Exhibit 10.02 (a)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT dated as of the 18th day of March
1988, between Equitable Resources, Inc., a Pennsylvania
corporation, with its principal executive offices at 420
Boulevard of the Allies, Pittsburgh, Pennsylvania 15219 (the
Company"), and Frederick H. Abrew, an individual and resident of
Venetia, Pennsylvania (the "Executive").
WHEREAS, the Executive is and has been employed by the
Company and is currently Vice President - Utility Services of the
Company; and
WHEREAS, the Company wishes to assure itself of the services
of Executive for the period provided in this Agreement and the
Executive is willing to serve in the employ of the Company on a
full time basis for said period and upon the other terms and
conditions hereinafter provided;
NOW, THEREFORE, in consideration of the mutual covenants
herein contained and intending to be legally bound, the Company
and the Executive hereby amend and restate their agreement
relating to the Executive's employment with the Company as
follows:
1. Position and Duties.
(a) The Company hereby agrees to, and hereby does,
continue to employ the Executive, for the term of this Agreement,
to render services to the Company as Vice President - Utility
Services of the Company and in connection therewith to perform
such duties as the Executive is now performing and such other
duties, commensurate with such position, as the Executive may
reasonably be directed to perform by the President and Chief
Executive Officer of the Company provided, however, that without
the prior written consent of the Executive there shall be no
geographic change from Pittsburgh, Pennsylvania or its environs
or transfer of the office or place of performance of the
Executive's service or duties. Except to the extent that the
President and Chief Executive Officer of the Company delegates
the duties and assigns the positions described below with
respect to subsidiaries of the Company to such other person or
persons as the President and Chief Executive Officer of the
Company, in his discretion, shall determine, the Executive will
continue to serve as the vice president of such of the
subsidiaries of the Company and in connection therewith to
perform such duties as the Executive is now performing and such
other duties, commensurate with such position as vice president
of such subsidiaries, as the Executive may reasonably be directed
to perform by the President and Chief Executive Officer of the
Company. The Executive shall have the right to devote a
reasonable amount of time and effort to industry, community or
charity organizations, and, subject to the provisions of
Section 7 and Section 8 hereof, the Executive may serve as a
director of other companies with the consent of the President and
Chief Executive Officer of the Company and of the Board which
consent in either case shall not be unreasonably withheld.
(b) The Executive hereby accepts such employment and
agrees faithfully to perform to the best of his ability the
duties described in Section 1(a).
2. Term. Subject to Section 4 hereof, the term of the
employment of the Executive under this Agreement shall commence
on the day this Agreement shall have been executed by both
parties hereto (the "Effective Date") and shall terminate on the
last day of the calendar month in which occurs the earlier of (i)
the Executive's 65th birthday or (ii) unless further extended as
hereinafter set forth, the date which is 36 calendar months after
the Effective Date. 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 Executive's 65th birthday) for one additional
calendar month unless one party notifies the other in writing
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 hereof shall no longer be subject to
automatic extension and the term hereof shall expire on the date
which is 36 calendar months after the last day of the month in
which such written notice is received. (The last day of the
calendar month in which the term hereof, as extended from time to
time, shall end is hereinafter referred to as the "Expiration
Date").
3. Compensation. In consideration of the Executive's
Agreements contained herein and as compensation to the Executive
for the performance of the services required hereunder, the
Company shall pay or grant to him the following salary and other
compensation and benefits:
(a) a base salary, payable in equal installments not
less frequently than monthly, at such annual rate, not less than
$120,000 per year, as is determined from time to time by the
Board or an appropriate committee thereof, provided, however,
that the Executive's base salary shall be periodically reviewed
by the Board and shall be increased if the Board determines that
an increase is appropriate on the basis of the types of factors
it generally takes into account in increasing the salaries of
executive officers of the Company;
(b) an annual incentive compensation payment equal to
the amount, if any, payable to the Executive under the terms and
conditions of the Company's Short-Term Incentive Compensation
Plan as in effect for each annual period during the term of this
Agreement;
(c) such other awards under the Company's Key Employee
Restricted Stock Option and Stock Appreciation Rights Incentive
Compensation Plan (the "Option Plan") or under any other stock
option, incentive compensation or other compensation plan,
program or arrangement, now existing or hereafter adopted as
applicable to executive officers of the Company, as the Board, or
an appropriate committee thereof administering such plan, program
or arrangement, may determine appropriate in light of the duties
and responsibilities of the Executive in respect to other
executive officers;
(d) participation on the same terms and conditions as
all other employees in all employee benefit plans, whether or not
qualified within the meaning of Section 401(a) of the Internal
Revenue Code of 1986, as may be amended from time to time (the
"Code"), as may be now or hereafter sponsored or maintained for
all employees of the Company and participation on the same terms
and conditions as other executive officers in such other plan,
program or arrangement as may be now or hereafter sponsored or
maintained for executive officers of the Company;
(e) reimbursement for reasonable travel and other
expenses incurred by Executive in performing his obligations
hereunder pursuant to the terms and conditions of the Company's
policy in respect thereto; and
(f) reasonable vacations, absences on account of
temporary illness and fringe benefits customarily enjoyed by
employees or officers of the Company under the terms and
conditions of the Company's policy in respect thereto.
