Exhibit 10.1

 

AMENDED AND RESTATED OMNIBUS AGREEMENT

 

among

 

EQT CORPORATION,

 

EQT RE, LLC,

 

RICE MIDSTREAM HOLDINGS LLC,

 

RICE MIDSTREAM PARTNERS LP,

 

RICE MIDSTREAM MANAGEMENT LLC

 

and

 

RICE POSEIDON MIDSTREAM LLC

 

This AMENDED AND RESTATED OMNIBUS AGREEMENT (“ Agreement ”) is entered into on, and effective as of, November 13, 2017, among EQT Corporation, a Pennsylvania corporation (“ EQT ”), EQT RE, LLC, a Delaware limited liability company (“ EQT RE ”), Rice Midstream Holdings LLC, a Delaware limited liability company (“ RMH ”), Rice Midstream Partners LP, a Delaware limited partnership (the “ Partnership ”), Rice Midstream Management LLC, a Delaware limited liability company and the general partner of the Partnership (the “ General Partner ”), and Rice Poseidon Midstream LLC, a Delaware limited liability company (“ RPM ”). The above-named entities are sometimes referred to in this Agreement each as a “ Party ” and collectively as the “ Parties .”

 

R E C I T A L S:

 

1.                                       Rice Energy Inc. (“ Rice ”), RMH, the Partnership, the General Partner and RPM entered into that certain Omnibus Agreement, effective as of December 22, 2014 (the “ Original Agreement ”), in order to evidence their understanding with respect to certain indemnification obligations, general and administrative services to be performed for and on behalf of the Partnership Group (as defined herein) and the Partnership’s reimbursement obligations related thereto, the granting of a license from Rice to the Partnership and the Partnership’s right of first offer with respect to the ROFO Asset (as defined herein).

 

2.                                       On the date hereof, (a) a wholly owned corporate subsidiary of EQT was merged with and into Rice, with Rice surviving (the “ Surviving Corporation ”) as an indirect, wholly owned subsidiary of EQT and (b) immediately thereafter, the Surviving Corporation merged with and into EQT RE, with EQT RE surviving as an indirect wholly owned subsidiary of EQT (together, the “ Mergers ”).

 

 

3.                                       The Parties desire by their execution of this Agreement to amend and restate the Original Agreement in its entirety to reflect the effects of the Mergers and to make certain other changes.

 

In consideration of the premises and the covenants, conditions, and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto hereby agree as follows:

 

ARTICLE I
Definitions

 

1.1                                Definitions . As used in this Agreement, the following terms shall have the respective meanings set forth below:

 

“ Affiliate ” means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with, the Person in question.

 

“ Change of Control ” means, with respect to any Person (the “ Applicable Person ”), any of the following events: (i) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all or substantially all of the Applicable Person’s assets to any other Person, unless immediately following such sale, lease, exchange or other transfer such assets are owned by the Applicable Person or an Affiliate of the Applicable Person; (ii) the dissolution or liquidation of the Applicable Person; (iii) the consolidation or merger of the Applicable Person with or into another Person (other than an Affiliate of the Applicable Person), other than any such transaction where (a) the outstanding Voting Securities of the Applicable Person are changed into or exchanged for Voting Securities of the surviving Person or its parent and (b) the holders of the Voting Securities of the Applicable Person immediately prior to such transaction own, directly or indirectly, not less than a majority of the outstanding Voting Securities of the surviving Person or its parent immediately after such transaction; and (iv) a “person” or “group” (within the meaning of Sections 13(d) or 14(d)(2) of the Exchange Act), other than EQT or its Affiliates, being or becoming the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) of more than 50% of all of the then outstanding Voting Securities of the Applicable Person, except in a merger or consolidation that would not constitute a Change of Control under clause (iii) above.

 

“ Closing Date ” means December 22, 2014.

 

“ Confidential Information ” means any proprietary or confidential information that is competitively sensitive material or otherwise of value to a Party or its Affiliates and not generally known to the public, including trade secrets, scientific or technical information, design, invention, process, procedure, formula, improvements, product planning information, marketing strategies, financial information, information regarding operations, consumer and/or customer relationships, consumer and/or customer identities and profiles, sales estimates, business plans, and internal performance results relating to the past, present or future business activities of a Party or its Affiliates and the consumers, customers, clients and suppliers of any of the foregoing. Confidential Information includes such information as may be contained in or

 

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embodied by documents, substances, engineering and laboratory notebooks, reports, data, specifications, computer source code and object code, flow charts, databases, drawings, pilot plants or demonstration or operating facilities, diagrams, specifications, bills of material, equipment, prototypes and models, and any other tangible manifestation (including data in computer or other digital format) of the foregoing; provided , however , that Confidential Information does not include information that a receiving Party can show (A) has been published or has otherwise become available to the general public as part of the public domain without breach of this Agreement or a duty of confidence, (B) has been furnished or made known to the receiving Party without any obligation to keep it confidential by a third party under circumstances which are not known to the receiving Party to involve a breach of the third party’s obligations to a Party or (C) was developed independently of information furnished or made available to the receiving Party as contemplated under this Agreement.

 

“ Contribution Agreement ” means that certain Contribution Agreement, dated as of the Closing Date, among the General Partner, the Partnership, Rice and certain other EQT Entities, together with the additional conveyance documents and instruments contemplated or referenced thereunder.

 

“ control ,” “ is controlled by ” or “ is under common control with ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract, or otherwise.

 

“ Covered Environmental Losses ” means any and all Losses (including, without limitation, the costs and expenses associated with any Environmental Activity or of any environmental or toxic tort pre-trial, trial or appellate legal, litigation or arbitration work) related to or arising out of or in connection with:

 

(a)                                  any violation or correction of a violation of any Environmental Law related to the ownership or operation of the Partnership Assets; and

 

(b)                                  any event, circumstance, action, omission, condition or matter that has an adverse impact on the environment and is associated with or arising from the ownership or operation of the Partnership Assets (including, without limitation, the presence of Hazardous Substances at, on, under, about or migrating to or from the Partnership Assets or the exposure to, or disposal or Release of, Hazardous Substances arising out of the operation of Partnership Assets, including at non-Partnership Asset locations).

