Exhibit 10.5


 


CONFIDENTIALITY,
NON-SOLICITATION and


NON-COMPETITION
AGREEMENT


 


This Agreement
is made as of September 8, 2008 by and between Equitable Resources, Inc.,
a Pennsylvania corporation (Equitable Resources, Inc. and its subsidiary
companies are hereinafter collectively referred to as the “Company”), and Murry
S. Gerber (the “Employee”).


 


WITNESSETH:


 


WHEREAS, the
Company and the Employee are parties to a Amended and Restated Post-Termination
Confidentiality and Non-Competition Agreement dated as of December 1, 1999
(the “Existing Agreement”), which provides for the payment of certain benefits
to the Employee if the Employee’s employment terminates in certain
circumstances; and


 


WHEREAS,
during the course of Employee’s employment with the Company, the Company has
imparted and will continue to impart to Employee proprietary and/or
confidential information and/or trade secrets of the Company; and


 


WHEREAS, in
order to protect the business and goodwill of the Company, the Company desires
to obtain or continue to obtain certain  confidentiality,
non-competition and non-solicitation covenants from the Employee and the
Employee desires to provide for or continue 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
circumstances; and


 


WHEREAS, in
order to accomplish the foregoing objectives, the Company and the Employee
desire to terminate the Existing Agreement and to enter into this Agreement
which, among other things, reflects the parties’ best efforts to comply with
the provisions of Section 409A of the Internal Revenue Code of 1986, as
amended, (the “Code”) to the benefit of the Employee; and


 


WHEREAS, the
Employee is willing to enter into this Agreement, which contains, among other
things, specific confidentiality, non-competition and non-solicitation
agreements, in consideration of the foregoing and the simultaneous execution by
the Company and the Employee of a new Change of Control Agreement (the “Change
of Control Agreement”); and


 


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.             Restrictions on Competition and
Solicitation.  While
the Employee is employed by the Company and for a period of twenty-four (24)
months after the date of Employee’s termination of employment with the Company
for any reason  Employee will not,
directly or indirectly, expressly or tacitly, for himself or on behalf of any
entity conducting business anywhere in the Restricted Territory (as defined
below): (i) act as an officer, manager, advisor, executive, shareholder,
or consultant to any business in which his duties at or for such business
include oversight of or actual involvement in providing services which are
competitive with the services or products being provided or which are being
produced or developed by the Company, 


 


 


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or were under investigation by the Company within the last two (2) years
prior to the end of Employee’s employment with the Company, (ii) recruit
investors on behalf of an entity which engages in activities which are
competitive with the services or products being provided or which are being
produced or developed by the Company, or were under investigation by the
Company within the last two (2) years prior to the end of Employee’s
employment with the Company, or (iii) become employed by such an entity in
any capacity which would require Employee to carry out, in whole or in part,
the duties Employee has performed for the Company which are competitive with
the services or products being provided or which are being produced or
developed by the Company, or were under active investigation by the Company
within the last two (2) years prior to the end of Employee’s employment
with the Company.  Notwithstanding the
foregoing, the 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 or regional securities exchange or have been registered
under Section 12(g) of the Securities Exchange Act of 1934.  This covenant shall apply to any services,
products or businesses under investigation by the Company within the last two (2) years
prior to the end of Employee’s employment with the Company only to the extent
that the Employee acquired or was privy to confidential information regarding
such services, products or businesses. 
Employee acknowledges that this restriction will prevent the Employee
from acting in any of the foregoing capacities for any competing entity
operating or conducting business within the Restricted Territory and that this
scope is reasonable in light of the business of the Company.


