Exhibit 10.18(b)


 


NONCOMPETE
AGREEMENT


 


This
Agreement is made as of October 23, 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
Charlene J. Gambino (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 Change of Control
Agreement (the “Change of Control Agreement”), which enhances 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, 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. Employee will also be entitled to 12
months of health benefits continuation and outplacement assistance for a period
not to exceed 6 months. 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 six (6) 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 industry, including the production, transmission, distribution and
marketing of oil, natural gas or electricity and the provision of related
energy services (including project development and engineering analysis,
construction management, project financing, equipment operation and
maintenance, energy savings metering, monitoring and verification, and
facilities management (developing and operating private power, cogeneration and
central plant facilities)) anywhere in the continental United States (including
the Gulf of Mexico), Central America or South America, except that the
restriction as to the regulated distribution of oil, natural gas or electricity
shall be limited to 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, 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 employment (for purposes of
this subsection (i) employment or engagement by a customer of the Company to
provide or manage services that are provided by the Company shall be deemed to
violate this subsection (i)); (ii) directly or indirectly on his or her own
behalf or on behalf of any other person or entity contact (A) any customer of
the Company with whom he or she had contact while employed by the Company, or
(B) any person or entity to whom he or she attempted to market the Company’s
products and services while employed by the Company, in either case, for the
purpose of soliciting the purchase of any product or service that competes with
any product or service offered by the Company or which was considered to be
offered by the Company while the Employee was employed by the Company; (iii)
take away or interfere, or attempt to interfere, with any custom, trade or
existing contractual relations of the Company, including any business project
or any contemplated business project which representatives of the Company have
discussed with any potential participant in such project; or (iv) 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 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.


 


3.             The
Company may terminate this Agreement by giving 12 months’ prior written notice
to the Employee; provided that all provisions of this Agreement shall apply if
any event specified in sections 1 or 2 occurs prior to the expiration of such
12-month period. Notwithstanding anything in this Agreement to the contrary,
this Agreement shall immediately terminate and be of no further force and
effect upon the occurrence of a “Change of Control” as such term is defined in
the Change of Control Agreement and neither the Company nor the Employee shall
be bound by the terms of this Agreement following a Change of Control as so
defined.


 


4.             The
provisions of this Agreement are severable. To the extent that any provision of
this Agreement is deemed unenforceable in any court of law the parties intend
that such provision be construed by such court in a manner to make it enforceable.


 


5.             The
Employee acknowledges and agrees that: (i) this Agreement is necessary for the
protection of the legitimate business interests of the Company; (ii) the
restrictions contained


 

















 


in this Agreement are reasonable;
(iii) the Employee has no intention of competing with the Company within the
limitations set forth above; (iv) the Employee acknowledges and warrants that
Employee believes that Employee will be fully able to earn an adequate
livelihood for Employee and Employee’s dependents if the covenant not to
compete contained in this Agreement is enforced against the Employee; and (v)
the Employee has received adequate and valuable consideration for entering into
this Agreement.


 


6.             The
Employee stipulates and agrees that any breach of this Agreement by the
Employee will result in immediate and irreparable harm to the Company, the
amount of which will be extremely difficult to ascertain, and that the Company
could not be reasonably or adequately compensated by damages in an action at
law. For these reasons, the Company shall have the right, without objection
from the Employee, to obtain such preliminary, temporary or permanent mandatory
or restraining injunctions, orders or decrees as may be necessary to protect
the Company against, or on account of, any breach by the Employee of the
provisions of Section 2 hereof. In the event the Company obtains any such
injunction, order, decree or other relief, in law or in equity, (i) the
duration of any violation of Section 2 shall be added to the 6-month restricted
period specified in Section 2, and (ii) the Employee shall be responsible for
reimbursing the Company for all costs associated with obtaining the relief,
including reasonable attorneys’ fees and expenses and costs of suit. Such right
to equitable relief is in addition to the remedies the Company may have to
protect its rights at law, in equity or otherwise.


 


7.             This
Agreement (including the covenant not to compete contained in Section 2) shall
be binding upon and inure to the benefit of the successors and assigns of the
Company.


 


8.             This
Agreement shall be governed by and construed in accordance with the laws of the
Commonwealth of Pennsylvania. For the purpose of any suit, action or proceeding
arising out of or relating to this Agreement, Employee irrevocably consents and
submits to the jurisdiction and venue of any state or federal court located in
Allegheny County, Pennsylvania. Employee agrees that service of the summons and
complaint and all other process which may be served in any such suit, action or
proceeding may be effected by mailing by registered mail a copy of such process
to Employee at the addresses set forth below. Employee irrevocably waives any
objection which they may now or hereafter have to the venue of any such suit,
action or proceeding brought in such court and any claim that such suit, action
or proceeding brought in such court has been brought in an inconvenient forum
and agrees that service of process in accordance with this Section will be
deemed in every respect effective and valid personal service of process upon
Employee. Nothing in this Agreement will be construed to prohibit service of
process by any other method permitted by law. The provisions of this Section
will not limit or otherwise affect the right of the Company to institute and
conduct an action in any other appropriate manner, jurisdiction or court. The
Employee agrees that final judgment in such suit, action or proceeding will be
conclusive and may be enforced in any other jurisdiction by suit on the
judgment or in any other manner provided by law.


 


9.             This
Agreement contains the entire agreement between the parties hereto with respect
to the subject matter hereof and supersedes all prior agreements and
understandings, oral or written (other than the Change of Control Agreement). This
Agreement may not be changed, amended, or modified, except by a written
instrument signed by the parties.


 

















 


IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed by its
officers thereunto duly authorized, and the Employee has hereunto set his hand,
all as of the day and year first above written.


 


	
  ATTEST:

  	
  EQUITABLE
  RESOURCES, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Gregory R. Spencer

  	
   

  
	
   

  	
   

  
	
  WITNESS:

  	
  EMPLOYEE:

  
	
   

  	
   

  
	
   

  	
   

  	
  /s/
  Charlene J. Gambino