Exhibit 3.01
ARTICLES OF INCORPORATION OF EQUITABLE RESOURCES,
INC.
First
: The name of the Company is EQUITABLE
RESOURCES, INC.
Second
: The location and post office address of its
current registered office in the Commonwealth of Pennsylvania is 225 North
Shore Drive, Pittsburgh, Pennsylvania 15212, County of Allegheny.
Third
: The purposes for which the Company is
incorporated under the Business Corporation Law of the Commonwealth of
Pennsylvania are to engage in, and to do any lawful act concerning, any or all
lawful business for which corporations may be incorporated under said Business
Corporation Law, including but not limited to:
A.
the supply of
heat, light and power to the public by any means;
B.
the
production, purchase, generation, manufacture, transmission, transportation,
storage, distribution and supplying of natural or artificial gas, steam or air
conditioning, electricity, or any combination thereof to or for the public; and
C.
manufacturing,
processing, owning, using and dealing in personal property of every class and
description, engaging in research and development, the furnishing of services,
and acquiring, owning, using and disposing of real property of every nature
whatsoever.
Fourth
: The term of the Company’s existence shall be perpetual.
Fifth
: The aggregate number of shares which the
Company shall have authority to issue shall be:
(a)
3,000,000
shares of Preferred Stock, without par value; and
(b)
320,000,000
shares of Common Stock, without par value.
The designations,
preferences, qualifications, limitations, restrictions, and the special or
relative rights in respect of the Preferred Stock and of the Common Stock of
the Company, and a statement of the authority hereby vested in the Board of
Directors of the Company to fix and determine the designations, preferences,
qualifications, limitations, restrictions, and special or relative rights in
respect of all series of the Preferred Stock shall be as follows:
Division A:
THE PREFERRED STOCK
1.1
Preferred
Stock
. The Preferred Stock may be
divided into and issued in series. The
Board of Directors is hereby expressly authorized, at any time or from time to
time, to divide any or all of the shares of the Preferred Stock into series,
and in the resolution or resolutions establishing a particular series, before
issuance of any of the shares thereof, to fix and determine the designation and
the relative rights and preferences of the series so established, to the
fullest extent now or hereafter permitted by the laws of the Commonwealth of
Pennsylvania, including, but not limited to, the variations between different
series in the following respects:
(a)
the distinctive
serial designation of such series;
(b)
the
annual dividend rate for such series, and the date or dates from which
dividends shall commence to accrue;
(c)
the
redemption price or prices, if any, for shares of such series and the terms and
conditions on which such shares may be redeemed;
(d)
the
provisions for a sinking, purchase or similar fund, if any, for the redemption
or purchase of shares of such series;
(e)
the
preferential amount or amounts payable upon shares of such series in the event
of the voluntary or involuntary liquidation of the Company;
(f)
the
voting rights, if any, of shares of such series;
(g)
the
terms and conditions, if any, upon which shares of such series may be converted
and the class or classes or series of securities of the Company into which such
shares may be converted;
(h)
the
relative seniority, parity or junior rank of such series with respect to other
series of Preferred Stock then or thereafter to be issued; and
(i)
such
other terms, limitations and relative rights and preferences, if any, of shares
of such series as the Board of Directors may, at the time of such resolutions, lawfully
fix and determine under the laws of the Commonwealth of Pennsylvania.
Division B:
PROVISIONS APPLICABLE TO BOTH THE
PREFERRED STOCK AND THE COMMON STOCK
2.1
Voting Rights
. Except as provided in this Section 2.1,
the holders of the Common Stock shall have exclusive voting rights for the
election of Directors and for all other purposes and shall be entitled to one
vote for each share held.
The holders of the
Preferred Stock shall have no voting rights except as may be provided with
respect to any particular series of the Preferred Stock by the Board of
Directors pursuant to Subdivision 1.1 of Division A hereof. On any matter on which the holders of the
Preferred Stock shall be entitled to vote, they shall be entitled to vote as
established by the Board of Directors pursuant to Subdivision 1.1 of Division A
hereof.
In all elections
for Directors, every stockholder entitled to vote shall have the right, in
person or by proxy, to multiply the
number
of votes
to which such stockholder may be entitled by the number of Directors for the
election of whom he is entitled to vote at such meeting, and such stockholder
may cast the whole number of such votes for one candidate or may distribute
them among any two or more candidates.
The candidates receiving the highest number of votes up to the number of
Directors to be elected shall be elected.
The foregoing provisions of this paragraph shall not be changed with
respect to any class of stock unless the holders of record of not less than
two-thirds of the number of shares of such class of stock then outstanding
shall consent thereto in writing or by voting therefor in person or by proxy at
the meeting of stockholders at which any such change is considered.
2.2
Pre-emptive
Rights
. Upon any issue for money or
other consideration of any stock of the Company that may be authorized from
time to time, no holder of stock, irrespective of the kind of such stock, shall
have any pre-emptive or other right to subscribe for, purchase, or receive any
proportionate or other share of the stock so
issued
,
but the Board of Directors may dispose of all or any portion of such stock as
and when it may determine, free of any such rights, whether by offering the
same to stockholders or by sale or other disposition as said Board may deem
advisable; provided, however, that if the Board of Directors shall determine to
offer any new or additional shares of Common Stock, or any security convertible
into Common Stock, for money, other than (i) by a public offering of all
of such shares or offering of all of such shares to or through underwriters or
investment bankers who shall have agreed promptly to make a public offering of
such shares, or (ii) pursuant to any employee compensation, incentive or
other benefit program adopted by the Board of Directors, the same shall first
be offered pro rata to the holders of the then outstanding shares of Common
Stock of the Company at a price not less favorable than the price at which the
Board of Directors issues and disposes of such stock or securities to other
than such holders of Common Stock before deducting reasonable commissions or
compensation that may be paid by the Company in connection with the sale of any
such stock and securities; and provided, further, that the time within which
such pre-emptive rights shall be exercised may be limited by the Board of
Directors to
such time as the said
Board may deem proper, not less, however, than ten days after mailing of notice
that such stock rights are available and may be exercised. The foregoing provisions of this Subdivision
2.2 shall not be changed unless the holders of record of not less than
two-thirds of the number of shares of the Common Stock then outstanding shall
consent thereto in writing or by voting therefor in person or by proxy at the
meeting of stockholders at which any such change is considered.
2.3
Amendments to
By-Laws
. The Board of Directors may
make, amend and repeal the By-Laws with respect to those matters which are not,
by statute, reserved exclusively to the shareholders, subject always to the
power of the
shareholders
to change such action
as provided herein. No By-Law may be made, amended or repealed by the
shareholders unless such action is approved by the affirmative vote of the
holders of not less than 80% of the voting power of the then outstanding shares
of capital stock of the Company entitled to vote in an annual election of
directors, voting together as a single class, unless such action has been
previously approved by a two-thirds vote of the whole Board of Directors, in
which event (unless otherwise expressly provided in the Articles or the
By-Laws) the vote specified by applicable law for valid shareholder action
shall be required.
2.4
Amendments to
Articles
. Subject to the voting
rights given to any particular series of the Preferred Stock by the Board of
Directors pursuant to Subdivision 1.1 of Division A hereof, and except as may
be specifically provided to the contrary in any other provision in the Articles
with respect to amendment or repeal of such
provision
,
the affirmative vote of the holders of not less than 80% of the voting power of
the then outstanding shares of capital stock of the Company entitled to vote in
an annual election of directors, voting together as a single class, shall be
required to amend the Articles of the Company or repeal any provision thereof,
unless such action has been previously approved by a two-thirds vote of the
whole Board of Directors, in which event (unless otherwise expressly provided
in the Articles) such shareholder approval as may be specified by law shall be
required.
2.5
General
. The Company may issue and dispose of any of
its authorized shares for such consideration as may be
fixed
by the Board of Directors subject to the laws then applicable and to the
provisions of Subdivision 2.2 of this Division B.
Division C:
BOARD OF DIRECTORS;
CLASSIFICATION; REMOVAL; VACANCIES
3.1
The business
and affairs of the Company shall be managed by a Board of Directors comprised
as follows:
(a)
The
Board of Directors shall consist of not less than 5 nor more than 12 persons,
the exact number to be fixed from time to time by the Board of Directors
pursuant to a resolution adopted by a majority vote of the directors then in
office.
(b)
Directors
of the Company shall be classified with respect to the time for which they
shall severally hold office by dividing them into three classes: Class 1; Class 2; and Class 3,
as nearly equal in number as possible.
At the special meeting of shareholders at which the amendment adding
this Division C shall be adopted, the then current directors shall be assigned
to the three classes in accordance with resolutions adopted by the Board of
Directors. Class 1 directors shall
not be elected at such special meeting but shall continue to hold office until
the annual meeting of shareholders in 1984.
Class 2 directors shall be elected by shareholders at such special
meeting to extended terms of office, to serve until the annual meeting in 1985. Class 3 directors shall be elected by
shareholders at such special meeting to extended terms of office, to serve
until the annual meeting in 1986. Each
class of directors to be elected at such special meeting shall be elected in a
separate election. At each succeeding
annual meeting of shareholders, the class of directors then being elected shall
be elected to hold office for a term of three years. Each director shall hold office for the term
for which elected and until his or her successor shall have been elected and
qualified.
(c)
Any
director, any class of directors or the entire Board of Directors may be
removed from office by shareholder vote at any time, without assigning any
cause, but only if shareholders entitled to
cast at least 80%
of the votes which all shareholders would be entitled to cast at an annual
election of directors or of such class of directors shall vote in favor of such
removal;
provided, however
, that no individual
director shall be removed without cause (unless the entire Board of Directors
or any class of directors be removed) in case the votes cast against such
removal would be sufficient, if voted cumulatively for such director, to elect
him or her to the class of directors of which he or she is a member.
(d)
Vacancies
in the Board of Directors, including vacancies resulting from an increase in
the number of directors, shall be filled only by a majority vote of the
remaining directors then in office, though less than a quorum, except that
vacancies resulting from removal from office by a vote of the shareholders may
be filled by the shareholders at the same meeting at which such removal
occurs. All directors elected to fill
vacancies shall hold office for a term expiring at the annual meeting of
shareholders at which the term of the class to which they have been elected
expires. No decrease in the number of
directors constituting the Board of Directors shall shorten the term of any
incumbent director.
(e)
Whenever
the holders of any class or series of preferred stock shall have the right,
voting separately as a class, to elect one or more directors of the Company,
none of the foregoing provisions of this Section 3.1 shall apply with
respect to the director or directors elected by such holders of preferred
stock.
3.2
Notwithstanding
any other provisions of law, the Articles or the By-Laws of the Company, the
affirmative vote of the holders of not less than 80% of the voting power of the
then outstanding shares of capital
stock
of the
Company entitled to vote in an annual election of directors, voting together as
a single class, shall be required to amend, alter, change or repeal, or adopt
any provision inconsistent with, this Division C, unless such action has been
previously approved by a two-thirds vote of the whole Board of Directors.
3.3
No Director
shall be personally liable for monetary damages as such (except to the extent
otherwise
provided
by law) for any action taken,
or any failure to take any action, unless such Director has breached or failed
to perform the duties of his or her office under Title 42, Chapter 83, Subchapter F
of the Pennsylvania Consolidated Statutes (or any successor statute relating to
Directors’ standard of care and justifiable reliance); and the breach or
failure to perform constitutes self-dealing, willful misconduct or
recklessness.
If the Pennsylvania
Consolidated Statutes are amended after May 22, 1987, the date this
section received
shareholder
approval, to further
eliminate or limit the personal liability of Directors, then a Director shall
not be liable, in addition to the circumstances set forth in this section, to
the fullest extent permitted by the Pennsylvania Consolidated Statutes, as so
amended.
The provisions of
this section shall not apply to any actions filed prior to January 27,
1987 nor to any breach of
performance
of
duty, or any failure of performance of duty, by any Director occurring prior to
January 27, 1987.
Division D:
PROCEDURES RELATING
TO CERTAIN BUSINESS COMBINATIONS
4.1
Votes
Required
; Exceptions
.
(a)
The
affirmative vote of the holders of not less than 80% of the voting power of the
then outstanding shares of capital stock of the Company entitled to vote in an
annual election of directors (the “Voting Stock”), voting together as a single
class, shall be required for the approval or authorization of any “Business Combination”
(as hereinafter defined) involving a “Related Person” (as hereinafter defined);
provided, however, that the 80% voting requirement shall not be applicable if:
(1)
The “Continuing
Directors” (as hereinafter defined) of the Company by a two-thirds vote have
expressly approved such Business Combination either in advance of or subsequent
to such Related Person’s having become a Related Person; or
(2)
both the following
conditions are satisfied:
(A)
the aggregate amount of the
cash and the “Fair Market Value” (as hereinafter defined) of the property,
securities and “Other Consideration” (as hereinafter defined) to be received
per share by holders of capital stock of the Company in the Business
Combination, other than the Related Person, is not less than the “Highest
Equivalent Price” (as hereinafter defined) of such shares of capital stock; and
(B)
a proxy or information
statement describing the proposed Business Combination and complying with the
requirements of the Securities Exchange Act of 1934, as amended, whether or not
the Company is then subject to such requirements, shall have been mailed to all
shareholders of the Company. The proxy
or information statement shall contain at the front thereof, in a prominent
place, the position of the Continuing Directors as to the advisability (or
inadvisability) of the Business Combination and, if deemed advisable by a
majority of the Continuing Directors, the opinion of an investment banking firm
selected by the Continuing Directors as to the fairness of the terms of the
Business Combination, from the point of view of the holders of the outstanding
shares of capital stock of the Company other than any Related Person.
(b)
Such
80% vote shall in any such instance be required notwithstanding the fact that
no vote may be required or that a lesser percentage may be specified by law or
in any agreement with any national securities exchange or otherwise.
4.2
Definitions
. For purposes of this Division D:
(a)
A
“Person” shall mean any individual, partnership, corporation or other
entity. As used herein, the pronouns
“which” and “it” in relation to Persons which are individuals shall be
construed to mean “who” or “whom”, “he” or “she”, and “him” or “her”, as
appropriate.
(b)
The
terms “Affiliate” and “Associate” shall have the respective meanings ascribed
to such terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on November 10,
1983 (the term “registrant” in said Rule 12b-2 meaning in this case the Company).
(c)
The
term “Beneficial Owner” (and variations thereof) shall have the meaning
ascribed to such term in Rule 13d-3 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on
November 10, 1983; provided, however, that notwithstanding any provision
of Rule 13d-3 to the contrary, an entity shall be deemed to be the
Beneficial Owner of any share of capital stock of the Company that such entity
has the right to acquire at any time pursuant to any agreement, or upon exercise
of conversion rights, warrants or options, or otherwise.
(d)
The
term “Voting Stock” shall have the meaning set forth at the beginning of
Section 4.1(a) of this Division D.
(e)
The
term “Subsidiary” of any Person shall mean any corporation of which a majority
of the capital stock entitled to vote for the election of directors is
Beneficially Owned by such Person directly or indirectly though other
Subsidiaries of such Person.
(f)
The
term “Substantial Part” of the assets of any person shall mean more than 10% of
the Fair Market Value, as determined by a two-thirds vote of the Continuing
Directors, of the total consolidated assets of such Person and its Subsidiaries
as of the end of its most recent fiscal year ended prior to the time the
determination is being made.
(g)
The
term “Other Consideration” shall include, without limitation, shares of Common
Stock or other capital stock of the Company retained by the holders of such
shares in the event of a Business Combination in which the Company is the
surviving corporation.
(h)
The
term “Continuing Director” shall mean a director of the Company who is
unaffiliated with any Related Person and either (1) was a director of the
Company immediately prior to the time the Related Person involved in a Business
Combination became a Related Person or (2) is a successor to a Continuing
Director and is recommended to succeed a continuing Director by a majority of
the then Continuing Directors. Where
this Division D contains provisions for a determination, recommendation or
approval by the Continuing Directors, if there is at any particular relevant
time no Continuing Director in office, then such provision shall be deemed to
be satisfied if the Board, by a two-thirds vote of the whole Board of
Directors, makes or gives such determination, recommendation or approval.
(i)
The
term “Business Combination” shall mean
(1)
any merger,
consolidation or share exchange of the Company or a Subsidiary of the Company
with a Related Person, in each case without regard to which entity is the
surviving entity;
(2)
any sale, lease,
exchange, transfer or other disposition, including without limitation a
mortgage or any other security device, of all or any Substantial Part of
the assets of the Company (including without limitation any voting securities
of a Subsidiary of the Company) or a Subsidiary of the Company to or with a
Related Person (whether in one transaction or series of transactions), or of
all or any Substantial Part of the assets of a Related Person to the Company
or a Subsidiary of the Company;
(3)
the issuance, transfer
or delivery of any securities of the Company or a Subsidiary of the Company by
the Company or any of its Subsidiaries to a Related Person, or of any
securities of a Related Person to the Company or a Subsidiary of the Company
(other than an issuance or transfer of securities which is effected on a pro
rata basis to all shareholders of the Company or of the Related Person, as the
case may be);
(4)
any recapitalization,
reorganization or reclassification of securities (including any reverse stock
split) or other transaction that would have the effect, directly or indirectly,
of increasing the voting power of a Related Person;
(5)
the adoption of any
plan or proposal for the liquidation or dissolution of the Company proposed by
or on behalf of a Related Person; or
(6)
any agreement, plan,
contract or other arrangement providing for any of the transactions described
in this definition of Business Combination.
(j)
The
term “Related Person” at any particular time shall mean any Person if such
Person, its Affiliates, its Associates, and all Persons of which it is an
Affiliate or Associate Beneficially Own in the aggregate 10% or more of the
outstanding Voting Stock of the Company, and any Affiliate or Associate of any
such Person, and any Person of which such Person is an Affiliate or
Associate. With respect to any
particular Business Combination, the term “Related Person” means the Related
Person involved in such Business Combination, any Affiliate or Associate of
such Related Person, and any Person of which such Related Person is an
Affiliate or Associate. Where in this Division D any reference is made to a
transaction involving, or ownership of securities by, a Related Person, it
shall mean and include one or more transactions involving different Persons all
included within the definition of “Related Person”, or ownership of securities
by any or all of such Persons. Each
Person who is an Affiliate or Associate of a Related Person shall be deemed to
have become a Related Person at the earliest time any of such Persons becomes a
Related Person.
(k)
The
term “highest Equivalent Price” with respect to shares of capital stock of the
Company of any class or series shall mean the following:
(1)
with respect to shares
of Common Stock, the highest price that can be determined to have been paid at
any time by a Related Person for any shares of Common Stock; and
(2)
with respect to any
class or series of shares of capital stock other than Common Stock, the higher
of the following:
(A)
if any shares of such class
or series are Beneficially Owned by a Related Person, the highest price that
can be determined to have been paid at any time by a Related Person for such
shares; or
(B)
the amount determined by
the Continuing Directors, on whatever basis they believe is appropriate, to be
the per share price equivalent of the highest price that can be determined to
have been paid at any time by a Related Person for any shares of any other
class or series of capital stock of the Company.
In determining the
Highest Equivalent Price, all purchases by a Related Person shall be taken into
account regardless of whether the shares were purchased before or after the
Related Person became a Related Person. Also,
the Highest Equivalent Price shall include any brokerage commissions, transfer
taxes, soliciting dealers’ fees and other expenses paid by the Related Person
with respect to the shares of capital stock of the Company acquired by the
Related Person. In the case of any Business
Combination with a Related Person, the Continuing Directors by a two-thirds
vote shall determine the Highest Equivalent Price for each class and series of
capital stock of the Company.
(l)
The
term “Fair Market Value” shall mean (1) in the case of stock, the highest
closing sale price during the 30-day period immediately preceding the date in
question of a share of such stock on the New York Stock Exchange’s consolidated
transaction reporting system, or, if such stock is not listed on such Exchange,
on the principal United States securities exchange registered under the
Securities Exchange Act of 1934 on which such stock is listed, or, if such
stock is not listed on any such exchange, the highest closing bid quotation
with respect to a share of such stock during the 30-day period preceding the
date in question on the National Association of Securities Dealers, Inc.