 


Restricted Territory shall mean (i) any states in which the Company has a regulated-utility operation, which may change from time to time, but as of the effective date of this Agreement are Pennsylvania, West Virginia and Kentucky; or (ii) any states in which the Company owns, operates or has contractual rights to purchase natural gas-related assets (other than commodity trading rights), including but not limited to, storage facilities, interstate pipelines, intrastate pipelines, intrastate distribution facilities, liquefied natural gas facilities, propane-air facilities or other peaking facilities, and/or processing or fractionation facilities; or (iii) any state in which the Company owns proved, developed and/or undeveloped natural gas and/or oil reserves and/or conducts natural gas or oil exploration and production activities of any kind; or (iv) any state investigated by the Company as a possible jurisdiction in which to conduct any of the business activities described in subparagraphs (i) through (iii) above within the last two (2) years prior to the end of Employee’s employment with the Company.
 
Employee agrees that for a period of twenty-four (24)  months following the termination of Employee’s employment with the Company for any reason, including without limitation termination for cause or without cause, Employee shall not, directly or indirectly, solicit the business of, or do business with: (i) any customer that Employee approached, solicited or accepted business from on behalf of the Company, and/or was provided confidential or proprietary information about while employed by the Company within the one (1) year period preceding Employee’s separation from the Company; and (ii) any prospective customer of the Company who was identified to or by the Employee and/or who Employee was provided confidential or proprietary information about while employed by the Company within the one (1) year period preceding Employee’s separation from the Company, for purposes of marketing, selling and/or attempting to market or sell products and services which are the same as or similar to any product or service the Company offers within the last two (2) years prior to the end of 


 


 


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Employee’s employment with the Company, and/or, which are the same as or similar to any product or service the Company has in process over the last two (2) years prior to the end of Employee’s employment with the Company to be offered in the future.
 


While Employee is employed by the Company and
for a period of twenty-four (24) months after the date of Employee’s
termination of employment with the Company for any reason, Employee shall not
(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 solicit or 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.


 


2.             Confidentiality of
Information and Nondisclosure.  The
Employee acknowledges and agrees that his/her employment by the Company
necessarily involves his/her knowledge of and access to confidential and
proprietary information pertaining to the business of the Company and its
subsidiaries.  Accordingly, the Employee
agrees that at all times during the term of this Agreement and for as long as
the information remains confidential after the termination of the Employee’s
employment, he/she will not, directly or indirectly, without the express
written authority of the Company, unless directed by applicable legal authority
having jurisdiction over the Employee, disclose to or use, or knowingly permit
to be so disclosed or used, for the benefit of himself/herself, any person,
corporation or other entity other than the Company and its subsidiaries, (i) any
information concerning any financial matters, customer relationships,
competitive status, supplier matters, internal organizational matters, current
or future plans, or other business affairs of or relating to the Company and
its subsidiaries, (ii) any management, operational, trade, technical or
other secrets or any other proprietary information or other data of the Company
or its subsidiaries, or (iii) any other information related to the Company
or its subsidiaries which has not been published and is not generally known
outside of the Company.  The Employee
acknowledges that all of the foregoing, constitutes confidential and
proprietary information, which is the exclusive property of the Company.


 


3.                                     Severance
Benefit.


 


(a)                                  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, 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 payment of
an amount of cash equal to $20,000.  The
aggregate base salary and other cash amount payable shall be paid by the
Company to the Employee in one lump sum on the first day following the six (6) month
anniversary of the date of the Employee’s termination.  For 


 


 


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purposes of this
Agreement, the term “termination” when used in the context of a condition to,
or timing of, payment hereunder shall be interpreted to mean a “separation from
service” as that term is used in Section 409A of the Code.


 


(b)                                 Employee will also be entitled to  twenty-four (24) months of health benefits continuation if
terminated under circumstances described in subpart (a) above.  To the extent any such benefits cannot be
provided to the Employee on a non-taxable basis and the provision thereof would
cause any part of the benefits to be subject to additional taxes and interest
under Section 409A of the Code, then the provision of such benefits shall
be deferred to the earliest date upon which such benefits can be provided
without being subject to such additional taxes and interest.