Nothing contained in this Agreement shall prevent the Board
from amending or otherwise altering the Short-Term Incentive
Plan, the Option Plan or any other plan, program or arrangement
so long as such amendment or alteration (i) is accomplished
pursuant to the terms thereof as in effect on the Effective Date
or on the date such is adopted, if later, and (ii) equitably
affects all employees, executive or otherwise, previously covered
thereunder.
4. Termination of Employment. This Agreement shall terminate
upon the Expiration Date or upon the death of the Executive. The
Company may terminate this Agreement prior to the Expiration Date
and the Executive's employment hereunder for "Disability" or
"Cause" and the Executive may terminate the Agreement prior to
the Expiration Date and his employment hereunder pursuant to his
"Resignation for Good Reason" or "Retirement for Good Reason" as
such terms are hereinafter defined. Termination of this Agreement
for any reason not set forth above shall not be deemed a
permitted termination and shall be deemed a breach of this
Agreement. In the event of any termination of this Agreement
prior to the Expiration Date, whether a permitted termination or
otherwise, the provisions of Section 5 of this Agreement shall
determine the amount, if any, of any compensation thereafter due
the Executive in respect to such termination.
As used in this Agreement, the following terms shall have
the meanings set forth:
(a) Disability. The Executive shall be entitled to
leaves of absence from the Company in accordance with the
Company's policy generally applicable to executives for illness
or other temporary disabilities for a period or periods not
exceeding an aggregate of six months in any calendar year, and
his compensation and status as an employee hereunder shall
continue during any such period or periods. If, as a result of
the Executive's incapacity due to physical or mental illness, the
Executive shall have been absent from his duties with the
Company on a full-time basis for six consecutive months, and
within thirty days after written notice of termination is given
by the Company, the Executive shall not have returned to the
full-time daily performance of his duties, the Executive shall be
deemed to have experienced a Disability and the Company may
terminate the Executive's employment.
(b) Cause. Termination by the Company of employment for
"Cause" shall mean termination upon:
(i) the willful and continued failure by the
Executive to substantially perform his duties with the Company
(other than (A) any such failure resulting from his incapacity
due to physical or mental illness, or (B) any such actual or
anticipated failure resulting from his Resignation for Good
Reason or Retirement for Good Reason), after a written demand for
substantial performance is delivered to the Executive by the
Board which specifically identifies the manner in which the Board
believes that the Executive has not substantially performed his
duties, and which failure has not been cured within thirty days
after such written demand; or
(ii) the willful and continued engaging by the
Executive in conduct which is demonstrably and materially
injurious to the Company, monetarily or otherwise, or
(iii) the breach by the Executive of the
Noncompetition clause in Section 7 hereof or the Confidentiality
clause in Section 8 hereof.
For purposes of this Subsection (b), no act, or failure to
act, on the Executive's part shall be considered "willful" unless
done, or omitted to be done, by the Executive in bad faith and
without reasonable belief that such action or omission was in the
best interest of the Company. Notwithstanding the foregoing, the
Executive shall not be deemed to have been terminated for Cause
unless and until there shall have been delivered to him a copy of
a resolution duly adopted by the affirmative vote of not less
than three-quarters of the entire membership of the Board at a
meeting of the Board called and held for that purpose (after
reasonable notice to the Executive and an opportunity for the
Executive, together with his counsel, to be heard before the
Board), finding that in the good faith opinion of the Board the
Executive was guilty of conduct set forth above in clauses (i),
(ii) or (iii) of the first sentence of this Subsection (b) and
specifying the particulars thereof in detail.