Automated Quotation System or any system then in use, or if no such quotations
are available, the fair market value on the date in question of a share of such
stock as determined by the Continuing Directors; and (2) in the case of
property other than stock or cash, the fair market value of such property on
the date in question as determined by a two-thirds vote of the Continuing Directors.
4.3
Miscellaneous
.
(a)
The
Continuing Directors, by a two-thirds vote, are authorized to determine for
purposes of this Division D on the basis of information known to them after
reasonable inquiry: (1) whether a
Person is a Related Person, (2) the number of shares of Voting Stock
Beneficially Owned by any Person, (3) whether a Person is an Affiliate or
Associate of another, (4) whether certain assets constitute a Substantial
Part of the assets of any Person, (5) the amounts of prices paid,
market prices, and other factors relative to fixing the Highest Equivalent
Price of shares of capital stock of the Company and (6) the Fair Market
Value of property, securities and Other Consideration received in a Business
Combination. Any such determination made
in good faith shall be binding and conclusive on all parties.
(b)
Nothing
contained in this Division D shall be construed to relieve any Related Person
from any fiduciary obligation imposed by law.
(c)
The
fact that any Business Combination complies with the conditions set forth in
Subsection (a)(2) of Section 4.1 of this Division D shall not be
construed to impose any fiduciary duty, obligation or responsibility on the
Board of Directors, or any member thereof, to approve such Business Combination
or recommend its adoption or approval to the shareholders of the Company, nor
shall such compliance limit, prohibit or otherwise restrict in any manner the
Board of Directors, or any member thereof, with respect to evaluations of or
actions and responses taken with respect to such Business Combination.
(d)
Notwithstanding
any other provisions of law, the Articles or the By-Laws of the Company, the
affirmative vote of the holders of not less than 80% of the voting power of the
Voting Stock of the Company, voting together as a single class, shall be
required to amend, alter, change or repeal, or adopt any provision inconsistent
with, this Division D.
Sixth
: Henceforth, these Articles of the Company
shall not include any prior documents.
Exhibit 3.02
EQUITABLE RESOURCES, INC.
BY-LAWS
ARTICLE I
MEETINGS OF SHAREHOLDERS
Section 1.01
All meetings of the shareholders
shall be held at the principal office of the Company or such other places,
either within or without the Commonwealth of Pennsylvania, as the Board of
Directors may from time to time determine.
Section 1.02
An annual meeting of shareholders
shall be held in each calendar year at such time and place as the Board of
Directors shall determine. If the annual
meeting shall not be called and held during such calendar year, any shareholder
may call such meeting at any time thereafter.
Section 1.03
At each such annual meeting, the
class of Directors then being elected shall be elected to hold office for a
term of three (3) years, and until their successors shall have been
elected and qualified. All elections of
Directors shall be conducted by three (3) Judges of Election, who need not
be shareholders, appointed by the Board of Directors. If any such appointees are not present, the vacancy
shall be filled by the presiding officer of the meeting. The Chief Executive Officer of the Company
shall preside and the Secretary shall take the minutes at all meetings of the
shareholders. In the absence of the
Chief Executive Officer, the President shall preside. In the absence of both, the presiding officer
shall be the Chairman of the Executive Committee or such other presiding
officer as may be designated by the Board of Directors or, if not
1
so designated, by
the shareholders of the Company, and if the Secretary is unable to do so, the
presiding officer shall designate any person to take the minutes of the
meeting.
Section 1.04
The presence, in person or by
proxy, of the holders of a majority of the voting power of all shareholders
shall constitute a quorum except as otherwise provided by law or by the
Restated Articles of the Company. If a
meeting is not organized because a quorum is not present, the shareholders
present may adjourn the meeting to such time and place as they may determine,
except that any meeting at which Directors are to be elected shall be adjourned
only from day to day, or for such longer periods not exceeding fifteen (15)
days each, as may be directed by a majority of the voting stock present.
Section 1.05
Shareholders entitled to vote on
any matter shall be entitled to one (1) vote for each share of capital
stock standing in their respective names upon the books of the Company to be
voted by the shareholder in person or by his or her duly authorized proxy or
attorney. The validity of every
unrevoked proxy shall cease eleven (11) months after the date of its execution
unless some other definite period of validity shall be expressly provided
therein, but in no event shall a proxy, unless coupled with an interest, be
voted on after three (3) years from the date of its execution. All questions shall be decided by the vote of
shareholders entitled to cast at least a majority of the votes which all
shareholders present and voting (excluding abstentions) are entitled to cast on
the matter, unless otherwise expressly provided by law or by the Restated
Articles of the Company.
Section 1.06
Special meetings of shareholders
may be called by the Board of Directors or by the Chief Executive Officer.
Section 1.07
Notice of the annual meeting and
of all special meetings of shareholders shall be given by sending a written or
printed notice thereof by mail, specifying the
2
place, day, and
hour of the meeting and, in the case of a special meeting of shareholders, the
general nature of the business to be transacted, to each shareholder at the
address appearing on the books of the Company, or the address supplied by such
shareholder to the Company for the purpose of notice, at least five (5) days
before the day named for the meeting, unless such shareholders shall waive
notice or be in attendance at the meeting.
Section 1.08
At any annual meeting or special
meeting of shareholders, only such business as is properly brought before the
meeting in accordance with this Section 1.08 may be transacted. To be properly brought before any meeting,
any proposed business must be either (i) specified in the notice of the
meeting (or any supplement thereto) given by or at the direction of the Board
of Directors, (ii) otherwise properly brought before the meeting by or at
the direction of the Board of Directors, or (iii) if brought before the
meeting by a shareholder, then (a) the shareholder must have been a
shareholder of record on the record date for the determination of shareholders
entitled to vote at such meeting, and (b) written notice of such proposed
business must have been delivered or mailed by first class United States mail,
postage prepaid, to the Secretary, and received not less than 90 days or more
than 120 days prior to the anniversary date of the previous year’s annual
meeting; provided, however, that if the Company changes the date of its annual
meeting by more than 30 days from the anniversary date of the prior year’s
annual meeting, then such proposal shall have been received on or before the
later of (x) during the period commencing 120 days and ending 90 days
before the date of the annual meeting or (y) the close of business on the
10
th
day following the earlier of the date on which the Company gave
notice of or publicly disclosed the date of the meeting. Such notice shall set forth the nature of and
reasons for the proposal in reasonable detail and, as to the shareholder giving
the notice, (i) the name and address, as they appear on the Company’s
books of such shareholder
3
and (ii) the
class and number of shares of the Company which are beneficially owned by such
shareholder.
ARTICLE II
GENERAL PROVISIONS
Section 2.01
The principal office of the
Company shall be in the City of Pittsburgh, Pennsylvania, and shall be kept
open during business hours every day except Saturdays, Sundays, and legal
holidays, unless otherwise ordered by the Board of Directors or the Chief
Executive Officer.
Section 2.02
The Company shall have a
corporate seal which shall contain within a circle the following words: “Equitable Resources, Inc., Pittsburgh,
Pennsylvania” and in an inner circle the words “Corporate Seal.”
Section 2.03
The fiscal year of the Company
shall begin with January 1 and end with December 31 of the same
calendar year.
Section 2.04
The Board of Directors shall fix
a time, not more than seventy (70) days prior to the date of any meeting of
shareholders, or the date fixed for the payment of any dividend or
distribution, or the date for any allotment of rights, or the date when any
change or conversion or exchange of shares will be made or go into effect, as a
record date for the determination of the shareholders entitled to notice of, or
to vote at, any such meeting, or entitled to receive payment of any such
dividend or distribution, or to receive any such allotment of rights, or to
exercise the rights in respect of any such change, conversion, or exchange of
shares.
4
ARTICLE III
BOARD OF DIRECTORS
Section 3.01
Regular meetings of the Board of
Directors shall be held at least six (6) times each year, immediately
after the annual meeting of shareholders and at such other times and places as
the Board of Directors shall from time to time designate by resolution of the
Board. Notice need not be given of
regular meetings of the Board held at the times and places fixed by resolution
of the Board.
If the Board shall
fail to designate the specific time and place of any regular meeting, such
regular meeting shall be held at such time and place as designated by the Chief
Executive Officer and, in such case, oral, telegraphic or written notice shall
be duly served or sent or mailed by the Secretary to each Director not less
than five (5) days before the meeting.
Section 3.02
Special meetings may be held at
any time upon the call of the Chief Executive Officer, or the President in the
absence of the Chief Executive Officer, at such time and place as he may deem
necessary, or by the Secretary at the request of any two (2) members of
the Board, by oral, telegraphic or written notice duly served or sent or mailed
to each Director not less than twenty-four (24) hours before the meeting.
Section 3.03
Fifty percent (50%) of the
Directors at the time in office shall constitute a quorum for the transaction
of business. Vacancies in the Board of
Directors, including vacancies resulting from an increase in the number of
Directors, shall be filled only by a majority vote of the remaining Directors
then in office, though less than a quorum, except that vacancies resulting from
removal from office by a vote of the shareholders may be filled by the shareholders
at the same meeting at which such removal occurs. All Directors elected to fill vacancies shall
hold
5
office for a term
expiring at the annual meeting of shareholders at which the term of the class
to which they have been elected expires.
Section 3.04
One (1) or more Directors
may participate in a meeting of the Board or of a committee of the Board by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and all
Directors so participating shall be deemed present at the meeting.
Section 3.05
The full Board of Directors shall
consist of not less than five (5) nor more than twelve (12) persons, the
exact number to be fixed from time to time by the Board of Directors pursuant
to a resolution adopted by a majority vote of the Directors then in office.
Section 3.06
The Board of Directors may elect
one (1) of its members as its Chairman and one (1) of its members Vice
Chairman. Such persons may also be
officers of the Company. If the Chairman
so elected is not also the Chief Executive Officer of the Company, he or she
shall confer with the Chief Executive Officer as to the content of agendas for
such meetings and shall consult with the Chief Executive Officer as to matters
affecting or relating to the Board of Directors. The Chairman and the Vice Chairman so elected
shall serve until the first meeting of the Board following the next annual
meeting of the shareholders. The Board
shall also fix the annual rate of compensation to be paid to the Chairman and
the Vice Chairman for serving as such in addition to compensation paid to all
non-officer members of the Board. The
Chairman shall preside at all meetings of the Board, preserve order, and
regulate debate according to the usual parliamentary rules. In the absence of the Chairman, the Vice
Chairman shall be the presiding officer.
Section 3.07
Only persons who are nominated in
accordance with the following procedures shall be eligible for election as
directors. Nomination for election to
the Board of
6
Directors of the Company
at a meeting of shareholders may be made by the Board of Directors or by any
shareholder of the Company entitled to vote for the election of directors at
such meeting who complies with the notice procedures set forth in this Section 3.07. Such nominations, other than those made by or
on behalf of the Board of Directors, shall be made by notice in writing
delivered or mailed by first class United States mail, postage prepaid, to the
Secretary, and received not less than 90 days nor more than 120 days prior to
the anniversary date of the previous year’s annual meeting; provided, however,
that if the Company changes the date of its annual meeting by more than 30 days
from the anniversary date of the prior years’ annual meeting, then such
proposal shall have been received on or before the later of (x) during the
period commencing 120 days and ending 90 days before the date of the annual
meeting of (y) the close of business on the 10
th
day following
the earlier of the date on which the Company gave notice of or publicly
disclosed the date of the meeting. Such
notice shall set forth (a) as to each proposed nominee (i) the name,
age, business address and, if known, residence address of each such nominee, (ii) the
principal occupation or employment of each such nominee, (iii) the number
of shares of stock of the Company which are beneficially owned by each such
nominee, and (iv) any other information concerning the nominee that must
be disclosed as to nominees in proxy solicitations pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended (including such person’s
written consent to be named as a nominee and to serve as a director if
elected); and (b) as to the shareholder giving the notice (i) the
name and address, as they appear on the Company’s books, of such shareholder, (ii) the
class and number of shares of stock of the Company which are beneficially owned
by such shareholder, (iii) the length of time such shareholder has held
such shares, and (iv) any other information concerning such shareholder as
may be appropriate for the purpose of complying with Regulation 14A under the
7
Securities Act of 1934,
as amended. Such notice shall also
contain original irrevocable conditional resignations signed by each proposed
nominee to be effective upon the conditions set forth in Section 3.10(a) of
these By-Laws. The Company may require
any proposed nominee or such shareholder to furnish such other information as
may reasonably be requested by the Company to determine the eligibility of such
proposed nominee to serve as a director of the Company.
The Chairman of the
meeting may, if the facts warrant, determine and declare to the meeting that a
nomination was not made in accordance with the foregoing procedure, and if he
should so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
Section 3.08
No Director of this Company shall
be permitted to serve in that capacity after the date of the annual meeting of
shareholders next following his or her seventy-fourth (74th) birthday. In order for any officer to become a nominee
for election by the shareholders as a Director of the Company, such officer
must have submitted to the Board of Directors prior to the time of such officer’s
nomination an irrevocable resignation from the Board to take effect upon the
termination of his employment as an officer of the Company, which resignation
the Board shall have the discretion to determine whether to accept or reject,
without the participation of the Director whose resignation is under
consideration.
Section 3.09
No Director shall be personally
liable for monetary damages as such (except to the extent otherwise provided by
law) for any action taken, or any failure to take any action, unless such
Director has breached or failed to perform the duties of his or her office
under Title 42, Chapter 83, Subchapter F of the Pennsylvania Consolidated
Statutes (or any successor
8
statute relating
to Directors’ standard of care and justifiable reliance); and the breach or failure
to perform constitutes self-dealing, willful misconduct or recklessness.
If the
Pennsylvania Consolidated Statutes are amended after May 22, 1987, the
date this section received shareholder approval, to further eliminate or limit
the personal liability of Directors, then a Director shall not be liable, in
addition to the circumstances set forth in this section, to the fullest extent
permitted by the Pennsylvania Consolidated Statutes, as so amended.
The provisions of
this section shall not apply to any actions filed prior to January 27,
1987, nor to any breach of performance of duty, or any failure of performance
of duty, by any Director occurring prior to January 27, 1987.
Section 3.10
(a) In order for any person to
become a nominee for election by shareholders as a Director of the Company,
such person must have submitted to the Board of Directors prior to the time of
such person’s nomination an irrevocable conditional resignation from the Board,
to take effect upon the occurrence of all of the following conditions: (
i
) such person having been
elected a director in the upcoming election, where the number of nominees did
not exceed the number of directors to be elected; (
ii
) such person
having received a greater number of votes “withheld” from his or her election
than votes “for” such election; and (
iii
) such resignation having
been accepted by the Board. Not later
than 90 days after the certification of an election by shareholders satisfying
clauses (i) and (ii) the Board of Directors will decide, after
receipt of a recommendation of the Corporate Governance Committee, whether to
accept such conditional resignation.
(b) Any
determination by the Board of Directors and the Corporate Governance Committee
under subsection (a) shall be made without the participation of any
Director whose resignation is under consideration with respect to the
election. If there are not sufficient
9
unaffected members of the
Corporate Governance Committee to form a quorum, the unaffected independent
Directors shall name a committee made up solely of unaffected independent
Directors to make recommendations to the Board as to the acceptance of tendered
resignation(s). If the number of
unaffected independent Directors is three or fewer, all Directors may
participate, with or without the naming of such committee as the Directors may
deem appropriate, in the decision as to whether to accept the tendered
resignations.
(c) In considering
the question of whether to accept a Director nominee’s resignation, the
Corporate Governance Committee and the Board of Directors shall be entitled to
consider such facts and circumstances as deemed appropriate, including (i) whether
the concerns raised by shareholders that led to the withhold votes can or
should be cured, (ii) whether resignation of the nominee is an appropriate
response to the concerns raised by the shareholders, (iii) the Director
nominee’s historical and anticipated future commitment and contribution to the
Board, (iv) whether the Director’s service on the Board of Directors is
consistent with applicable regulatory requirements and listing standards, and
without limitation (v) other matters in the interests of the Company. The Board of Directors’ explanation of its
decision shall be promptly disclosed on Form 8-K furnished to or filed
with the Securities and Exchange Commission.
ARTICLE IV
INDEMNIFICATION
Section 4.01
Directors and officers of the
Company shall be indemnified as of right to the fullest extent not prohibited
by law in connection with any actual or threatened action, suit or proceeding,
civil, criminal, administrative, investigative or other (whether brought by or
in the right of the Company or otherwise) arising out of their service to the
Company or to another
10
enterprise at the
request of the Company; provided, however, that the Company shall not indemnify
any Director or officer in connection with a proceeding (or part thereof)
initiated by such Director or officer (other than a proceeding to enforce such
person’s rights to indemnification under this Article) unless such proceeding
(or part thereof) was authorized by the Board.
Section 4.02
Employees of the Company who are
not Directors or officers of the Company shall be indemnified as of right in
connection with any actual or threatened action, suit or proceeding, civil,
criminal, administrative, investigative or other (whether brought by or in the
right of the Company or otherwise) arising out of their service to the Company
or to another enterprise at the request of the Company if, as determined by the
Company in its sole discretion, such employee acted in good faith and in a
manner he reasonably believed to be in, or not opposed to, the best interests
of the Company and, with respect to any criminal proceeding, had no reasonable
cause to believe that his conduct was unlawful; provided, however, that the
Company shall not indemnify an employee in connection with a proceeding (or
part thereof) initiated by such employee (other than a proceeding to enforce
such person’s rights to indemnification under this Article) unless such proceeding (or part thereof) was
authorized by the Board.
Section 4.03
The Company may indemnify agents
of the Company who are not Directors, officers or employees of the Company with
such scope and effect as determined by the Company.
Section 4.04
As soon as practicable after
receipt by any person entitled to indemnification hereunder of actual knowledge
of any action, suit or proceeding, such indemnified person shall notify the
Company thereof if a claim for indemnification in respect thereof may be or is
being made by such indemnified person against the Company under this
Article. With respect to any such
action, suit or proceeding, the Company will be entitled to participate therein
at its own
11
expense and may assume
the defense thereof. After the Company
notifies the indemnified person of its election to so assume the defense, the
Company will not be liable to the indemnified person under this Article for
any legal or other expenses subsequently incurred by the indemnified person in
connection with the defense. The Company shall not be obligated to indemnify an
indemnified person under this Article for any amounts paid in settlement
of any action or claim effected without its written consent.
Section 4.05
The Company may purchase and
maintain insurance to protect itself and any Director, officer, agent or
employee against any liability asserted against and incurred by him or her in
respect of such service, whether or not the Company would have the power to
indemnify him or her against such liability by law or under the provisions of
this Article. The provisions of this Article shall
be applicable to persons who have ceased to be Directors, officers, agents, and
employees and shall inure to the benefit of the heirs, executors, and
administrators of persons entitled to indemnity hereunder.
Indemnification
under this Article shall include the right to be paid expenses incurred in
advance of the final disposition of any action, suit or proceeding for which
indemnification is provided, upon receipt of an undertaking by or on behalf of
the indemnified person to repay such amount if it ultimately shall be
determined that he or she is not entitled to be indemnified by the Company;
provided, however, that the indemnified person shall reimburse the Company for
any amounts paid by the Company as indemnification of expenses to the extent
the indemnified person receives payment for the same expenses from any
insurance carrier or from another party.
The indemnification rights granted herein are not intended to be
exclusive of any other rights to which those seeking indemnification may be entitled
and the Company may enter into contractual agreements with any Director,
officer, agent or employee to provide such individual
12
with
indemnification rights as set forth in such agreement or agreements, which
rights shall be in addition to the rights set forth in this section.
The provisions of
this Article shall be applicable to actions, suits or proceedings
commenced after the adoption hereof, whether arising from acts or omissions
occurring before or after the adoption hereof.
ARTICLE V
STANDING COMMITTEES
Section 5.01
The Board of Directors shall have
authority to appoint an Executive Committee, a Finance Committee, an Audit
Committee, and such other committees as it deems advisable, each to consist of
two (2) or more Directors, and from time to time to define the duties and
fix the number of members of each committee.
In the absence or disqualification of any member of any such committee,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not constituting a quorum, may unanimously appoint another
Director or Directors to act at the meeting in the place of any such absent or
disqualified member or members.