 

“ Environmental Activity ” means any investigation, study, assessment, evaluation, sampling, testing, monitoring, containment, removal, disposal, closure, corrective action, remediation (whether active or passive), risk-based closure activities, natural attenuation, restoration, bioremediation, response, repair, cleanup or abatement that is required or necessary under any Environmental Law, including, without limitation, the cost and expense of preparing and implementing any closure, remedial, corrective action, or other plans required or necessary under any Environmental Law, the establishment of institutional or engineering controls and the performance of or participation in a supplemental environmental project in partial or whole mitigation of a fine or penalty.

 

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“ Environmental Laws ” means all federal, state, and local laws, statutes, rules, regulations, orders, ordinances, judgments, codes, injunctions, decrees, Environmental Permits and other legally enforceable requirements and rules of common law relating to (a) pollution or protection of the environment, natural resources or workplace health or safety, (b) any Release or threatened Release of, or any exposure of any Person or property to, any Hazardous Substance and (c) the generation, manufacture, processing, distribution, use, recycling, treatment, storage, transport, handling or disposal of any Hazardous Substance, including, without limitation, the federal Comprehensive Environmental Response, Compensation, and Liability Act, the Superfund Amendments Reauthorization Act, the Resource Conservation and Recovery Act, the Clean Air Act, the Federal Water Pollution Control Act, the Toxic Substances Control Act, the Oil Pollution Act, the Safe Drinking Water Act, the Hazardous Materials Transportation Act, the Emergency Planning and Community Right-to-Know Act, the Pipeline Safety Improvement Act, the Endangered Species Act, the National Environmental Policy Act, the Occupational Safety and Health Act and other environmental conservation and protection laws, and the regulations promulgated pursuant thereto, and any state or local counterparts, each as amended through and existing on the Closing Date.

 

“ Environmental Permits ” means any permit, approval, identification number, license, registration, certification, consent, exemption, variance or other authorization required under or issued pursuant to any applicable Environmental Law.

 

“ EQT ” is defined in the preamble.

 

“ EQT Entities ” means EQT and any Person controlled, directly or indirectly, by EQT, other than (a) the General Partner, (b) a member of the Partnership Group, (c) EQT GP Services, LLC, a Delaware limited liability company, (d) EQT GP Holdings, LP, a Delaware limited partnership, (e) EQT Midstream Services, LLC, a Delaware limited liability company, and (e) EQT Midstream Partners, LP, a Delaware limited partnership, and its Subsidiaries treated as a single consolidated entity; and “ EQT Entity ” means any of the EQT Entities.

 

“ EQT RE ” is defined in the preamble.

 

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

 

“ General Partner ” is defined in the preamble.

 

“ Hazardous Substance ” means (a) any substance that is designated, defined or classified as a hazardous waste, solid waste, hazardous material, pollutant, contaminant or toxic or hazardous substance, or terms of similar meaning, or that is otherwise regulated under any Environmental Law, including, without limitation, any hazardous substance as such term is defined under the Comprehensive Environmental Response, Compensation, and Liability Act, as amended, (b) petroleum, petroleum products and fractions or byproducts thereof, natural gas, crude oil, gasoline, fuel oil, motor oil, waste oil, diesel fuel, jet fuel and other petroleum hydrocarbons, whether refined or unrefined, and (c) radioactive materials, asbestos containing materials, radon and polychlorinated biphenyls.

 

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“ Indemnified Party ” means either one or more members of the Partnership Group or one or more EQT Entities, as the case may be, each in its capacity as a party entitled to indemnification in accordance with Article II hereof.

 

“ Indemnifying Party ” means either one or more members of the Partnership Group or EQT, as the case may be, each in its capacity as a party from whom indemnification may be required in accordance with Article II hereof.

 

“ Initial Term ” is defined in Section 6.5.

 

“ License ” is defined in Section 4.1.

 

“ Limited Partner ” is defined in the Partnership Agreement.

 

“ Losses ” means all losses, damages, liabilities, injuries, claims, demands, causes of action, judgments, settlements, fines, penalties, costs and expenses of any and every kind or character (including, without limitation, court costs and reasonable attorneys’ and experts’ fees).

 

“ Marks ” is defined in Section 4.1.

 

“ Mediation Notice ” is defined in Section 6.2(b).

 

“ Mergers ” is defined in the recitals.

 

“ Name ” is defined in Section 4.1.

 

“ Original Agreement ” is defined in the recitals.

 

“ Partnership ” is defined in the preamble.

 

“ Partnership Agreement ” means the Amended and Restated Agreement of Limited Partnership of the Partnership, dated as of the Closing Date, as such agreement is in effect on the Closing Date, to which reference is hereby made for all purposes of this Agreement.

 

“ Partnership Assets ” means the assets conveyed, contributed or otherwise transferred, directly or indirectly (including through the transfer of equity interests), or intended to be conveyed, contributed or otherwise transferred, to the Partnership Group pursuant to the Contribution Agreement, including, without limitation, gathering pipelines, offices and related equipment and real estate and fresh water distribution systems.

 

“ Partnership Group ” means the Partnership and its Subsidiaries treated as a single consolidated entity.

 

“ Partnership Group Member ” means any member of the Partnership Group.

 

“ Party ” and “ Parties ” are defined in the preamble.

 

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“ Person ” means an individual or a corporation, firm, limited liability company, partnership, joint venture, trust, unincorporated organization, association, government agency or political subdivision thereof or other entity.

 

“ Proposed Transaction ” is defined in Section 5.2(a).

 

“ Release ” means any depositing, spilling, leaking, pumping, pouring, placing, emitting, discarding, abandoning, emptying, discharging, migrating, injecting, escaping, leaching, dumping or disposing into the environment.

 

“ Representatives ” is defined in Section 6.1(a).

 

“ Retained Assets ” means the assets and investments owned by the EQT Entities as of the Closing Date that were not conveyed, contributed or otherwise transferred to the Partnership Group pursuant to the Contribution Agreement; provided, however , that any Retained Asset shall cease to be a Retained Asset upon its conveyance, contribution or transfer to the Partnership Group after the date hereof.

 

“ Rice ” is defined in the recitals.

 

“ RMH ” is defined in the preamble.

 

“ ROFO Asset ” shall mean the asset included on Schedule I hereto.

