Exhibit 10.19(b)


 


NONCOMPETE
AGREEMENT


 


This
Agreement is made as of Nov. 6, 2004 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
Diane L. Prier (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), the Company shall pay the
Employee, from the date of termination, twenty-four (24) 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
twenty-four (24) months of health benefits continuation and outplacement
assistance for a period not to exceed twelve (12) 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.


 


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 industry, including the exploration, production, transmission,
distribution and marketing of oil, natural gas or natural gas liquids anywhere
in the continental


 

















 


United States east of the
Mississippi River (excluding the Gulf of Mexico), except that the restriction
as to the regulated distribution of oil, natural gas or natural gas liquids 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. 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 securities exchange
or have been registered under Section 12(g) of the Securities Exchange Act of
1934.


 


3.             The
Company may terminate this Agreement by giving twenty-four (24) 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 twenty-four (24) month period. Notwithstanding anything in
this Agreement to the contrary, upon the occurrence of a Change of Control as
such term is defined in the Change of Control Agreement, this Agreement shall
remain in full force and effect and may not thereafter be terminated (even if
notice of termination has been given in the previous twenty-four (24) months
under the first sentence of this paragraph), except upon written notice by
Employee to the Company. If Employee receives payment of benefits under the
Change of Control Agreement, he shall not receive benefits under this Agreement,
which shall thereupon terminate and be of no further force or effect.


 


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. In an action by the Company to enforce the covenants set forth in
paragraph 2 hereof, any claims asserted by Employee against the Company,
including but not limited to a claim by the Employee for breach of this
Agreement, shall not constitute a defense to the Company’s action to enforce
the aforementioned covenants.


 

















 


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 12 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
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.

  
	
   

  	
   

  
	
  /s/
  Tracy L. Caruso

  	
   

  	
  By:

  	
  /s/
  Charlene Petrelli

  	
   

  
	
   

  	
   

  
	
  WITNESS:

  	
  EMPLOYEE:

  
	
   

  	
   

  
	
  /s/
  Philip R. Prier

  	
   

  	
  /s/
  Diane L. Prier