 


(c)                                  Solely for purposes of this Agreement, “Cause”
shall include:


 


i.                                        the
conviction of a felony, a crime of moral turpitude or fraud or having committed
fraud, misappropriation or embezzlement in connection with the performance of
his duties hereunder,


 


ii.                                     willful
and repeated failures to substantially perform his assigned duties; or


 


iii.                                  a
violation of any provision of this Agreement or express significant policies of
the Company.


 


(d)                                 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).


 


(e)                                  The Company’s obligation to provide continuing
salary and health insurance benefits under this Section 3 shall be
contingent upon the following:


 


i.                                        Employee’s
execution of a release in a form reasonably acceptable to the Company, which
releases any and all claims (other than amounts to be paid to Employee as
expressly provided for under this Agreement) the Employee has or may have
against the Company or its subsidiaries, agents, officers, directors,
successors or 


 


 


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assigns arising under any
public policy, tort, contract or common law or any provision of state, federal
or local law, including, but not limited to, the Pennsylvania Human Relations
Act, the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964,
the Family and Medical Leave Act, the Age Discrimination in Employment Act of
1967, the Older Workers Benefit Protection Act, and the Employee Retirement
Income Security Act of 1974, all as amended; and


 


ii.                                     Employee’s
compliance with his contractual obligations to the Company including, but not
limited to, Employee’s obligations set forth in Sections 1 and 2 of this
Agreement.


 


4.             Authorization to Modify
Restrictions.  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.             Reasonable and Necessary
Agreement.  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.             Injunctive Relief and Attorneys’
Fees.  The Employee stipulates and
agrees that any breach of Sections 1 or 2 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 Sections 1 and 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 1 shall be added to the twenty-four
(24) month restricted period specified in Section 1, 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.             Binding Agreement.  This Agreement (including the covenants
contained in Sections 1 and 2) shall be binding upon and inure to the benefit
of the successors and assigns of the Company.


 


 


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8.             Governing Law/Consent to
Jurisdiction and Venue.  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 address set forth below (or such other address
as Employee shall provide to Company in writing).  Employee irrevocably waives any objection
which he may now or hereafter has 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.             Termination.  The Company may terminate this Agreement by
giving twelve (12) months’ prior written notice to the Employee; provided that
all provisions of this Agreement shall apply if any event specified in Section 3
occurs prior to the expiration of such twelve (12) 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 by the Company (even if
notice of termination has been given in the previous twelve (12) months under
the first sentence of this Section).


 


10.           Employment at Will.  Employee shall be employed at-will and for no
definite term.  This means that either
party may terminate the employment relationship at any time for any or no
reason.


 


11.           Executive Alternative Work
Arrangement Employment Status.  As an
executive officer of Equitable, Employee also has the opportunity to elect now
to participate in the newly-created status of “Executive Alternative Work
Arrangement” upon discontinuing full-time status.  The terms and conditions of Executive
Alternative Work Arrangement Employment Status are described in the Executive
Alternative Work Arrangement Employment Agreement attached as Exhibit A.  Set forth below is an election form to elect
to participate in this new classification. 
If Employee so elects to participate by signing the election form below,
the Executive Alternative Work Arrangement classification will be automatically
assigned to Employee if and when Employee gives Equitable (delivered to the
Vice President and Chief Human Resources Officer) at least 90 days’ advance
written notice of Employee’s intention to discontinue full-time status.  By signing the election below, Employee
thereby agrees to execute the attached Executive Alternative Work Arrangement
Employment  Agreement, which will become effective automatically on the
day following Employee’s relinquishment of full-time status, provided however
that Employee has retained executive officer status and is otherwise in good
standing 


 


 


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with Equitable
(i.e., has not been terminated for Cause nor left the Company for “Good
Reason”).


