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Exhibit 10.16
CHANGE OF CONTROL AGREEMENT
THIS AGREEMENT (the "Agreement") dated as of the 1st day of December,
1999 (the "Effective Date") by and between EQUITABLE RESOURCES, INC., a
Pennsylvania corporation with its principal place of business at Pittsburgh,
Pennsylvania (the "Company"), and Xxxxxxx X. Xxxxxxx, an individual (the
"Employee");
WHEREAS, the Company and certain of its employees, including possibly
the Employee, are parties to (i) a Change of Control Agreement, which provides
for the payment of certain benefits to the Employee if the Employee's employment
terminates in certain circumstances following a change of control of the Company
and/or (ii) an Employment Agreement, which provides for the payment of severance
benefits in certain circumstances (whether or not the Employee's termination of
employment is in connection with a Change of Control) and includes a provision
pursuant to which Employee agrees not to compete with the Company for a stated
period of time (to the extent the Employee is a party to one or both of such
agreements as of the date of this Agreement, they are referred to as the
"Existing Agreements"); and
WHEREAS, the Board of Directors of the Company (the "Board"), continues
to believe that it is in the best interest of the Company and its shareholders
to assure that the Company will have the continued dedication of the Employee,
notwithstanding the possibility, threat or occurrence of a Change of Control (as
defined below) of the Company; that it is imperative to diminish the inevitable
distraction of the Employee by virtue of the personal uncertainties and risks
created by a pending or threatened Change of Control and to encourage the
Employee's full attention and dedication to the Company currently and in the
event of any threatened or pending Change of Control; and that it is appropriate
to provide the Employee with compensation and benefits arrangements upon a
Change of Control which ensure that the compensation and benefits expectations
of the Employee will be satisfied and which are competitive with those of other
corporations in the industry in which the Company's principal business activity
is conducted; and
WHEREAS, in order to more fully accomplish the foregoing objectives,
the Company and the Employee desire to terminate the Existing Agreements and to
enter into this Agreement, which, among other things, clarifies and enhances in
certain respects the benefits payable to the Employee if the Employee's
employment terminates in certain circumstances following a Change in Control of
the Company;
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Term. The term of this Agreement shall commence on the Effective Date
hereof and, subject to Sections 3(f), 5 and 8, shall terminate on the
earlier of (i) the date of the termination of Employee's employment by
the Company for any reason prior to a Change of Control; or (ii) unless
further extended as hereinafter set forth, the date which is thirty-six
(36) months after the Effective Date; provided, that, commencing on the
last day of the first full calendar month after the Effective Date and
on the last day of each succeeding calendar month, the term of this
Agreement shall be automatically extended
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without further action by either party (but not beyond the date of the
termination of Employee's employment prior to a Change of Control) for
one (1) additional month unless one party provides written notice to
the other party that such party does not wish to extend the term of
this Agreement. In the event that such notice shall have been
delivered, the term of this Agreement shall no longer be subject to
automatic extension and the term hereof shall expire on the date which
is thirty-six (36) calendar months after the last day of the month in
which such written notice is received.
2. Change of Control. 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;
(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
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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 reasons 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 date hereof or whose appointment, election or nomination
for election was previously so approved.
3. Salary and Benefits Continuation.
(a) Salary and Benefits Continuation" shall be defined to mean
the following: (i) payment of an amount of cash equal to three
(3) times the Employee's annual base salary in effect
immediately prior to the Change of Control or the termination
of Employee's employment, whichever is higher; (ii) payment of
an amount of cash equal to three (3) times the highest annual
incentive (bonus) payment earned by the Employee for any year
in the three years prior to the termination of Employee's
employment; (iii) provision to Employee and his/her eligible
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dependents of medical, long-term disability, dental and life
insurance coverage (to the extent such coverage was in effect
immediately prior to the Change of Control) for thirty-six
(36) months; (iv) contribution by the Company to Employee's
account under the Company's defined contribution retirement
plan (known as the Equitable Resources, Inc. Employee Savings
Plan) of an amount of cash equal to the amount that the
Company would have contributed to such plan had the Employee
continued to be employed by the Company for an additional
thirty-six (36) months at a base salary equal to the
Employee's base salary immediately prior to the Change of
Control or the termination of Employee's employment, whichever
is higher, such contribution being deemed to be made
immediately prior to the termination of Employee's employment;
provided, that to the extent that the amount of such
contribution exceeds the amount then allowed to be contributed
to the plan under the applicable rules relating to tax
qualified retirement plans, then the excess shall be paid to
the Employee in cash; (v) reimbursement to Employee of
reasonable costs incurred by Employee for outplacement
services in the twenty-four (24) month period following
termination of Employee's employment.