 

“ ROFO Response ” is defined in Section 5.2(a).

 

“ ROFO Response Deadline ” is defined in Section 5.2(a).

 

“ RPM ” is defined in the preamble.

 

“ Secondment Agreement ” is defined in Section 3.2.

 

“ Services ” is defined in Section 3.1.

 

“ Subsidiary ” means, with respect to any Person, (a) a corporation of which more than 50% of the voting power of shares entitled (without regard to the occurrence of any contingency) to vote in the election of directors or other governing body of such corporation is owned, directly or indirectly, at the date of determination, by such Person, by one or more Subsidiaries of such Person or a combination thereof, (b) a partnership (whether general or limited) in which such Person or a Subsidiary of such Person is, at the date of determination, a general or limited partner of such partnership, but only if more than 50% of the partnership interests of such partnership (considering all of the partnership interests of the partnership as a single class) is owned, directly or indirectly, at the date of determination, by such Person, by one or more Subsidiaries of such Person, or a combination thereof, or (c) any other Person (other than a corporation or a partnership) in which such Person, one or more Subsidiaries of such Person, or a combination thereof, directly or indirectly, at the date of determination, has (i) at least a majority ownership interest or (ii) the power to elect or direct the election of a majority of the directors or other governing body of such Person.

 

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“ Surviving Corporation ” is defined in the recitals.

 

“ Transfer ” means to, directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of, whether in one or a series of transactions; provided, however , that in no event shall a Change of Control of EQT be deemed a Transfer.

 

“ Voting Securities ” of a Person means securities of any class of such Person entitling the holders thereof to vote in the election of, or to appoint, members of the board of directors or other similar governing body of the Person.

 

ARTICLE II
Indemnification

 

2.1                                Environmental Indemnification .

 

(a)                                  Subject to the provisions of Sections 2.4 and 2.5, EQT RE shall indemnify, defend and hold harmless the Partnership Group from and against any Covered Environmental Losses suffered or incurred by the Partnership Group and relating to the Partnership Assets to the extent that the violation, event, circumstance, action, omission, condition or matter giving rise to such Covered Environmental Losses occurred or existed on or before the Closing Date.

 

(b)                                  Notwithstanding the foregoing, in no event shall EQT RE have any indemnification obligations under this Agreement with respect to any claims based on additions to or modifications of Environmental Laws enacted or promulgated after the Closing Date.

 

2.2                                Additional Indemnification . In addition to and not in limitation of the indemnification provided under Section 2.1(a), subject to the provisions of Sections 2.4 and 2.5, EQT RE shall indemnify, defend and hold harmless the Partnership Group from and against any Losses suffered or incurred by the Partnership Group and related to or arising out of or in connection with:

 

(a)                                  any failure of the Partnership Group to be the owner on the Closing Date of valid and indefeasible easement rights, rights-of-way, leasehold and/or fee ownership interests in and to the lands on which any Partnership Assets are located to the extent that such failure renders the Partnership Group liable to a third party or unable to use or operate the Partnership Assets in substantially the same manner as they were used or operated immediately prior to the Closing Date;

 

(b)                                  the failure of the Partnership Group to have on the Closing Date any consent, license, permit or approval necessary to allow the Partnership Group to own or operate the Partnership Assets in substantially the same manner that the Partnership Assets were owned or operated immediately prior to the Closing Date;

 

(c)                                   any event or condition associated with the Retained Assets, whether occurring before, on or after the Closing Date; and

 

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(d)                                  any federal, state or local income tax liabilities attributable to the ownership or operation of the Partnership Assets prior to the Closing Date, including (i) any income tax liabilities of Rice that resulted from the consummation of the formation transactions for the Partnership Group and (ii) any income tax liabilities arising under Treasury Regulation Section 1.1502-6 and any similar provision of applicable state, local or foreign law, or by contract, as successor, transferee or otherwise, and which income tax liability is attributable to having been a member of any consolidated, combined or unitary group prior to the Closing Date.

 

2.3                                Indemnification by the Partnership Group . Subject to the provisions of Sections 2.4 and 2.5, the Partnership Group shall indemnify, defend and hold harmless the EQT Entities from and against any Losses (including Covered Environmental Losses) suffered or incurred by the EQT Entities and related to or arising out of or in connection with the ownership or operation of the Partnership Assets after the Closing Date, except to the extent that any member of the Partnership Group is entitled to indemnification hereunder or unless such indemnification would not be permitted under the Partnership Agreement.

 

2.4                                Limitations Regarding Indemnification .

 

(a)                                  The indemnification obligation set forth in Sections 2.1(a), 2.2(a) and 2.2(b) shall terminate on the third anniversary of the Closing Date and the indemnification obligation set forth in Section 2.2(d) shall terminate on the 30th day after the termination of any applicable statute of limitations; provided, however , that any such indemnification obligation with respect to a Loss shall survive the time at which it would otherwise expire pursuant to this Section 2.4(a) if notice of such Loss is properly given to EQT RE prior to such time. The indemnification obligations set forth in Sections 2.2(c) and 2.3 shall survive indefinitely.

 

(b)                                  The aggregate liability of EQT RE under Section 2.1(a) shall not exceed $15 million.

 

(c)                                   No claims may be made against EQT RE for indemnification pursuant to Section 2.1(a) unless the aggregate dollar amount of the Losses suffered or incurred by the Partnership Group exceeds $250,000, after which EQT RE shall be liable for the full amount of such claims in excess of $250,000, subject to the limitations of Sections 2.4(a) and 2.4(b).

 

(d)                                  In no event shall EQT RE be obligated to the Partnership Group under Section 2.1(a) or Section 2.2 for any Losses or income tax liabilities to the extent (i) any insurance proceeds are realized by the Partnership Group, such correlative benefit to be net of any incremental insurance premium that becomes due and payable by the Partnership Group as a result of such claim or (ii) any amounts are recovered by the Partnership Group from third persons.

