Exhibit 10.18
AMENDED AND RESTATED
INDEMNIFICATION AGREEMENT
This Amended and Restated Agreement
(this “Agreement”) is made effective as of the 3
rd day of December, 2008, by and between
Equitable Resources, Inc., a Pennsylvania corporation (the
“Company”) and «Indemnitee» (the
“Indemnitee”), a director and/or officer of the
Company.
WHEREAS , it is essential that the Company retain and
attract as directors and officers the most capable persons
available; and
WHEREAS , Indemnitee is a director and/or officer of the
Company and in that capacity is performing a valuable service for
the Company; and
WHEREAS , Company Bylaws (the “ Bylaws
”) contain a provision which provides for indemnification of
and advancement of expenses to the directors and officers of the
Company for liabilities and expenses they incur in their capacities
as such, and the Bylaws and the applicable indemnification statutes
of the Commonwealth of Pennsylvania provide that they are not
exclusive; and
WHEREAS , in recognition of Indemnitee’s need for
protection against personal liability in order to enhance
Indemnitee’s continued service to the Company in an effective
manner, the potential difficulty in obtaining satisfactory
Directors and Officers Liability Insurance (“ D &
O Insurance ”) coverage, and Indemnitee’s reliance
on the Bylaws, and in part to provide Indemnitee with specific
contractual assurance that the protection promised by the Bylaws
will be available to Indemnitee (regardless of, among other things,
any amendment to or revocation of the Bylaws or any change in the
composition of the Company’s Board of Directors or
acquisition transaction relating to the Company), the Company
desires to provide in this Agreement for the indemnification of and
the advancing of expenses to Indemnitee to the fullest extent
permitted by law and as set forth in this Agreement, and, to the
extent insurance is maintained, for the continued coverage of
Indemnitee under the Company’s D & O Insurance
policies.
NOW, THEREFORE
, in consideration of the premises
and of Indemnitee continuing to serve the Company directly or, at
its request, another enterprise, and intending to be legally bound
hereby, the parties hereto agree as follows:
1.
Indemnity of Indemnitee.
(a)
The Company shall indemnify and hold
harmless the Indemnitee against any and all reasonable expenses,
including fees and expenses of counsel, and any and all liability
and loss, including judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement, incurred or
paid by Indemnitee in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter “a
proceeding”) and whether or not by or in the right of the
Company or otherwise,
to which the Indemnitee is, was or at any time
becomes a party, or is threatened to be made a party or is involved
(as a witness or otherwise) by reason of the fact that Indemnitee
is or was a director or officer of the Company or is or was serving
at the request of the Company as director, officer, employee,
trustee or representative of another corporation or of a
partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, whether the basis
of such proceeding is alleged action in an official capacity or in
any other capacity while serving as a director, officer, employee,
trustee or representative, unless the act or failure to act giving
rise to the claim for indemnification is determined by a court to
have constituted willful misconduct or recklessness; provided,
however, that the Company shall indemnify the Indemnitee in
connection with a proceeding (or part thereof) initiated by the
Indemnitee (other than a proceeding to enforce the
Indemnitee’s rights to indemnification under this Agreement
or otherwise) prior to a Change of Control, as defined in
Section 2(e), only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Company.
(b)
Subject to the foregoing limitation
concerning certain proceedings initiated by the Indemnitee prior to
a Change of Control, the Company shall pay the expenses (including
fees and expenses of counsel) incurred by Indemnitee in connection
with any proceeding in advance of the final disposition thereof
promptly after receipt by the Company of a request therefor stating
in reasonable detail the expenses incurred or to be
incurred.
(c)
If a claim under paragraph
(a) or (b) of this section is not paid in full by the
Company within forty-five (45) days after a written claim has been
received by the Company, the Indemnitee may, at any time
thereafter, bring suit against the Company to recover the unpaid
amount of the claim. The burden of proving that
indemnification or advances are not appropriate shall be on the
Company. The Indemnitee shall also be entitled to be paid the
expenses of prosecuting such claim to the extent he or she is
successful in whole or in part on the merits or otherwise in
establishing his or her right to indemnification or to the
advancement of expenses. The Company shall pay such fees and
expenses in advance of the final disposition of such action on the
terms and conditions set forth in Section 1(b).
(d)
The termination of any action, suit
or proceeding to which indemnitee is a party by judgment, order,
settlement, or conviction, or upon a plea of nolo contender or its
equivalent, shall not create a presumption that Indemnitee engaged
in willful misconduct or recklessness or otherwise is not entitled
to recover hereunder.
2.
Maintenance of Insurance and
Funding.
(a)
The Company represents that a
summary of the terms of the policies of D&O Insurance in effect
as of the date of this Agreement is attached hereto as
Exhibit A (the “ Insurance Policies
”).
Subject only to the provisions of
Section 2(b) hereof, the Company agrees that, so long as
Indemnitee shall continue to serve as an officer or director of the
Company (or shall continue at the request of the Company to serve
as a director, officer, employee, trustee or representative of
another corporation, partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit
plan) and thereafter so long as Indemnitee shall be subject to
any
2
possible claim or threatened, pending or
completed action, suit or proceeding, whether civil, criminal or
investigative, by reason of the fact that Indemnitee was a director
or officer of the Company (or served in any of said other
capacities), the Company shall purchase and maintain in effect for
the benefit of Indemnitee one or more valid, binding and
enforceable policy or policies of D & O Insurance
providing coverage at least comparable to that provided pursuant to
the Insurance Policies.