(b) All amounts payable by the Company to the Employee in cash
pursuant to Section 3(a) shall be made in a lump sum unless
the Employee otherwise elects and notifies the Company in
writing prior to the termination of Employee's employment of
Employee's desire to have all payments made in accordance with
the Company's regular salary and benefit payment practices,
provided that (i) the lump sum payment or first payment shall
be made within thirty (30) days after the Employee's
termination hereunder, and (ii) the Employee may elect to
defer such payments pursuant to the Company's then-existing
deferred compensation plan(s). All other amounts payable by
the Company to the Employee pursuant to Section 3 shall be
paid or provided in accordance with the Company's standard
payroll and reimbursement procedures, as in effect immediately
prior to the Change of Control.
(c) In the event that medical, long-term disability, dental and
life insurance benefits cannot be provided under appropriate
Company group insurance policies, an amount equal to the
premium necessary for the Employee to purchase directly the
same level of coverage in effect immediately prior to the
Change of Control shall be added to the Company's payments to
Employee pursuant to Section 3(a) (payable in the manner
elected by the Employee pursuant to Section 3(b)).
(d) If there is a Change of Control as defined above, the Company
will provide Salary and Benefits Continuation if at any time
during the first twenty-four (24) months following the Change
of Control, either (i) the Company terminates the Employee's
employment other than for Cause as defined in Section 4 below
or (ii) the Employee terminates his/her employment for "Good
Reason" as defined below.
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(e) For purposes of this Agreement, "Good Reason" is defined as:
(i) Removal of the Employee from the position he/she held
immediately prior to the Change of Control (by reason
other than death, disability or Cause);
(ii) The assignment to the Employee of any duties
inconsistent with those performed by the Employee
immediately prior to the Change of Control or a
substantial alteration in the nature or status of the
Employee's responsibilities which renders the
Employee's position to be of less dignity,
responsibility or scope;
(iii) A reduction by the Company in the Employee's annual
base salary as in effect on the date hereof or as the
same may be increased from time to time, except for
proportional across-the-board salary reductions
similarly affecting all executives of the Company and
all executives of any person in control of the
Company, provided, however, that in no event shall
the Employee's annual base salary be reduced by an
amount equal to ten percent or more of the Employee's
annual base salary as of the end of the calendar year
immediately preceding the year in which the Change of
Control occurs, without the Employee's consent;
(iv) The failure to grant the Employee an annual salary
increase reasonably necessary to maintain such salary
as reasonably comparable to salaries of senior
executives holding positions equivalent to the
Employee's in the industry in which the Company's
then principal business activity is conducted;
(v) The Company requiring the Employee to be based
anywhere other than the Company's principal executive
offices in the city in which the Employee is
principally located immediately prior to the Change
of Control, except for required travel on the
Company's business to an extent substantially
consistent with the Employee's business travel
obligations prior to the Change of Control;
(vi) Any material reduction by the Company of the benefits
enjoyed by the Employee under any of the Company's
pension, retirement, profit sharing, savings, life
insurance, medical, health and accident, disability
or other employee benefit plans, programs or
arrangements, the taking of any action by the Company
which would directly or indirectly materially reduce
any of such benefits or deprive the Employee of any
material fringe benefits, or the failure by the
Company to provide the Employee with the number of
paid vacation days to which he/she is entitled on the
basis of years of service with the Company in
accordance with the Company's normal vacation policy,
provided that this paragraph (f) shall not apply to
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any proportional across-the-board reduction or action
similarly affecting all executives of the Company and
all executives of any person in control of the
Company; or
(vii) The failure of the Company to obtain a satisfactory
agreement from any successor to assume and agree to
perform this Agreement, as contemplated in Section 15
hereof, or any other material breach by the Company
of its obligations contained in this Agreement.
