Exhibit 10.26 (b)
NONCOMPETE
AGREEMENT
This Agreement is made as of
December 1, 1999 by and between Equitable Resources, Inc., a
Pennsylvania corporation (Equitable Resources, Inc. and its
majority-owned subsidiaries are hereinafter collectively referred
to as the “Company”), and John A. Bergonzi (the
“Employee”).
WITNESSETH:
WHEREAS, in order to protect the
business and goodwill of the Company, the Company desires to obtain
certain non-competition covenants from the Employee and the
Employee desires 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 events; and
WHEREAS, the Employee is willing to
enter into this Agreement, which contains, among other things,
specific non-competition agreements, in consideration of the
simultaneous execution by the Company and the Employee of a new
Change of Control Agreement (the “Change of Control
Agreement”), which enhances and clarifies in certain respects
the benefits that the Company will pay to the Employee if the
Employee’s employment with the Company is terminated in
certain events following a change of control of the
Company.
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.
If the employment of the Employee with the Company is terminated by
the Company for any reason other than Cause (as defined below) or
if the Employee terminates his or her employment with the Company
for Good Reason (as defined below), the Company shall pay the
Employee, from the date of termination, in addition to any payments
to which the Employee is entitled under the Company’s
severance pay plan, twelve (12) months of base salary at the
Employee’s annual base salary level in effect at the time of
such termination or immediately prior to the salary reduction that
serves as the basis for termination for Good Reason. Such
base salary amount shall be paid by the Company to the Employee in
one lump sum payable within thirty (30) days after the
Employee’s termination or resignation hereunder. Solely
for purposes of this Agreement, “Cause” shall mean
(i) a conviction of a felony, a crime of moral turpitude or
fraud, (ii) the Employee’s willful and continuous engagement
in conduct which is demonstrably and materially injurious to the
Company, or (iii) the willful and continued refusal by the Employee
to perform the duties of his or her position in a reasonable manner
for thirty (30) days after written notice is given to the Employee
by the Company specifying in reasonable detail the nature of the
deficiency in the Employee’s performance. Solely for
purposes of this Agreement, termination for “Good
Reason” shall mean termination of employment by the Employee
within ninety (90) days after (i) being demoted, or (ii) being
given notice of a reduction in his or her annual base
salary (other than a
reduction of not more than 10% applicable to all senior officers of
the Company).
2.
While the Employee is employed by the Company and for a period of
twelve (12) months after date of Employee’s termination of
employment with Company for any reason, the Employee shall not (i)
directly or indirectly engage, whether as an employee, consultant,
partner, owner, agent, stockholder, officer, director or otherwise,
alone or in association with any other person or entity, in (A)
[the energy] [the utility] [the energy services] [the oil and gas
exploration and production] business [in the markets in which the
Company conducted such business or contemplated (with the
Employee’s knowledge) conducting such business at the time of
the termination of Employee’s employment] [within a fifty
(50) mile radius of any location at which the Company engages in
such business], or (B) any business activity that competes with any
project or proposed project which was discussed by or with the
Employee in the course of his or her employment with the Company or
any project or proposed project with respect to which the Company
initiated any business activity during the course of his or her
employ
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