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Exhibit 10.12
AMENDED AND RESTATED POST-TERMINATION CONFIDENTIALITY
AND NON-COMPETITION AGREEMENT
This Agreement made this 1st day of December, 1999 (the "Effective
Date"), by and between EQUITABLE RESOURCES, INC., having a business address at
Xxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000 (Equitable Resources, Inc. and
its subsidiary companies hereinafter collectively known as the "Company") and
XXXXX X. XXXXXX, an individual and resident of Pittsburgh, Pennsylvania (the
"Executive").
WHEREAS, the Company and Executive, pursuant to an Employment Agreement
dated May 4, 1998 (the "Employment Agreement"), are parties to a
Post-Termination Confidentiality and Non-Competition Agreement dated May 4, 1998
(the "Existing Agreement");
WHEREAS, the parties continue to be willing to exchange certain
severance benefits for the Executive's agreement to comply with specific
post-employment confidentiality and non-competition requirements contained
herein; and
WHEREAS, in connection with amendment of the Employment Agreement and
the substitution of a new Change of Control Agreement dated December 1, 1999
(the "Change of Control Agreement"), the Company and the Executive desire also
to amend and restate the Existing Agreement.
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:
SECTION 1. CONFIDENTIALITY:
Recognizing (1) that trade secrets or confidential information in any way
related to the business activities of the Company, such as, but not limited to:
marketing plans, business plans, technical information, market information,
customer lists, pricing data and strategies, financial information, business
methods or practices, programs, hardware and software (referred to hereinafter
collectively as "Confidential Information"), constitute valuable assets of the
Company, and (2) that such Confidential Information is the property of the
Company, Executive covenants, in consideration of Executive's access to and use
of Confidential Information, to hold such Confidential Information in trust for
the Company, and successors and assigns, and not to disclose or use the same
other than in the business of the Company, specifically agreeing:
(a) not to, directly or indirectly, disclose or make available to
anyone or use outside of the Company's organization during or after the term of
employment, any Confidential Information unless such disclosure or availability
or use is approved by the Company;
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(b) to use reasonable efforts to safeguard all Confidential
Information within the possession or control of Executive at all times so it is
not exposed to, or taken by, any unauthorized person (including unauthorized
employees and agents of the Company);
(c) upon termination of employment, to deliver to the Company all
papers, photographs, photoreproductions, computer tapes, tape recordings and
other materials, including but not limited to Confidential Information,
including personal notes and reproductions, relating to the business of the
Company, its subsidiaries and affiliates in the Executive's possession or
control.
This Section 1 shall not apply to any Confidential Information that the
Company has voluntarily disclosed to the public or that has otherwise legally
entered the public domain or which was known by the Executive prior to his
employment with the Company or which is required by law to be disclosed.
SECTION 2. NON-COMPETITION:
For a period of two years from the termination date of his employment, the
Executive will not (i) engage, directly or indirectly, whether as principal or
as agent, officer, director, employee, consultant, owner, partner, shareholder,
or otherwise, alone or in association with any other person, corporation or
other entity, in any business which produces, markets, or sells any product or
service in competition with products or services which the Company, produces,
markets, or sells in any geographic market where the Company is engaged in
business; (ii) solicit, directly or indirectly, either for himself or any other
person, any business related to the business of any customer, supplier, licensee
or other person having a business relationship with the Company, or induce or
attempt to induce any such person to cease doing business with the Company;
(iii) interfere, or attempt to interfere, with any contemplated business project
which representatives of the Company have discussed with any potential
participant in such project; or (iv) induce, or attempt to induce, any employee
of the Company to leave the employ of the Company or to violate the terms of his
contract with the Company, or employ or otherwise engage as an employee,
independent contractor or otherwise any such person. Notwithstanding the
provisions of Section 2(a)(i), the Executive may purchase or otherwise acquire
up to (but not more than) 1% of any class of securities of any enterprise (but
without otherwise participating in the activities of such enterprise) if such
securities are listed on any national or regional securities exchange or have
been registered under Section 12(g) of the Securities Exchange Act of 1934. The
Executive agrees that this covenant is reasonable with respect to duration,
geographical area and scope. The two year period described in the first sentence
of this Section, shall be replaced with a one year period in the event the
Executive is involuntarily terminated by the Company or has a termination date
within twenty-four (24) months of a Change of Control as defined in the Change
of Control Agreement between the Executive and the Company.
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SECTION 3. CONSIDERATION:
If the employment of the Executive with the Company is terminated by the Company
for any reason (other than for Cause as defined below), the Executive shall
receive, from the date of termination, in addition to any payments he may be
entitled to under other agreements with the Company (in accordance with their
terms), 24 months of base salary payments at the salary level in effect at the
time of such termination. For purposes of this Agreement, "Cause" shall include:
(i) the conviction of a felony, a crime of moral turpitude or fraud or having
committed fraud, misappropriation or embezzlement in connection with the
performance of his duties hereunder, (ii) willful and repeated failures to
substantially perform his assigned duties, or (iii) a material violation of any
other provisions of this Agreement or express significant policies of the
Company. The purpose of this Agreement is to obtain the Executive's agreement to
the covenants contained herein and 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.