ARTICLE VI
OFFICERS
Section 6.01
The principal officers of the
Company shall be chosen by the Board of Directors and shall be a Chief
Executive Officer, a President, a Secretary, and a Treasurer. The Board of Directors may also choose such
other officers, including one (1) or more Executive Vice Presidents,
Senior Vice Presidents and Vice Presidents, one (1) or more Assistant
Secretaries and Assistant Treasurers, and one (1) or more persons having
such other titles, as it may determine.
13
Section 6.02
The Board of Directors shall, at
the first meeting of the Board after its election, elect the principal officers
of the Company, and may elect additional officers at that or any subsequent
meeting. All officers elected by the
Board of Directors shall hold office at the pleasure of the Board.
Section 6.03
At the discretion of the Board of
Directors, any two (2) of the offices mentioned in Section 6.01
hereof may be held by the same person except the offices of Chief Executive
Officer and Secretary.
Section 6.04
The salaries of all officers of
the Company, other than Assistant Secretaries and Assistant Treasurers, shall
be fixed by the Board of Directors.
Section 6.05
The officers of the Company shall
hold office until the next annual meeting of the Board and until their
successors are chosen and qualify in their stead or until their earlier
resignation or removal. Any officer or
agent may be removed by the Board of Directors whenever in its judgment the best
interests of the Company will be served thereby. Such removal, however, shall be without
prejudice to the contract rights of the person so removed. If the office of any officer becomes vacant
for any reason, the vacancy may be filled by the Board of Directors.
CHIEF EXECUTIVE OFFICER
Section 6.06
The Chief Executive Officer shall
preside at all meetings of the shareholders; shall have general and active
management of the business of the Company; and shall see that all orders and
resolutions of the Board of Directors are carried into effect. In addition to any specific powers conferred
upon the Chief Executive Officer by these By-Laws, he or she shall have and
exercise such further powers and duties as from time to time may be conferred
upon or assigned to him by the Board of Directors.
14
PRESIDENT
Section 6.07
The President shall have such
duties and powers as may be assigned to him or her from time to time by the
Board of Directors or the Chief Executive Officer and shall also be the Chief
Operating Officer of the Company. During
the absence or inability of the Chief Executive Officer to serve, the President
shall have all the powers and perform the duties of the Chief Executive
Officer, including presiding at all meetings of the shareholders.
SECRETARY
Section 6.08
The Secretary shall attend all
meetings of the shareholders and Board of Directors; shall record all votes and
the minutes of all proceedings in a book to be kept for that purpose; and shall
perform like duties for all committees of the Board, if so designated by the
Board. The Secretary shall keep in safe
custody the seal of the Company and when authorized by the Board of Directors,
affix the seal of the Company to any instrument requiring it and, when so
affixed, it shall be attested by the signature of the Secretary or by the
signature of the Treasurer or an Assistant Secretary. The Secretary shall have custody of all
contracts, leases, assignments, and all other valuable instruments unless the
Board of Directors or the Chief Executive Officer shall otherwise direct. The Secretary shall give, or cause to be
given, notice of all annual meetings of the shareholders and any other meetings
of the shareholders and, when required, notice of the meetings of the Board of
Directors; and, in general, shall perform all duties incident to the office of
a secretary of a corporation, and such other duties as may be prescribed by the
Board of Directors or the Chief Executive Officer.
Section 6.09
The Board of Directors may elect
one (1) or more Assistant Secretaries who shall perform the duties of the
Secretary in the event of the Secretary’s absence or
15
inability to act,
as well as such other duties as the Board of Directors, the Chief Executive
Officer, or the Secretary may from time to time designate.
16
TREASURER
Section 6.10
The Treasurer shall have charge
of all moneys and securities belonging to the Company subject to the direction
and control of the Board of Directors.
The Treasurer shall deposit all moneys received by the Company in the
name and to the credit of the Company in such bank or other place or places of
deposit as the Board of Directors shall designate; and for that purpose the
Treasurer shall have power to endorse for collection or payment all checks or
other negotiable instruments drawn payable to the Treasurer’s order or to the
order of the Company. The Treasurer
shall disburse the moneys of the Company upon properly drawn checks which shall
bear the signature of the Treasurer or of any Assistant Treasurer or of the
Cashier (who shall be appointed by the Assistant Treasurer with the approval of
the Treasurer). All checks shall be
covered by vouchers which shall be certified by the Controller or the Auditor
of Disbursements or such other employee of the Company (other than the Cashier)
as may be designated by the Treasurer from time to time. The Treasurer may create, from time to time,
such special imprest funds as may, in the Treasurer’s discretion, be deemed
advisable and necessary, and may open accounts with such bank or banks as may
be deemed advisable for the deposit therein of such special imprest funds, and
may authorize disbursements therefrom by checks drawn against such accounts by
the Treasurer, any Assistant Treasurer, or such other employee of the Company
as may be designated by the Treasurer from time to time. The Treasurer shall perform such other duties
as may be assigned from time to time by the Board of Directors, the Chief
Executive Officer or the Chief Financial Officer.
Section 6.11
No notes or similar obligations
shall be made except jointly by the Chief Executive Officer or the Chief
Financial Officer and the Treasurer or an Assistant Treasurer, except as
otherwise authorized by the Board of Directors.
17
Section 6.12
The Board of Directors may elect
one (1) or more Assistant Treasurers who shall perform the duties of the
Treasurer in the event of the Treasurer’s absence or inability to act, as well
as such other duties as the Board of Directors, the Chief Executive Officer,
the Chief Financial Officer or the Treasurer may from time to time designate.
VICE PRESIDENTS AND OTHER OFFICERS
Section 6.12
Vice Presidents and other
officers shall perform such duties as may be assigned to them from time to time
by the Board of Directors or the Chief Executive Officer as their positions are
established or changed.
GENERAL
Section 6.14
Fidelity bond coverage shall be
obtained on such officers and employees of the Company, and of such type and in
such amounts as may, in the discretion of the Board of Directors, be deemed
proper and advisable.
18
ARTICLE VII
CERTIFICATED
AND UNCERTIFICATED SHARES
Section 7.01
All classes and series of shares
of capital stock of the Company, or any part thereof, shall be represented by
stock certificates or shall be uncertificated shares, as determined by the
Board of Directors, provided, that every shareholder shall be entitled to a
share certificate if he or she so requests in the manner prescribed by the
Company.
(a) Shares
of capital stock of the Company represented by certificates shall be signed by
the Chief Executive Officer, the President or a Vice President, and
countersigned by the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer, and sealed with the corporate seal of the Company. Said certificates shall be in such form as
the Board of Directors may from time to time prescribe.
(b)
Within a reasonable time after the issuance or transfer of uncertificated
shares, the Company shall send to the registered owner thereof a written notice
containing the information otherwise required to be set forth or stated on a
stock certificate.
Section 7.02
The Board of Directors may from
time to time appoint an incorporated company or companies to act as Transfer
Agent and Registrar of shares of the Company, and in the case of the
appointment of such Transfer Agent, the officers of the Company may sign and
seal stock certificates in blank and place them with the transfer books in the
custody and control of such Transfer Agent.
If any stock certificate is signed by a Transfer Agent or Registrar, the
signature of any such officer and the corporate seal upon any such certificate
may be a facsimile, engraved or printed.
19
Section 7.03
New certificates for shares of
stock may be issued to replace certificates lost, stolen, destroyed or
mutilated upon such terms and conditions as the Board may from time to time
determine.
ARTICLE VIII
AMENDMENTS
Section 8.01
(a) The Board of Directors
may make, amend, and repeal the By-Laws with respect to those matters which are
not, by statute, reserved exclusively to the shareholders, subject always to
the power of the shareholders to change such action as provided herein. No By-Law may be made, amended or repealed by
the shareholders unless such action is approved by the affirmative vote of the
holders of not less than eighty percent (80%) of the voting power of the then
outstanding shares of capital stock of the Company entitled to vote in an
annual election of Directors, voting together as a single class, unless such
action has been previously approved by a two-thirds vote of the whole Board of
Directors, in which event (unless otherwise expressly provided in the Articles
or the By-Laws) the vote specified by applicable law for valid shareholder
action shall be required.
(b) Unless
otherwise provided by a By-Law, by the Restated Articles or by law, any By-Law
may be amended, altered or repealed, and new By-Laws may be adopted, by vote of
a majority of the Directors present at any regular or special meeting duly
convened, but only if notice of the specific sections to be amended, altered,
repealed or added is included in the notice of meeting. No provision of the By-Laws shall vest any
property or contract right in any shareholder.
20
ARTICLE IX
PENNSYLVANIA CORPORATION LAW
Section 9.01
Subchapter G – Control Share
Acquisitions and Subchapter H – Disgorgement by Certain Controlling
Shareholders Following Attempts to Acquire Control of Title 15, Chapter
25, of the Pennsylvania Consolidated Statutes, shall not be applicable to the
Company.
21
Exhibit 4.01(g)
EQUITABLE RESOURCES, INC. (FORMED IN 1926)
AND
EQUITABLE RESOURCES, INC. (FORMED IN 2008)
TO
DEUTSCHE BANK TRUST COMPANY AMERICAS,
FORMERLY KNOWN AS BANKERS TRUST COMPANY,
SUCCESSOR TO PITTSBURGH NATIONAL BANK, TRUSTEE
SECOND SUPPLEMENTAL INDENTURE
Dated as of June 30, 2008
This Second Supplemental Indenture, dated as of
June 30, 2008
, among Equitable Resources, Inc., a corporation duly organized and
existing under the laws of the Commonwealth of Pennsylvania (herein called the “Company”),
having its principal executive office at
225 North Shore Drive, Pittsburgh, Pennsylvania 15212,
Equitable Resources, Inc., a
corporation formed on June 10, 2008 and duly organized and existing under
the laws of the Commonwealth of Pennsylvania (herein called “New EQT”)
and Deutsche Bank Trust Company Americas,
formerly known as Bankers Trust Company, successor to Pittsburgh National Bank,
a New York banking corporation (herein called the “Trustee”) under the
Indenture dated as of April 1, 1983 (the “Indenture”) from the Company.
WITNESSETH THAT:
WHEREAS, Section 901(1) of the Indenture
provides that, without the consent of the Holders, the Company, when authorized
by a Board Resolution, and the Trustee, at any time may enter into one or more
supplemental indentures for the purpose of evidencing the succession of another
corporation to the Company, or successive successions, and the assumption by
any such successor of the covenants of the Company in the Indenture and in the
Securities;
WHEREAS,
pursuant to Section 801 of the Indenture, the Company may convey, lease or
otherwise dispose of its property substantially as an entirety to any other
corporation authorized to acquire the same; provided, among other things, that
such Person shall expressly assume, by a supplemental indenture executed and
delivered to the Trustee and in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and interest on all
Outstanding Securities and the performance and observance of all of the
covenants and conditions of the Indenture to be performed by the Company;
WHEREAS,
the Company has transferred to New EQT
all of Equitable’s Production and Midstream businesses and all corporate assets
and liabilities;
WHEREAS,
New EQT will assume all the rights and obligations of, and succeed to and be
substituted for, the Company under the Indenture and the Securities;
WHEREAS,
to evidence the assumption of the obligations under the Indenture and the
Securities by New EQT and the release of the Company from its liabilities and
obligations under or with respect to the Securities and the Indenture in
accordance with Sections 801 and 802 of the Indenture, New EQT has agreed to
execute and deliver this Second Supplemental Indenture;
WHEREAS, the following series of Securities have been
created prior to the execution hereof:
8.48% to 9.00% Medium Term Notes Series A,
due 2006 thru 2021; 7.30% to 7.55% Medium Term Notes Series B, due 2013
thru 2023; 6.78% to 7.60% Medium Term Notes Series C, due 2007 thru 2018;
WHEREAS, the execution of this Second Supplemental
Indenture has been duly authorized by the Board of Directors of the Company;
WHEREAS,
the Company has delivered, or caused to be delivered, to the Trustee, an
Officers’ Certificate and an Opinion of Counsel meeting the requirements of Section 803
of the Indenture;
2
WHEREAS,
the Company and the Trustee have received a direction to enter into this Second
Supplemental Indenture from the holders of at least a majority in principal
amount of the outstanding Notes of each series;
NOW THEREFORE THIS SECOND SUPPLEMENTAL INDENTURE
WITNESSETH:
For and in consideration of the premises, and intending
to be legally bound hereby, mutually covenant and agree, for the equal and
proportionate benefit of all Holders of the Securities or of any series
thereof, as follows:
ARTICLE ONE
ASSUMPTION OF OBLIGATIONS
SECTION 101. Assumption of Obligations under
Indenture. New EQT hereby fully and unconditionally
assumes the due and punctual payment of the principal of (and premium if any),
and interest on the Notes and the performance and observance of all of the
covenants and conditions of the Indenture to be performed by
the Company.
ARTICLE TWO
MISCELLANEOUS PROVISIONS
SECTION 201.
Terms Defined
. For all purposes of this Second Supplemental
Indenture, capitalized terms used and not otherwise defined herein shall have
the meanings assigned to such terms in the Indenture.
SECTION 202.
Effect of Supplemental Indenture
. Upon the execution and delivery of this
Second Supplemental Indenture by New EQT, the Company and the Trustee, the
Indenture shall be supplemented in accordance herewith, and this Second
Supplemental Indenture shall form a part of the Indenture for all purposes, and
every Holder of Securities heretofore or hereafter authenticated and delivered
under the Indenture shall be bound thereby. In accordance with Section 802
of the Indenture, upon the execution and delivery of this Second Supplemental
Indenture by New EQT, the Company and the Trustee, New EQT shall succeed to and
be substituted for the Company with the same effect as if it had been named
therein as the party of the first part and the Company shall be released and
relieved in accordance with Section 802 of the Indenture.
SECTION 203.
Indenture and
Supplemental
Indenture Construed Together
. This Second Supplemental Indenture is an
indenture supplemental to and in implementation of the Indenture, and the
Indenture and this Second Supplemental Indenture shall henceforth be read and
construed together.
SECTION 204.
Multiple Counterparts
. The parties may sign multiple counterparts of
this Second Supplemental Indenture. Each signed counterpart shall be deemed an
original, but all of them together represent the same agreement.
3
SECTION 205.
Endorsement and Change of Form of
Notes
. Any Notes
authenticated and delivered after the date of this Second Supplemental
Indenture in exchange or substitution for Notes then outstanding and all Notes
presented or delivered to the Trustee on and after that date for such purpose
shall (unless textually revised as hereinafter provided) be stamped or
typewritten by the Trustee with a notation as follows:
“New EQT, Inc., a Pennsylvania corporation (“New EQT”), has
assumed the obligations of Equitable Resources, Inc. (the “Company”) as
successor to the Company in connection with the transfer of the properties and
assets of the Company substantially as an entirety. New EQT has expressly
assumed the due and punctual payment of the principal of (and premium, if any),
and interest on all of the Notes and the due and punctual performance and
observance of all of the of covenants and conditions in the Indenture to be
performed by the Company, and the Company will be relieved from all covenants
and obligations under the Notes, the Securities and the Indenture in accordance
with the Second Supplemental Indenture referred to below. The Indenture dated
as of April 1, 1983 referred to in this Note has been amended by a Second
Supplemental Indenture dated as of
June 30, 2008
to provide for
such assumptions of obligations by New EQT and the release of the Company from
such obligations. Reference is hereby made to said Second Supplemental
Indenture, copies of which are on file with Deutsche Bank Trust Company
Americas, as Trustee, for a description of the amendments therein made.”
Any Notes hereafter authenticated and delivered in exchange or
substitution for Notes then outstanding shall, if New EQT so elects, be
textually revised in a form approved by the Trustee to make reference to the
Second Supplemental Indenture and to reflect the supplement of the Indenture
hereby instead of being stamped or typewritten as hereinabove provided.
4
IN WITNESS WHEREOF, the parties hereto have
caused this Second Supplemental Indenture to be duly executed as
of the day and year first above written.
|
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EQUITABLE RESOURCES, INC.
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(Formed in 1926)
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|
|
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By:
|
/s/ James E. Crockard, III
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|
Name: James E. Crockard, III
|
|
|
Title: Treasurer
|
|
|
|
|
Attest:
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/s/ Kimberly
L. Sachse
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|
|
|
|
Secretary
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|
|
EQUITABLE RESOURCES, INC.
|
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|
(Formed in 2008)
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By:
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/s/ Philip P. Conti
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|
Name: Philip P. Conti
|
|
|
Title:
|
Senior Vice President and
Chief
Financial Officer
|
|
|
|
|
Attest:
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/s/ Kimberly
L. Sachse
|
|
|
|
|
Secretary
|
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|
|
|
|
|
|
DEUTSCHE BANK TRUST
COMPANY
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AMERICAS, formerly
known as
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BANKERS TRUST COMPANY,
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|
successor to PITTSBURGH
NATIONAL BANK
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By: Deutsche Bank
National Trust Company
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By:
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/s/ David Contino
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|
Name:
|
David Contino
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Title:
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Vice President
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By: Deutsche Bank
National Trust Company
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By:
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/s/ Irina Golovashchuk
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Name:
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Irina Golovashchuk
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Title:
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Assistant
Vice
President
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|
5
Exhibit 4.02(f)
EQUITABLE RESOURCES, INC. (FORMED IN 1926)
AND
EQUITABLE RESOURCES, INC. (FORMED IN 2008)
TO
THE BANK OF NEW YORK, FORMERLY KNOWN AS
BANK OF MONTREAL TRUST COMPANY, TRUSTEE
FIRST SUPPLEMENTAL INDENTURE
Dated as of June 30, 2008
This First Supplemental
Indenture, dated as of June 30, 2008, among Equitable Resources, Inc.,
a corporation duly organized and existing under the laws of the Commonwealth of
Pennsylvania (herein called the “Company”), having its principal executive
office at
225 North Shore
Drive, Pittsburgh, Pennsylvania 15212,
Equitable Resources, Inc., a
corporation formed on June 10, 2008 and duly organized and existing under
the laws of the Commonwealth of Pennsylvania (herein called “New EQT”)
and The Bank of New York, formerly known as
Bank of Montreal Trust Company, a New York banking corporation (herein called
the “Trustee”) under the Indenture dated as of July 1, 1996 (the “Indenture”)
from the Company.
WITNESSETH THAT:
WHEREAS, Section 901(1) of
the Indenture provides that, without the consent of the Holders, the Company,
when authorized by a Board Resolution, and the Trustee, at any time may enter
into one or more supplemental indentures for the purpose of evidencing the
succession of another Person to the Company and the assumption by any such
successor of the covenants of the Company in the Indenture and in the
Securities;
WHEREAS, pursuant to Section 801 of the
Indenture, the Company may convey, transfer or lease its properties and assets
substantially as an entirety to any other Person organized and validly existing
under the laws of the United States of America, any state thereof or the
District of Columbia; provided, among other things, that such Person shall
expressly assume, by a supplemental indenture executed and delivered to the
Trustee and in form satisfactory to the Trustee, the due and punctual payment
of the principal of and interest on all the Securities and the performance or
observance of every covenant of the Indenture on the part of the Company to be
performed or observed;
WHEREAS, the Company has transferred to New EQT all of Equitable’s Production and
Midstream businesses and all corporate assets and liabilities;
WHEREAS, New EQT will assume all the rights and
obligations of, and succeed to and be substituted for, the Company under the
Indenture and the Securities;
WHEREAS, to evidence the assumption of the
obligations under the Indenture and the Securities by New EQT and the release
of the Company from its liabilities and obligations under or with respect to
the Securities and the Indenture in accordance with Sections 801 and 802 of the
Indenture, New EQT has agreed to execute and deliver this First Supplemental
Indenture;
WHEREAS, the following series
of Securities have been created prior to the execution hereof:
5.15% Notes Due March 1, 2018, 5.15% Notes Due November 15,
2012, 5.00% Notes Due October 1, 2015, and the 7.75% Debentures Due July 15,
2026 and remain outstanding (the “Notes”);
WHEREAS, the execution of this
First Supplemental Indenture has been duly authorized by the Board of Directors
of the Company;
WHEREAS, the Company has delivered, or caused to be
delivered, to the Trustee, an Officers’ Certificate and an Opinion of Counsel
meeting the requirements of Section 801(4) of
2
the
Indenture;
WHEREAS, the Company and the Trustee have received a
direction to enter into this First Supplemental Indenture from the holders of
at least a majority in principal amount of the outstanding Notes of each
series;
NOW THEREFORE THIS FIRST
SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of
the premises, and intending to be legally bound hereby, mutually covenant and
agree, for the equal and proportionate benefit of all Holders of the Securities
or of any series thereof, as follows:
ARTICLE ONE
ASSUMPTION OF OBLIGATIONS
SECTION 101.
