NON-COMPETITION AGREEMENT
This Non-Competition Agreement is made this 9th day of July, 1999 by
and between Equitable Resources, Inc., a Pennsylvania corporation having a
business address at One Oxford Centre, Suite 3300, Xxxxxxxxxx, Xxxxxxxxxxxx
00000 (Equitable Resources, Inc. and its subsidiary companies hereinafter
collectively known as the "Company") and Xxxx X. Xxxxxx, Xx. ("the Employee").
WITNESSETH
WHEREAS, in connection with the Employee's accepting a new assignment
with the Company pursuant to the terms of an Employment Agreement of even date
herewith, the Company and the Employee have determined that it is in the best
interests of both parties to enter into this agreement;
WHEREAS, the Company is willing to grant to the Employee certain
additional benefits in consideration of the Employee's agreement to comply with
specific post-employment non-competition requirements and to execute the
attached release; and
WHEREAS, the Company and the Employee wish to enter into this agreement
to reflect their understanding of those benefits and requirements;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. During the term of his employment and for a period of twelve (12)
months from the termination date of his employment with the Company, the
Employee will not (i) engage, directly or indirectly, (including by way of
example only, as a principal, partner, joint venturer, employee, agent or
consultant) nor have any direct or indirect interest in any enterprise which
engages in the production, transmission, storage or distribution of natural gas
or natural gas liquids in Pennsylvania, West Virginia, Kentucky, Virginia,
western Maryland, eastern Ohio or western New York, except with the Company's
prior written consent; (ii) act in any capacity, directly or indirectly, to
provide information or services to any third party in any way relating to the
Company without the Company's prior written consent; (iii) engage in any
business activity competitive with any project or proposed project which has
been discussed by the Employee in the course of his employment with the Company
or any project or proposed project with respect to which the Company has
initiated any business activity; (iv) take away or interfere, or attempt to
interfere, with any customer, trade or existing contractual relations of the
Company, including any business project or any contemplated business project
which representatives of the Company have discussed with any potential
participant in such project; or (v) interfere, or attempt to interfere with any
officer, employee, representative, or agent of the Company, or induce, or
attempt to induce, any of them to leave the employ of the Company, its
successors, assigns, or affiliates, or to violate the terms of their contracts
with the Company. The foregoing provisions shall not restrict the Employee from
having any investments in any competing enterprise the stock of which is listed
on a national securities exchange or traded publicly over-the-counter so long as
such investment does not give the Employee more than one percent (1%) of the
voting stock of such company.
2. In consideration of the foregoing covenants and conditional upon the
execution by the Employee of a release at the time of termination substantially
in the form attached hereto as Exhibit A, the Company agrees that if the
employment of the Employee with the Company is terminated by the Company for any
reason (other than as the result of a conviction of a felony, conviction of a
crime of moral turpitude or conviction of fraud, or as the result of the
Employee's willful and continuous engagement in conduct which is demonstrably
and materially injurious to the Company, or as the result of repeated and
willful refusal by the Employee to perform his or her job duties in a reasonable
manner) or if the Employee resigns within ninety (90) days of receiving a
demotion and/or a reduction (or freeze beyond the date when other Company
officers receive an annual increase) in the Employee's salary, the Employee
shall receive, from the date of termination twelve (12) months of base salary
payments based on an annual base salary rate of $270,000, subject to withholding
taxes. Such base salary amount shall be paid by the Company to the Employee in
biweekly installments following the termination date. It is intended that
benefits payable under this Agreement should be treated as payments in the
nature of compensation within the meaning of Code Section 280G and the
Regulations thereunder (the "280G Rules") and that such payments constitute
reasonable compensation within the meaning of the 280G Rules.
3. Employee acknowledges his continuing obligation under Company policy
and common law during employment and following termination thereof to preserve
the Company's confidential information and to return all Company property
promptly after termination of employment.
4. The Company may terminate this Agreement upon twelve (12) months'
prior written notice to the Employee; provided that all provisions of this
Agreement shall apply to any event specified in paragraph 1 or 2 hereof
occurring prior to the expiration of such twelve (12) month period.
5. To the extent that any provision of this Agreement is deemed
unenforceable in any court of law such provision may be modified by such court
to the extent necessary to make this Agreement enforceable.
6. The covenants set forth in Paragraph 1 are independent of any
Company policies or agreements other than this Non-Competition Agreement and the
existence of any claim or cause of action of Employee against the Company
predicated on such policies or other agreements shall not constitute a defense
to the enforcement by the Company of such covenants. Without limiting the
remedies available to the Company, Employee acknowledges that damages at law
will be an insufficient remedy to the Company in the event that he violates the
terms of such covenants and that the Company may apply for and have injunctive
relief in any court of competent jurisdiction to restrain the breach or
threatened breach of, or otherwise to specifically enforce, such covenants.
Further, in the event of breach by Employee of the covenants, the Company shall
have the right to cease making payments to Employee, and to recover amounts
previously paid, under Paragraph 2 above. This provision will not limit
Employee's liability if the Company's actual damages, including attorneys' fees
and expenses, exceed such amounts. The time period set forth in Paragraph 1
shall be extended by the length of time during which Employee shall have been in
breach of any of said provisions. Employee shall have the right to enforce the
Company's obligations hereunder in the event of a breach thereof by the Company.
7. This Agreement shall inure to the benefit of any successors or
assigns of the Company, subject to the obligations of the Company hereunder.
8. This Agreement and the rights of the parties relating to the subject
matter hereof shall be governed by and construed in accordance with the laws of
the Commonwealth of Pennsylvania.
9. This Agreement contains the entire agreement between the parties
hereto with respect to the non-competition and other covenants of the Employee
set forth in Paragraph 1 hereof and the consideration therefor and supersedes
all prior agreements and understandings, oral or written, relating to this
subject matter. This Agreement may not be changed, amended, or modified, except
by a written instrument signed by the parties. The payments referenced in
Paragraph 2 hereof are not in lieu of or substitution for any separation
payments to which Employee may otherwise be entitled under the terms of the
Company's separation allowance plan as in effect on the termination date and
under the Employment Agreement of even date herewith.
IN WITNESS WHEREOF, the Company has caused this Non-Competition
Agreement to be executed by its officers thereunto duly authorized, and the
Employee has hereunto set his hand, all as of the day and year first above
written.
ATTEST: EQUITABLE RESOURCES, INC.
/s/ Xxxxxxx X. X'Xxxxxxxx /s/ X. X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Senior Vice President and
Chief Administrative Officer
WITNESS: EMPLOYEE:
/s/ Xxxxxxx Xxxx /s/ Xxxx X. Xxxxxx
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