Exhibit 10.19
INDEMNIFICATION
AGREEMENT
This Agreement is
made effective as of the
day of
,
by and between Equitable Resources, Inc., a Pennsylvania
corporation (the “Company”) and
(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).
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 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
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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.
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, (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
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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 o
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