(f) The Employee's right to Salary and Benefits Continuation shall
accrue upon the occurrence of either of the events specified
in (i) or (ii) of Section 3(d) and shall continue as provided,
notwithstanding the termination or expiration of this
Agreement pursuant to Section 1 hereof. The Employee's
subsequent employment, death or disability within the
thirty-six (36) month period following the Employee's
termination of employment in connection with a Change of
Control shall not affect the Company's obligation to continue
making Salary and Benefits Continuation payments. The Employee
shall not be required to mitigate the amount of any payment
provided for in this Section 3 by seeking employment or
otherwise. The rights to Salary and Benefits Continuation
shall be in addition to whatever other benefits the Employee
may be entitled to under any other agreement or compensation
plan, program or arrangement of the Company; provided, that
the Employee shall not be entitled to any separate or
additional severance payments pursuant to the Company's
severance plan as then in effect and generally applicable to
similarly situated employees. The Company shall be authorized
to withhold from any payment to the Employee, his/her estate
or his/her beneficiaries hereunder all such amounts, if any,
that the Company may reasonably determine it is required to
withhold pursuant to any applicable law or regulation.
4. Termination of Employee for Cause.
(a) Upon or following a Change of Control, the Company may at any
time terminate the Employee's employment for Cause.
Termination of employment by the Company for "Cause" shall
mean termination upon: (i) the willful and continued failure
by the Employee to substantially perform his/her duties with
the Company (other than (A) any such failure resulting from
Employee's disability or (B) any such actual or anticipated
failure resulting from Employee's termination of his/her
employment for Good Reason), after a written demand for
substantial performance is delivered to the Employee by the
Board of Directors which specifically identifies the manner in
which the Board of Directors believes that the Employee has
not substantially performed his/her duties, and which failure
has not been cured within thirty days (30) after such written
demand; or (ii) the willful and continued engaging by the
Employee in conduct which is demonstrably and
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materially injurious to the Company, monetarily or otherwise,
or (iii) the breach by the Employee of the confidentiality
provision set forth in Section 8 hereof.
(b) For purposes of this Section 4, no act, or failure to act, on
the Employee's part shall be considered "willful" unless done,
or omitted to be done, by the Employee in bad faith and
without reasonable belief that such action or omission was in
the best interest of the Company. Notwithstanding the
foregoing, the Employee shall not be deemed to have been
terminated for Cause unless and until there shall have been
delivered to him/her a copy of a resolution duly adopted by
the affirmative vote of not less than three-quarters of the
entire membership of the Board of Directors at a meeting of
the Board of Directors called and held for that purpose (after
reasonable notice to the Employee and an opportunity for the
Employee, together with his/her counsel, to be heard before
the Board of Directors) finding that in the good faith opinion
of the Board of Directors the Employee is guilty of the
conduct set forth above in clauses (a)(i), (ii) or (iii) of
this Section 4 and specifying the particulars thereof in
detail.
5. Prior Termination. Anything in this Agreement to the contrary
notwithstanding, if the Employee's employment with the Company is
terminated prior to the date on which a Change of Control occurs either
(i) by the Company other than for Cause or (ii) by the Employee for
Good Reason, and it is reasonably demonstrated by Employee that such
termination of employment (a) was at the request of a third party who
has taken steps reasonably calculated to effect the Change of Control,
or (b) otherwise arose in connection with or anticipation of the Change
of Control, then for all purposes of this Agreement the termination
shall be deemed to have occurred upon a Change of Control and the
Employee will be entitled to Salary and Benefits Continuation as
provided for in Section 3 hereof.