Assumption of Obligations under
Indenture.
New EQT hereby fully and
unconditionally assumes the due and punctual payment of the principal of and
interest on the Notes and the performance and observance of every covenant of
the Indenture on the part of the Company to be performed or observed.
ARTICLE TWO
RELEASE OF OBLIGAT
IONS
SECTION 201.
Release of the Company from
Obligations.
The Trustee, on behalf of the Holders of the Securities, hereby
relieves the Company from all covenants and obligations under the Notes, the
Securities, and the Indenture.
ARTICLE III
MISCELLANEOUS P
ROVISIONS
SECTION 301.
Terms Defined.
For all purposes of this First Supplemental
Indenture, capitalized terms used and not otherwise defined herein shall have
the meanings assigned to such terms in the Indenture.
SECTION 302. Effect of
Supplemental Indenture. Upon the
execution and delivery of this First Supplemental Indenture by New EQT, the
Company and the Trustee, the Indenture shall be supplemented in accordance
herewith, and this First Supplemental Indenture shall form a part of the
Indenture for all purpose
s,
and every Holder of Securities heretofore or hereafter authenticated and
delivered under the Indenture shall be bound thereby. In accordance with Section 802
of the Indenture, upon the execution and delivery of this First Supplemental
Indenture by New EQT, the Company and the Trustee, New EQT shall succeed to and
be substituted for the Company with the same effect as if it had been named
therein as the party of the first part and the Company shall be released and
relieved as heretofore agreed.
3
SECTION 303.
Indenture and Supplemental
Indenture Construed Together.
This
First Supplemental Indenture is an indenture supplemental to and in implementation of the Indenture, and the Indenture
and this First Supplemental Indenture shall henceforth be read and construed
together.
SECTION 304. Multiple
Counterparts. The parties may sign
multiple counterparts of this First Supplemental Indenture. Each signed
counterpart shall be deemed an original, but all of them together represent the
sam
e agreement.
SECTION 305.
Endorsement and Change of Form of
Notes.
Any Notes authenticated and
delivered after the date of this First Supplemental
Indenture in exchange or substitution for Notes then outstanding and all Notes
presented or delivered to the Trustee on and after that date for such purpose
shall (unless textually revised as hereinafter provided) be stamped or
typewritten by the Trustee with a notation as follows:
“New EQT, Inc., a Pennsylvania corporation (“New
EQT”), has assumed the obligations of Equitable Resources, Inc. (the “Company”)
as successor to the Company in connection
with the transfer of the properties and assets of the Company substantially as
an entirety. New EQT has expressly assumed the due and punctual payment of the
principal of and interest on all the Notes and the due and punctual performance
and observance of all the covenants and obligations in the Indenture to be
performed or observed by the Company, and the Company will be relieved from all
covenants and obligations under the Notes, the Securities and the
Indenture in accordance with the First Supplemental Indenture referred to
below. The Indenture dated as of July 1, 1996 referred to in this Note has
been amended by a First Supplemental Indenture dated as of June 30, 2008
to provide for such assumptions of obligations by New EQT and the release of
the Company from such obligations. Reference is hereby made to said First
Supplemental Indenture, copies of which are on file with The Bank of New York,
as Trustee, for a description of the amendments therein made.”
Any Notes hereafter authenticated and delivered in
exchange or substitution for Notes then outstanding shall, if New EQT so
elects, be textually revised in a
form approved by the Trustee to make reference to the First Supplemental
Indenture and to reflect the supplement of the Indenture hereby instead of
being stamped or typewritten as hereinabove provided.
4
IN WITNESS WHEREOF, the
parties hereto have caused this First Supplemental Indenture to be duly
executed as of the day and year first above written.
|
|
EQUITABLE RESOURCES, INC.
|
|
|
(Formed in 1926)
|
|
|
|
|
|
By:
|
/s/ James E. Crockard, III
|
|
|
Name: James E.
Crockard, III
|
|
|
Title: Treasurer
|
|
Attest:
|
/s/ Kimberly L.
Sachse
|
|
|
|
|
Secretary
|
|
|
|
|
EQUITABLE RESOURCES, INC.
|
|
|
(Formed in 2008)
|
|
|
|
|
|
By:
|
/s/ Philip P. Conti
|
|
|
Name: Philip P. Conti
|
|
|
Title: Senior Vice President
and Chief
|
|
|
Financial Officer
|
|
Attest:
|
/s/ Kimberly L.
Sachse
|
|
|
|
|
Secretary
|
|
|
|
|
THE BANK OF NEW YORK,
formerly known as
|
|
|
BANK OF MONTREAL TRUST
COMPANY
|
|
|
|
|
|
By:
|
/s/ Beata Hryniewicka
|
|
|
Name:
|
Beata Hryniewicka
|
|
|
Title:
|
Assistant Vice
President
|
|
|
|
|
|
|
5
|
COMMONWEALTH OF PENNSYLVANIA
|
)
|
|
|
|
|
|
|
|
) ss.:
|
|
|
|
|
|
|
COUNTY OF ALLEGHENY
|
)
|
|
|
|
|
|
On this 9th day of June, 2008
before me personally appeared James E. Crockard, III, to me known, who,
being by me duly sworn, did depose and say that he is Treasurer of Equitable
Resources, Inc., a corporation described in the foregoing instrument; and
that he as such officer, being authorized to do so, executed the foregoing
instrument for the purposes therein contained by signing the name of the
corporation by himself as such officer.
|
|
Christina L. Jones
|
Notary Public
|
|
|
PITTSBURGH, ALLEGHENY COUNTY
|
|
|
MY COMMISSION
EXPIRES
|
|
|
Member, Penn. Assoc. of Notaries
|
[Notarial
Seal]
6
|
COMMONWEALTH OF PENNSYLVANIA
|
)
|
|
|
|
|
|
|
|
) ss.:
|
|
|
|
|
|
|
COUNTY OF ALLEGHENY
|
)
|
|
|
|
|
|
On this 9th day of June, 2008
before me personally appeared Philip P. Conti, to me known, who, being by me
duly sworn, did depose and say that he is Senior Vice President and Chief
Financial Officer of Equitable Resources, Inc., a corporation described in
the foregoing instrument; and that he as such officer, being authorized to do
so, executed the foregoing instrument for the purposes therein contained by
signing the name of the corporation by himself as such officer.
|
|
Christina L. Jones
|
Notary Public
|
|
|
PITTSBURGH, ALLEGHENY COUNTY
|
|
|
MY COMMISSION EXPIRES
|
|
|
Member, Penn. Assoc. of Notaries
|
[Notarial
Seal]
7
Exhibit 4.03(c)
EQUITABLE RESOURCES, INC. (FORMED IN 1926)
AND
EQUITABLE RESOURCES, INC. (FORMED IN 2008)
TO
THE BANK OF NEW YORK, TRUSTEE
SECOND SUPPLEMENTAL INDENTURE
Dated as of June 30, 2008
This Second Supplemental
Indenture, dated as of June 30, 2008, among Equitable Resources, Inc.,
a corporation duly organized and existing under the laws of the Commonwealth of
Pennsylvania (herein called the “Company”), having its principal executive
office at
225 North Shore
Drive, Pittsburgh, Pennsylvania 15212,
Equitable Resources, Inc., a
corporation formed on June 10, 2008 and duly organized and existing under
the laws of the Commonwealth of Pennsylvania (herein called “New EQT”) and The Bank of New York, a New York banking
corporation (herein called the “Trustee”), under the Indenture dated as of March 18,
2008 (the “Indenture”) from the Company.
WITNESSETH THAT:
WHEREAS, Section 14.01(d) of
the Indenture provides that, without the consent of the Holders, the Company
and the Trustee, at any time may enter into one or more supplemental indentures
for the purpose of evidencing the succession of another entity to the Company
and the assumption by any such successor of the covenants of the Company in the
Indenture and in the Securities;
WHEREAS, pursuant to Section 6.04(a) of
the Indenture, the Company may convey, transfer or lease its properties and
assets substantially as an entirety to any other entity provided that such
entity shall expressly assume, by a supplemental indenture executed and
delivered to the Trustee prior to or simultaneously with such conveyance,
transfer or lease, the due and punctual payment of the principal of and
interest on all the Securities and the performance or observance of every
covenant of the Indenture on the part of the Company to be performed or
observed;
WHEREAS, the Company has transferred to New EQT all of Equitable’s Production and
Midstream businesses and all corporate assets and liabilities (the “Transfer”);
WHEREAS, pursuant to Section 6.04(c) of
the Indenture, the Transfer shall be deemed to be a conveyance of the assets of
the Company substantially as an entirety;
WHEREAS, New EQT will assume all the rights and
obligations of, and succeed to and be substituted for, the Company under the
Indenture and the Securities;
WHEREAS, to evidence the assumption of the
obligations under the Indenture and the Securities by New EQT and the release
of the Company from its liabilities and obligations under or with respect to
the Securities and the Indenture in accordance with Sections 14.01(d) and
6.04(a) of the Indenture, New EQT has agreed to execute and deliver this
Second Supplemental Indenture;
WHEREAS, the following series
of Securities have been created prior to the execution hereof:
6.50% Senior Notes Due March, 2018 and remain outstanding (the “Notes”);
WHEREAS, the execution of this
Second Supplemental Indenture has been duly authorized by the Board of
Directors of the Company;
WHEREAS, the Company has delivered, or caused to be
delivered, to the Trustee, an Officers’ Certificate and an Opinion of Counsel
meeting the requirements of Section 16.01 of
2
the
Indenture;
NOW THEREFORE THIS
SECOND SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of
the premises, and intending to be legally bound hereby, mutually covenant and
agree, for the equal and proportionate benefit of all Holders of the Securities
or of any series thereof, as follows:
ARTICLE ONE
ASSUMPTION OF OBLIGATIONS
SECTION 101.
Assumption of Obligations under
Indenture.
New EQT hereby fully and
unconditionally assumes the due and punctual payment of the principal of and
interest on the Notes and the performance and observance of every covenant of
the Indenture on the part of the Company to be performed or observed.
ARTICLE TWO
RELEASE OF OBLIGAT
IONS
SECTION 201.
Release of the Company from
Obligations.
The Trustee, on behalf of the Holders of the Securities, hereby
relieves the Company from all covenants and obligations under the Notes, the
Securities, and the Indenture.
ARTICLE III
MISCELLANEOUS P
ROVISIONS
SECTION 301.
Terms Defined.
For all purposes of this Second Supplemental
Indenture, capitalized terms used and not otherwise defined herein shall have
the meanings assigned to such terms in the Indenture.
SECTION 302.
Effect of
Supplemental Indenture
. Upon the
execution and delivery of this Second Supplemental Indenture by New EQT, the
Company and the Trustee, the Indenture shall be supplemented in accordance
herewith, and this Second Supplemental Indenture shall form a part of the
Indenture for all purpose
s,
and every Holder of Securities heretofore or hereafter authenticated and
delivered under the Indenture shall be bound thereby. In accordance with Section 6.04(a) of
the Indenture, upon the execution and delivery of this Second Supplemental
Indenture by New EQT, the Company and the Trustee, New EQT shall succeed to and
be substituted for the Company with the same effect as if it had been named
therein as the party of the first part and the Company shall be released and
relieved as heretofore agreed.
SECTION 303.
Indenture and Supplemental
Indenture Construed Together.
This
Second Supplemental Indenture is an indenture supplemental to and in implementation of the Indenture, and the Indenture
and this Second Supplemental Indenture shall henceforth be read and construed
together.
3
SECTION 304.
Multiple
Counterparts.
The parties may sign
multiple counterparts of this Second Supplemental Indenture. Each signed
counterpart shall be deemed an original, but all of them together represent the
sam
e agreement.
SECTION 305.
Endorsement and Change of Form of
Notes.
Any Notes authenticated and
delivered after the date of this Second Supplemental
Indenture in exchange or substitution for Notes then outstanding and all Notes
presented or delivered to the Trustee on and after that date for such purpose
shall (unless textually revised as hereinafter provided) be stamped or
typewritten by the Trustee with a notation as follows:
“New EQT, Inc., a Pennsylvania corporation (“New
EQT”), has assumed the obligations of Equitable Resources, Inc. (the “Company”)
as successor to the Company in connection
with the transfer of the properties and assets of the Company substantially as
an entirety. New EQT has expressly assumed the due and punctual payment of the
principal of and interest on all the Notes and the due and punctual performance
and observance of all the covenants and obligations in the Indenture to be
performed or observed by the Company, and the Company will be relieved from all
covenants and obligations under the Notes, the Securities and the
Indenture in accordance with the Second Supplemental Indenture referred to
below. The Indenture dated as of March 18, 2008 referred to in this Note
has been amended by a Second Supplemental Indenture dated as of June 30,
2008 to provide for such assumptions of obligations by New EQT and the release
of the Company from such obligations. Reference is hereby made to said Second
Supplemental Indenture, copies of which are on file with The Bank of New York,
as Trustee, for a description of the amendments therein made.”
Any Notes hereafter authenticated and delivered in
exchange or substitution for Notes then outstanding shall, if New EQT so
elects, be textually revised in a
form approved by the Trustee to make reference to the Second Supplemental
Indenture and to reflect the supplement of the Indenture hereby instead of
being stamped or typewritten as hereinabove provided.
SECTION
306.
Trustee.
The Trustee makes no
representations as to the validity or
sufficiency of this Second Supplemental Indenture. The recitals and statements
herein are deemed to be those of the Company and new EQT and not of the Trustee.
4
IN WITNESS WHEREOF, the
parties hereto have caused this Second Supplemental Indenture to be duly
executed as of the day and year first above written.
|
|
EQUITABLE RESOURCES, INC.
|
|
|
(Formed in 1926)
|
|
|
|
|
|
By:
|
/s/ James E. Crockard, III
|
|
|
Name: James E. Crockard, III
|
|
|
Title: Treasurer
|
|
|
|
|
Attest:
|
/s/ Kimberly L.
Sachse
|
|
|
|
|
Secretary
|
|
|
|
|
|
|
|
|
|
|
EQUITABLE RESOURCES, INC.
|
|
|
(Formed in 2008)
|
|
|
|
|
|
By:
|
/s/ Philip P. Conti
|
|
|
Name: Philip P. Conti
|
|
|
Title: Senior Vice President
and Chief
|
|
|
Financial Officer
|
|
|
|
|
Attest:
|
/s/ Kimberly L.
Sachse
|
|
|
|
|
Secretary
|
|
|
|
|
|
|
|
THE BANK OF NEW YORK
|
|
|
|
|
|
By:
|
/s/ Beata Hryniewicka
|
|
|
Name:
|
Beata Hryniewicka
|
|
|
Title:
|
Assistant Vice
President
|
|
|
|
|
Attest:
|
|
|
|
|
|
Secretary
|
|
|
|
|
|
|
|
|
|
|
|
5
Exhibit 10.12(i)
|
|
|
225 North Shore Drive
Pittsburgh, PA
15212-5861
www.eqt.com
|
June 9, 2008
Murry S. Gerber
340 Fox Hunt Road
Pittsburgh, PA 15238
|
Re:
|
The agreements identified on
Exhibit A
attached hereto (such agreements, together with all exhibits, schedules,
amendments, modifications, restatements, or other supplements thereto, and
any other documents executed or delivered in connection therewith, the
(“Agreements”))
|
Dear
Mr. Gerber:
As you know, to effect the
pending reorganization, Equitable Resources, Inc. (“Equitable”) will merge
with a second tier subsidiary (the “Merger”), which will result in a first tier
subsidiary (“New EQT”) becoming the new publicly traded parent company of the
Equitable family of companies. Following
the Merger, we will transfer to the new parent company all of the assets and
liabilities of existing Equitable Resources (including the Agreements) other
than those associated with our existing Equitable Gas Company division (the “Asset/Liability
Transfer”).
As part of the Asset/Liability Transfer, New EQT will
assume all of Equitable’s rights, interests, obligations and liabilities under
and to the Agreements and will be substituted for all purposes for Equitable
under the Agreements pursuant to an Assignment and Assumption Agreement (the “Contract
Assignment”). Other than changing your
counterparty to the Agreements from the existing parent company of the
Equitable family of companies to the new parent company, the reorganization
will have no effect on the Agreements.
Accordingly, following the Merger and Contract Assignment the Agreements
will continue to govern your relationship with New EQT.
You may be a participant in certain executive
compensation plans. Upon completion of the
reorganization, any stock options to purchase shares of
Equitable common stock shall become stock options to purchase shares
of common stock of New EQT and any shares of restricted stock shall
become shares of restricted stock of New EQT. Similarly, any other awards representing
shares of Equitable common stock will automatically become awards representing
shares of New EQT. The number
of stock options, shares, including shares represented, and the terms
and any exercise price associated therewith will remain the same and will
remain subject to the existing agreements and the 1999 Long-Term Incentive
Plan. In addition, the stock on which
the performance condition under the 2005 Executive Performance
Incentive Program (the
“EPIP”) in which you may participate is based
will automatically be adjusted to become the common stock of New EQT, and the
value of the performance shares awarded will be determined by reference to the
common stock of New EQT. Further, the performance goals of the Executive
Short-Term Incentive Plan (the “ESTIP”) will now be determined by reference to
New EQT, the common stock of New EQT and its affiliates and business units, as
applicable, but your incentive targets are not otherwise affected. If
you are a participant in the EPIP or the ESTIP, you remain subject to
the terms of the plan, your individual award and/or your individual notice
of participation.
We hereby request that you acknowledge, by signing the
enclosed copy of this letter in the space provided below and returning it to
the address set forth below, that (1) following the Merger and Contract
Assignment the Agreements will constitute legally binding agreements between
you and New EQT and (2) the form of Assignment and Assumption Agreement
attached hereto as
Exhibit B
is satisfactory to transfer all agreements
between you and Equitable to New EQT as part of the Asset/Liability Transfer.
|
Please return
letter to:
|
Jonathan M. Lushko, Esq.
|
|
|
Equitable Resources, Inc.
|
|
|
225 North Shore Drive
|
|
|
Pittsburgh, PA 15212-5861
|
If
you have any questions, please do not hesitate to contact Kimberly Sachse at
412-553-5758 or me at 412-553-5712.
Thank you in advance for your timely assistance with our request. We look forward to our continuing
relationship with you.
Sincerely,
|
/s/
Charlene J. Petrelli
|
|
|
|
|
|
Charlene
J. Petrelli
|
|
|
Vice
President and Chief Human Resources Officer
|
|
ACKNOWLEDGED,
CONFIRMED,
CONSENTED TO AND AGREED:
MURRY
S. GERBER
2
Exhibit A
Change
of Control Agreement, dated September 1, 2002, by and between Equitable
Resources, Inc. and Murry S. Gerber
Employment
Agreement, dated May 4, 1998, between Equitable Resources, Inc. and
Murry S. Gerber, as amended by Amendment No. 1 to Employment Agreement,
dated December 1, 1999, Amendment No. 2 to Employment Agreement,
dated September 1, 2002, and Amendment No. 3 to Employment Agreement,
dated January 31, 2004
Indemnification
Agreement, dated May 17, 2000, by and between Equitable Resources, Inc.
and Murry S. Gerber
Amended
and Restated Post-Termination Confidentiality and Non-Competition Agreement,
dated December 1, 1999, by and between Murry S. Gerber and Equitable
Resources, Inc.
Supplemental
Executive Retirement Agreement, dated May 4, 1998, by and between
Equitable Resources, Inc. and Murry S. Gerber
Satisfaction
Agreement in Respect of Supplemental Executive Retirement Agreement, dated February 22,
2006, by and between Equitable Resources, Inc. and Murry S. Gerber
Exhibit B
Assignment and Assumption Agreement
THIS
ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”), dated as of the
day of
,
2008, by and between Equitable Resources, Inc., a Pennsylvania corporation
formed in 1926 (“Assignor”) and Equitable Resources, Inc., a Pennsylvania
corporation formed in 2008 to effect a holding company reorganization of
Assignor (“Assignee”).