 

2.5                                Indemnification Procedures .

 

(a)                                  The Indemnified Party agrees that promptly after it becomes aware of facts giving rise to a claim for indemnification under this Article II, it will provide notice thereof in writing to the Indemnifying Party, specifying the nature of and specific basis for such claim; provided, however , that the Indemnified Party shall not submit claims more frequently than once a calendar quarter (or twice in the case of the calendar quarter in which the applicable indemnity

 

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coverage under this Agreement expires) unless such Indemnified Party believes in good faith that such a delay in notice to the Indemnifying Party would cause actual prejudice to the Indemnifying Party’s ability to defend against the applicable claim. Notwithstanding anything in this Article II to the contrary, a delay by the Indemnified Party in notifying the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Article II, except to the extent that such failure shall have caused actual prejudice to the Indemnifying Party’s ability to defend against the applicable claim.

 

(b)                                  The Indemnifying Party shall have the right to control all aspects of the defense of (and any counterclaims with respect to) any claims brought against the Indemnified Party that are covered by the indemnification under this Article II, including, without limitation, the selection of counsel, the determination of whether to appeal any decision of any court and the settlement of any such matter or any issues relating thereto; provided, however , that no such settlement shall be entered into without the consent of the Indemnified Party unless it includes a full release of the Indemnified Party from such matter or issues, as the case may be, and does not include any admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.

 

(c)                                   The Indemnified Party agrees to cooperate fully with the Indemnifying Party with respect to all aspects of the defense of any claims covered by the indemnification under this Article II, including, without limitation, the prompt furnishing to the Indemnifying Party of any correspondence or other notice relating thereto that the Indemnified Party may receive, permitting the name of the Indemnified Party to be utilized in connection with such defense, the making available to the Indemnifying Party of any files, records or other information of the Indemnified Party that the Indemnifying Party considers relevant to such defense and the making available to the Indemnifying Party, at no cost to the Indemnifying Party, of any employees of the Indemnified Party; provided, however , that in connection therewith the Indemnifying Party agrees to use commercially reasonable efforts to minimize the impact thereof on the operations of the Indemnified Party and further agrees to maintain the confidentiality of all files, records and other information furnished by the Indemnified Party pursuant to this Section 2.5. In no event shall the obligation of the Indemnified Party to cooperate with the Indemnifying Party as set forth in the immediately preceding sentence be construed as imposing upon the Indemnified Party an obligation to hire and pay for counsel in connection with the defense of any claims covered by the indemnification set forth in this Article II; provided, however , that the Indemnified Party may, at its own option, cost and expense, hire and pay for counsel in connection with any such defense. The Indemnifying Party agrees to keep any such counsel hired by the Indemnified Party informed as to the status of any such defense, but the Indemnifying Party shall have the right to retain sole control over such defense.

 

(d)                                  The date on which the Indemnifying Party receives notification of a claim for indemnification shall determine whether such claim is timely made.

 

(e)                                   NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT, IN NO EVENT WILL ANY PARTY BE LIABLE TO ANY OTHER PARTY OR INDEMNIFIED PARTY WITH RESPECT TO ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT FOR ANY LOST OR PROSPECTIVE PROFITS OR ANY OTHER SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT LOSSES OR DAMAGES FROM ITS

 

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PERFORMANCE UNDER THIS AGREEMENT OR FOR ANY FAILURE OR PERFORMANCE HEREUNDER OR RELATED HERETO, WHETHER ARISING OUT OF BREACH OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHERWISE, EXCEPT FOR ANY SUCH DAMAGES RECOVERED BY ANY THIRD PARTY AGAINST ANY PARTY IN RESPECT OF WHICH SUCH PARTY WOULD OTHERWISE BE ENTITLED TO INDEMNIFICATION PURSUANT TO THIS ARTICLE II, PROVIDED THAT NO PARTY WILL BE ENTITLED TO INDEMNIFICATION FOR ANY DAMAGES THAT ARE CONTRARY TO APPLICABLE LAW.

 

ARTICLE III
General and Administrative Services

 

3.1                                Agreement to Provide General and Administrative Services . Until such time as this Agreement is terminated as provided in Section 6.6, EQT hereby agrees to cause the EQT Entities to continue to provide the Partnership Group with certain general and administrative services as set forth on Schedule II hereto and such other general or administrative services as the Partnership and EQT may mutually agree upon from time to time (collectively, the “ Services ”). EQT shall, and shall cause the EQT Entities to, provide the Partnership Group with such Services in a manner consistent in nature and quality to the services of such type previously provided by EQT Entities in connection with their management of the Partnership Assets prior to their acquisition by the Partnership Group.

 

3.2                                Secondment Agreement . Pursuant to an Amended and Restated Employee Secondment Agreement, dated as of the date hereof (the “ Secondment Agreement ”), between EQT and the Partnership, EQT has agreed to provide, or cause to be provided, to the Partnership the employees necessary or appropriate to operate, construct, manage and maintain the Facilities (as defined therein) in an efficient and prudent manner. For purposes of clarity, the services provided pursuant to the Secondment Agreement, the terms applicable to the provision of those services, and any reimbursement therefore, shall be governed by the Secondment Agreement and not by this Agreement.

 

3.3                                Reimbursement by Partnership . Subject to and in accordance with the terms and provisions of this Article III and such reasonable allocation and other procedures as may be agreed upon by EQT and the General Partner from time to time, the Partnership hereby agrees to reimburse EQT, and any other EQT Entities designated by EQT, for all direct and indirect costs and expenses incurred by the EQT Entities in connection with the provision of the Services to the Partnership Group, including the following:

 

(a)                                  any payments or expenses incurred for insurance coverage, including allocable portions of premiums, and negotiated instruments (including surety bonds and performance bonds) provided by underwriters with respect to the Partnership Assets or the business of the Partnership Group;

 

(b)                                  salaries, bonuses and related benefits and expenses of personnel employed by the EQT Entities who render Services to the Partnership Group, plus general and administrative expenses associated with such personnel; provided, however , that any expenses

 

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paid or reimbursed by the Partnership Group with respect to a plan that is self-insured by any of the EQT Entities will reflect actual costs incurred rather than premiums paid; and

 

(c)                                   all expenses and expenditures incurred by the EQT Entities as a result of the Partnership becoming and continuing as a publicly traded entity, including costs associated with annual, quarterly and current reporting, tax return and Schedule K-1 preparation and distribution, independent auditor fees, partnership governance and compliance, registrar and transfer agent fees and director compensation; it being agreed, however, that to the extent any reimbursable costs or expenses incurred by the EQT Entities consist of an allocated portion of costs and expenses incurred by the EQT Entities for the benefit of both the Partnership Group and the other EQT Entities, such allocation shall be made on a reasonable cost reimbursement basis as determined by EQT.

