Exhibit 10.16(a)
CONFIDENTIALITY, NON-SOLICITATION
and
NON-COMPETITION
AGREEMENT
This Agreement is made as of
September 8, 2008 by and between Equitable
Resources, Inc., a Pennsylvania corporation (Equitable
Resources, Inc. and its subsidiary companies are hereinafter
collectively referred to as the “Company”), and Steven
T. Schlotterbeck (the “Employee”).
WITNESSETH:
WHEREAS, the Company and the
Employee are parties to a NonCompete Agreement dated as of
June 1, 2000 (the “Existing Agreement”), which
provides for the payment of certain benefits to the Employee if the
Employee’s employment terminates in certain circumstances;
and
WHEREAS, during the course of
Employee’s employment with the Company, the Company has
imparted and will continue to impart to Employee proprietary and/or
confidential information and/or trade secrets of the Company;
and
WHEREAS, in order to protect the
business and goodwill of the Company, the Company desires to obtain
or continue to obtain certain confidentiality, non-competition and
non-solicitation covenants from the Employee and the Employee
desires to provide for or continue to agree to such covenants in
exchange for the Company’s agreement to pay certain severance
benefits in the event that the Employee’s employment with the
Company is terminated in certain circumstances; and
WHEREAS, in order to 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, reflects the parties’ best efforts
to comply with the provisions of Section 409A of the Internal
Revenue Code of 1986, as amended, (the “Code”) to the
benefit of the Employee; and
WHEREAS, the Employee is willing to
enter into this Agreement, which contains, among other things,
specific confidentiality, non-competition and non-solicitation
agreements, in consideration of the foregoing and the simultaneous
execution by the Company and the Employee of a Change of Control
Agreement (the “Change of Control Agreement”);
and
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.
Restrictions on Competition and Solicitation . While
the Employee is employed by the Company and for a period of twelve
(12) months after the date of Employee’s termination of
employment with the Company for any reason Employee will not,
directly or indirectly, expressly or tacitly, for himself or on
behalf of any entity conducting business anywhere in the Restricted
Territory (as defined below): (i) act as an officer, manager,
advisor, executive,
1
shareholder, or consultant to any business in
which his duties at or for such business include oversight of or
actual involvement in providing services which are competitive with
the services or products being provided or which are being produced
or developed by the Company, or were under investigation by the
Company within the last two (2) years prior to the end of
Employee’s employment with the Company, (ii) recruit
investors on behalf of an entity which engages in activities which
are competitive with the services or products being provided or
which are being produced or developed by the Company, or were under
investigation by the Company within the last two (2) years
prior to the end of Employee’s employment with the Company,
or (iii) become employed by such an entity in any capacity
which would require Employee to carry out, in whole or in part, the
duties Employee has performed for the Company which are competitive
with the services or products being provided or which are being
produced or developed by the Company, or were under active
investigation by the Company within the last two (2) years
prior to the end of Employee’s employment with the
Company. Notwithstanding the foregoing, the Employee 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. This covenant shall
apply to any services, products or businesses under investigation
by the Company within the last two (2) years prior to the end
of Employee’s employment with the Company only to the extent
that the Employee acquired or was privy to confidential information
regarding such services, products or businesses. Employee
acknowledges that this restriction will prevent the Employee from
acting in any of the foregoing capacities for any competing entity
operating or conducting business within the Restricted Territory
and that this scope is reasonable in light of the business of the
Company.
Restricted Territory shall mean
(i) any states in which the Company has a regulated-utility
operation, which may change from time to time, but as of the
effective date of this Agreement are Pennsylvania, West Virginia
and Kentucky; or (ii) any states in which the Company owns,
operates or has contractual rights to purchase natural gas-related
assets (other than commodity trading rights), including but not
limited to, storage facilities, interstate pipelines, intrastate
pipelines, intrastate distribution facilities, liquefied natural
gas facilities, propane-air facilities or other peaking facilities,
and/or processing or fractionation facilities; or (iii) any
state in which the Company owns proved, developed and/or
undeveloped natural gas and/or oil reserves and/or conducts natural
gas or oil exploration and production activities of any kind; or
(iv) any state investigated by the Company as a possible
jurisdiction in which to conduct any of the business activities
described in subparagraphs (i) through (iii) above within
the last two (2) years prior to the end of Employee’s
employment with the Company.
Employee agrees that for a period of
twelve (12 ) months following the termination of
Employee’s employment with the Company for any reason,
including without limitation termination for cause or without
cause, Employee shall not, directly or indirectly, solicit the
business of, or do business with: (i) any customer that
Employee approached, solicited or accepted business from on behalf
of the Company, and/or was provided confidential or proprietary
information about while employed by the Company within the one
(1) year period preceding Employee’s separation from the
Company; and (ii) any prospective customer of the Company who
was identified to or by the Employee and/or who Employee was
provided confidential or proprietary information about while
employed by the Company within the one (1)
2
year period preceding Employee’s
separation from the Company, for purposes of marketing, selling
and/or attempting to market or sell products and services which are
the same as or similar to any product or service the Company offers
within the last two (2) years prior to the end of
Employee’s employment with the Company, and/or, which are the
same as or similar to any product or service the Company has in
process over the last two (2) years prior to the end of
Employee’s employment with the Company to be offered in the
future.
While Employee is employed by the
Company and for a period of twelve (12) months after the date of
Employee’s termination of employment with the Company for any
reason, Employee shall not (directly or indirectly) on his or her
own behalf or on behalf of any other person or entity solicit or
induce, or cause any other person or entity to solicit or induce,
or attempt to solicit or induce, any employee or consultant to
leave the employ of or engagement by the Company or its successors,
assigns or affiliates, or to violate the terms of their contracts
with the Company.
2.
Confidentiality of Information and Nondisclosure . The
Employee acknowledges and agrees that his/her employment by the
Company 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 as long as the information remains confidential after the
termination of the Employee’s employment, 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 and its subsidiaries, (i) any information
concerning any financial matters, customer relationships,
competitive status, supplier matters, internal organizational
matters, current or future plans, or other business affairs of or
relating to the Company and