WITNESSETH:
WHEREAS,
the Assignor desires to assign and transfer to the Assignee all of Assignor’s
right, title and interest under and to the agreements identified on
Exhibit A
attached hereto (the “Transferred Agreements”); and
WHEREAS,
the Assignee desires to substitute itself for and become the successor to the
Assignor with respect to the Transferred Agreements and to assume and perform
all of the Assignor’s covenants, agreements, duties, responsibilities and
obligations under and to the Transferred Agreements.
NOW,
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt, adequacy and legal sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. The Assignor does hereby assign,
sell, transfer, and set over to Assignee, its successors and assigns forever,
all of Assignor’s right, title and interest in and to the Transferred
Agreements. Such assignment shall be
effective as of the date hereof.
2. The Assignee hereby assumes and
agrees to promptly perform all covenants, agreements, duties, responsibilities
and obligations of Assignor under the Transferred Agreements. Assignor shall have no further duties,
responsibilities or obligations with respect to the Transferred Agreements
effective as of the date hereof.
3. The Assignor and Assignee hereby
covenant, from time to time at the request of the other party and without
further cost or expense to such party, to execute
and deliver such other instruments which the
other party may reasonably request in order to more effectively consummate the
transactions contemplated by this Agreement.
4. This Agreement shall be governed by
and construed in accordance with the laws of the Commonwealth of Pennsylvania,
without giving effect to the conflicts-of-laws provisions thereof.
5. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
6. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same original.
[Signature Page Follows]
IN WITNESS WHEREOF,
Assignor and Assignee have executed this Agreement as of the date first
written above.
EQUITABLE RESOURCES, INC.
(organized in 1926)
|
By:
|
|
|
|
Name:
|
James
E. Crockard, III
|
|
|
Title:
|
Treasurer
|
|
|
|
|
|
|
EQUITABLE
RESOURCES, INC.
(organized
in 2008)
|
By:
|
|
|
|
Name:
|
Philip
P. Conti
|
|
|
Title:
|
Senior
Vice President and Chief Financial Officer
|
|
|
|
|
|
|
Exhibit A
Change
of Control Agreement, dated September 1, 2002, by and between Equitable
Resources, Inc. and Murry S. Gerber
Employment
Agreement, dated May 4, 1998, between Equitable Resources, Inc. and
Murry S. Gerber, as amended by Amendment No. 1 to Employment Agreement,
dated December 1, 1999, Amendment No. 2 to Employment Agreement,
dated September 1, 2002, and Amendment No. 3 to Employment Agreement,
dated January 31, 2004
Indemnification
Agreement, dated May 17, 2000, by and between Equitable Resources, Inc.
and Murry S. Gerber
Amended
and Restated Post-Termination Confidentiality and Non-Competition Agreement,
dated December 1, 1999, by and between Murry S. Gerber and Equitable
Resources, Inc.
Supplemental
Executive Retirement Agreement, dated May 4, 1998, by and between
Equitable Resources, Inc. and Murry S. Gerber
Satisfaction
Agreement in Respect of Supplemental Executive Retirement Agreement, dated February 22,
2006, by and between Equitable Resources, Inc. and Murry S. Gerber
Exhibit 10.13(g)
|
|
|
225 North Shore Drive
Pittsburgh, PA
15212-5861
www.eqt.com
|
June 9, 2008
David L. Porges
5725 Aylesboro Avenue
Pittsburgh, PA 15217
|
Re:
|
|
The agreements identified on Exhibit A attached
hereto (such agreements, together with all exhibits, schedules, amendments,
modifications, restatements, or other supplements thereto, and any other
documents executed or delivered in connection therewith, the (“Agreements”))
|
Dear Mr. Porges:
As you know, to effect the
pending reorganization, Equitable Resources, Inc. (“Equitable”) will merge
with a second tier subsidiary (the “Merger”), which will result in a first tier
subsidiary (“New EQT”) becoming the new publicly traded parent company of the
Equitable family of companies. Following
the Merger, we will transfer to the new parent company all of the assets and
liabilities of existing Equitable Resources (including the Agreements) other
than those associated with our existing Equitable Gas Company division (the “Asset/Liability
Transfer”).
As part of the Asset/Liability Transfer, New EQT will
assume all of Equitable’s rights, interests, obligations and liabilities under
and to the Agreements and will be substituted for all purposes for Equitable
under the Agreements pursuant to an Assignment and Assumption Agreement (the “Contract
Assignment”). Other than changing your
counterparty to the Agreements from the existing parent company of the
Equitable family of companies to the new parent company, the reorganization
will have no effect on the Agreements.
Accordingly, following the Merger and Contract Assignment the Agreements
will continue to govern your relationship with New EQT.
You may be a participant in certain executive
compensation plans. Upon completion of the
reorganization, any stock options to purchase shares of
Equitable common stock shall become stock options to purchase shares
of common stock of New EQT and any shares of restricted stock shall
become shares of restricted stock of New EQT. Similarly, any other awards representing shares
of Equitable common stock will automatically become awards representing shares
of New EQT. The number of stock
options, shares, including shares represented, and the terms and any
exercise price associated therewith will remain the same and will remain
subject to the existing agreements and the 1999 Long-Term Incentive
Plan. In addition, the stock on which
the performance condition under the 2005 Executive Performance
Incentive Program (the
“EPIP”) in which you may participate is based
will automatically be adjusted to become the common stock of New EQT, and the
value of the performance shares awarded will be determined by reference to the
common stock of New EQT. Further, the performance goals of the Executive
Short-Term Incentive Plan (the “ESTIP”) will now be determined by reference to
New EQT, the common stock of New EQT and its affiliates and business units, as
applicable, but your incentive targets are not otherwise affected. If
you are a participant in the EPIP or the ESTIP, you remain subject to
the terms of the plan, your individual award and/or your individual notice
of participation.
We hereby request that you acknowledge, by signing the
enclosed copy of this letter in the space provided below and returning it to
the address set forth below, that (1) following the Merger and Contract
Assignment the Agreements will constitute legally binding agreements between
you and New EQT and (2) the form of Assignment and Assumption Agreement
attached hereto as
Exhibit B
is satisfactory to transfer all
agreements between you and Equitable to New EQT as part of the Asset/Liability
Transfer.
|
Please return letter to:
|
|
Jonathan M. Lushko, Esq.
|
|
|
|
Equitable Resources, Inc.
|
|
|
|
225 North Shore Drive
|
|
|
|
Pittsburgh, PA 15212-5861
|
If
you have any questions, please do not hesitate to contact Kimberly Sachse at
412-553-5758 or me at 412-553-5712.
Thank you in advance for your timely assistance with our request. We look forward to our continuing
relationship with you.
Sincerely,
|
/s/
Charlene J. Petrelli
|
|
|
|
|
Charlene
J. Petrelli
|
|
Vice
President and Chief Human Resources Officer
|
ACKNOWLEDGED,
CONFIRMED,
CONSENTED TO AND AGREED:
DAVID
L. PORGES
2
Exhibit A
Change
of Control Agreement, dated September 1, 2002, by and between Equitable
Resources, Inc. and David L. Porges
Employment
Agreement, dated July 1, 1998, by and between Equitable Resources, Inc.
and David L. Porges, as amended by Amendment No. 1 to Employment
Agreement, dated December 1, 1999, Amendment No. 2 to Employment
Agreement, dated September 1, 2002, and Amendment No. 3 to Employment
Agreement, dated January 31, 2004
Indemnification
Agreement, dated May 17, 2000, by and between Equitable Resources, Inc.
and David L. Porges
Amended
and Restated Post-Termination Confidentiality and Non-Competition Agreement,
dated December 1, 1999, by and between Equitable Resources, Inc. and
David L. Porges
Exhibit B
Assignment and Assumption Agreement
THIS
ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”), dated as of the
day of ,
2008, by and between Equitable Resources, Inc., a Pennsylvania corporation
formed in 1926 (“Assignor”) and Equitable Resources, Inc., a Pennsylvania
corporation formed in 2008 to effect a holding company reorganization of
Assignor (“Assignee”).
WITNESSETH:
WHEREAS,
the Assignor desires to assign and transfer to the Assignee all of Assignor’s
right, title and interest under and to the agreements identified on
Exhibit A
attached hereto (the “Transferred Agreements”); and
WHEREAS,
the Assignee desires to substitute itself for and become the successor to the
Assignor with respect to the Transferred Agreements and to assume and perform
all of the Assignor’s covenants, agreements, duties, responsibilities and
obligations under and to the Transferred Agreements.
NOW,
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt, adequacy and legal sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
agree as follows:
1.
The Assignor
does hereby assign, sell, transfer, and set over to Assignee, its successors
and assigns forever, all of Assignor’s right, title and interest in and to the
Transferred Agreements. Such assignment
shall be effective as of the date hereof.
2.
The Assignee
hereby assumes and agrees to promptly perform all covenants, agreements,
duties, responsibilities and obligations of Assignor under the Transferred
Agreements. Assignor shall have no
further duties, responsibilities or obligations with respect to the Transferred
Agreements effective as of the date hereof.
3.
The Assignor
and Assignee hereby covenant, from time to time at the request of the other
party and without further cost or expense to such party, to execute
and
deliver such other instruments which the other party may reasonably request in
order to more effectively consummate the transactions contemplated by this
Agreement.
4.
This Agreement
shall be governed by and construed in accordance with the laws of the
Commonwealth of Pennsylvania, without giving effect to the conflicts-of-laws
provisions thereof.
5.
This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
6.
This Agreement
may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same original.
[Signature Page Follows]
IN WITNESS WHEREOF,
Assignor and Assignee have
executed this Agreement as of the date first written above.
EQUITABLE
RESOURCES, INC.
(organized
in 1926)
|
By:
|
|
|
|
Name:
|
James
E. Crockard, III
|
|
|
Title:
|
Treasurer
|
|
|
|
|
|
|
|
|
EQUITABLE
RESOURCES, INC.
|
|
|
(organized
in 2008)
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
Philip
P. Conti
|
|
|
Title:
|
Senior
Vice President and Chief Financial Officer
|
|
|
|
|
|
|
|
Exhibit A
Change
of Control Agreement, dated September 1, 2002, by and between Equitable
Resources, Inc. and David L. Porges
Employment
Agreement, dated July 1, 1998, by and between Equitable Resources, Inc.
and David L. Porges, as amended by Amendment No. 1 to Employment
Agreement, dated December 1, 1999, Amendment No. 2 to Employment
Agreement, dated September 1, 2002, and Amendment No. 3 to Employment
Agreement, dated January 31, 2004
Indemnification
Agreement, dated May 17, 2000, by and between Equitable Resources, Inc.
and David L. Porges
Amended
and Restated Post-Termination Confidentiality and Non-Competition Agreement,
dated December 1, 1999, by and between Equitable Resources, Inc. and
David L. Porges
Exhibit 10.14(d)
|
|
|
225 North Shore Drive
Pittsburgh, PA
15212-5861
www.eqt.com
|
June 9, 2008
Philip P. Conti
2134 Gandeur Drive
Gibsonia, PA 15044
|
|
|
Re:
|
|
The agreements identified on Exhibit A attached
hereto (such agreements, together with all exhibits, schedules, amendments,
modifications, restatements, or other supplements thereto, and any other
documents executed or delivered in connection therewith, the (“Agreements”))
|
Dear Mr. Conti:
As you know, to effect the
pending reorganization, Equitable Resources, Inc. (“Equitable”) will merge
with a second tier subsidiary (the “Merger”), which will result in a first tier
subsidiary (“New EQT”) becoming the new publicly traded parent company of the
Equitable family of companies. Following
the Merger, we will transfer to the new parent company all of the assets and
liabilities of existing Equitable Resources (including the Agreements) other
than those associated with our existing Equitable Gas Company division (the “Asset/Liability
Transfer”).
As part of the Asset/Liability Transfer, New EQT will
assume all of Equitable’s rights, interests, obligations and liabilities under
and to the Agreements and will be substituted for all purposes for Equitable
under the Agreements pursuant to an Assignment and Assumption Agreement (the “Contract
Assignment”). Other than changing your
counterparty to the Agreements from the existing parent company of the
Equitable family of companies to the new parent company, the reorganization
will have no effect on the Agreements.
Accordingly, following the Merger and Contract Assignment the Agreements
will continue to govern your relationship with New EQT.
You may be a participant in certain executive
compensation plans. Upon completion of the
reorganization, any stock options to purchase shares of
Equitable common stock shall become stock options to purchase shares
of common stock of New EQT and any shares of restricted stock shall
become shares of restricted stock of New EQT. Similarly, any other awards representing
shares of Equitable common stock will automatically become awards representing
shares of New EQT. The number
of stock options, shares, including shares represented, and the terms
and any exercise price associated therewith will remain the same and will
remain subject to the existing agreements and the 1999 Long-Term Incentive
Plan. In addition, the stock on which
the performance condition under the 2005 Executive Performance
Incentive Program (the
“EPIP”) in which you may participate is based
will automatically be adjusted to become the common stock of New EQT, and the
value of the performance shares awarded will be determined by reference to the
common stock of New EQT. Further, the performance goals of the Executive
Short-Term Incentive Plan (the “ESTIP”) will now be determined by reference to
New EQT, the common stock of New EQT and its affiliates and business units, as
applicable, but your incentive targets are not otherwise affected. If
you are a participant in the EPIP or the ESTIP, you remain subject to
the terms of the plan, your individual award and/or your individual notice
of participation.
We hereby request that you acknowledge, by signing the
enclosed copy of this letter in the space provided below and returning it to
the address set forth below, that (1) following the Merger and Contract
Assignment the Agreements will constitute legally binding agreements between
you and New EQT and (2) the form of Assignment and Assumption Agreement
attached hereto as
Exhibit B
is satisfactory to transfer all agreements
between you and Equitable to New EQT as part of the Asset/Liability Transfer.
|
Please return letter to:
|
|
Jonathan M. Lushko, Esq.
|
|
|
|
Equitable Resources, Inc.
|
|
|
|
225 North Shore Drive
|
|
|
|
Pittsburgh, PA 15212-5861
|
If
you have any questions, please do not hesitate to contact Kimberly Sachse at
412-553-5758 or me at 412-553-5712.
Thank you in advance for your timely assistance with our request. We look forward to our continuing
relationship with you.
Sincerely,
Charlene
J. Petrelli
Vice President and Chief Human Resources Officer
ACKNOWLEDGED,
CONFIRMED,
CONSENTED TO AND AGREED:
PHILIP
P. CONTI
2
Exhibit A
Change
of Control Agreement, dated September 1, 2002, by and between Equitable
Resources, Inc. and Philip P. Conti, as amended by Addendum No. 1 to
Change of Control Agreement, dated December 29, 2006, by and between
Equitable Resources, Inc. and Philip P. Conti
Indemnification
Agreement, dated August 21, 2000, by and between Equitable Resources, Inc.
and Philip P. Conti
Noncompete
Agreement, dated October 30, 2000, by and between Equitable Resources, Inc.
and Philip P. Conti
Exhibit B
Assignment and Assumption Agreement
THIS
ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”), dated as of the
day of ,
2008, by and between Equitable Resources, Inc., a Pennsylvania corporation
formed in 1926 (“Assignor”) and Equitable Resources, Inc., a Pennsylvania
corporation formed in 2008 to effect a holding company reorganization of
Assignor (“Assignee”).
WITNESSETH:
WHEREAS, the Assignor
desires to assign and transfer to the Assignee all of Assignor’s right, title
and interest under and to the agreements identified on
Exhibit A
attached hereto (the “Transferred Agreements”); and
WHEREAS, the Assignee
desires to substitute itself for and become the successor to the Assignor with
respect to the Transferred Agreements and to assume and perform all of the
Assignor’s covenants, agreements, duties, responsibilities and obligations
under and to the Transferred Agreements.
NOW, THEREFORE, in
consideration of the foregoing and for other good and valuable consideration,
the receipt, adequacy and legal sufficiency of which are hereby acknowledged,
and intending to be legally bound hereby, the parties hereto agree as follows:
1. The Assignor does hereby assign, sell, transfer, and set
over to Assignee, its successors and assigns forever, all of Assignor’s right,
title and interest in and to the Transferred Agreements. Such assignment shall be effective as of the
date hereof.
2. The Assignee hereby assumes and agrees to promptly
perform all covenants, agreements, duties, responsibilities and obligations of
Assignor under the Transferred Agreements.
Assignor shall have no further duties, responsibilities or obligations
with respect to the Transferred Agreements effective as of the date hereof.
3. The Assignor and Assignee hereby
covenant, from time to time at the request of the other party and without
further cost or expense to such party, to execute
and deliver such other instruments which the
other party may reasonably request in order to more effectively consummate the
transactions contemplated by this Agreement.
4. This Agreement shall be governed by
and construed in accordance with the laws of the Commonwealth of Pennsylvania,
without giving effect to the conflicts-of-laws provisions thereof.
5. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
6. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same original.
[Signature Page Follows]
IN
WITNESS WHEREOF,
Assignor
and Assignee have executed this Agreement as of the date first written above.
EQUITABLE
RESOURCES, INC.
(organized
in 1926)
|
By:
|
|
|
|
Name:
|
James
E. Crockard, III
|
|
|
Title:
|
Treasurer
|
|
|
|
|
|
|
EQUITABLE
RESOURCES, INC.
(organized
in 2008)
|
By:
|
|
|
|
Name:
|
Philip
P. Conti
|
|
|
Title:
|
Senior
Vice President and Chief Financial Officer
|
|
|
|
|
|
|
Exhibit A
Change
of Control Agreement, dated September 1, 2002, by and between Equitable
Resources, Inc. and Philip P. Conti, as amended by Addendum No. 1 to
Change of Control Agreement, dated December 29, 2006, by and between
Equitable Resources, Inc. and Philip P. Conti
Indemnification
Agreement, dated August 21, 2000, by and between Equitable Resources, Inc.
and Philip P. Conti
Noncompete
Agreement, dated October 30, 2000, by and between Equitable Resources, Inc.
and Philip P. Conti
Exhibit 10.15(c)
|
|
|
225 North Shore Drive
Pittsburgh, PA
15212-5861
www.eqt.com
|
June 5, 2008
Randall L. Crawford
|
Re:
|
|
The agreements identified on
Exhibit A
attached hereto (such agreements, together with all exhibits, schedules,
amendments, modifications, restatements, or other supplements thereto, and
any other documents
e
xecuted or delivered in connection therewith, the
(“Agreements”))
|
Dear Mr. Crawford:
As you know, to effect the
pending reorganization, Equitable Resources, Inc. (“Equitable”) will merge
with a second tier subsidiary (the “Merger”), which will result in a first tier
subsidiary (“New EQT”) becoming the new publicly traded parent company of the
Equitable family of companies. Following
the Merger, we will transfer to the new parent company all of the assets and
liabilities of existing Equitable Resources (including the Agreements) other
than those associated with our existing Equitable Gas Company division (the “Asset/Liability
Transfer”).
As part of the Asset/Liability Transfer, New EQT will
assume all of Equitable’s rights, interests, obligations and liabilities under
and to the Agreements and will be substituted for all purposes for Equitable
under the Agreements pursuant to an Assignment and Assumption Agreement (the “Contract
Assignment”). Other than changing your
counterparty to the Agreements from the existing parent company of the
Equitable family of companies to the new parent company, the reorganization
will have no effect on the Agreements.
Accordingly, following the Merger and Contract Assignment the Agreements
will continue to govern your relationship with New EQT.