6. Employment at Will. Subject to the provisions of any other agreement
between the Employee and the Company, the Employee shall remain an
employee at will and nothing herein shall confer upon the Employee any
right to continued employment and shall not affect the right of the
Company to terminate the Employee for any reason not prohibited by law;
provided, however, that any such removal shall be without prejudice to
any rights the Employee may have to Salary and Benefits Continuation
hereunder.
7. Construction of Agreement.
(a) Governing Law. This Agreement shall be governed by and
construed under the laws of the Commonwealth of Pennsylvania
without regard to its conflict of law provisions.
(b) Severability. In the event that any one or more of the
provisions of this Agreement shall be held to be invalid,
illegal or unenforceable, the validity,
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legality or enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
(c) Headings. The descriptive headings of the several paragraphs
of this Agreement are inserted for convenience of reference
only and shall not constitute a part of this Agreement.
8. Covenant as to Confidential Information.
(a) Confidentiality of Information and Nondisclosure. The Employee
acknowledges and agrees that his/her employment by the Company
under this Agreement necessarily involves his/her knowledge of
and access to confidential and proprietary information
pertaining to the business of the Company and its
subsidiaries. Accordingly, the Employee agrees that at all
times during the term of this Agreement and for a period of
two (2) years after the termination of the Employee's
employment hereunder, he/she will not, directly or indirectly,
without the express written authority of the Company, unless
directed by applicable legal authority having jurisdiction
over the Employee, disclose to or use, or knowingly permit to
be so disclosed or used, for the benefit of himself/herself,
any person, corporation or other entity other than the
Company, (i) any information concerning any financial matters,
customer relationships, competitive status, supplier matters,
internal organizational matters, current or future plans, or
other business affairs of or relating to the Company and its
subsidiaries, (ii) any management, operational, trade,
technical or other secrets or any other proprietary
information or other data of the Company or its subsidiaries,
or (iii) any other information related to the Company or its
subsidiaries or which the Employee subsidiaries which has not
been published and is not generally known outside of the
Company. The Employee acknowledges that all of the foregoing,
constitutes confidential and proprietary information, which is
the exclusive property of the Company.
(b) Company Remedies. The Employee acknowledges and agrees that
any breach of this Agreement by him/her will result in
immediate irreparable harm to the Company, and that the
Company cannot be reasonably or adequately compensated by
damages in an action at law. In the event of an actual or
threatened breach by the Employee of the provisions of this
Section 8, the Company shall be entitled, to the extent
permissible by law, immediately to cease to pay or provide the
Employee or his/her dependents any compensation or benefit
being, or to be, paid or provided to him pursuant to Section 3
of this Agreement, and also to obtain immediate injunctive
relief restraining the Employee from conduct in breach or
threatened breach of the covenants contained in this Section
8. Nothing herein shall be construed as prohibiting the
Company from pursuing any other remedies available to it for
such breach or threatened breach, including the recovery of
damages from the Employee.
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9. Reimbursement of Fees. The Company agrees to pay, to the full extent
permitted by law, all legal fees and expenses which the Employee may
reasonably incur as a result of any contest by the Company, Internal
Revenue Service or others regarding the validity or enforceability of,
or liability under, any provision of this Agreement or any guarantee of
performance thereof (including as a result of any contest by the
Employee about the amount of any payment pursuant to Section 3 of this
Agreement) or in connection with any dispute arising from this
Agreement, regardless of whether Employee prevails in any such contest
or dispute.
10. Tax Gross-Up.
(a) Anything in this Agreement to the contrary notwithstanding, in
the event it shall be determined that any payment or
distribution by the Company to or for the benefit of the
Employee (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or
otherwise) (a "Payment") (i) would be subject to the excise
tax imposed by section 4999 of the Code or any interest or
penalties are incurred by the Employee with respect to the
excise tax (such excise tax, together with any such interest
and penalties, are hereinafter collectively referred to as the
"Excise Tax") or (ii) is made pursuant to a Change In Control,
then the Employee shall be entitled to receive an additional
payment (a "Gross-Up Payment") in an amount such that after
payment by the Employee of all taxes (including any interest
or penalties imposed with respect to such taxes), including,
without limitation, any income taxes (and any interest and
penalties imposed with respect thereto) and Excise Tax imposed
on the payment and Gross-Up Payment, the Employee retains an
amount equal to (x) the Payment plus (y) the Excise Tax (if
any) imposed upon the Payment and Gross-Up Payment.