(c) Retirement for Good Reason. For purposes of this
Agreement "Retirement for Good Reason" shall mean the Executive's
election to retire under the terms of the Company's Pension Plan
for Salaried Employees as a result of the occurrence of one of
the events referred to in Subsection (e) below.
(d) Resignation for Good Reason. For purposes of this
Agreement, "Resignation for Good Reason" shall mean the
Executive's election to resign as a result of the occurrence of
one of the events referred to in Subsection (e) below.
(e) Good Reason. For purposes of this Agreement, "Good
Reason" shall, absent the Executive's express written consent to
the contrary, mean:
(i) removal of the Executive as Vice President -
Utility Services of the Company, (by reason other than death,
Disability or Cause), or any other material breach by the Company
of its obligations contained in this Agreement;
(ii) the assignment to the Executive of any
duties inconsistent with his status as Vice President - Utility
Services of the Company or a substantial alteration in the nature
or status of the Executive's responsibilities which renders the
Executive's position to be of less dignity, responsibility or
scope;
(iii) a reduction by the Company in the
Executive'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 Executive's salary be reduced below $120,000 per
year without the Executive's consent;
(iv) the failure to grant the Executive an annual
salary increase reasonably necessary to maintain such salary as
reasonably comparable to salaries of senior executives holding
positions equivalent to the Executive's in the industry in which
the Company's then principal business activity is conducted;
(v) the relocation of the Company's principal
executive offices to a location outside the Pittsburgh,
Pennsylvania Metropolitan Area or the Company's requiring the
Executive to be based anywhere other than the Company's principal
executive offices except for required travel on the Company's
business to an extent substantially consistent with the
Executive's present business travel obligations
(vi) the failure by the Company to continue in
effect any compensation plan, program or arrangement in which the
Executive participates, unless an equitable arrangement
reasonably acceptable to the Executive (embodied in an ongoing
substitute or alternative plan, program or arrangement) has been
made with respect to such plan, or the failure by the Company to
continue the Executive's participation therein;
(vii) any material reduction by the Company of the
benefits enjoyed by the Executive 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 Executive of any
material fringe benefits, or the failure by the Company to
provide the Executive with the number of paid vacation days to
which he 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 (vii) 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;
(viii) 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 ll(b)(ii)
hereof; or
(ix) any purported termination of the Executive's
employment which is not effected pursuant to a Notice of
Termination satisfying the requirements of Subsection (f) below
and, if applicable, Subsection (b) above, and for purposes of
this Agreement, no such purported termination shall be effective.
(f) Notice of Termination. Any purported termination by
the Company or Resignation for Good Reason or Retirement for Good
Reason by the Executive shall be communicated by written Notice
of Termination to the other party hereto in accordance with
Section 10 hereof. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the
specific termination, resignation or retirement provision in this
Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for such
termination, resignation or retirement under the provision so
indicated.
(g) Date of Termination, Etc. "Date of
Termination" shall mean (i) if the Executive's employment is
terminated for Disability, thirty days after Notice of
Termination is given (provided that the Executive shall not have
returned to the performance of the Executive's duties on a full-
time daily basis during such thirty-day period), and (ii) if the
Executive's employment is terminated for any other reason, the
date specified in the Notice of Termination (which shall not be
less than thirty days nor more than sixty days, from the date
such Notice of Termination is given); provided that if within
thirty days after any Notice of Termination is given the party
receiving such Notice of Termination notifies the other party
that a dispute exists concerning the termination, the Date of
Termination shall be the date on which the dispute is finally
determined by mutual written agreement of the parties, by a
binding arbitration award, or by a final judgment, order or
decree of a court of competent jurisdiction (the time for appeal
therefrom having expired and no appeal having been perfected).
Any party giving notice of a dispute shall pursue the resolution
of such dispute with reasonable diligence. Notwithstanding the
pendency of any such dispute, the Company will continue to pay
the Executive his full compensation in effect when the notice
giving rise to the dispute was given (including, but not limited
to, base salary) and continue the Executive as a participant in
all compensation, employee benefit and insurance plans, programs
and arrangements in which the Executive was participating when
the notice giving rise to the dispute was given, until the
dispute is finally resolved in accordance with this Subsection
(g).
