Exhibit 10.13(a)


 


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 Lewis
B. Gardner (the “Employee”).


 


WITNESSETH:


 


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 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 twelve (12) 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, 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 


 


1

















 


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.  Notwithstanding anything to the contrary in
the foregoing paragraph or in this Agreement, Employee shall not in any way be
restricted from being employed as an attorney in the oil and gas industry
immediately following the date of Employee’s termination of employment with 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 twelve (12)  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 


 


2















 
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 twelve (12) 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, 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.  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 


 


3

















 


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  twelve (12) 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 


 


4

















 


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 twelve (12) 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.


 


5

















 


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 


 


6

















 


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 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.


 


7

















 


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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  9-23-08

  	
   

  	
  9-23-08

  
	
  Date

  	
   

  	
  Date

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  WITNESS

  	
   

  	
  EMPLOYEE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ David J. Smith

  	
   

  	
  /s/ Lewis B. Gardner 

  
	
   

  	
   

  	
  Lewis B. Gardner 

  
	
   

  	
   

  	
   

  
	
  9-15-08

  	
   

  	
  9-15-08

  
	
  Date

  	
   

  	
  Date

  



 


8

















 


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.


 


 


	
   

  	
  Lewis B. Gardner 

  
	
   

  	
  Employee Name Printed

  
	
   

  	
   

  
	
   

  	
  /s/ Lewis B. Gardner 

  
	
   

  	
  Employee Signature

  
	
   

  	
   

  
	
   

  	
  9-15-08

  
	
   

  	
  Date