Exhibit 10.10
CHANGE OF CONTROL AGREEMENT
THIS AGREEMENT (the "Agreement") dated as of the 30th day of November,
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, Xxxxx X. Xxxxxx, an individual (the
"Employee");
WHEREAS, the Company and the Employee, pursuant to an Employment
Agreement dated May 4, 1998, are parties to a Change of Control Agreement dated
May 4, 1998, 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 (the "Existing Agreement"); 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 Agreement 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 and have agreed to amend the Employment Agreement accordingly;
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 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 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
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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 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
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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.
(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;
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(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 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
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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 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.
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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, 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,
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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.
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 of 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
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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 the 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 Employee 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
Employee 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 Employee. As a result of the
uncertainty in the application of section 4999 of the Code at the
time of the initial 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 Employee 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 Employee.
(c) The Employee 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 Employee 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 Employee 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 Employee in writing prior to
the expiration of such period that it desires to contest such
claim, the Employee 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,
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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 Employee 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 respect of such claim
and may, at its sole option, either direct the Employee to pay
the tax claimed and xxx for a refund or contest the claim in any
permissible manner, and the Employee 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 Employee to pay such claim and xxx for
a refund, the Company shall advance the amount of such payment to
the Employee, on an interest-free basis, and shall indemnify and
hold the Employee 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 Employee
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 Employee 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 Employee of an amount advanced by
the Company pursuant to Section 10(c), the Employee becomes
entitled to receive any refund with respect to such claim, the
Employee 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 Employee of an amount advanced by the Company
pursuant to Section 10(c), a determination is made that the
Employee shall not be entitled to any refund with respect to such
claim and the Company does not notify the Employee in writing of
its intent to contest such denial of refund prior to the
expiration of 30 days after such determination, then
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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 Employee'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 Employee on such day an
estimate, as determined in good faith by the Employee of the
minimum amount of such payments to which the Employee 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 Employee's employment. In the event
that the amount of the estimated payments exceeds the amount
subsequently determined to have been due, such excess shall
constitute a loan by the Company to the Employee, 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
Employee 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,
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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 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.
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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 Agreement,
which the parties agree shall terminate as of the Effective Date
hereof) are merged herein and superseded hereby; provided that the
Employment Agreement, as amended, the Post-Termination Confidentiality
& Non-Competition Agreement, dated May 4, 1998, and the Supplemental
Executive Retirement Agreement shall not be merged or superseded but
shall remain in full force and effect. 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 XXXXX By: /s/ XXXXXXX X. XXXXXXX
------------------------------ -------------------------------------
Xxxxxxx X. Xxxxxxx
Xx. Vice President and Chief
Administrative Officer
Address:
One Oxford Centre
Suite 3300
Xxxxxxxxxx, XX 00000
WITNESS:
/s/ XXXXX XXXXX By: /s/ XXXXX X. XXXXXX
------------------------------ -------------------------------------
Address:
Xxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, XX 00000
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