5. Compensation Upon Termination.
(a) Death. If the Executive's employment hereunder
terminates by reason of his death, the Company shall be obligated
to pay to his surviving widow, or to his legal representatives if
he leaves no surviving widow or if his surviving widow dies prior
to fulfillment of the Company's obligations, (i) the Executive's
then current base salary for a six-month period commencing on the
first day of the month following the Executive's death, or until
the Expiration Date, whichever shall be the first to occur, and
(ii) any benefits to which the Executive is entitled under any
insurance policies on the life of the Executive, under the
Company's insurance programs and other employee benefit plans,
programs and arrangements then in effect and under the Company's
Pension Plan for Salaried Employees.
(b) Disability. If the Executive's employment hereunder
terminates by reason of his Disability, the Company shall pay to
the Executive, in monthly installments, such amount as shall
aggregate 70% of the Executive's then current base salary for the
lesser of a six-month period or until such time as the Executive
has reached the age at which he would be entitled to retire under
the Company's retirement policies and the Pension Plan for
Salaried Employees. Benefits otherwise receivable by the
Executive pursuant to this Subsection (b) shall be reduced to the
extent other benefits are received by the Executive pursuant to
any disability income or income protection plan, policy or
arrangement, the premiums for which or benefits under which are
paid by the Company. If the Executive dies prior to the date on
which such additional amounts would have ceased to be payable
under this Subsection (b), the amount that would have been
payable by the Company had he lived shall continue to be paid by
the Company to his surviving widow, for a period of 12 months
following the Executive's death, at the same times and rates as
it would have been payable to him.
(c) Cause. If the Executive's employment hereunder is
terminated by the Company for Cause, the Company shall pay to the
Executive his full base salary through the Date of Termination at
the rate in effect at the time Notice of Termination is given and
the Company shall have no further obligations to the Executive
under this Agreement.
(d) Voluntary Resignation or Retirement. In the event
the Executive retires or resigns other than pursuant to his
Retirement for Good Reason or Resignation for Good Reason, the
Company shall pay to the Executive his full base salary through
the Date of Termination at the rate in effect at the time Notice
of Termination is given and, except as provided in Section 6, the
Company shall have no further obligations to the Executive under
this Agreement.
(e) Other. If the Executive's employment hereunder is
terminated (1) by the Company other than for Cause or Disability
or (2) by the Executive pursuant to his Retirement for Good
Reason or Resignation for Good Reason, then the Executive shall
be entitled to the benefits provided below:
(i) the Company shall pay the Executive his full
base salary through the Date of Termination at the rate in effect
at the time Notice of Termination is
given;
(ii) in lieu of any further salary payments to the
Executive for periods subsequent to the Date of Termination, the
Company shall pay as severance pay to the Executive, not later
than the fifteenth day following the Date of Termination, a lump
sum severance payment equal to the Executive's full base salary
for the then remaining term of this Agreement (without regard to
the date of such Notice of Termination) at the rate then in
effect, discounted to present value at a discount rate of 7% per
annum applied to each future payment from the time it would have
become payable;
(iii) in lieu of shares of common stock issuable
upon exercise of outstanding options ("Options"), if any, or any
stock appreciation rights ("SAR"), if any, whether or not such
Options or SARs are vested or then exercisable pursuant to their
respective terms, granted to the Executive under the Company's
stock option or stock appreciation rights plans or otherwise
(which Options and SARs shall be cancelled upon the making of the
payment referred to below), the Executive shall receive, not
later than the fifteenth day following the Date of Termination,
an amount in cash equal to the product of (i) the difference (to
the extent that such difference is a positive number) obtained by
subtracting the per share exercise price of each Option and each
SAR held by the Executive, whether or not then fully exercisable,
from the closing price of the Common Stock (the "Closing Price")
as reported on the New York Stock Exchange on the Date of
Termination (or if not traded on the Date of Termination, the
closing price on the next preceding business day on which the
Common Stock traded), and (ii) the number of shares of Common
Stock covered by each such Option or SAR;
(iv) the Company shall also pay to the Executive
all legal fees and expenses incurred by the Executive in
contesting or disputing any such termination or in seeking to
obtain or enforce any right or benefit provided by this Agreement
or in connection with any tax audit or proceeding to the extent
attributable to the application of Section 4999 of the Code to
any payment or benefit provided hereunder;
(v) for a period of time remaining until the
Expiration Date, the Company shall arrange to provide the
Executive with and shall pay the cost or premiums when due for
life, disability and health-and-accident insurance benefits
substantially similar to those which the Executive is receiving
immediately prior to the Notice of Termination;
(vi) The payments under this Subsection (e) are
intended by the parties to be due and payable under the
circumstances of a termination for the reasons set forth above
whether or not such circumstances are preceded by a change in
control of the Company. Notwithstanding the intentions of the