 


12.           Entire Agreement.  This Agreement contains the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements (including the Existing Agreement) and
understandings, oral or written (other than the Change of Control Agreement
dated September 8, 2008).  This
Agreement may not be changed, amended, or modified, except by a written
instrument signed by the parties; provided, however, that the Company may
amend this Agreement from time to time without Employee’s consent to the extent
deemed necessary or appropriate, in its sole discretion, to effect compliance
with Section 409A of the Code, including regulations and interpretations
thereunder, which amendments may result in a reduction of benefits provided hereunder
and/or other unfavorable changes to Employee.  Notwithstanding anything in this Agreement,
if Employee is entitled to receive payment of benefits under the Change of
Control Agreement, or any successor agreement, he or she shall not receive
benefits under this Agreement and, in lieu thereof, shall receive payment of
benefits under the Change of Control Agreement.


 


 


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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/ Kimberly L. Sachse

  	
   

  	
  By:

  	
  /s/Charlene Petrelli

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  September 23, 2008 

  	
   

  	
  September 23, 2008

  
	
  Date

  	
   

  	
  Date

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  WITNESS

  	
   

  	
  EMPLOYEE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/Rosemarie Cicco 

  	
   

  	
  /s/Murry S. Gerber

  
	
   

  	
   

  	
  Murry S. Gerber

  
	
   

  	
   

  	
   

  
	
  September 17, 2008

  	
   

  	
  August 17, 2008

  
	
  Date

  	
   

  	
  Date

  



 


 


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EXHIBIT
A


 


EXECUTIVE
ALTERNATIVE WORK ARRANGEMENT EMPLOYMENT

AGREEMENT


 


This is an Executive Alternative Work Arrangement Employment Agreement
(“Agreement”) entered into between EQUITABLE RESOURCES, INC. (“Equitable” or
the “Company”) and Murry S. Gerber (“Employee”).


 


WHEREAS, Employee
is an executive officer of Equitable who desires to relinquish that status and
discontinue full-time employment with Equitable but continue employment with
Equitable on a part-time basis; and


 


WHEREAS, Equitable
is interested in continuing to retain the services of Employee on a part-time
basis for at least 100 (but no more than 1000) hours per year; and


 


WHEREAS, Employee
has elected to modify his/her employment status to Executive Alternative Work
Arrangement;


 


NOW, THEREFORE, in
consideration of the respective representations, acknowledgements, and
agreements of the parties set forth herein, and intending to be legally bound,
the parties agree as follows:


 


1.                                       The
term of this Agreement is for the one-year period commencing on the day after
Employee’s full-time status with Equitable ceases.  During that period, Employee will hold the
position of an EAW employee of Equitable. 
Employee’s status as Executive Alternative Work Arrangement (and this
one-year Agreement) will automatically renew annually unless either party
terminates this Agreement by written notice to the other not less than 30 days
prior to the renewal date.  The automatic
annual renewals of this Agreement will cease, however, at the end of five years
of Executive Alternative Work Arrangement employment status.


 


2.                                       During
each one-year period in Executive Alternative Work Arrangement employment
status, Employee is required to provide no less than 100 hours of service to
Equitable.  Additionally during each
one-year period, Employee will make himself/herself available for up to 300
more hours of service upon request from the Company.  With respect to the first 400 hours of
service annually, those hours will occur during the Company’s regularly
scheduled business hours (unless otherwise agreed by the parties), and no more
than fifty hours will be scheduled per month (unless otherwise agreed by the
parties).


 


3.                                       Employee
shall be paid an hourly rate for Employee’s actual services provided under this
Agreement.  The hourly rate shall be
Employee’s annual base salary in effect immediately prior to Employee’s change
in employee classification to Executive Alternative Work Arrangement employment
status divided by 2080, provided however that if Employee works in excess of 400
hours in a one-year period, the hourly rate payable for hours worked in excess
of 400 per year will be a rate which is mutually agreed to by Employee and the
Company.  Employee shall submit monthly
time sheets in a form agreed upon by the parties, and Employee will be paid on
regularly scheduled payroll dates in accordance with the Company’s standard 


 


 













 


payroll practices
following submission of his/her time sheets. 
If either party terminates the Executive Alternative Work Arrangement
prior to the fifth anniversary hereof, no additional cash compensation will be
paid to Employee.