You may be a participant in certain executive
compensation plans. Upon completion of the
reorganization, any stock options to purchase shares of
Equitable common stock shall become stock options to purchase shares
of common stock of New EQT and any shares of restricted stock shall
become shares of restricted stock of New EQT. Similarly, any other awards representing
shares of Equitable common stock will automatically become awards representing
shares of New EQT. The number
of stock options, shares, including shares represented, and the terms
and any exercise price associated therewith will remain the same and will
remain subject to the existing agreements and the 1999 Long-Term Incentive
Plan. In addition, the stock on which
the performance condition under the 2005 Executive Performance
Incentive Program (the
“EPIP”) in which you may participate is based
will automatically be adjusted to become the common stock of New EQT, and the
value of the performance shares awarded will be determined by reference to the
common stock of New EQT. Further, the performance goals of the Executive
Short-Term Incentive Plan (the “ESTIP”) will now be determined by reference to
New EQT, the common stock of New EQT and its affiliates and business units, as
applicable, but your incentive targets are not otherwise affected. If
you are a participant in the EPIP or the ESTIP, you remain subject to
the terms of the plan, your individual award and/or your individual notice
of participation.
We hereby request that you acknowledge, by signing the
enclosed copy of this letter in the space provided below and returning it to
the address set forth below, that (1) following the Merger and Contract
Assignment the Agreements will constitute legally binding agreements between
you and New EQT and (2) the form of Assignment and Assumption Agreement
attached hereto as
Exhibit B
is satisfactory to transfer all
agreements between you and Equitable to New EQT as part of the Asset/Liability
Transfer.
|
Please return letter
to:
|
|
Jonathan M. Lushko, Esq.
|
|
|
|
Equitable Resources, Inc.
|
|
|
|
225 North Shore Drive
|
|
|
|
Pittsburgh, PA 15212-5861
|
If
you have any questions, please do not hesitate to contact Kimberly Sachse at
412-553-5758 or me at 412-553-5712.
Thank you in advance for your timely assistance with our request. We look forward to our continuing
relationship with you.
Sincerely,
|
/s/
Charlene J. Petrelli
|
|
|
|
|
|
Charlene
J. Petrelli
|
|
Vice
President and Chief Human Resources Officer
|
|
ACKNOWLEDGED,
CONFIRMED,
|
|
CONSENTED
TO AND AGREED:
|
|
RANDALL
L. CRAWFORD
|
|
|
|
/s/
Randall L. Crawford
|
|
2
Exhibit A
Change
of Control Agreement, dated December 1, 1999, by and between Equitable
Resources, Inc. and Randall L. Crawford
Indemnification
Agreement, dated January 1, 2003, by and between Equitable Resources, Inc.
and Randall L. Crawford
Noncompete
Agreement, dated December 1, 1999, by and between Equitable Resources, Inc.
and Randall L. Crawford
Exhibit B
Assignment and Assumption Agreement
THIS
ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”), dated as of the
day of ,
2008, by and between Equitable Resources, Inc., a Pennsylvania corporation
formed in 1926 (“Assignor”) and Equitable Resources, Inc., a Pennsylvania
corporation formed in 2008 to effect a holding company reorganization of
Assignor (“Assignee”).
WITNESSETH:
WHEREAS,
the Assignor desires to assign and transfer to the Assignee all of Assignor’s
right, title and interest under and to the agreements identified on
Exhibit A
attached hereto (the “Transferred Agreements”); and
WHEREAS,
the Assignee desires to substitute itself for and become the successor to the
Assignor with respect to the Transferred Agreements and to assume and perform
all of the Assignor’s covenants, agreements, duties, responsibilities and
obligations under and to the Transferred Agreements.
NOW,
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt, adequacy and legal sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. The Assignor does hereby assign,
sell, transfer, and set over to Assignee, its successors and assigns forever,
all of Assignor’s right, title and interest in and to the Transferred
Agreements. Such assignment shall be
effective as of the date hereof.
2. The Assignee hereby assumes and
agrees to promptly perform all covenants, agreements, duties, responsibilities
and obligations of Assignor under the Transferred Agreements. Assignor shall have no further duties,
responsibilities or obligations with respect to the Transferred Agreements
effective as of the date hereof.
3. The Assignor and Assignee hereby
covenant, from time to time at the request of the other party and without
further cost or expense to such party, to execute
and
deliver such other instruments which the other party may reasonably request in
order to more effectively consummate the transactions contemplated by this
Agreement.
4. This Agreement shall be governed by
and construed in accordance with the laws of the Commonwealth of Pennsylvania,
without giving effect to the conflicts-of-laws provisions thereof.
5. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
6. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same original.
[Signature Page Follows]
IN WITNESS WHEREOF,
Assignor and Assignee have executed this Agreement as of the date first
written above.
|
EQUITABLE
RESOURCES, INC.
|
|
|
(organized
in 1926)
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
James
E. Crockard, III
|
|
Title:
|
Treasurer
|
|
|
|
|
|
|
EQUITABLE
RESOURCES, INC.
|
|
|
(organized
in 2008)
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
Philip
P. Conti
|
|
Title:
|
Senior
Vice President and Chief Financial Officer
|
|
|
|
|
|
Exhibit A
Change
of Control Agreement, dated December 1, 1999, by and between Equitable
Resources, Inc. and Randall L. Crawford
Indemnification
Agreement, dated January 1, 2003, by and between Equitable Resources, Inc.
and Randall L. Crawford
Noncompete Agreement, dated December 1,
1999, by and between Equitable Resources, Inc. and Randall L. Crawford
Exhibit 10.16(c)
|
|
|
225 North Shore Drive
Pittsburgh, PA
15212-5861
www.eqt.com
|
June 9, 2008
Joseph E. O’Brien
12 Cedar Road
Andover, MA 01810
|
Re:
|
|
The agreements identified on
Exhibit A
attached hereto (such agreements, together with all exhibits, schedules,
amendments, modifications, restatements, or other supplements thereto, and
any other documents executed or delivered in connection therewith, the
(“Agreements”))
|
Dear Mr. O’Brien:
As you know, to effect the
pending reorganization, Equitable Resources, Inc. (“Equitable”) will merge
with a second tier subsidiary (the “Merger”), which will result in a first tier
subsidiary (“New EQT”) becoming the new publicly traded parent company of the
Equitable family of companies. Following
the Merger, we will transfer to the new parent company all of the assets and
liabilities of existing Equitable Resources (including the Agreements) other
than those associated with our existing Equitable Gas Company division (the “Asset/Liability
Transfer”).
As part of the Asset/Liability Transfer, New EQT will
assume all of Equitable’s rights, interests, obligations and liabilities under
and to the Agreements and will be substituted for all purposes for Equitable
under the Agreements pursuant to an Assignment and Assumption Agreement (the “Contract
Assignment”). Other than changing your
counterparty to the Agreements from the existing parent company of the
Equitable family of companies to the new parent company, the reorganization
will have no effect on the Agreements. Accordingly,
following the Merger and Contract Assignment the Agreements will continue to
govern your relationship with New EQT.
You may be a participant in certain executive
compensation plans. Upon completion of the
reorganization, any stock options to purchase shares of
Equitable common stock shall become stock options to purchase shares
of common stock of New EQT and any shares of restricted stock shall
become shares of restricted stock of New EQT. Similarly, any other awards representing
shares of Equitable common stock will automatically become awards representing
shares of New EQT. The number
of stock options, shares, including shares represented, and the terms
and any exercise price associated therewith will remain the same and will
remain subject to the existing agreements and the 1999 Long-Term Incentive
Plan. In addition, the stock on which the
performance condition under the 2005 Executive Performance Incentive
Program (the
“EPIP”) in which you may participate is based
will automatically be adjusted to become the common stock of New EQT, and the
value of the performance shares awarded will be determined by reference to the
common stock of New EQT. Further, the performance goals of the Executive
Short-Term Incentive Plan (the “ESTIP”) will now be determined by reference to
New EQT, the common stock of New EQT and its affiliates and business units, as
applicable, but your incentive targets are not otherwise affected. If
you are a participant in the EPIP or the ESTIP, you remain subject to
the terms of the plan, your individual award and/or your individual notice
of participation.
We hereby request that you acknowledge, by signing the
enclosed copy of this letter in the space provided below and returning it to
the address set forth below, that (1) following the Merger and Contract
Assignment the Agreements will constitute legally binding agreements between
you and New EQT and (2) the form of Assignment and Assumption Agreement
attached hereto as
Exhibit B
is satisfactory to transfer all
agreements between you and Equitable to New EQT as part of the Asset/Liability
Transfer.
|
Please return letter to:
|
|
Jonathan M. Lushko, Esq.
|
|
|
|
Equitable Resources, Inc.
|
|
|
|
225 North Shore Drive
|
|
|
|
Pittsburgh, PA 15212-5861
|
If
you have any questions, please do not hesitate to contact Kimberly Sachse at
412-553-5758 or me at 412-553-5712.
Thank you in advance for your timely assistance with our request. We look forward to our continuing
relationship with you.
Sincerely,
|
/s/
Charlene J. Petrelli
|
|
|
|
|
|
Charlene
J. Petrelli
|
|
|
Vice
President and Chief Human Resources Officer
|
|
ACKNOWLEDGED,
CONFIRMED,
CONSENTED
TO AND AGREED:
JOSEPH
E. O’BRIEN
2
Exhibit A
Change
of Control Agreement, dated September 1, 2002, by and between Equitable
Resources, Inc. and Joseph E. O’Brien
Indemnification
Agreement, dated January 18, 2001, by and between Equitable Resources, Inc.
and Joseph E. O’Brien
Noncompete
Agreement, dated January 30, 2001, by and between Equitable Resources, Inc.
and Joseph E O’Brien
Exhibit B
Assignment and Assumption Agreement
THIS
ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”), dated as of the
day of ,
2008, by and between Equitable Resources, Inc., a Pennsylvania corporation
formed in 1926 (“Assignor”) and Equitable Resources, Inc., a Pennsylvania
corporation formed in 2008 to effect a holding company reorganization of
Assignor (“Assignee”).
WITNESSETH:
WHEREAS, the Assignor
desires to assign and transfer to the Assignee all of Assignor’s right, title
and interest under and to the agreements identified on
Exhibit A
attached hereto (the “Transferred Agreements”); and
WHEREAS, the Assignee
desires to substitute itself for and become the successor to the Assignor with
respect to the Transferred Agreements and to assume and perform all of the
Assignor’s covenants, agreements, duties, responsibilities and obligations
under and to the Transferred Agreements.
NOW, THEREFORE, in
consideration of the foregoing and for other good and valuable consideration,
the receipt, adequacy and legal sufficiency of which are hereby acknowledged,
and intending to be legally bound hereby, the parties hereto agree as follows:
1.
The Assignor does hereby assign, sell,
transfer, and set over to Assignee, its successors and assigns forever, all of
Assignor’s right, title and interest in and to the Transferred Agreements. Such assignment shall be effective as of the
date hereof.
2.
The Assignee hereby assumes and agrees to
promptly perform all covenants, agreements, duties, responsibilities and
obligations of Assignor under the Transferred Agreements. Assignor shall have no further duties,
responsibilities or obligations with respect to the Transferred Agreements effective
as of the date hereof.
3.
The Assignor and Assignee hereby covenant,
from time to time at the request of the other party and without further cost or
expense to such party, to execute
and
deliver such other instruments which the other party may reasonably request in
order to more effectively consummate the transactions contemplated by this
Agreement.
4.
This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania,
without giving effect to the conflicts-of-laws provisions thereof.
5.
This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
6.
This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same original.
[Signature Page Follows]
IN
WITNESS WHEREOF,
Assignor
and Assignee have executed this Agreement as of the date first written above.
EQUITABLE
RESOURCES, INC.
(organized
in 1926)
|
By:
|
|
|
|
Name:
|
James
E. Crockard, III
|
|
|
Title:
|
Treasurer
|
|
|
|
|
|
|
EQUITABLE
RESOURCES, INC.
(organized
in 2008)
|
By:
|
|
|
|
Name:
|
Philip
P. Conti
|
|
|
Title:
|
Senior
Vice President and Chief Financial Officer
|
|
|
|
|
|
|
Exhibit A
Change
of Control Agreement, dated September 1, 2002, by and between Equitable
Resources, Inc. and Joseph E. O’Brien
Indemnification
Agreement, dated January 18, 2001, by and between Equitable Resources, Inc.
and Joseph E. O’Brien
Noncompete
Agreement, dated January 30, 2001, by and between Equitable Resources, Inc.
and Joseph E O’Brien
Exhibit 10.17(c)
|
|
|
|
225 North Shore Drive
Pittsburgh, PA 15212-5861
www.eqt.com
|
|
|
|
|
June 9, 2008
Johanna G. O’Loughlin
9 Dunmoyle Place
Pittsburgh, PA 15217
|
Re:
|
|
The agreements identified on
Exhibit A
attached hereto (such agreements, together with all exhibits, schedules,
amendments, modifications, restatements, or other supplements thereto, and
any other documents executed or delivered in connection therewith, the
(“Agreements”))
|
Dear Ms. O’Loughlin:
As you know, to effect the
pending reorganization, Equitable Resources, Inc. (“Equitable”) will merge
with a second tier subsidiary (the “Merger”), which will result in a first tier
subsidiary (“New EQT”) becoming the new publicly traded parent company of the
Equitable family of companies. Following
the Merger, we will transfer to the new parent company all of the assets and
liabilities of existing Equitable Resources (including the Agreements) other
than those associated with our existing Equitable Gas Company division (the
“Asset/Liability Transfer”).
As part of the Asset/Liability Transfer, New EQT will
assume all of Equitable’s rights, interests, obligations and liabilities under
and to the Agreements and will be substituted for all purposes for Equitable
under the Agreements pursuant to an Assignment and Assumption Agreement (the
“Contract Assignment”). Other than
changing your counterparty to the Agreements from the existing parent company
of the Equitable family of companies to the new parent company, the
reorganization will have no effect on the Agreements. Accordingly, following the Merger and
Contract Assignment the Agreements will continue to govern your relationship
with New EQT.
You may be a participant in certain executive
compensation plans. Upon completion of the reorganization, any stock
options to purchase shares of Equitable common stock shall
become stock options to purchase shares of common stock of New EQT
and any shares of restricted stock shall become shares of restricted
stock of New EQT. Similarly, any other
awards representing shares of Equitable common stock will automatically become
awards representing shares of New EQT.
The number of stock options, shares, including shares
represented, and the terms and any exercise price associated therewith
will remain the same and will remain subject to the existing agreements
and the 1999 Long-Term Incentive Plan.
In addition, the stock on which the performance condition under the
2005 Executive Performance Incentive Program (the
“EPIP”) in which you may participate is based
will automatically be adjusted to become the common stock of New EQT, and the
value of the performance shares awarded will be determined by reference to the
common stock of New EQT. Further, the performance goals of the Executive
Short-Term Incentive Plan (the “ESTIP”) will now be determined by reference to
New EQT, the common stock of New EQT and its affiliates and business units, as
applicable, but your incentive targets are not otherwise affected. If
you are a participant in the EPIP or the ESTIP, you remain subject to
the terms of the plan, your individual award and/or your individual notice
of participation.
We hereby request that you acknowledge, by signing the
enclosed copy of this letter in the space provided below and returning it to
the address set forth below, that (1) following the Merger and Contract
Assignment the Agreements will constitute legally binding agreements between
you and New EQT and (2) the form of Assignment and Assumption Agreement
attached hereto as
Exhibit B
is satisfactory to transfer all
agreements between you and Equitable to New EQT as part of the Asset/Liability
Transfer.
|
Please return letter to:
|
|
Jonathan M. Lushko, Esq.
|
|
|
|
Equitable Resources, Inc.
|
|
|
|
225 North Shore Drive
|
|
|
|
Pittsburgh, PA 15212-5861
|
If
you have any questions, please do not hesitate to contact Kimberly Sachse at
412-553-5758 or me at 412-553-5712.
Thank you in advance for your timely assistance with our request. We look forward to our continuing
relationship with you.
Sincerely,
|
/s/
Charlene J. Petrelli
|
|
|
|
|
|
Charlene
J. Petrelli
|
|
|
Vice
President and Chief Human Resources Officer
|
|
ACKNOWLEDGED,
CONFIRMED,
CONSENTED
TO AND AGREED:
JOHANNA
G. O’LOUGHLIN
|
/s/
Johanna G. O’Loughlin
|
|
2
Exhibit A
Indemnification
Agreement, dated May 17, 2000, by and between Equitable
Resources, Inc. and Johanna G. O’Loughlin
Noncompete
Agreement, dated December 1, 1999, by and between Equitable
Resources, Inc. and Johanna G. O’Loughlin (to the extent of any remaining
rights or obligations)
Employment Agreement, dated
March 14, 2008, by and between Equitable Resources, Inc. and Johanna
G. O’Loughlin
Exhibit B
Assignment and Assumption Agreement
THIS
ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”), dated as of the
day of
,
2008, by and between Equitable Resources, Inc., a Pennsylvania corporation
formed in 1926 (“Assignor”) and Equitable Resources, Inc., a Pennsylvania
corporation formed in 2008 to effect a holding company reorganization of
Assignor (“Assignee”).
WITNESSETH:
WHEREAS, the Assignor
desires to assign and transfer to the Assignee all of Assignor’s right, title
and interest under and to the agreements identified on
Exhibit A
attached hereto (the “Transferred Agreements”); and
WHEREAS, the Assignee
desires to substitute itself for and become the successor to the Assignor with
respect to the Transferred Agreements and to assume and perform all of the
Assignor’s covenants, agreements, duties, responsibilities and obligations
under and to the Transferred Agreements.
NOW, THEREFORE, in
consideration of the foregoing and for other good and valuable consideration,
the receipt, adequacy and legal sufficiency of which are hereby acknowledged,
and intending to be legally bound hereby, the parties hereto agree as follows:
1. The Assignor does hereby assign, sell, transfer, and set
over to Assignee, its successors and assigns forever, all of Assignor’s right,
title and interest in and to the Transferred Agreements. Such assignment shall be effective as of the
date hereof.
2. The Assignee hereby assumes and agrees to promptly
perform all covenants, agreements, duties, responsibilities and obligations of
Assignor under the Transferred Agreements.
Assignor shall have no further duties, responsibilities or obligations
with respect to the Transferred Agreements effective as of the date hereof.
3. The Assignor and Assignee hereby
covenant, from time to time at the request of the other party and without
further cost or expense to such party, to execute
and
deliver such other instruments which the other party may reasonably request in
order to more effectively consummate the transactions contemplated by this
Agreement.
4. This Agreement shall be governed by
and construed in accordance with the laws of the Commonwealth of Pennsylvania,
without giving effect to the conflicts-of-laws provisions thereof.
5. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
6. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same original.
[Signature Page Follows]
IN
WITNESS WHEREOF,
Assignor and Assignee have executed this Agreement
as of the date first written above.
EQUITABLE
RESOURCES, INC.
(organized
in 1926)
|
By:
|
|
|
|
Name:
|
James
E. Crockard, III
|
|
|
Title:
|
Treasurer
|
|
|
|
|
|
|
EQUITABLE
RESOURCES, INC.
(organized
in 2008)
|
By:
|
|
|
|
Name:
|
Philip
P. Conti
|
|
|
Title:
|
Senior
Vice President and Chief Financial Officer
|
|
|
|
|
|
|
Exhibit A
Indemnification
Agreement, dated May 17, 2000, by and between Equitable
Resources, Inc. and Johanna G. O’Loughlin
Noncompete
Agreement, dated December 1, 1999, by and between Equitable
Resources, Inc. and Johanna G. O’Loughlin (to the extent of any remaining
rights or obligations)
Employment
Agreement, dated March 14, 2008, by and between Equitable
Resources, Inc. and Johanna G. O’Loughlin
Exhibit 10.19(b)
[Date]
[Name and Address]
|
Re:
|
|
[Agreement]
(such agreement, together with all exhibits, schedules, amendments,
modifications, restatements, or other supplements thereto, and any other
documents executed or delivered in connection therewith, the (“Agreement”))
|
Dear [Name]:
As you know, to effect the
pending reorganization, Equitable Resources, Inc. (“Equitable”) will merge
with a second tier subsidiary (the “Merger”), which will result in a first tier
subsidiary (“New EQT”) becoming the new publicly traded parent company of the
Equitable family of companies. Following
the Merger, we will transfer to the new parent company all of the assets and
liabilities of existing Equitable Resources (including the Agreement) other
than those associated with our existing Equitable Gas Company division (the
“Asset/Liability Transfer”).