parties, in the event that it is asserted by any governmental
agency, in any tax audit, administrative proceeding or otherwise,
that any payments provided under this Subsection (e) (the
"Severance Payments") are or will be subject to the tax (the
"Excise Tax") imposed by Section 4999 of the Code and/or that a
federal income tax deduction for amounts paid as Severance
Payments will not be allowed to the Company for any year by
reason of Section 280G of the Code, the Executive may contest or
refute such assertion with respect to the Excise Tax in any
appropriate forum (the "Executive's Contest") and the Company
shall diligently and vigorously contest or refute such assertion
with respect to the disallowance of such deduction in all
administrative proceedings and in the federal district court or
the Tax Court, whichever shall have jurisdiction (the "Company's
Contest"). The Executive's Contest and the Company's Contest
shall be conducted and presented separately unless the Executive,
in his discretion but with the consent of the Company, joins in
the Company's Contest. In any event, the Executive shall be
entitled to retain attorneys and other experts deemed necessary
or appropriate by the Executive to the proper presentation of the
Executive's Contest and shall not be compelled by the Company to
compromise, settle or otherwise terminate the Executive's Contest
without his written consent thereto. The Company and the
Executive shall cooperate one with the other and each shall
provide to the other copies of all documents relevant to or
useful in connection the Executive's Contest or the Company's
Contest as may reasonably be requested by the other. The
Executive shall attend any hearing, deposition or other
proceeding at which his attendance in person is material to the
Company's Contest. The Company shall cause the appropriate
authorized officer or officers of the Company to attend any
hearing, deposition or other matter at which the Company's
appearance is requested by any party; and
(vii) The payments provided for in this Subsection
(e), shall be made not later than the fifteenth day following the
Date of Termination, 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 Company, of the minimum amount
of such payments and shall pay the remainder of such payments
(together with interest at 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 day after the
Date of Termination. 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 Executive payable on the fifth day after demand by the
Company (together with interest at the rate provided in Section
1274(b)(2)(B) of the Code).
(f) The Executive shall not be required to mitigate
the amount of any payment provided for in this Section 5 by
seeking other employment or otherwise, nor shall the amount of
any payment provided for in this Section 5 be reduced by any
compensation earned by the Executive as the result of employment
by another employer, or otherwise. Benefits otherwise receivable
by the Executive pursuant to Section 5(e)(v) above shall be
reduced to the extent comparable benefits are actually received
by the Executive during the period of time remaining until the
Expiration Date from the plan or plans of any subsequent employer
or from any program maintained by any governmental body not
requiring contribution by the Executive, and any such benefits
actually received by the Executive shall be reported to the
Company.
(g) In addition to all other amounts payable to the
Executive under this Section 5, the Executive shall be entitled
to receive all benefits payable to him under the Company's
Pension Plan for Salaried Employees, the Employee Savings Plan,
and any other plan, program or arrangement relating to
retirement, profit sharing, or other benefits including, without
limitation, any employee stock ownership plan or any plan
established as a supplement to any of the aforenamed plans. No
amount payable to the Executive under Subsection 5(e) shall be
considered for any benefit calculation or other purpose under the
Company's Pension Plan for Salaried Employees.
6. Retirement Under Circumstances Not Constituting
Retirement For Good Reason. Nothing contained in this Agreement
shall be deemed to limit the Executive's ability to retire under
the Company's retirement policies and Pension Plan for Salaried
Employees under circumstances not constituting Retirement for
Good Reason and to receive all benefits payable to him under the
Company's Pension Plan for Salaried Employees, the Company's
Employee Savings Plan and any other plan, program or arrangement
relating to retirement.
7. Non Competition. During the term of this Agreement and
for one year thereafter, the Executive shall refrain from
competing with the Company or any subsidiary of the Company
except with the Company's prior written consent. The phrase
"refrain from competing with the Company or any subsidiary of the
Company" shall mean that the Executive will not engage, directly
or indirectly (including, by way of example only, as a principal,
partner, venturer, employee or agent) nor have any direct or
indirect interest in any enterprise (a "Competing Enterprise")
which competes with the Company or any subsidiary thereof by
engaging in the production, transmission, storage or distribution
of natural gas or natural gas liquids or the ownership or
operation of a central plant heating system in the Company's
distribution area or in substantial and direct competition with
any other business operation actively conducted by the Company or
its subsidiaries at the date of termination. It is agreed that
the foregoing provisions shall not restrict the Executive from
either (i) subject to the provisions of Subsection 8(a) hereof,
being a director of or having any investments or other interests
in an enterprise which is not a competing enterprise or (ii)
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 Executive more than one percent (1%) of the voting stock
of such company.
