Exhibit 10.02
CONFIDENTIAL AGREEMENT AND RELEASE
In consideration of their mutual promises set forth in this
Confidential Agreement and Release ("Agreement and Release"), Xxxxxxxxx X. Xxxxx
and Equitable Resources, Inc. (ERI), intending to be legally bound, hereby agree
as follows:
1. Xxxxxxxxx X. Xxxxx does hereby voluntarily retire from ERI effective
as of August 1, 1997 ("Retirement Date"). It is mutually agreed that the certain
Employment Agreement dated as of March 18, 1988 and amended and restated on
March 15, 1996 between Xx. Xxxxx and ERI ("Employment Agreement") is hereby
terminated as of August 1, 1997, 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 three-year period after
the Retirement Date, ending July 31, 2000. Xx. Xxxxx shall not, without the
written consent of ERI, for a period of three years from the Retirement 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 in any way relating to ERI without ERI's prior written consent.
3. Xx. Xxxxx will be paid his remaining unused 1997 vacation, if any,
from which required tax withholdings will be made. This amount will be included
in his final regular pay check.
4. All stock options granted to Xx. Xxxxx under any ERI plan, whether
vested or unvested, were forfeited on the Retirement Date and are of no further
force or effect.
5. Conditioned upon Xx. Xxxxx'x compliance with the terms of this
Agreement and Release, ERI shall pay Xx. Xxxxx (i) the sum of $217,750 in a lump
sum, minus any required withholding taxes, within seven (7) business days of
execution hereof, and (ii) the sum of $43,550 on the 15th of each month,
commencing January 15, 1998 and ending on July 15, 2000. In the event of Xx.
Xxxxx'x death during the term of the Agreement, provided that Xx. Xxxxx is not
in breach hereof, any remaining payments will be paid monthly to his spouse or,
if she is not living, to his estate. No other payments will be forthcoming
except as expressly set forth herein.
6. ERI shall continue to include Xx. Xxxxx as a participant in and
continue to pay when due the employer's portion of the monthly premium for Xx.
Xxxxx'x continuation of coverage under ERI's retiree health, medical (including
vision and dental care) and life insurance programs through the month of July
2000 at the same levels as on the Retirement Date, subject to such changes in
the programs as may affect all other participants. From August 1, 2000, Xx.
Xxxxx is eligible to participate in all ERI retiree programs applicable to him
in accordance with the terms of such programs in effect at any time after such
date, and nothing contained herein shall be construed as a waiver of any such
right thereto which he may have as a retiree.
7. With respect to the executive life insurance policies owned by ERI ,
ERI will pay the estimated amount of premiums due through July 2000 to Xx. Xxxxx
in a lump sum equal to $45,000 minus applicable tax withholding, if any. ERI
shall have no further obligation to Xx. Xxxxx with respect to such policies or
premiums therefor and may cancel the policies, collect the cash value or take
other action with respect to such policies in its sole discretion. The life
insurance policies commonly referred to as "Second to Die" will continue to be
owned by ERI with premiums to be paid by ERI in accordance with the terms of
those policies through July, 2000, subject to the provisions of the Split Dollar
Life Insurance Agreement with Xx. Xxxxx (incorporated herein by reference),
which provides for refund to ERI from any proceeds of such policies of all
premiums paid by it both before and after the Retirement Date.
8. Xx. Xxxxx shall be entitled to receive all benefits accrued prior to
July 31, 1997 under the ERI's 401K plan and Deferred Compensation Plan,
including the Supplemental Executive Retirement Plan contribution made to the
Deferred Compensation Plan on Xx. Xxxxx'x behalf on January 1, 1997. All monies
in the Deferred Compensation Plan will be valued as of July 31, 1997 and paid to
Xx. Xxxxx, minus all applicable taxes, if any. Xx. Xxxxx is not eligible to
participate in any of the referenced plans after July 31, 1997.
9. 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 9 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.
10. 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 9 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 Paragraphs 4-7 hereof plus interest at the legal rate; in the
event of any such claim or breach, ERI shall not be obligated to make any
further payments to Xx. Xxxxx under said paragraphs. 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.
11. 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.
12. 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.
13. Xx. Xxxxx warrants that he has no complaints, charges or actions
now pending against Releasees in any forum and he shall not institute any action
against Releasees in any forum based upon any acts or events arising out of or
related to his employment with Releasees or his separation from employment with
Releasees, except to the extent that any such action may involve arbitration
hereunder of any claim by Xx. Xxxxx that ERI has breached the terms and
conditions of this Agreement and Release.
14. 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.
15. 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.
16. 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 Xxxx Xxxxxx, Human
Resources Department, 420 Boulevard of the Allies, Xxxxxxxxxx, XX 00000. This
Agreement and Release shall not become effective or enforceable until that
seven-day revocation period has expired.
17. 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.
18. 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.
19. 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 take an early
retirement from ERI. Xx. Xxxxx should inform prospective employers that Xxxx
Xxxxxx, Director-Human Resource Operations, is designated as the person to whom
such inquiries should be directed.
20. 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 Chief Legal Officer, 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 Chief Legal Officer, 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.
21. 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.
22. 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. Xxxxxxxxx X. Xxxxx
420 Boulevard of the Allies 000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000 Xxxxxxxxxxx, XX 00000
Attn: Corporate Secretary
23. 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
29th day of August, 1997.
EQUITABLE RESOURCES, INC.
By /s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxxxx Xxxxxxxxx X. Xxxxx
Senior V.P. & CAO
Sworn to and subscribed before me this
29th day of August, 1997.
/s/ Xxxxxx Xxx Xxxxxxxx
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NOTARY PUBLIC