(b) Subject to the provisions of Section 10(c), all determinations
required to be made under this Section 10, including whether
and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment, shall be made by a nationally recognized
accounting firm designated by the Company (the "Accounting
Firm") which shall provide detailed supporting calculations
both to the Company and the Executive within fifteen (15)
business days after there has been a Payment, or such earlier
time as requested by the Company. In the event that the
Accounting Firm is serving as accountant or auditor for the
individual, entity or group effecting the Change in Control,
the Company shall appoint another nationally recognized
accounting firm to make the determinations required hereunder
(which accounting firm shall then be referred to as the
Accounting Firm hereunder). All fees and expenses of the
Accounting Firm shall be borne solely by the Company. Any
Gross-Up Payment, as determined pursuant to this Section 10,
shall be paid by the Company to the Executive within five days
of the receipt of the Accounting Firm's determination. Any
determination by the Accounting Firm shall be binding upon the
Company and the Executive. As a result of the uncertainty in
the application of section 4999 of the Code at the time of the
initial
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determination by the Accounting Firm hereunder, it is possible
that Gross-Up Payments which will not have been made by the
Company should have been made ("Underpayment"), consistent
with the calculations required to be made hereunder. In the
event that the Company exhausts its remedies pursuant to
Section 10(c) and the Executive thereafter is required to make
a payment of any Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment that has occurred and
any such Underpayment shall be promptly paid by the Company to
or for the benefit of the Executive.
(c) The Executive shall notify the Company in writing of any claim
by the Internal Revenue Service that, if successful, would
require the payment by the Company of the Gross-Up Payment.
Such notification shall be given as soon as practicable but no
later than ten (10) business days after the Executive is
informed in writing of such claim and shall apprise the
Company of the nature of such claim and the date on which such
claim is requested to be paid. The Executive shall not pay
such claim prior to the expiration of the 30-day period
following the date on which it gives such notice to the
Company (or such shorter period ending on the date any payment
of taxes with respect to such claim is due). If the Company
notifies the Executive in writing prior to the expiration of
such period that it desires to contest such claim, the
Executive shall:
(i) give the Company any information reasonably requested
by the Company relating to such claim;
(ii) take such action in connection with contesting such
claim as the Company shall reasonably request in
writing from time to time, including, without
limitation, accepting legal representation with
respect to such claim by an attorney reasonably
selected by the Company;
(iii) cooperate with the Company in good faith in order
effectively to contest such claim; and
(iv) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay
directly all costs and expenses (including additional interest
and penalties) incurred in connection with such contest and
shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including
interest and penalties with respect thereto) imposed as a
result of such representation and payment of costs and
expenses. Without limitation on the foregoing provisions of
this Section 10(c), the Company shall control all proceedings
taken in connection with such contest and, at its sole option,
may pursue or forego any and all administrative appeals,
proceedings, hearings and conferences with the taxing
authority in
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respect of such claim and may, at its sole option, either
direct the Executive to pay the tax claimed and xxx for a
refund or contest the claim in any permissible manner, and the
Executive agrees to prosecute such contest to a determination
before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the
Company shall determine; provided, however, that if the
Company directs the Executive to pay such claim and xxx for a
refund, the Company shall advance the amount of such payment
to the Executive, on an interest-free basis, and shall
indemnify and hold the Executive harmless, on an after-tax
basis, from any Excise Tax or income tax (including interest
or penalties with respect thereto) imposed with respect to
such advance or with respect to any imputed income with
respect to such advance; and further provided that any
extension of the statute of limitations relating to payment of
taxes for the taxable year of the Executive with respect to
which such contested amount is claimed to be due is limited
solely to such contested amount. Furthermore, the Company's
control of the contest shall be limited to issues with respect
to which a Gross-Up Payment would be payable hereunder and the
Executive shall be entitled to settle or contest, as the case
may be, any other issue raised by the Internal Revenue Service
or any other taxing authority.
