prohibiting discrimination in
employment, under the above referenced Employment Agreement or any other
asserted obligation of employment, under theories of unjust dismissal or
wrongful discharge, under theories of breach of contract or under theories based
on any intentional or negligent tort which Xx. Xxxxx has or may have, whether
now known or unknown and of whatever kind or nature against Releasees, which
arise on or before the date of execution hereof. It is understood and agreed
that this paragraph 6 does not include a discharge by Xx. Xxxxx of any of the
payments or other benefits which are to be provided to Xx. Xxxxx pursuant to the
terms and conditions of this Agreement and Release.
7. Xx. Xxxxx agrees that if he makes any claim against ERI relating to
his employment by ERI or his separation from employment and such claim is held
not to be barred by the release contained in Paragraph 6 or if Xx. Xxxxx
breaches any of the covenants contained herein, then Xx. Xxxxx agrees to pay to
ERI upon demand a sum equal to the amount of payments paid to him or on his
behalf pursuant to Paragraph 4 hereof plus interest at the legal rate. Xx. Xxxxx
hereby agrees that before asserting any claim against ERI relating to his
employment or his separation from employment in any local, state or federal
tribunal or court, Xx. Xxxxx will tender to ERI all amounts previously paid to
him hereunder. This provision will not limit Xx. Xxxxx'x liability if ERI's
actual damages exceed the amount received by him under this Agreement and
Release. The non-competition, non-disclosure and non-solicitation obligations
contained herein shall be extended by the length of time during which Xx. Xxxxx
shall have been in breach of any said provisions.
8. By entering into this Agreement and Release, ERI in no way thereby
admits that it or any other Releasee has treated Xx. Xxxxx unlawfully or
wrongfully in any way. Neither this Agreement and Release nor the implementation
thereof shall be construed to be, or shall be admissible in any proceedings as
evidence of an admission by ERI or any other Releasee of any violation of or
failure to comply with any agreement, obligation, or federal, state, or local
law, ordinance, agreement, rule, regulation or order. It is understood and
agreed however, that this Agreement and Release and its implementation by either
party shall be admissible as evidence in any future arbitration, court or other
proceeding alleging a breach of the terms and conditions of this Agreement and
Release by either party.
9. Xx. Xxxxx and his attorney and ERI and its attorneys shall keep the
terms and existence of this Agreement and Release strictly confidential, and
they promise not to reveal any such terms and existence to any person or entity
other than to governmental taxing authorities or to their tax or financial
consultants or as otherwise may be necessary to discharge their obligations
hereunder or legal obligations so long as done under strict confidentiality or
prior notice is given if confidential protection is not feasible under the
circumstances.
10. Xx. Xxxxx shall, in the event that ERI becomes subject to or
involved in any claim or legal action relating to events which occurred during
his employment, cooperate to the fullest extent possible in the preparation,
prosecution, or defense of ERI's case, including, but not limited to, the
execution of affidavits or documents or providing information requested by ERI;
out-of-pocket expenses related to such assistance will be provided at ERI's
expense, subject to ERI's prior approval.
11. Xx. Xxxxx acknowledges that he has been given the opportunity to
consider this Agreement and Release for at least twenty-one (21) days, which is
a reasonable period of time, and that he has been advised to consult with an
attorney in relation thereto prior to executing it. Xx. Xxxxx further
acknowledges that he has had a full and fair opportunity to consult with an
attorney, that he has carefully read and fully understands all of the provisions
of this Agreement and Release, that he has discussed it with his attorney, and
that he is voluntarily executing and entering into this Agreement and Release,
intending to be legally bound hereby.
12. For the period of seven (7) days following the execution of this
Agreement and Release, Xx. Xxxxx may revoke it by delivery of a written notice
revoking same within that seven-day period to the office of Xxxxxxx X. Xxxxxxx,
Senior Vice President and Chief Administrative Officer, Executive Department,
420 Boulevard of the Allies, Xxxxxxxxxx, XX 00000. This Agreement and Release
shall not become effective or enforceable until the seven-day revocation period
has expired.
13. The terms and conditions of this Agreement and Release, including
any terms incorporated by reference, constitute the full and complete
understanding, agreement and arrangement of the parties and there are no
agreements, covenants, promises or arrangements other than those set forth
herein. Any subsequent alteration in or variance from any term or condition of
this Agreement and Release shall be effective only if agreed to in writing by
the parties.
14. This Agreement and Release shall be governed by and construed in
accordance with the statutory and decisional law of the Commonwealth of
Pennsylvania, without regard to conflicts of law principles. Without limiting
the remedies available, Xx. Xxxxx acknowledges that, because of the potential
for immediate and irreparable harm to ERI, damages at law may be an insufficient
remedy in the event that Xx. Xxxxx violates certain terms of this Agreement and
Release and that ERI shall be entitled to seek injunctive or other equitable
relief in any court of competent jurisdiction to restrain the alleged breach or
threatened alleged breach of, or otherwise to specifically enforce, such terms.