(b)
The Company shall not be required to
maintain said policy or policies of D & O Insurance in
effect if, in the reasonable, good faith business judgment of the
then Board of Directors of the Company (i) the premium cost
for such insurance is substantially disproportionate to the amount
of coverage, (ii) the coverage provided by such insurance is
so limited by exclusions that there is insufficient benefit from
such insurance or (iii) said insurance is not otherwise
reasonably available; provided, however, that in the event the then
Board of Directors makes such a judgment, the Company shall
purchase and maintain in force a policy or policies of D &
O Insurance in the amount and with such coverage as the then Board
of Directors determines to be reasonably available.
Notwithstanding the general provisions of this Section 2(b),
following a Change of Control, any decision not to maintain any
policy or policies of D & O Insurance or to reduce
the amount or coverage under any such policy or policies shall be
effective only if there are Disinterested Directors (as defined in
Section 2(e) hereof) and shall require the concurrence of
a majority of the Disinterested Directors.
(c)
If and to the extent the Company,
acting under Section 2(b), does not purchase and maintain in
effect the policy or policies of D & O Insurance described
in Section 2(a), the Company shall indemnify and hold harmless
the Indemnitee to the full extent of the coverage which would
otherwise have been provided by such policies. The rights of
the Indemnitee hereunder shall be in addition to all other rights
of Indemnitee under the remaining provisions of this
Agreement.
(d)
In the event of a Potential Change
of Control or if and to the extent the Company is not required to
maintain in effect the policy or policies of D & O
Insurance described in Section 2(a) pursuant to the
provisions of Section 2(b), the Company shall, upon written
request by Indemnitee, create a “Trust” for the benefit
of Indemnitee and from time to time, upon written request by
Indemnitee, shall fund such Trust in an amount sufficient to pay
any and all expenses, including attorneys’ fees, and any and
all liability and loss, including judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement
actually and reasonably incurred by him or on his behalf for which
the Indemnitee is entitled to indemnification or with respect to
which indemnification is claimed, reasonably anticipated or
proposed to be paid in accordance with the terms of this Agreement
or otherwise; provided that in no event shall more than $100,000 be
required to be deposited in any Trust created hereunder in excess
of the amounts deposited in respect of reasonably anticipated
expenses, including attorneys’ fees. The amounts to be
deposited in the Trust pursuant to the foregoing funding obligation
shall be determined by a majority of the Disinterested Directors
whose determination shall be final and conclusive. At all
times the Trust shall remain as an asset of the Company and subject
to the claims of the Company’s creditors.
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The terms of the Trust shall provide
that upon a Change of Control (i) the Trust shall not be
revoked or the principal thereof invaded, without the written
consent of the Indemnitee except as set forth in the preceding
paragraph, (ii) the Trust shall advance, within two business
days of a request by the Indemnitee, any and all expenses,
including attorneys’ fees, to the Indemnitee (and the
Indemnitee hereby agrees to reimburse the Trust under the
circumstances under which the Indemnitee would be required to
reimburse the Company under Section 5 of this Agreement),
(iii) the Trust shall continue to be funded by the Company in
accordance with the funding obligation set forth above,
(iv) the Trustee shall promptly pay to the Indemnitee all
amounts for which the Indemnitee shall be entitled to
indemnification pursuant to this Agreement or otherwise, and
(v) all unexpended funds in such Trust shall revert to the
Company upon a final determination by a majority of the
Disinterested Directors or a court of competent jurisdiction, as
the case may be, that the Indemnitee has been fully indemnified
under the terms of this Agreement. The Trustee shall be a
bank or trust company or other individual or entity chosen by the
Indemnitee and reasonably acceptable and approved of by the
Company.
(e)
For the purposes of this
Agreement:
(i)
a “ Change of Control
” shall mean any of the following events (each of such events
being herein referred to as a “Change of
Control”):
A.
The sale or other disposition by the
Company of all or substantially all of its assets to a single
purchaser or to a group of purchasers, other than to a corporation
with respect to which, following such sale or disposition, more
than eighty percent (80%) of, respectively, the then outstanding
shares of Company common stock and the combined voting power of the
then outstanding voting securities entitled to vote generally in
the election of the Board of Directors is then owned beneficially,
directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners,
respectively, of the outstanding Company common stock and the
combined voting power of the then outstanding voting securities
immediately prior to such sale or disposition in substantially the
same proportion as their ownership of the outstanding Company
common stock and voting power immediately prior to such sale or
disposition;
B.
The acquisition in one or more
transactions by any person or group, directly or indirectly, of
beneficial ownership of twenty percent (20%) or more of the
outstanding shares of Company common stock or the combined voting
power of the then outstanding voting securities of the Company
entitled to vote generally in the election of the Board of
Directors; provided, however, the following shall not constitute a
Change of Control: (i) any acquisition by the Company or
any of its subsidiaries, or any employee benefit plan (or related
trust) sponsored or m