 

3.4                                Reimbursement Procedures . The Partnership Group will reimburse monthly the EQT Entities for all cash expenditures that the EQT Entities incur or payments the EQT Entities make on behalf of the Partnership Group in connection with providing the Services, as well as for certain other direct or allocated costs and expenses incurred by the EQT Entities on behalf of the Partnership Group. Billings and payments may be accomplished by inter-company accounting procedures and transfers. The Partnership shall have the right to review all source documentation concerning the liabilities, costs, and expenses upon reasonable notice and during regular business hours.

 

ARTICLE IV
License of Name and Marks

 

4.1                                Grant of License . Subject to the terms and conditions set forth in this Agreement, EQT RE grants and conveys to each of the entities currently or hereafter comprising a part of the Partnership Group a nontransferable, nonexclusive, royalty-free right and license (“ License ”) to use, during the term of this Agreement and solely in the conduct of the business of each entity comprising the Partnership Group, the name “Rice” (the “ Name ”) and any other trademarks, trade names, logos and/or service marks, whether registered or unregistered, owned by EQT RE which contain the Name (collectively, the “ Marks ”).

 

4.2                                Ownership and Quality .

 

(a)                                  The Partnership agrees that all right, title and interest in and to the Name and the Marks and the goodwill relating thereto— including any goodwill accrued as a result of use of the Name or the Marks by any entity comprising the Partnership Group—shall remain solely vested in EQT RE, and any successor thereto, both during the term of this License and thereafter, and the Partnership further agrees, and agrees to cause the other members of the Partnership Group, never to challenge, contest or question the validity of the Name and Marks, any registration thereof, and/or EQT RE’s sole ownership of the Name and Marks. In connection with the use of the Name and the Marks, the Partnership and any other member of the Partnership Group shall not in any manner represent that they have any right, title or interest in the Name or the Marks or registration thereof except as set forth herein, and the Partnership, on behalf of itself and the other members of the Partnership Group, acknowledges that the use of the Name and the Marks shall not create in Partnership or other members of the Partnership Group

 

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any right, title or interest in or to the Name or the Marks, and all use of the Name and the Marks by the Partnership or any other member of the Partnership Group, shall inure solely to the benefit of EQT RE. In addition, the Partnership and any other member of the Partnership Group shall not register or attempt to register the Name or the Marks in any jurisdiction. The sole right and authority to register the Name or the Marks shall remain vested in EQT RE. The License shall be limited to the territory of the United States and shall not include any right to sublicense any rights granted herein.

 

(b)                                  The Partnership agrees, and agrees to cause the other members of the Partnership Group, to use the Name and Marks in accordance with such quality standards established by or for EQT and communicated to the Partnership from time to time, it being understood that the products and services offered by the members of the Partnership Group immediately before the date hereof were of a quality that is acceptable to EQT. In the event any entity comprising a part of the Partnership Group or the Partnership is determined by EQT to be using the Name or a Mark in a manner not in accordance with quality standards established by EQT, EQT shall provide written notice of such unacceptable use including the reason why applicable quality standards are not being met. If acceptable proof that quality standards are met is not provided to EQT within thirty (30) days of such notice, the entity’s license to use the Name and the Marks shall terminate and shall not be renewed absent written authorization from EQT.

 

4.3                                In the Event of Termination . In the event of termination of this Agreement, pursuant to Section 6.6 or otherwise, or the termination of the License, the Partnership Group’s right to utilize or possess the Name and Marks licensed under this Agreement shall automatically cease, and no later than ninety (90) days following such termination, (a) the Partnership Group shall cease all use of the Name and Marks and shall adopt trademarks, service marks, and trade names that are not confusingly similar to any of the Name and Marks, provided, however , that any use of the Name and Marks during such 90-day period shall continue to be subject to Section 4.2(b), (b) at EQT’s request, the Partnership Group shall destroy all materials and content upon which any of the Name and Marks continue to appear (or otherwise modify such materials and content such that the use or appearance of the Name and Marks ceases) that are under the Partnership Group’s control, and certify in writing to EQT that the Partnership Group has done so, and (c) each member of the Partnership Group shall change its legal name so that there is no reference therein to the name “Rice,” any name or d/b/a then used by any EQT Entity or any variation, derivation or abbreviation thereof, and in connection therewith, shall make all necessary filings of certificates with the Secretary of State of the State of Delaware and to otherwise amend its organizational documents by such date.

 

ARTICLE V
Right of First Offer

 

5.1                                Right of First Offer to Purchase Certain Assets Retained by the EQT Entities .

 

(a)                                  EQT hereby grants to the Partnership Group a right of first offer on the ROFO Asset to the extent that any EQT Entity proposes to Transfer the ROFO Asset (other than to an Affiliate of the EQT Entities who agrees in writing that such ROFO Asset remains subject to the provisions of this Article V and such Affiliate assumes the obligations under this Article V

 

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with respect to the ROFO Asset) or enters into any agreement relating to such Transfer or proposed Transfer of the ROFO Asset.

 

(b)                                  The Parties acknowledge that any Transfer of the ROFO Asset pursuant to the Partnership Group’s right of first offer is subject to the terms of all existing agreements with respect to the ROFO Asset and shall be subject to and conditioned on the obtaining of any and all necessary consents of security holders, governmental authorities, lenders or other third parties; provided, however , that EQT represents and warrants that, to its knowledge after reasonable investigation, there are no terms in such existing agreements that would materially impair the rights granted to the Partnership Group pursuant to this Article V with respect to the ROFO Asset.