Except for any such injunctive or equitable relief, all claims, disputes, or
causes of action arising between the parties under this Agreement and Release
shall be resolved by a strictly confidential arbitration in Pittsburgh,
Pennsylvania, under the commercial arbitration rules of the American Arbitration
Association before a single arbitrator qualified by education and experience to
be mutually agreed upon the parties within ten (10) days of either party's
notice to refer a matter to arbitration. Should the parties fail to so agree
upon a single arbitrator, then each party shall name an arbitrator within the
succeeding ten (10) days, and the two appointed arbitrators shall within the
succeeding ten (10) days select a third arbitrator to be Chairman of the
arbitration panel. If the two appointed arbitrators fail to so agree upon a
Chairman of the arbitration panel within the ten (10) day period, either or both
parties shall then have the right to request that the American Arbitration
Association appoint a third arbitrator to be Chairman of the arbitration panel
in accordance with the rules of the Association. The decision in such
arbitration shall be rendered within forty-five (45) days of appointment of the
arbitrator(s) and shall be final and binding upon the parties. Judgment may be
entered thereon in any court having jurisdiction. Xx. Xxxxx hereby submits to
the exclusive jurisdiction of and venue in any federal or state court sitting in
Pittsburgh, Pennsylvania. In any proceeding to enforce this Agreement and
Release or recover damages for a breach thereof, the prevailing party shall be
entitled to recover reasonable attorney's fees and costs.
15. ERI agrees to reflect in its official files and provide reference
information in response to inquiries regarding Xx. Xxxxx'x separation from
employment to indicate only that he voluntarily elected to resign from ERI. Xx.
Xxxxx should inform prospective employers that Xxxxxxx X. Xxxxxxx, Senior Vice
President and Chief Administrative Officer, is designated as the person to whom
such inquiries should be directed.
16. In the event Xx. Xxxxx is requested by any third party to make any
statement or otherwise provide information regarding ERI or its management for
any reason, Xx. Xxxxx agrees to first consult with and obtain the consent of
ERI's General Counsel, except to the extent disclosure is legally compelled, in
which case reasonable advance notice to said officer will be provided. Subject
to the restrictions contained herein, Xx. Xxxxx may, without the consent of
ERI's General Counsel, confirm to any third party his employment history with
ERI. Statements or comments may be made by either party in connection with any
arbitration or judicial proceeding hereunder which such party believes necessary
or relevant to defend or prove a claim that a party has failed to comply with
its obligations hereunder.
17. In the event either party believes that the other party has failed
to comply with its obligations hereunder, notice thereof shall be immediately
given to such other party, stating with particularity the alleged noncompliance.
The other party shall promptly respond and take any and all corrective action to
cure the alleged noncompliance. A negative response or a failure to respond in
writing by the other party within ten (10) days of receiving a notice of alleged
noncompliance will entitle the notifying party to exercise those rights and
remedies provided to him under this Agreement and Release.
18. All notices hereunder shall be in writing and delivered personally
or by certified mail with return receipt requested, registered mail, fax, or
courier service to the following addressees of the parties or to such other
address as they may by written notice designate; provided no such notice other
than certified mail shall be effective as to a party unless actual receipt by
him is confirmed:
Equitable Resources, Inc. Xx. Xxxxxx X. Xxxxx
420 Boulevard of the Allies 000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000 Xxxx Xxxx, XX 00000
Attn: Corporate Secretary
19. ERI may assign this Agreement and Release and its rights and
obligations (particularly the confidentiality, non-competition and
non-solicitation provisions hereof) to any person, corporation or other entity
in connection with any merger, sale of assets, recapitalization, or other
transaction to which ERI is a party, and after any such assignment, such person,
corporation or other entity shall be deemed to be ERI hereunder for all
purposes. Xx. Xxxxx'x obligations under this Agreement and Release shall be
binding upon his heirs, executors and administrators, and the provisions hereof
shall inure to the benefit of and be binding on the successors and assigns of
ERI.
IN WITNESS WHEREOF, the aforesaid parties, intending to be legally
bound hereby, have caused this Agreement and Release to be executed as of this
5th day of February, 1998.
EQUITABLE RESOURCES, INC.
By /s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxxxx Xxxxxx X. Xxxxx
Senior V.P. & CAO
Sworn to and subscribed before me this
5th day of February, 1998.
/s/ Xxxxxxx X. Xxxxxxx
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NOTARY PUBLIC