8. Confidentiality. The Executive agrees:
(a) To keep secret all confidential matters of the
Company and its subsidiaries and affiliates specifically
indicated to be such by the Company or established as such by
written Company policy, and not to disclose them to any one
outside the Company or its subsidiaries and affiliates, either
during or after his employment with the Company, except with the
Company's prior written consent or as required by law; and
(b) To deliver promptly to the Company on termination
of employment of the Executive by the Company all memoranda,
notes, records, reports and other documents (and all copies
thereof) with respect to any such confidential matters and other
proprietary information (such as customers lists, suppliers
lists, etc.) which the Executive may then possess or have under
his control.
9. Arbitration. Any disputes hereunder shall be settled by
arbitration in Pittsburgh, Pennsylvania under the auspices of,
and in accordance with the rules of, the American Arbitration
Association, and the decision in such arbitration shall be final
and conclusive on the parties and judgment upon such decision may
be entered in any court having jurisdiction thereof.
10. Notices. All notices and other communications which are
required or may be given under this Agreement shall be in
writing and shall be delivered personally or by registered or
certified mail addressed to the party concerned at the following
addresses:
If to the Company:
Equitable Resources, Inc.
420 Boulevard of Allies
Pittsburgh, PA 15219
If to the Executive:
Frederick H. Abrew
338 Bower Hill Road
Venetia, PA 15367
or to such other address as shall be designated by notice in
writing to the other party in accordance herewith. Notices and
other communications hereunder shall be deemed effectively given
when personally delivered, or, if mailed, 48 hours after deposit
in the United States mail.
11. Miscellaneous.
(a) This Agreement supersedes all prior agreements,
arrangements and undertakings, written or oral, relating to the
subject matter hereof.
(b) (i) This Arrangement shall inure to the benefit
of the Executive's heirs, representatives or estate to the extent
stated herein.
(ii) The Company shall require any successor
(whether direct or indirect, by purchase, merger, consolidation
or otherwise) to all or substantially all of the business or
assets of the Company, by agreement in form and substance
satisfactory to the Executive, expressly to 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 such
succession had taken place. As used in this Agreement, "Company"
shall mean the Company as defined in the preamble to this
Agreement and any successor to its business or assets which
executes and delivers the agreement provided for in this
Subsection 11(b)(ii) or which otherwise becomes bound by all the
terms and provisions of this Agreement by operation of law.
(c) This Agreement may be amended, modified,
superseded, cancelled, renewed or extended and the terms or
covenants hereof may be waived, only by a written instrument
executed by both of the parties hereto, or in the case of a
waiver, by the party waiving compliance. The failure of either
party at any time or times to require performance of any
provisions hereof shall in no manner affect the right at a later
time to enforce such provisions thereafter. No waiver by either
party of the breach of any term or covenant contained in this
Agreement, whether by conduct or otherwise, in any one or more
instances, shall be deemed to be, or construed as, a further or
continuing waiver of any such breach or a waiver of the breach of
any other term or covenant contained in this Agreement.
(d) In the event any one or more of the covenants,
terms or provisions contained in this Agreement shall be invalid,
illegal or unenforceable in any respect, the validity of the
remaining covenants, terms and provisions contained herein shall
be in no way affected, prejudiced or disturbed thereby.
(e) This Agreement is personal in nature and neither of
the parties hereto shall, without the consent of the other,
assign or transfer this Agreement or any rights or obligations
hereunder, except as provided in Paragraph ll(b) above. Without
limiting the foregoing, the Executive's right to receive payments
hereunder shall not be assignable or transferable, whether by
pledge, creation of a security interest or otherwise, other than
a transfer by his will or by the laws of descent or distribution,
and in the event of any attempted assignment or transfer contrary
to this Subsection 11(e) the Company shall have no liability to
pay any amount so attempted to be assigned or transferred.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed and delivered as of the date first above written.
ATTEST: EQUITABLE RESOURCES, INC.
By By
Secretary Donald I. Moritz, President and
Chief Executive Officer
WITNESS:
By By