 

5.2                                Procedures .

 

(a)                                  If an EQT Entity proposes to Transfer the ROFO Asset (other than to an Affiliate, in accordance with Section 5.1(a)) (a “ Proposed Transaction ”), EQT shall, or shall cause such EQT Entity to, prior to entering into any such Proposed Transaction, first give notice in writing to the Partnership Group (the “ ROFO Notice ”) of its intention to enter into such Proposed Transaction. The ROFO Notice shall include (i) a description of the ROFO Asset subject to the Proposed Transaction, and (ii) any material terms, conditions and details as would be necessary for a Partnership Group Member to make a responsive offer to enter into the Proposed Transaction with the applicable EQT Entity, which terms, conditions and details shall at a minimum include any terms, condition(s) or details that such EQT Entity would propose to provide to non-Affiliates in connection with the Proposed Transaction. If the Partnership Group decides to purchase the ROFO Asset, the Partnership Group shall have 30 days following receipt of the ROFO Notice (the “ ROFO Response Deadline ”) to propose an offer to enter into the Proposed Transaction with such EQT Entity (the “ ROFO Response ”). The ROFO Response shall set forth the terms and conditions (including, without limitation, the purchase price the applicable Partnership Group Member proposes to pay for the ROFO Asset and the other terms of the purchase including, if requested by an EQT Entity, the terms on which the Partnership Group Member will provide services to the EQT Entity to enable the EQT Entity to utilize the  ROFO Asset) pursuant to which the Partnership Group would be willing to enter into a binding agreement for the Proposed Transaction. If no ROFO Response is delivered by the Partnership Group by the ROFO Response Deadline, then the Partnership Group shall be deemed to have decided not to purchase the ROFO Asset, and the Partnership Group shall be deemed to have waived its right of first offer with respect to the ROFO Asset, subject to Section 5.2(c).

 

(b)                                  If an EQT Entity rejects the ROFO Response or fails to respond to such ROFO Response within thirty (30) days of the receipt thereof, such ROFO Response shall be deemed to have been rejected by such EQT Entity, and the EQT Entity shall not be required to enter into an agreement with the applicable Partnership Group Member regarding the Proposed Transaction. If such EQT Entity accepts the ROFO Response, it will confirm such acceptance in a written notice to the applicable Partnership Group Member upon the terms set forth in the ROFO Response, and, if applicable, the Partnership Group Member shall use commercially reasonable efforts to enter into an agreement with the EQT Entity setting forth the terms on which the Partnership Group Member will provide services to the EQT Entity to enable the EQT Entity to utilize the ROFO Asset. Unless otherwise agreed between EQT and the applicable

 

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Partnership Group Member, the terms of the purchase and sale agreement will include the following:

 

(i)                                      the Partnership Group Member will deliver the agreed purchase price (in cash, Partnership securities, an interest-bearing promissory note, or any combination thereof);

 

(ii)                                   EQT will represent that it has title to the ROFO Asset that is sufficient to operate the ROFO Asset in accordance with their intended and historical use, subject to (A) all recorded matters and all physical conditions in existence on the closing date for the purchase of the ROFO Asset and (B) any other such matters as the Partnership Group Member may approve. If the Partnership desires to obtain any title insurance with respect to the ROFO Asset, the full cost and expense of obtaining the same (including but not limited to the cost of title examination, document duplication and policy premium) shall be borne by the Partnership Group Member;

 

(iii)                                EQT will grant to the Partnership Group Member the right, exercisable at the Partnership Group Member’s risk and expense prior to the delivery of the ROFO Response, to make such surveys, tests and inspections of the ROFO Asset as the Partnership Group Member may deem desirable, so long as such surveys, tests or inspections occur during normal business hours and do not damage the ROFO Asset or interfere with the activities of EQT;

 

(iv)                               the purchase and sale agreement shall terminate if the closing date for the purchase of the ROFO Asset does not occur on or before the date that is 180 days following receipt by EQT of the ROFO Response pursuant to Section 5.2(a);

 

(v)                                  EQT and the applicable Partnership Group Member shall use commercially reasonable efforts to do or cause to be done all things that may be reasonably necessary or advisable to effectuate the consummation of any transactions contemplated by the purchase and sale agreement, including causing its respective Affiliates to execute, deliver and perform all documents, notices, amendments, certificates, instruments and consents required in connection therewith; and

 

(vi)                               the applicable Partnership Group Member shall not have any obligation to buy the ROFO Asset if any of the consents referred to in Section 5.1(b) has not been obtained and the failure to obtain such consent would materially interfere with the use made and proposed to be made of the ROFO Asset by the Partnership Group Member.

 

(c)                                   If the Partnership Group has not timely delivered a ROFO Response as specified above with respect to a Proposed Transaction that is subject to a ROFO Notice, or if EQT has rejected or is deemed to have rejected a ROFO Response, EQT shall be free to enter into a Proposed Transaction with any third party on terms and conditions that are not more favorable in the aggregate to such third party than those proposed in respect of the Partnership Group in the ROFO Response; provided, if such Proposed Transaction with a third party shall not have been consummated within the later of (A) 180 days after the ROFO Response Deadline, and (B) 10 days after obtaining all necessary consents of security holders, governmental

 

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authorities, lenders or other third parties, if any, then the ROFO Notice shall be deemed to have lapsed, and EQT shall not Transfer any of the assets described in the ROFO Notice without complying again with the provisions of this Article V if and to the extent applicable.

 

(d)                                  If requested by the Partnership Group and at the Partnership Group’s expense, EQT shall use commercially reasonable efforts to provide or prepare, or cause to be provided or prepared, any audited or unaudited financial statements with respect to the ROFO Asset Transferred pursuant to this Article V to the extent required under Regulation S-X promulgated by the Securities and Exchange Commission or any successor statute.

 

ARTICLE VI
Miscellaneous

 

6.1                                Confidentiality .

 

(a)                                  From and after the Closing Date, each of the Parties shall hold, and shall cause their respective Subsidiaries and Affiliates and its and their directors, officers, employees, agents, consultants, advisors, and other representatives (collectively, “ Representatives ”) to hold all Confidential Information of the other Parties in strict confidence, with at least the same degree of care that applies to such Party’s own confidential and proprietary information and shall not use such Confidential Information except as reasonably necessary for the conduct of its business and shall not release or disclose such Confidential Information to any other Person, except its Representatives or except as required by applicable law. Each Party shall be responsible for any breach of this section by any of its Representatives.