 


4.                                       Employee
shall be eligible to continue to participate in the group medical, prescription
drug, dental and vision programs in which Employee participated immediately
before the classification change to Executive Alternative Work Arrangement (as
such plans might be modified by the Company from time-to-time), but Employee
will be required to pay 100% of the Company’s premium rates to the carriers
(the active employee premium rates as adjusted year-to-year) for participation
in such group insurance programs.  If
Employee completes five years of Executive Alternative Work Arrangement
employment status or if the Company terminates the Executive Alternative Work
Arrangement prior to the fifth anniversary hereof other than pursuant to
paragraph 17 hereof, Employee will be allowed to participate in such group
insurance programs at 100% of the then-applicable active employee premium rates
until Employee reaches age 65 even though Employee is no longer employed by
Equitable.


 


5.                                       During
the term of this Agreement, Employee will continue to receive service credit
for purposes of calculating the value of the Medical Spending Account.


 


6.                                       Employee
shall not be eligible to participate in the Company’s life insurance and
disability insurance programs, 401(k) Plan, ESPP, or any other retirement
or welfare benefit programs or perquisites of the Company.  Likewise, Employee shall not receive any paid
vacation, paid holidays or car allowance.


 


7.                                       Employee
is not eligible to receive bonus payments under any short-term incentive plans
of Equitable, and is not eligible to receive any awards under Equitable’s
long-term incentive plans, programs or arrangements.


 


8.                                       Effective
not later than the commencement of this Executive Alternative Work Arrangement,
Employee shall be deemed to have retired for purposes of measuring vesting
and/or post-termination exercise periods of all forms of long term incentive
awards, however, the timing of any payments for such awards will be as provided
in the underlying plans, programs or arrangements and is subject to any
required six-month delay in payment if Employee is a “specified employee” under
Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”)
at the time of Employee’s separation from service, with respect to payments
made by reason of Employee’s separation from service.


 


9.                                       Employee
shall receive reimbursement for monthly dues for one country club and one
dining club (such clubs to be approved by the Company’s Chief Executive
Officer) during the term of this Agreement or, if the Company terminates the
Executive Alternative Work Arrangement prior to the fifth anniversary hereof
other than pursuant to paragraph 17 hereof, through the fifth anniversary
hereof in accordance with and on the dates specified in the Company’s policies;
provided, however, that no such payments
or reimbursements shall be made until the first day following the six-month
anniversary of Employee’s separation from service if Employee is a specified
employee at the time of separation from service, all within the meaning of Section 409A
of the Code; provided, further, that to the
extent reimbursed or paid, all reimbursements and payments with respect to
expenses incurred within a particular year shall be


 


 


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made no later than
the end of Employee’s taxable year following the taxable year in which the
expense was incurred.  The amount of
payments or reimbursable expenses incurred in one taxable year of Employee
shall not affect the amount of reimbursable expenses in a different taxable
year, and such payments or reimbursement shall not be subject to liquidation or
exchange for another benefit.


 


10.                                 Employee
shall continue to have Blackberry (or its equivalent) service and reasonable
access to the Company’s Help Desk during the term of this Agreement or, if the
Company terminates the Executive Alternative Work Arrangement prior to the
fifth anniversary hereof other than pursuant to paragraph 17 hereof, through
the fifth anniversary hereof; provided, however, if the provision of such
service will result in taxable income to Employee, then no such taxable service
shall be provided until the first day following the six-month anniversary of Employee’s
separation from service if Employee is a specified employee at the time of
separation from service, all within the meaning of Section 409A of the
Code.