(d) If, after the receipt by the Executive of an amount advanced
by the Company pursuant to Section 10(c), the Executive
becomes entitled to receive any refund with respect to such
claim, the Executive shall (subject to the Company's complying
with the requirements of Section 10) promptly pay to the
Company the amount of such refund (together with any interest
paid or credited thereon after taxes applicable thereto). If,
after the receipt by the Executive of an amount advanced by
the Company pursuant to Section 10(c), a determination is made
that the Executive shall not be entitled to any refund with
respect to such claim and the Company does not notify the
Executive in writing of its intent to contest such denial of
refund prior to the expiration of 30 days after such
determination, then such advance shall be forgiven and shall
not be required to be repaid and the amount of such advance
shall offset, to the extent thereof, the amount of Gross-Up
Payment required to be paid.
(e) The payments provided for in this Section 10 hereof shall be
made not later than the tenth (10th) day following the
termination of the Executive's employment; provided, however,
that if the amounts of such payments cannot be finally
determined on or before such day, the Company shall pay to the
Executive on such day an estimate, as determined in good faith
by the Executive of the minimum amount of such payments to
which the Executive is clearly entitled and shall pay the
remainder of such payments (together with interest at 120% of
the rate provided in section 1274(b)(2)(B) of the Code) as
soon as the amount thereof can be determined but in no event
later than the thirtieth (30th) day after the termination of
the Executive's employment. In the event that the amount of
the estimated payments exceeds the amount subsequently
determined to have been
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due, such excess shall constitute a loan by the Company to the
Executive, payable on the fifth (5th) business day after
demand by the Company (together with interest at 120% of the
rate provided in section 1274(b)(2)(B) of the Code). In the
event the Company should fail to pay when due the amounts
described in this Section 10, the Executive shall also be
entitled to receive from the Company an amount representing
interest on any unpaid or untimely paid amounts from the due
date, as determined under this Section 10, to the date of
payment at a rate equal to 120% of the rate provided in
section 1274(b)(2)(B) of the Code.
11. Resolution of Differences Over Breaches of Agreement. Except as
otherwise provided herein, in the event of any controversy, dispute or
claim arising out of, or relating to this Agreement, or the breach
thereof, or arising out of any other matter relating to the Employee's
employment with the Company or the termination of such employment, the
parties may seek recourse only for temporary or preliminary injunctive
relief to the courts having jurisdiction thereof and if any relief
other than injunctive relief is sought, the Company and the Employee
agree that such underlying controversy, dispute or claim shall be
settled by arbitration conducted in Pittsburgh, Pennsylvania in
accordance with this Section 11 of this Agreement and the Commercial
Arbitration Rules of the American Arbitration Association ("AAA"). The
matter shall be heard and decided, and awards rendered by a panel of
three (3) arbitrators (the "Arbitration Panel"). The Company and the
Employee shall each select one arbitrator from the AAA National Panel
of Commercial Arbitrators (the "Commercial Panel") and AAA shall select
a third arbitrator from the Commercial Panel. The award rendered by the
Arbitration Panel shall be final and binding as between the parties
hereto and their heirs, executors, administrators, successors and
assigns, and judgment on the award may be entered by any court having
jurisdiction thereof.
12. Treatment of Certain Incentive Awards. All "Awards" held by the
Employee under the Company's 1994 Long-Term Incentive Plan (the "1994
Plan"), the Company's 1999 Long-Term Incentive Plan (the "1999 Plan")
or the Company's Breakthrough Long-Term Incentive Plan (the
"Breakthrough Plan") shall, upon a Change of Control, be treated in
accordance with the terms of those Plans as in effect on the date of
this Agreement, without regard to the subsequent amendment of those
Plans. For purposes of this Section 12, the terms "Award" and "Change
of Control" shall have the meanings ascribed to them in the 1999 Plan,
the 1994 Plan and the Breakthrough Plan, as the case may be.