 

(b)                                  If a Party receives a subpoena or other demand for disclosure of Confidential Information received from any other Party or must disclose to a governmental authority any Confidential Information received from such other Party in order to obtain or maintain any required governmental approval, the receiving Party shall, to the extent legally permissible, provide notice to the providing Party before disclosing such Confidential Information. Upon receipt of such notice, the providing Party shall promptly either seek an appropriate protective order, waive the receiving Party’s confidentiality obligations hereunder to the extent necessary to permit the receiving Party to respond to the demand, or otherwise fully satisfy the subpoena or demand or the requirements of the applicable governmental authority. If the receiving Party is legally compelled to disclose such Confidential Information or if the providing Party does not promptly respond as contemplated by this section, the receiving Party may disclose that portion of Confidential Information covered by the notice or demand.

 

(c)                                   Each Party acknowledges that (i) the disclosing Party would not have an adequate remedy at law for the breach by the receiving Party of any one or more of the covenants contained in this Section 6.1 and (ii) EQT would not have an adequate remedy at law for the breach of any one or more of the covenants of the Partnership Group contained in Article IV, and agrees that, in the event of such breach, the disclosing Party or EQT, respectively, may, in addition to the other remedies that may be available to it, apply to a court for an injunction to prevent any further breaches and to enforce specifically the terms and provisions of this Agreement. Notwithstanding any other section hereof, to the extent permitted by applicable law,

 

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the provisions of this Section 6.1 and Article IV shall survive the expiration or termination of this Agreement.

 

6.2                                Choice of Law; Mediation; Submission to Jurisdiction .

 

(a)                                  This Agreement shall be subject to and governed by the laws of the State of Delaware, excluding any conflicts-of-law rule or principle that might refer the construction or interpretation of this Agreement to the laws of another state. EACH OF THE PARTIES HERETO AGREES THAT THIS AGREEMENT INVOLVES AT LEAST U.S. $100,000.00 AND THAT THIS AGREEMENT HAS BEEN ENTERED INTO IN EXPRESS RELIANCE UPON 6 Del. C. § 2708. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES (i) TO BE SUBJECT TO THE JURISDICTION OF THE COURTS OF THE STATE OF DELAWARE AND OF THE FEDERAL COURTS SITTING IN THE STATE OF DELAWARE, AND (ii) TO THE EXTENT SUCH PARTY IS NOT OTHERWISE SUBJECT TO SERVICE OF PROCESS IN THE STATE OF DELAWARE, TO APPOINT AND MAINTAIN AN AGENT IN THE STATE OF DELAWARE AS SUCH PARTY’S AGENT FOR ACCEPTANCE OF LEGAL PROCESS AND TO NOTIFY THE OTHER PARTY OF THE NAME AND ADDRESS OF SUCH AGENT.

 

(b)                                  If the Parties cannot resolve any dispute or claim arising under this Agreement, then no earlier than 10 days nor more than 60 days following written notice to the other Parties, any Party may initiate mandatory, non-binding mediation hereunder by giving a notice of mediation (a “ Mediation Notice ”) to the other Parties to the dispute or claim. In connection with any mediation pursuant to this Section 6.2, the mediator shall be jointly appointed by the Parties to the dispute or claim and the mediation shall be conducted in Pittsburgh, Pennsylvania unless otherwise agreed to by the Parties to the dispute or claim. All costs and expenses of the mediator appointed pursuant to this section shall be shared equally by the Parties to the dispute or claim. The then-current Model ADR Procedures for Mediation of Business Disputes of the Center for Public Resources, Inc., either as written or as modified by mutual agreement of the Parties to the dispute or claim, shall govern any mediation pursuant to this section. In the mediation, each Party to the dispute or claim shall be represented by one or more senior representatives who shall have authority to resolve any disputes. If a dispute or claim has not been resolved within 30 days after the receipt of the Mediation Notice by a Party, then any Party to the dispute or claim may refer the resolution of the dispute or claim to litigation.

 

(c)                                   Subject to Section 6.2(b), each Party agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement, whether in tort or contract or at law or in equity, exclusively in any federal or state courts located in Delaware and (i) irrevocably submits to the exclusive jurisdiction of such courts, (ii) waives any objection to laying venue in any such action or proceeding in such courts, (iii) waives any objection that such courts are an inconvenient forum or do not have jurisdiction over it and (iv) agrees that, to the fullest extent permitted by law, service of process upon it may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to it at its address specified in Section 6.3. The foregoing consents to jurisdiction and service of process shall not constitute general consents to service of process in the State of

 

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Delaware for any purpose except as provided herein and shall not be deemed to confer rights on any Person other than the Parties.

 

6.3                                Notice . All notices or requests or consents provided for by, or permitted to be given pursuant to, this Agreement must be in writing and must be given by depositing same in the United States mail, addressed to the Person to be notified, postage-paid, and registered or certified with return receipt requested or by delivering such notice in person, by overnight delivery service or by facsimile to such Party. Notice given by personal delivery or mail shall be effective upon actual receipt. Notice given by facsimile shall be effective upon actual receipt if received during the recipient’s normal business hours or at the beginning of the recipient’s next business day after receipt if not received during the recipient’s normal business hours. All notices to be sent to a Party pursuant to this Agreement shall be sent to or made at the address set forth below or at such other address as such Party may stipulate to the other Parties in the manner provided in this Section 6.3.

 

If to the EQT Entities:

 

EQT Corporation

EQT Plaza

625 Liberty Avenue, Suite 1700

Pittsburgh, PA 15222

Attention: General Counsel

Facsimile: (412) 553-5970

 

with a copy (which will not constitute notice) to:

 

Baker Botts L.L.P.

30 Rockefeller Plaza

New York, NY 10112

Attention: Michael L. Bengtson

Facsimile: (212) 259-2504

 

If to the Partnership Group:

 

Rice Midstream Partners LP

c/o Rice Midstream Management LLC, its General Partner

EQT Plaza

625 Liberty Avenue, Suite 1700

Pittsburgh, PA 15222

Attention: General Counsel

Facsimile: (412) 553-5970

 

with a copy (which will not constitute notice) to:

 

Baker Botts L.L.P.

30 Rockefeller Plaza

New York, NY 10112

 

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Attention: Michael L. Bengtson

Facsimile: (212) 259-2504

 

6.4                                Entire Agreement . This Agreement, together with the Secondment Agreement and the Partnership Agreement, constitute the entire agreement of the Parties relating to the matters contained herein, superseding all prior contracts or agreements, whether oral or written, relating to the matters contained herein.