 


11.                                 Employee
shall receive tax and financial planning services from the respective teams of
Metz Lewis and Hawthorn (or equivalent tax preparers and financial planners
approved by the Company) during the term of this Agreement or, if the Company
terminates the Executive Alternative Work Arrangement prior to the fifth
anniversary hereof other than pursuant to paragraph 17 hereof, through the
fifth anniversary hereof, in amount not to exceed $15,000 per calendar year, to
be paid directly by the Company in accordance with and on the dates specified
in the Company’s policies; provided, however,
that no such payments or reimbursements shall be made until the first day
following the six-month anniversary of Employee’s separation from service if
Employee is a specified employee at the time of separation from service, all
within the meaning of Section 409A of Code; provided,
further, that to the extent reimbursed or paid, all reimbursements
and payments with respect to expenses incurred within a particular year shall
be made no later than the end of Employee’s taxable year following the taxable
year in which the expense was incurred. 
The amount of payments or reimbursable expenses incurred in one taxable
year of Employee shall not affect the amount of payments or reimbursable
expenses in a different taxable year, and such payments or reimbursement shall
not be subject to liquidation or exchange for another benefit.


 


12.                                 During
the term of this Agreement, Employee shall maintain an ownership level of
Company stock equal to not less than one-half of the value last required as a
full-time Employee.  In the event that at
any time during the term of this Agreement Employee does not maintain the
required ownership level, Employee shall promptly notify the Company and
increase his or her ownership to at least the required level.  Any failure of Employee to maintain at least
the required ownership level for more than three months during the term of this
Agreement shall constitute and be deemed to be an immediate termination by
Employee of his or her Executive Alternative Work Arrangement.


 


13.                                 This
Agreement sets forth all of the payments, benefits, perquisites and
entitlements to which Employee shall be entitled upon assuming Executive
Alternative Work Arrangement employment status. 
Employee shall not be entitled to receive any gross-up payments for any
taxes or other amounts with respect to amounts payable under this Agreement.


 


 


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14.                                 Nothing
in this Agreement shall prevent or prohibit the Company from modifying any of
its employee benefits plans, programs, or policies.


 


15.                                 Non-Competition
and Non-Solicitation.  The covenants
as to non-competition and non-solicitation contained in Section 1 of the
Confidentiality, Non-Solicitation and Non-Competition Agreement between
Equitable and Employee dated September 8, 2008 (hereinafter the “Non-Competition
Agreement”) and in paragraph 8 of the Change of Control Agreement dated September 8,
2008 (“Change of Control Agreement) shall remain in effect throughout Employee’s
employment with Equitable in Executive Alternative Work Arrangement employment
status and for a period of no less than twenty-four (24) months after the
termination of Employee’s employment as an Executive Alternative Work
Arrangement employee.  It is understood
and agreed that if Employee’s employment as an Executive Alternative Work
Arrangement employee terminates in the midst of any one-year Executive
Alternative Work Arrangement Employment Agreement for any reason, the covenants
as to non-competition and non-solicitation contained in the Non-Competition
Agreement and in the Change of Control Agreement shall remain in effect
throughout the full one-year term of said Executive Alternative Work
Arrangement Employment Agreement and for a period of twenty-four (24) months
thereafter.


 


16.                                 Confidential Information and Non-Disclosure.  Employee
acknowledges and agrees that Employee’s employment by Equitable necessarily
involves Employee’s knowledge of
and access to confidential and proprietary information pertaining to the
business of the Company and its subsidiaries. 
Accordingly, Employee agrees
that at all times during the term of this Agreement and for as long as the
information remains confidential after the termination of Employee’s
employment, Employee will not, directly or indirectly, without the express
written authority of the Company (unless directed by applicable legal authority
having jurisdiction over Employee)
disclose to or use, or knowingly permit to be so disclosed or used, for the
benefit of Employee, any person,
corporation or other entity other than the Company and its subsidiaries (i) any
information concerning any financial matters, customer relationships,
competitive status, supplier matters, internal organizational matters, current
or future plans, or other business affairs of or relating to the Company and
its subsidiaries; (ii) any management, operational, trade, technical or
other secrets or any other proprietary information or other data of the Company
or its subsidiaries; or (iii) any other information related to the Company
or its subsidiaries which has not been published and is not generally known
outside of the Company.  Employee acknowledges that all of the foregoing
constitutes confidential and proprietary information, which is the exclusive
property of the Company.