SECTION 4. TERM:
The term of this Agreement shall commence on the Effective Date and shall remain
in effect unless amended or terminated by mutual written agreement or as
provided in Section 8(e) of the Employment Agreement, as amended; provided,
however, that upon the occurrence of a Change of Control as such term is defined
in the Change of Control Agreement, this Agreement may be terminated upon
written notice by Executive to the Company.
SECTION 5. CERTAIN REMEDIES:
Without limiting the remedies available to the Company, the Executive
acknowledges that damages at law will be an insufficient remedy to the Company
in the event that the Executive violates the terms of this Agreement and that
the Company may apply for, and obtain, injunctive relief to restrain the breach
or threatened breach of, or otherwise to specifically enforce, such covenants.
If it should become desirable or necessary for the Company to seek compliance
with this Agreement by judicial proceedings, the period of time during which
Executive is restricted under Section 2 shall be extended by the amount of time
remaining under the original restriction on the date Executive first breached
this Agreement, commencing on the date of the trial court order or settlement
requiring such compliance. If litigation should develop between the parties
regarding this Agreement or the obligations undertaken hereby, the party
prevailing in such litigation may recover from the other such costs and
expenses, including reasonable attorneys' fees, if any, as a court of competent
jurisdiction may determine or award.
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SECTION 6. GOVERNING LAW:
This Agreement shall be governed by and construed in accordance with the laws of
the Commonwealth of Pennsylvania.
SECTION 7. BINDING AGREEMENT:
The obligations of Executive under this Agreement shall continue after the
termination of his employment with the Company for any reason, with or without
cause, and shall be binding on Executive's heirs, executors and legal
representatives and shall inure to the benefit of any successors by merger or
purchase of substantially all of the assets of the Company.
SECTION 8. COMPANY VIOLATION NOT A DEFENSE:
The existence of any claim or cause of action against the Company, whether
predicated on this Agreement or otherwise, shall not constitute a defense to
enforcement by the Company of this Agreement.
SECTION 9. AUTHORIZATION TO MODIFY RESTRICTIONS:
It is the intention of the parties that the provisions of this Agreement shall
be enforceable to the fullest extent permissible under applicable law, but that
the unenforceability (or modification to conform to such law) of any provision
or provisions hereof shall not render unforeseeable, or impair the remaining
provisions of this Agreement. If any provision or provisions of this Agreement
shall be deemed illegal, invalid or otherwise unenforceable, either in whole or
in part, this Agreement shall be deemed amended to delete or modify, as
necessary, the offending provision or provisions and to alter the bounds thereof
to render it valid and enforceable.
SECTION 10. CONSENT TO JURISDICTION AND VENUE:
Any action or proceeding arising out of or relating to this Agreement shall be
commenced by either party in any state or federal court in Allegheny County,
Pennsylvania and the parties hereby irrevocably agree that all claims in respect
of any such action or proceeding may be heard and determined in any such court.
Executive and the Company acknowledge that the forum designated herein present
the most convenient forum for both parties. In any action commenced in any of
these courts, Executive and the Company waive any objections to inconvenience of
forum, venue and personal jurisdiction of the Court.
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SECTION 11. NOTICES:
Notices hereunder shall be in writing and shall be deemed effective when
received by the Company or the Executive at their respective addresses above
given.
SECTION 12. WAIVER:
A waiver by the Company of a breach of any of the provisions of this Agreement
shall not operate or be construed as a waiver or excuse of any subsequent or
different breach.
SECTION 13. INTEGRATION AND MODIFICATION:
This Agreement contains the entire agreement between the parties hereto with
respect to the subject matter hereof (except for the Employment Agreement and
its appendices executed as of even date herewith between the Executive and the
Company) and supersedes all prior agreements and understandings, oral or
written. This Agreement may not be changed, amended, or modified, except by a
written instrument signed by the parties and shall survive the expiration or
termination of the Employment Agreement.
Executive acknowledges that he has read and understands the provisions of this
Agreement, that he has been given an opportunity for his legal counsel to review
this Agreement and that the provisions of this Agreement are reasonable.
ATTEST: EQUITABLE RESOURCES, INC.
/s/ Xxxxxxx X. X'Xxxxxxxx By /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. X'Xxxxxxxx Xxxxxxx X. Xxxxxxx
Vice President, General Counsel Senior Vice President and
and Corporate Secretary Chief Administrative Officer
WITNESS:
/s/ Xxxxx X. Xxxxx /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxx Xxxxx X. Xxxxxx
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