As part of the Asset/Liability Transfer, New EQT will
assume all of Equitable’s rights, interests, obligations and liabilities under
and to the Agreement and will be substituted for all purposes for Equitable
under the Agreement pursuant to an Assignment and Assumption Agreement (the
“Contract Assignment”). Other than
changing your counterparty to the Agreement from the existing parent company of
the Equitable family of companies to the new parent company, the reorganization
will have no effect on the Agreement.
Accordingly, following the Merger and Contract Assignment the Agreement
will continue to govern your relationship with New EQT.
In addition, upon completion of the reorganization,
your awards representing shares of Equitable common stock under the 1999
Non-Employee Directors’ Stock Incentive Plan (the “1999 Plan”) will become
awards representing shares of the common stock of New EQT and any deemed
investment in common stock of Equitable under the Directors’ Deferred
Compensation Plan or the 2005 Directors’ Deferred Compensation Plan
(collectively, the “DDCP”) will become a deemed investment in the common stock
of New EQT. The number of shares
represented, the terms and any exercise price associated with your awards will
remain the same and will remain subject to the existing agreements
and 1999 Plan. If elected or
awarded, future deferrals to the Company Stock Fund under the DDCP will be
deemed to be invested in the common stock of New EQT.
We hereby request that you acknowledge, by signing the
enclosed copy of this letter in the space provided below and returning it to
the address set forth below, that (1) following the Merger and Contract
Assignment the Agreement will constitute legally binding agreement between you
and New EQT and (2) the form of Assignment and Assumption Agreement
attached hereto as
Exhibit A
is satisfactory to transfer all
agreements between you and Equitable to New EQT as part of the Asset/Liability
Transfer.
|
Please return letter to:
|
|
Jonathan M. Lushko, Esq.
|
|
|
|
Equitable Resources, Inc.
|
|
|
|
225 North Shore Drive
|
|
|
|
Pittsburgh, PA 15212-5861
|
If you have any questions, please do not hesitate to contact Kimberly
Sachse at 412-553-5758 or me at 412-553-7760.
Sincerely,
Equitable Resources, Inc.
ACKNOWLEDGED, CONFIRMED,
CONSENTED TO AND AGREED:
2
Exhibit A
Assignment and Assumption Agreement
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”), dated as
of the day of
,
2008, by and between Equitable Resources, Inc., a Pennsylvania corporation
formed in 1926 (“Assignor”) and Equitable Resources, Inc., a Pennsylvania
corporation formed in 2008 to effect a holding company reorganization of
Assignor (“Assignee”).
WITNESSETH:
WHEREAS, the Assignor desires to assign and transfer to the Assignee
all of Assignor’s right, title and interest under and to the agreements
identified on
Exhibit A
attached hereto (the “Transferred
Agreements”); and
WHEREAS, the
Assignee desires to substitute itself for and become the successor to the
Assignor with respect to the Transferred Agreements and to assume and perform
all of the Assignor’s covenants, agreements, duties, responsibilities and
obligations under and to the Transferred Agreements.
NOW,
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt, adequacy and legal sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. The Assignor does hereby assign,
sell, transfer, and set over to Assignee, its successors and assigns forever,
all of Assignor’s right, title and interest in and to the Transferred
Agreements. Such assignment shall be
effective as of the date hereof.
2. The Assignee hereby assumes and
agrees to promptly perform all covenants, agreements, duties, responsibilities
and obligations of Assignor under the Transferred Agreements. Assignor shall have no further duties,
responsibilities or obligations with respect to the Transferred Agreements
effective as of the date hereof.
3. The Assignor and
Assignee hereby covenant, from time to time at the request of the other party
and without further cost or expense to such party, to execute and deliver such
other instruments which the other party may reasonably request in order to more
effectively consummate the transactions contemplated by this Agreement.
4. This Agreement
shall be governed by and construed in accordance with the laws of the
Commonwealth of Pennsylvania, without giving effect to the conflicts-of-laws
provisions thereof.
3
5. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
6. This Agreement may
be executed in counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same original.
[Signature Page Follows]
4
IN WITNESS WHEREOF,
Assignor and Assignee have
executed this Agreement as of the date first written above.
EQUITABLE RESOURCES, INC.
(organized in 1926)
|
By:
|
|
|
|
Name:
|
James E. Crockard, III
|
|
Title:
|
Treasurer
|
|
|
|
|
|
EQUITABLE RESOURCES, INC.
(organized in 2008)
|
By:
|
|
|
|
Name:
|
Philip Conti
|
|
Title:
|
Senior Vice President and Chief Financial Officer
|
|
|
|
|
|
5
Exhibit 10.23(b)
ASSIGNMENT AND ASSUMPTION
AND FIRST AMENDMENT TO CREDIT AGREEMENT
This ASSIGNMENT AND ASSUMPTION AND FIRST AMENDMENT TO
CREDIT AGREEMENT (this “
Amendment
”)
is entered into effective as of June 30, 2008 (the “
Amendment Effective Date
”),
among EQUITABLE RESOURCES, INC., a Pennsylvania corporation formed in 1926 (the
“
Existing
Borrower
”), EQUITABLE
RESOURCES, INC., a Pennsylvania corporation formed in 2008 (the “
New Borrower
”) and BANK OF AMERICA,
N.A., as administrative agent for the Lenders as defined in the Credit
Agreement hereinafter referenced
(in such capacity, the “
Administrative Agent
”).
WHEREAS, the Existing Borrower, the Administrative Agent,
Bank of America, N.A. as Swing Line Lender and as a L/C Issuer, JPMorgan Chase
Bank, N.A. as Syndication Agent and as a L/C Issuer, and the Lenders and other
agents named therein are parties to that certain Credit Agreement dated as of
October 27, 2006 (the
“Credit Agreement”
);
and
WHEREAS, the Existing Borrower and the New Borrower have
implemented Restructuring Alternative No. 2 as defined in the Credit
Agreement and as contemplated by
Section 10.22
of the Credit Agreement, and the parties are entering into this Amendment
pursuant to
Section 10.22(c)(iii)
of the
Credit Agreement;
NOW,
THEREFORE, in consideration of the mutual agreements, provisions and covenants
contained herein, the parties hereto hereby agree as follows:
SECTION 1.
Definitions
. Unless otherwise defined in this Amendment,
terms used in this Amendment which are defined in the Credit Agreement shall
have the meanings assigned to such terms in the Credit Agreement. For purposes of this Amendment, the term “Loan
Documents” shall also include the Issuer Documents. “
Issuer Documents
”
means with respect to any Letter of Credit, the Letter of Credit Application,
and any other document, agreement and instrument entered into by the L/C Issuer
and the Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating
to such Letter of Credit. The
interpretive provisions set forth in
Section 1.02
of the Credit Agreement shall apply to this Amendment.
SECTION 2.
Assignment and Assumption; Release
of Existing Borrower
. Effective as
of the Amendment Effective Date (a) Existing Borrower hereby
assigns to New Borrower, and New Borrower hereby assumes from Existing
Borrower, all of
Existing Borrower
’s rights and obligations under the Credit Agreement and the other Loan
Documents including, without limitation, all such rights and obligations
arising prior to the Amendment Effective Date; (b) Existing Borrower is
released from all obligations arising under the Credit Agreement and the other
Loan Documents; and (c) Existing Borrower shall no longer have the rights
of the “Borrower” under the Credit Agreement and the other Loan Documents.
SECTION 3.
Amendments to Credit Agreement and
other Loan Documents
. Effective as
of the Amendment Effective Date, the Credit Agreement and each other Loan
Document is hereby amended as follows:
the
“Borrower”
shall be
Equitable Resources, Inc., a Pennsylvania corporation formed in 2008
instead of Equitable Resources, Inc., a Pennsylvania corporation formed in
1926.
SECTION 4.
Conditions to Amendment Effective
Date
.
(a) This Amendment shall be effective on
the Amendment Effective Date, subject to satisfaction of the following
conditions precedent:
(i) the Administrative
Agent shall have received counterparts of this Amendment, executed by the
Borrower; and
(ii) the conditions
precedent set forth in
Sections 10.22(c)(i),
(ii), (iv), (v) and (vi)
of the Credit Agreement
shall
have been satisfied.
SECTION 5.
Acknowledgment and Ratification
. Each of New Borrower and Existing Borrower
agrees and acknowledges that the execution, delivery, and performance of this
Amendment shall, except as expressly provided herein, in no way release,
diminish, impair, reduce, or otherwise affect the obligations of the “Borrower”
under the Loan Documents, which Loan Documents shall remain in full force and
effect.
SECTION 6.
Existing Borrower’s and New Borrower’s Representations
and Warranties
.
(a) Existing
Borrower represents and warrants to the Administrative Agent and the Lenders
that as of the date of its execution of this Amendment and before giving effect
to the assignment, assumption and amendments herein contained, (i) the
representations and warranties set forth in the Credit Agreement are true and
correct in all material respects as though made on the date hereof, except to
the extent that any of them speak to a specific earlier date, in which case
they are true and correct as of such earlier date, and except that for purposes
of this
Section
6(a)
the representations and
warranties contained in
subsections (a)
and
(b)
of
Section 5.04
of the Credit Agreement shall be deemed to refer to the most recent statements
furnished pursuant to
subsections
(a)
and
(b)
,
respectively, of
Section 6.01
of the Credit
Agreement and (ii) no Default or Event of Default exists; and
New
Borrower represents and warrants to the Administrative Agent and the Lenders
that after giving effect to the assignment, assumption and amendments herein
contained, (i) the representations and warranties set forth in the Credit
Agreement are true and correct in all material respects as though made on the
date hereof, except to the extent that any of them speak to a specific earlier date,
in which case they are true and correct as of such earlier date, and except
that for purposes of this
Section
6(a)
the representations and
warranties contained in
subsections (a)
and
(b)
of
Section 5.04
of the Credit Agreement shall be deemed to refer to the most recent statements
furnished pursuant to
subsections (a)
and
(b)
, respectively, of
Section 6.01
of the Credit Agreement and (ii) no
Default or Event of Default exists.
(b) Each of Existing Borrower and New
Borrower represents and warrants to the Administrative Agent and the Lenders
that the execution, delivery and performance by it of this Amendment have been
duly authorized by all necessary corporate action, and do not and will not
contravene the terms of any of its organizational documents or any Law or any
indenture or loan or credit agreement or any other material agreement or
instrument to which it is a party or by which it is bound or to which it or its
properties are subject.
(c) Each of Existing Borrower and New
Borrower represents and warrants to the Administrative Agent and the Lenders
that no authorizations, approvals or consents of, and no filings or
registrations with, any Governmental Authority or any other person are
necessary for the execution, delivery or performance by it of this Amendment or
for the validity or enforceability thereof, except as have been completed or
obtained and are in full force and effect on the date hereof.
(d) New Borrower represents and warrants
to the Administrative Agent and the Lenders that no authorizations, approvals
or consents of, and no filings or registrations with, any Governmental
Authority or any other person are necessary for the borrowing by New Borrower
of the full amount of the Commitments, other than routine filings with the SEC
and/or other Governmental Authorities.
(e) Each of Existing Borrower and New
Borrower represents and warrants to the Administrative Agent and the Lenders
that this Amendment constitutes the legal, valid and binding obligations of
such entity, enforceable against such entity in accordance with its terms,
except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors’ rights
generally or by equitable principles relating to enforceability, and by
judicial discretion regarding the enforcement of or any applicable laws
affecting remedies (whether considered in a court of law or a proceeding in
equity).
(f) Each of Existing Borrower and New
Borrower represents and warrants to the Administrative Agent and the Lenders
that New Borrower is New Parent Co. as defined in the Credit Agreement.
SECTION 7.
Payment
of Attorney Costs.
New Borrower
agrees to pay the reasonable Attorney Costs of the Administrative Agent
incurred in connection with the preparation, execution and delivery of this
Amendment and any other documents executed or delivered in connection herewith.
SECTION 8.
Effect of Amendment
.
(a) This Amendment (i) except
as expressly provided herein, shall not be deemed to be a consent to the
modification or waiver of any other term or condition of the Credit Agreement
or of any other Loan Document or of any of the instruments or agreements
referred to therein and (ii) shall not prejudice any right or rights which
the Administrative Agent or the Lenders may now have under or in connection
with the Credit Agreement or the other Loan Documents, as amended by this
Amendment. Except as otherwise expressly
provided by this Amendment, all of the terms, conditions and provisions of the
Credit Agreement and the other Loan Documents shall remain the same. The Credit Agreement and the other Loan
Documents, as amended hereby, shall continue in full force and effect.
(b)
From and after the Amendment Effective Date, (i) each reference in
the Credit Agreement, including the schedules and exhibits thereto, and the
other documents and Loan Documents delivered in connection therewith to the “Credit
Agreement,” “this Agreement,” “hereunder,” “hereof,” “herein,” or words of like
import, shall mean and be a reference to the Credit Agreement or the applicable
document or Loan Document as amended hereby, and (ii) each reference in
the Credit Agreement, including the schedules and exhibits thereto, the Notes,
and the other documents and Loan Documents delivered in con
nection therewith, to “Equitable Resources, Inc.”
(except for
those references in
Section 10.22
of the Credit Agreement and those references in certificates, financial
statements, notices and other correspondence dated prior to the Amendment
Effective Date)
shall be deemed
to be and shall be a reference to “Equitable Resources, Inc., a
Pennsylvania corporation formed in 2008”.
SECTION 9.
Miscellaneous
. This Amendment shall for all purposes be
construed in accordance with and governed by the laws of the State of New York
and applicable federal law. The captions
in this Amendment are for convenience of reference only and shall not define or
limit the provisions hereof. This
Amendment may be executed in separate counterparts, each of which when so
executed and delivered shall be an original, but all of which together shall
constitute one instrument. In proving
this Amendment, it shall not be necessary to produce or account for more than
one such counterpart. This Amendment,
and any documents required or requested to be delivered pursuant to Section 4
hereof, may be delivered by facsimile transmission of the relevant signature pages hereof
and thereof, as applicable. This
Amendment shall be a “Loan Document” as defined in the Credit Agreement.
SECTION 10.
Entire
Agreement
. THE CREDIT AGREEMENT AND
THE OTHER LOAN DOCUMENTS (EACH AS AMENDED BY THIS AMENDMENT) REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE
OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN THE PARTIES.
[SIGNATURES BEGIN ON NEXT PAGE]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their proper and duly authorized officers as of the
date and year first above written.
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EXISTING
BORROWER:
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EQUITABLE
RESOURCES, INC., a Pennsylvania
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corporation
formed in 1926
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By:
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/s/
James E. Crockard, III
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Name:
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James
E. Crockard
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Title:
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Treasurer
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NEW
BORROWER:
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EQUITABLE
RESOURCES, INC., a Pennsylvania
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corporation
formed in 2008
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By:
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/s/
Philip P. Conti
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Name:
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Philip
P. Conti
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Title:
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Senior
Vice President and Chief Financial
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Officer
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[Signature Page to Assignment
and Assumption and First Amendment to
Equitable
Resources, Inc. Revolving Credit Agreement]
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BANK
OF AMERICA, N.A.,
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as
Administrative Agent
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By:
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/s/
Ronald E. McKaig
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Ronald E. McKaig
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Senior Vice President
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[Signature Page to Assignment
and Assumption and First Amendment to
Equitable Resources, Inc. Revolving Credit Agreement]
Exhibit 10.24(a)
AGREEMENT
AND PLAN OF MERGER
THIS AGREEMENT AND PLAN
OF MERGER (“Agreement”) dated as of the 30
th
day of June, 2008 among
Equitable Resources, Inc., a Pennsylvania corporation formed in 1926 (the
“Company”), Equitable Resources, Inc., a Pennsylvania corporation formed
in 2008 and a direct wholly-owned subsidiary of the Company (“New EQT”) and EGC
Merger Co., a Pennsylvania corporation and a direct wholly-owned subsidiary of
New EQT (“MergerSub”).
WITNESSETH:
A. The Company’s authorized capital stock
consists of 320,000,000 shares of common stock, no par value (“Company Common
Stock”), of which approximately 130,880,000 shares were issued and outstanding
as of June 10, 2008 and 26,750,000 shares were held in treasury on such
date, and (ii) 3,000,000 shares of preferred stock, no par value (“Company
Preferred Stock”), none of which is currently outstanding. The Company’s Board
of Directors has the authority, without further shareholder action, to divide
the preferred stock into series and to determine and fix the designations and
relative rights and preferences of each series prior to issuance.
B. New EQT’s authorized capital stock consists
of 320,000,000 shares of common stock, no par value (“New EQT Common Stock”),
of which 10,000 shares are issued and outstanding, and (ii) 3,000,000
shares of preferred stock, no par value (“New EQT Preferred Stock”), none of
which is currently outstanding. New EQT’s Board of Directors has the authority,
without further shareholder action, to divide the preferred stock into series
and to determine and fix the designations and relative rights and preferences
of each series prior to issuance. The Company owns all of the issued and
outstanding New EQT Common Stock.
C. The designations, rights, powers and preferences,
and the qualifications, limitations and restrictions thereof, of the New EQT
Common Stock and the New EQT Preferred Stock are the same as those of the
Company Common Stock and Company Preferred Stock.
D. The Articles of Incorporation and the By-laws
of New EQT immediately after the Effective Time (as hereinafter defined) will
contain provisions identical to the Articles of Incorporation and By-laws of
the Company immediately before the Effective Time
.
E. MergerSub’s authorized capital stock consists
of 1,000 shares of common stock, $.01 par value (“MergerSub Common Stock”), of
which 1,000 shares are currently issued and outstanding and no shares are
currently held in treasury. New EQT owns
all of the issued and outstanding MergerSub Common Stock.
F. New EQT and MergerSub are newly formed
corporations organized for the purpose of participating in the transactions
herein contemplated.
G. The Company desires to create a new holding
company structure, pursuant to Section 1924(b)(4) of the PBCL (the
“PBCL”), by merging MergerSub with and into the Company with the Company being
the surviving corporation, and converting each outstanding share of Company
Common Stock into a like number of shares of New EQT Common Stock, all in
accordance with the terms of this Agreement.
H. The Boards of Directors of New EQT, MergerSub
and the Company have approved this Agreement and the merger of MergerSub with
and into the Company upon the terms and subject to the conditions set forth in
this Agreement (the “Merger”) in accordance with the PBCL.
I. Immediately prior to the Effective Time, the
Company will contribute to the capital of New EQT all of the shares of Company
Common Stock then held by the Company in its treasury.
J. The directors and officers of the Company
immediately prior to the Merger will be the directors and officers of New EQT
as of the Effective Time.
NOW, THEREFORE, in
consideration of the mutual covenants and agreements herein contained, and
intending to be legally bound hereby, the Company, New EQT and MergerSub hereby
agree as follows:
1.
The
Merger
. Pursuant to the
provisions of Section 1924(b)(4) of the PBCL and subject to the terms
and conditions of this Agreement, MergerSub shall, at the Effective Time, be
merged with and into the Company, and the separate existence of MergerSub shall
cease. The Company shall continue as the
surviving corporation and assume all rights, privileges, assets and liabilities
of MergerSub. The Company as the
surviving corporation after the Merger is hereinafter sometimes referred to as
the “Surviving Corporation.”
2.
Surviving
Corporation
. At the Effective
Time, the effect of the Merger shall be as provided in Section 1929 of the
PBCL. As a result of the Merger, by
operation of law and without further act or deed, at the Effective Time, all
property, rights, interests and other assets of Merger Sub shall be transferred
to and vested in the Surviving Corporation, and the Surviving Corporation shall
assume all of the liabilities and obligations of MergerSub.
3.
Treatment
of Shares
.
3.1.
New
EQT Common Stock
. At the Effective
Time, each share of New EQT Common Stock held by the Company shall, by virtue
of the Merger and without any action on the part of the holder thereof, be
cancelled without conversion or issuance of any shares of stock of the
Surviving Corporation with respect thereto.
3.2.