 


17.                                 Equitable
may terminate this Agreement and Employee’s employment at any time for
Cause.  Solely for purposes of this
Agreement, “Cause” shall mean:


 


i.                                        commission
of an act of moral turpitude, fraud, misappropriation or embezzlement in
connection with the performance of Employee’s duties;


 


ii.                                     failure
to substantially and/or satisfactorily perform assigned duties; or


 


 


4













 


iii.                                  a
violation of any provision of this Agreement or express significant policies of
the Company.


 


18.                                 It
is understood and agreed that upon Employee’s discontinuation of full-time
employment and transition to Executive Alternative Work Arrangement employment
status hereunder, Employee has no continuing rights under the Change of Control
Agreement or under Section 3 of the Non-Competition Agreement, and that
otherwise the Change of Control Agreement (except for Section 8) and Section 3
of the Non-Competition Agreement shall have no further force or effect.


 


19.                                 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.


 


20.                                 This
Agreement shall be binding upon and inure to the benefit of the successors and
assigns of the Company.


 


21.                                 This
Agreement shall be governed by and construed in accordance with the laws of the
Commonwealth of Pennsylvania without regard to conflict of law principles.


 


22.                                 This
Agreement supersedes all prior agreements and understandings between Equitable
and Employee with respect to the subject matter hereof (oral or written),
including but not limited to the Change of Control Agreement and Section 3
of the Non-Competition Agreement.  It is
understood and agreed, however, that the covenants as to non-competition,
non-solicitation and confidentiality contained in Sections 1-2 of the
Non-Competition Agreement and in Section 8 of the Change of Control
Agreement remain in effect as modified herein, along with the provisions in
Sections 4-8 of the Non-Competition Agreement.


 


23.                                 This
Agreement may not be changed, amended, or modified except by a written
instrument signed by both parties, provided that the Company may amend this
Agreement from time to time without Executive’s consent to the extent deemed
necessary or appropriate, in its sole discretion, to effect compliance with Section 409A
of the Code, including regulations and interpretations thereunder, which
amendments may result in a reduction of benefits provided hereunder and/or
other unfavorable changes to Executive.


 


 


5













 


IN WITNESS WHEREOF, the parties have executed this Agreement on the
dates set forth below.


 


	
  EQUITABLE
  RESOURCES, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Employee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title

  	
   

  	
  Date

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date

  	
   

  	
   

  
				



 


 


6













 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ELECTION
  TO PARTICIPATE IN

  	
   

  
	
   

  	
  EXECUTIVE
  ALTERNATIVE WORK ARRANGEMENT CLASSIFICATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  x

  	
  I hereby
  elect to participate in the Executive Alternative Work Arrangement
  Classification as described in paragraph 11 of the above Confidentiality,
  Non-Solicitation and Non-Competition Agreement (“Non-Competition Agreement”)
  and to execute the Executive Alternative Work Arrangement Employment
  Agreement attached as Exhibit A upon my discontinuation of full-time
  status as an Executive Officer in good standing with Equitable.  I understand that if my full-time
  employment with Equitable is terminated for Cause or if I terminate my
  employment for Good Reason (as those terms are defined in the Non-Competition
  Agreement), I will no longer be eligible for Executive Alternative Work
  Arrangement Employment Status.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  o

  	
  I hereby
  decline to participate in the Executive Alternative Work Arrangement
  Classification as described in paragraph 11 of the above Confidentiality,
  Non-Solicitation and Non-Competition Agreement.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Murry S. Gerber

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Employee Name Printed

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  /s/Murry S. Gerber

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Employee Signature

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  August 17, 2008

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Date