13. Release. The Employee hereby acknowledges and agrees that prior to the
Employee's or his/her dependents' right to receive from the Company any
compensation or benefit to be paid or provided to him/her or his/her
dependents pursuant to Section 3 of this Agreement, the Employee may be
required by the Company, in its sole discretion, to execute a release
in a form reasonably acceptable to the Company, which releases any and
all claims (other than amounts to be paid to Employee as expressly
provided for under this Agreement) the Employee has or may have against
the Company or its subsidiaries, agents, officers, directors,
successors or assigns arising under any public
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13
policy, tort or common law or any provision of state, federal or local
law, including, but not limited to, the Pennsylvania Human Relations
Act, the Americans with Disabilities Act, Title VII of the Civil Rights
Act of 1964, the Civil Rights Protection Act, Family and Medical Leave
Act, the Fair Labor Standards Act, or the Age Discrimination in
Employment Act of 1967.
14. Waiver. The waiver by a party hereto of any breach by the other party
hereto of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach by a party hereto.
15. Assignment. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of the Company. The Company shall
be obligated to require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially
all of the Company's business or assets, by a written agreement in form
and substance satisfactory to the Employee, to expressly assume and
agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform if no succession
had taken place. This Agreement shall inure to the extent provided
hereunder to the benefit of and be enforceable by the Employee or
his/her legal representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. The Employee may not
delegate any of his/her duties, responsibilities, obligations or
positions hereunder to any person and any such purported delegation by
him shall be void and of no force and effect with respect to matters
relating to his/her employment and termination of employment. Without
limiting the foregoing, the Employee's rights to receive payments and
benefits hereunder shall not be assignable or transferable, other than
a transfer by Employee's will or by the laws of descent and
distribution.
16. Notices. Any notices required or permitted to be given under this
Agreement shall be sufficient if in writing, and if personally
delivered or when sent by first class certified or registered mail,
postage prepaid, return receipt requested -- in the case of the
Employee, to his/her residence address as set forth below, and in the
case of the Company, to the address of its principal place of business
as set forth below, in care of the Chairman of the Board -- or to such
other person or at such other address with respect to each party as
such party shall notify the other in writing.
17. Pronouns. Pronouns stated in either the masculine, feminine or neuter
gender shall include the masculine, feminine and neuter.
18. Entire Agreement. This Agreement contains the entire agreement of the
parties concerning the matters set forth herein and all promises,
representations, understandings, arrangements and prior agreements
regarding the subject matter hereof (including the Existing Agreements,
which the parties agree shall terminate as of the Effective Date
hereof) are merged herein and superseded hereby; provided that any
noncompetition agreement shall not be merged or superseded but shall
remain in full force and effect.
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14
The provisions of this Agreement may not be amended, modified,
repealed, waived, extended or discharged except by an agreement in
writing signed by the party against whom enforcement of any amendment,
modification, repeal, waiver, extension or discharge is sought. No
person acting other than pursuant to a resolution of the Board of
Directors shall have authority on behalf of the Company to agree to
amend, modify, repeal, waive, extend or discharge any provision of this
Agreement or anything in reference thereto or to exercise any of the
Company's rights to terminate or to fail to extend this Agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its officers thereunto duly authorized, and the Employee has
hereunto set his/her hand, all as of the day and year first above written.
ATTEST: EQUITABLE RESOURCES, INC.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxx
---------------------------- ----------------------------
Xxxx X. Xxxxx Xxxxx X. Xxxxxx
President and Chief Executive Officer
Address:
Xxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, XX 00000
WITNESS:
/s/ Xxxxxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxxxx
---------------------------- ----------------------------
Xxxxxxxxx X. Xxxxx Xxxxxxx X. Xxxxxxx
Address:
0000 Xxxxxxxxxx Xxxx
----------------------------
Xxxxxxxxxx, XX 00000
----------------------------
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