Company
Common Stock and Certificates
. At
the Effective Time, each share of Company Common Stock issued and outstanding
immediately prior to the Effective Time
(including those shares formerly held in treasury by the Company and
contributed to New EQT prior to the Merger) shall, by virtue of the Merger and
without any action on the part of the holder thereof, be converted into and
thereafter represent one fully paid, duly issued and nonassessable share of New
EQT Common Stock, which shall have the same designations, rights, powers and
preferences and the same qualifications, limitations and restrictions as a
share of Company Common Stock immediately prior to the Effective Time, and each
certificate previously representing any such shares of Company Common Stock
shall, at the effective time, automatically, without the requirement of any
exchange thereof, represent the same number of shares of New EQT Common Stock.
3.3.
MergerSub
Common Stock
. At the Effective Time,
each share of MergerSub Common Stock issued and outstanding immediately prior
to the Effective Time shall, by virtue of the Merger and without any action on
the part of the holder thereof, be converted into and thereafter represent one
duly issued, fully paid and nonassessable share of common stock of the
Surviving Corporation.
2
4.
Effective
Time
. If this Agreement is not
terminated as contemplated by Section 10 hereof, Articles of Merger (the
“Articles of Merger”), executed in accordance with the PBCL, shall be delivered
to the appropriate state officials for filing.
The Merger shall become effective at 11:58 P.M. on Monday,
June 30, 2008 (the “Effective Time”).
5.
Articles
of Incorporation
. The Articles
of Incorporation of MergerSub as in effect at the Effective Time, from and
after the Effective Time and until further amended as provided by applicable
law, shall be, and may be separately certified as, the Articles of
Incorporation of the Surviving Corporation.
6.
By-laws
. The By-laws of MergerSub, as in effect at the
Effective Time, shall be the By-laws of the Surviving Corporation, to remain
unchanged until amended in accordance with the provisions thereof and of
applicable law.
7.
Directors
and Officers
. At the Effective
Time, the Board of Directors of the Surviving Corporation shall consist of
those persons who were directors of MergerSub immediately prior to the
Effective Time, and the officers of the Surviving Corporation shall be the
persons who were officers of MergerSub immediately prior to the Effective Time,
each such person to hold, in accordance with the By-laws and at the pleasure of
the Board of Directors of the Surviving Corporation, the same office or offices
with the Surviving Corporation as he or she then held with MergerSub.
8.
Actions
to be taken in Connection with the Merger.
8.1.
Assumption
of Equity Plans
. New EQT and the
Company hereby agree that they will, at the Effective Time, execute,
acknowledge and deliver an assumption agreement pursuant to which New EQT will,
from and after the Effective Time, assume and agree to perform all obligations
of the Company under the Company’s Equitable Resources, Inc. 2005 Employee
Deferred Compensation Plan and Equitable Resources, Inc. 2005 Directors’
Deferred Compensation Plan (Registration Statement No. 333-122382); 1999
Equitable Resources, Inc. Long Term Incentive Plan (Registration Statement
No. 333-70822); Equitable Resources, Inc. Deferred Compensation Plan
and Equitable Resources, Inc. Directors’
Deferred Compensation Plan (Registration Statement No. 333-32410);
1999 Equitable Resources, Inc. Long Term Incentive Plan (Registration
Statement No. 333-82189); 1999 Equitable Resources, Inc. Non-Employee
Directors’ Stock Incentive Plan (Registration Statement No. 333-82193);
Equitable Resources, Inc. Employee Savings and Protection Plan
(Registration Statement No. 333-22529); Equitable Resources, Inc. Employee
Stock Purchase Plan (Registration Statement No. 333-01879); Dividend
Reinvestment and Stock Purchase Plan (Registration Statement No. 2-66128)
and Equitable Resources, Inc. Employee Savings Plan (Registration
Statement No. 033-00252) (the “Registered Stock Plans”).
The outstanding options
and other awards assumed by New EQT shall be exercisable upon the same terms
and conditions as under the Plans immediately prior to the Effective Time,
except that, upon the exercise of each such option or award, shares of New EQT
Common Stock shall be issuable in lieu of each share of Company Common Stock
issuable upon the exercise thereof immediately prior to the Effective Time.
8.2.
Post-Effective
Amendments
. It is the intent of the
parties hereto that New EQT, as of the Effective Time, be deemed a “successor
issuer” for purposes of continuing offerings of the Company under the
Securities Act of 1933, as amended. As
soon as practicable following the Merger, New EQT will file post-effective
amendments to the Company’s registration statements on Form S-8 covering
the Registered Stock Plans, adopting such statements as its own registration
statements for all purposes of the Securities Act and the Exchange Act and
setting forth any additional information necessary to reflect any material changes
made in connection with or resulting from the succession or
3
necessary to keep the
registration statements from being misleading.
8.3.
Reservation
of Shares
. On or prior to the
Effective Time, New EQT will reserve sufficient shares of New EQT Common Stock
to provide for the issuance of New EQT Common Stock upon exercise of the
options outstanding under the Registered Stock Plans.
9.
Adoption
and Approval
.
The Agreement was adopted and
approved by the Board of Directors of the Company acting through a Special
Committee of the Board of Directors by an action on June 9, 2008, by
written consent of the Board of Directors of New EQT dated June 10, 2008
and by written consent of the Board of Directors of MergerSub dated
June 10, 2008. Pursuant to
Section 1924(b)(4) of the PBCL, the Plan was not approved by the
shareholders of the Company or MergerSub.
10.
Termination
and Amendment
. This Agreement
may be terminated and the Merger abandoned by the Board of Directors of each of
the Company, New EQT or MergerSub at any time prior to the Effective Time. In addition, this Agreement may be amended by
the mutual consent of the Boards of Directors of the Company, New EQT and
MergerSub at any time prior to the Effective Time.
11.
Governing
Law
. This Agreement shall be
governed by and construed in accordance with the laws of the Commonwealth of
Pennsylvania.
12.
Counterparts
.
This Agreement may
be executed in one or more counterparts, each of which when executed shall be
deemed to be an original but all of which shall constitute one and the same
agreement.
13.
Miscellaneous
. Upon the Effective Date, all the property,
rights, privileges, franchises, patents, trademarks, licenses, registrations
and other assets of every kind and description of MergerSub shall be
transferred to, vested in and devolve upon the Company without further act or
deed and all property, rights, and every other interest of the Company and
MergerSub shall be as effectively the property of the Company as they were of
the Company and MergerSub respectively.
MergerSub hereby agrees from time to time, as and when requested by the
Company or by its successors or assigns, to execute and deliver or cause to be
executed and delivered all such deeds and instruments and to take or cause to
be taken such further or other action as the Company may deem necessary or
desirable in order to vest in and confirm to the Company title to and
possession of any property of MergerSub acquired or to be acquired by reason of
or as a result of the Merger herein provided for and otherwise to carry out the
intent and purposes hereof and the proper officers and directors of MergerSub
and the proper officers and directors of the Company are fully authorized in
the name of MergerSub or otherwise to take any and all such action.
4
IN WITNESS WHEREOF, the
parties hereto have caused this duly approved Agreement to be executed as of
the date first above written.
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Equitable Resources, Inc.
(organized in 1926)
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By:
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/s/ Philip P. Conti
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Name:
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Philip P. Conti
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Title:
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Senior Vice President
and Chief
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Financial Officer
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EGC Merger Co.
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By:
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/s/ James E.
Crockard, III
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Name: James E.
Crockard, III
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Title: Treasurer
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Equitable
Resources, Inc. (organized in 2008)
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By:
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/s/ Philip P. Conti
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Name:
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Philip P. Conti
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Title:
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Senior Vice President
and Chief
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Financial Officer
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5
Exhibit 10.24(b)
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (this
“Agreement”), dated as of the 30th day of June, 2008, by and between Equitable
Resources, Inc., a Pennsylvania corporation formed in 1926 (“
Assignor
”)
and Equitable Resources, Inc., a Pennsylvania corporation formed in 2008
to effect a holding company reorganization of Assignor, (“
Assignee
”).
W I T N E S S E T H
WHEREAS, the Assignor sponsors all of the benefit plans
as described on
Schedule A
hereto and has in the past sponsored benefit
plans which are no longer operative (the “
Benefit Plans
”) and the
Assignor desires to assign and transfer to the Assignee all of Assignor’s
right, title, and interest under and to the Benefit Plans (the transfer of such
Benefit Plans is referred to as the “
Assignment
”); and
WHEREAS, Assignee desires to assume all of Assignor’s
covenants, agreements, duties, responsibilities and obligations under and to
the Benefit Plans.
NOW, THEREFORE, in consideration of the foregoing and
for other good and valuable consideration, the receipt, adequacy and legal
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
1.
Assignment
. Assignor does hereby assign, sell, transfer,
and set over to Assignee, its successors and assigns forever, all of Assignor’s
right, title and interest in and to the Benefit Plans. Such Assignment shall be effective as of the
date hereof.
2.
Assumption
. The Assignee hereby assumes and agrees to
promptly perform all covenants, agreements, duties, responsibilities and
obligations of Assignor under the Benefit Plans. Assignor shall have no further duties,
responsibilities or obligations with respect to the Benefit Plans effective as
of the date hereof, except as required by contract, in which case Assignee
agrees to indemnify and hold harmless Assignor for all costs and expenses
incurred by Assignor with respect to such Benefit Plans.
3.
Savings
. It is
understood and agreed by the Assignor and Assignee that to the extent a
consent, approval and/or waiver is required for the conveyance of a particular
right, title or interest relating to any Benefit Plan, then this Agreement
shall not be deemed to have conveyed said right, title or interest to Assignee,
if an actual or attempted assignment thereof would constitute a breach thereof
or default thereunder resulting in termination thereof, until such required
consent, approval and/or waiver is obtained.
The Assignor and Assignee shall cooperate in obtaining any such required
consents, approvals and/or waivers, and for any pending period, the Assignor
and Assignee shall cooperate in any reasonable, permitted arrangement to
provide Assignee with all, or the equivalent of all, of the benefits and privileges
associated with said right, title or interest.
4.
Further Assurances
. The Assignor and Assignee hereby covenant,
from time to time at the request of the other party and without further cost or
expense to such party, to execute and deliver such other instruments which the
other party may reasonably request in order to more effectively consummate the
transactions contemplated by this Agreement.
5.
Governing Law
. This
Agreement shall be governed by and construed in accordance with the laws of the
Commonwealth of Pennsylvania, without giving effect to the conflicts-of-laws
provisions thereof.
6.
Successors and Assigns
. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
7.
Counterparts
. This Agreement may be executed and delivered
in one or more counterparts, all of which shall constitute one and the same
instrument.
8.
Headings
. The section headings in this Agreement are
for convenience of reference only, and shall not be deemed to alter or affect
the meaning or interpretation of any provisions hereof.
[Remainder of Page Intentionally Left
Blank]
2
IN
WITNESS WHEREOF, Assignor and Assignee have executed this Agreement as of the
date first above written.
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ASSIGNOR:
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EQUITABLE RESOURCES, INC.
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(organized in 1926)
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By:
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/s/ James E. Crockard, III
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Name:
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James E. Crockard, III
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Title:
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Treasurer
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ASSIGNEE:
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EQUITABLE RESOURCES, INC.
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(organized in 2008)
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By:
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/s/ Philip P. Conti
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Name:
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Philip P. Conti
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Title:
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Senior Vice President and Chief Financial
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Officer
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3
SCHEDULE A
Benefit Plans
Equitable
Resources, Inc. Comprehensive Welfare Plan for Unfunded Benefits
Equitable
Resources, Inc. Comprehensive Welfare Plan for Retirees
Equitable
Resources, Inc. Retirement Plan for Employees, and all related sub-plans
Equitable Resources, Inc. 2005 Directors’ Deferred Compensation
Plan
1999 Equitable Resources, Inc. Long-Term Incentive Plan
Equitable Resources, Inc. Directors’ Deferred Compensation Plan
1999 Equitable Resources, Inc. Non-Employee Directors’ Stock
Incentive Plan
Equitable Resources, Inc. Employee Savings and Protection Plan
Equitable Resources, Inc. Employee Stock Purchase Plan
Equitable Resources, Inc. Employee Savings Plan
Other benefit
and employee fringe benefit plans
4
Exhibit 10.24(c)
MASTER ASSIGNMENT, ASSUMPTION AND ACKNOWLEDGEMENT
AGREEMENT
This MASTER ASSIGNMENT,
ASSUMPTION AND ACKNOWLEDGEMENT AGREEMENT (this “
Agreement
”), dated as of
the 30th day of June, 2008, by and between Equitable Resources, Inc., a
Pennsylvania corporation formed in 1926 (“
Assignor
”) and Equitable
Resources, Inc., a Pennsylvania corporation formed in 2008 to effect a holding company
reorganization of Assignor, (“
Assignee
”).
W I T N E S S E T H
WHEREAS, the Assignor owns
certain rights, interests and obligations in or with respect to the following
assets and liabilities (collectively, the “
Assets and Liabilities
”):
(a) 100% limited
liability company membership interest of Equitable Distribution, LLC;
(b) 100% limited
liability company membership interest of EQT Investments Holdings, LLC;
(c) 500,000 ordinary
shares of Equitable Resources Insurance Co., Ltd.;
(d) if the merger of
Kentucky West Virginia Gas Company, LLC into Equitable Distribution, LLC has
not occurred, 99% limited liability company membership interest of Kentucky
West Virginia Gas Company, LLC;
(e) 97.25% limited
partnership interest of Equitrans, LP;
(f) the following
notes, debentures and medium-term notes:
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Title of Securities
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CUSIP
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6.50% Senior Notes due April 1, 2008
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294549ARI
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5.15% Notes Due March 1, 2018
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294549AM2
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5.15% Notes Due November 15, 2012
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294549AJ9
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5.00% Notes Due October 1, 2015
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294549AP5
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7.75% Debentures Due July 15, 2026
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294549AE0
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8.48% to 9.00% Medium-Term Notes
|
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Series A
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8.82% Notes Due September 1, 2009
|
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29455JAF4
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8.75% Notes Due October 1, 2009
|
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29455JAV9
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|
8.79% Notes Due November 11, 2011
|
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29455JAQ0
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|
8.48% Notes Due December 27, 2011
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29455JBA4
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8.70% Notes Due December 1, 2014
|
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29455JAX5
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8.88% Notes Due October 1, 2020
|
|
29455JAN7
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8.81% Notes Due October 1, 2020
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29455JAS6
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8.99% Notes Due September 1, 2021
|
|
29455JAB3
|
|
9.00% Notes Due September 1, 2021
|
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29455JAJ6
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|
8.98% Notes Due September 1, 2021
|
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29455JAK3
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8.93% Notes Due October 1, 2021
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29455JAL1
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Series A Total
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7.30 % to 7.55% Medium-Term Notes
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Series B
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7.30% Notes Due March 4, 2013
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29455JBJ5
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7.55% Notes Due October 1, 2015
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29455JBP1
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7.42% Notes Due March 2, 2023
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29455JBH9
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Series B Total
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7.60% Medium-Term Notes Series C
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7.60% Notes Due January 15, 2018
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29455JBQ9
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Series C Total
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(g) the Revolving
Credit Facility dated October 27, 2006;
(h) 55,378 shares of
Series A Preferred Stock of Alzeta Corporation;
(i) all limited
partnership interests in Strategic Investment Fund Partners, LP; and
(j) all other assets and liabilities identified
on
Exhibit A
attached hereto
.
WHEREAS, the Assignor desires to
assign and transfer to the Assignee all right, title, and interest in the
Assets and Liabilities (such transfer is referred to as the “
Assignment
”);
and
WHEREAS, the Assignee desires to
substitute itself for and become the successor to the Assignor with respect to
the Assets and Liabilities and to assume and perform all of the Assignor’s
covenants, agreements, duties, responsibilities and obligations with respect to
the Assets and Liabilities.
NOW, THEREFORE,
in consideration of the foregoing and for
other good and valuable consideration, the receipt, adequacy and legal
sufficiency of which are hereby acknowledged, and intending to be legally
bound, the parties hereto agree as follows:
Section 1.
Assignment
. Assignor does hereby assign, sell, transfer,
and set over to Assignee, its successors and assigns forever, all of Assignor’s
right, title and interest in and to the Assets and Liabilities. Such Assignment
shall be effective as of the date hereof.
Section 2.
Assumption
. Assignee hereby assumes and agrees to
promptly perform all covenants, agreements, duties, responsibilities and
obligations of Assignor under the Assets and Liabilities. Assignor shall have no further duties,
responsibilities or obligations with respect to
2
the Assets and
Liabilities effective as of the date hereof, except as required by contract, in
which case Assignee agrees to indemnify and hold harmless Assignor for all
costs and expenses incurred by Assignor with respect to such Assets or
Liabilities.
Section 3.
Savings
.
It is understood and agreed by
the Assignor and Assignee that to the extent a consent, approval and/or waiver
is required for the conveyance of a particular right, title or interest
relating to any of the Assets and Liabilities, then this Agreement shall not be
deemed to have conveyed said right, title or interest to Assignee, if an actual
or attempted assignment thereof would constitute a breach thereof or default
thereunder resulting in termination thereof, until such required consent,
approval and/or waiver is obtained. The
Assignor and Assignee shall cooperate in obtaining any such required consents,
approvals and/or waivers, and for any pending period, the Assignor and Assignee
shall cooperate in any reasonable, permitted arrangement to provide Assignee
with all, or the equivalent of all, of the benefits and privileges associated
with said right, title or interest.
Section 4.
Further Assurances
. The Assignor and Assignee hereby covenant,
from time to time at the request of the other party and without further cost or
expense to such party, to execute and deliver such other instruments which the
other party may reasonably request in order to more effectively consummate the
transactions contemplated by this Agreement.
Section 5.
Governing Law
. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania,
without giving effect to the conflicts-of-laws provisions thereof.
Section 6.
Successors and Assigns
. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
Section 7.
Counterparts
. This Agreement may be executed and delivered
in one or more counterparts, all of which shall constitute one and the same
instrument.
Section 8.
Headings
. The section headings in this Agreement are
for convenience of reference only, and shall not be deemed to alter or affect
the meaning or interpretation of any provisions hereof.
[Remainder of
Page Intentionally Left Blank]
3
IN
WITNESS WHEREOF, Assignor and Assignee have executed this Agreement as of the
date first above written.
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ASSIGNOR:
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EQUITABLE RESOURCES,
INC.
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(organized in 1926)
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By:
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/s/ James E.
Crockard, III
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Name: James E.
Crockard, III
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Title: Treasurer
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ASSIGNEE:
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EQUITABLE RESOURCES, INC.
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(organized in 2008)
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By:
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/s/ Philip P. Conti
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Name:
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Philip P. Conti
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Title:
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Senior Vice President
and Chief Financial
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Officer
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4
Exhibit A
All other assets and
liabilities of Assignor which are not assets or liabilities of Equitable Gas
Company (a division of Assignor) including, but not limited to, the following:
i)
all corporate records of Assignor including, but not limited to,
(a) minutes of meetings of shareholders, board of directors, and
committees of the board; (b) stock ledgers, (c) shareholder reports
or other documents furnished to shareholders or filed with the Securities and
Exchange Commission, (d) analyst or rating agency reports, and
(e) press releases;
ii)
all accounting records of Assignor including, but not limited to,
(a) monthly, quarterly and annual financial statements, (b) all
management letters, reports or studies on internal controls or other special or
regular reports or recommendations produced by external or internal auditors,
and (c) copies of all foreign, Federal, state and local income, franchise,
sales, property, gross receipt and employment tax returns;
iii)
all of Assignor’s real property leases;
iv)
all of Assignor’s contracts and documentation regarding indebtedness of
Assignor including, but not limited to, credit agreements, indentures,
capitalized leases, private placement memorandums for Assignor’s commercial
paper program and swap or other “derivative” agreements;
v)
all indemnification agreements, employment agreements, noncompete agreements
and other agreements and arrangements with directors, officers, employees and
agents;
vi)
Assignor’s Dividend Reinvestment and Stock Purchase Plan;
vii) Assignor’s License Agreement for Penguins
Suite;
viii) all of Assignor’s motor vehicles;
ix)
all of Assignor’s insurance policies or arrangements;
x)
all of Assignor’s other corporate contracts;
xi)
all of Assignor’s office furniture and equipment;
xii) all other books, records and other assets of
Assignor; and
xiii) all other
liabilities of Assignor, whether known, unknown, contingent or otherwise.