 

6.5                                Term . The initial term of this Agreement will be for a period of ten years, commencing on the Closing Date and ending on the tenth anniversary of the Closing Date (“ Initial Term ”). At the conclusion of the Initial Term, this Agreement will automatically extend from year-to-year, unless terminated by the Partnership or the General Partner with at least 90 days’ notice prior to the end of such term, as extended.

 

6.6                                Termination of Agreement . Notwithstanding any other provision of this Agreement, if a Change of Control of the General Partner or the Partnership occurs, or the General Partner is removed as the general partner of the Partnership, then this Agreement, other than the provisions set forth in Section 4.3, Article II and this Article VI, may at any time thereafter be terminated by EQT or the Partnership by written notice to the other Parties.

 

6.7                                Amendment or Modification . This Agreement may be amended or modified from time to time only by the written agreement of all the Parties hereto. Each such instrument shall be reduced to writing and shall be designated on its face an “Amendment” or an “Addendum” to this Agreement.

 

6.8                                Assignment . No Party shall have the right to assign its rights or obligations under this Agreement without the consent of the other Parties hereto.

 

6.9                                Counterparts . This Agreement may be executed in any number of counterparts with the same effect as if all signatory parties had signed the same document. All counterparts shall be construed together and shall constitute one and the same instrument. Delivery of an executed signature page of this Agreement by facsimile transmission or in portable document format (.pdf) shall be effective as delivery of a manually executed counterpart hereof.

 

6.10                         Severability . If any provision of this Agreement shall be held invalid or unenforceable by a court or regulatory body of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect.

 

6.11                         Further Assurances . In connection with this Agreement and all transactions contemplated by this Agreement, each signatory party hereto agrees to execute and deliver such additional documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions and conditions of this Agreement and all such transactions.

 

6.12                         Rights of Limited Partners . The provisions of this Agreement are enforceable solely by the Parties to this Agreement, and no Limited Partner of the Partnership shall have the right, separate and apart from the Partnership, to enforce any provision of this Agreement or to compel any Party to this Agreement to comply with the terms of this Agreement.

 

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IN WITNESS WHEREOF , the Parties have executed this Agreement on, and effective as of, the date first set forth above.

 

	EQT CORPORATION
	By:	/s/ Steven T. Schlotterbeck
	Name:	Steven T. Schlotterbeck
	Title:	President and Chief Executive Officer
	EQT RE, LLC
	By:	/s/ David E. Schlosser, Jr.
	Name:	David E. Schlosser, Jr.
	Title:	President
	RICE MIDSTREAM HOLDINGS LLC
	By:	/s/ Jeremiah J. Ashcroft III
	Name:	Jeremiah J. Ashcroft III
	Title:	President
	RICE MIDSTREAM MANAGEMENT LLC
	By:	/s/ Robert J. McNally
	Name:	Robert J. McNally
	Title:	Senior Vice President and Chief Financial Officer
	RICE MIDSTREAM PARTNERS LP
	By:	Rice Midstream Management LLC, its general partner
	By:	/s/ Robert J. McNally
	Name:	Robert J. McNally
	Title:	Senior Vice President and Chief Financial Officer
	RICE POSEIDON MIDSTREAM LLC
	By:	/s/ Jeremiah J. Ashcroft III
	Name:	Jeremiah J. Ashcroft III
	Title:	President

 

Signature Page to Amended and Restated Omnibus Agreement

 

 

Schedule II

 

1.                             Financial and administrative services (including treasury and accounting)

 

2.                             Information technology services

 

3.                             Legal services

 

4.                             Corporate health, safety and environmental services

 

5.                             Human resources services

 

6.                             Procurement services

 

7.                             Corporate engineering services

 

8.                             Business development services

 

9.                             Investor relations and public affairs

 

10.                      Tax matters

 

11.                      Insurance coverage

 

Exhibit 10.2

 

AMENDED AND RESTATED EMPLOYEE SECONDMENT AGREEMENT

 

This Amended and Restated Employee Secondment Agreement (this “ Agreement ”), effective as of November 13, 2017 (the “ Effective Date ”), is entered into by and among EQT Corporation (“ EQT ”), Rice Midstream Partners LP (the “ MLP ”) and, solely for the limited purposes set forth in Section 6(j) , EQT RE, LLC (“ EQT RE ”). Each of the foregoing is referred to herein as a “ Party ” and collectively as the “ Parties .” Capitalized terms not otherwise defined herein shall have the meanings assigned to them in the Amended Omnibus Agreement (as defined below).

 

RECITALS:

 

WHEREAS, the MLP owns the Facilities (defined below) consisting of gathering pipelines and compressor stations and fresh water gathering systems;

 

WHEREAS, the MLP, Rice Energy Inc. (“ Rice Energy ”) and the other parties thereto previously entered into an Omnibus Agreement (the “ Original Omnibus Agreement ”), which agreement provided, among other things, for the provision of (i) certain general and administrative services to the MLP and its general partner and (ii) certain rights of first offer for the MLP with respect to midstream assets retained by Rice Energy and its subsidiaries other than the MLP;

 

WHEREAS, the Parties previously entered into that certain Employee Secondment Agreement, effective as of December 22, 2014 (the “ Original Agreement ”), whereby, in addition to (and separate from) the general and administrative services provided under the Omnibus Agreement, Rice Energy provided to the MLP the employee services necessary to operate, construct, manage and maintain the MLP’s assets as of December 22, 2014, including (i) gathering pipelines, compressor stations, related equipment and assets, (ii) fresh water distribution systems, (iii) any accessions or improvements to the assets set forth in clauses (i) and (ii), or (iv) any assets acquired or constructed in accordance with the provisions of the Amended Omnibus Agreement (as defined below) (the “ Facilities ”), to provide support in the running of its business and to otherwise fulfill its intended business purpose (such services, the “ MLP Employee Services ”), and thus seconded to the MLP all personnel employed by Rice Energy that provided the MLP Employee Services under the terms of the Original Agreement;

 

WHEREAS, on the date hereof, (a) a wholly owned corporate subsidiary of EQT was merged with and into Rice Energy, with Rice Energy (the “ Surviving Corporation ”) surviving as an indirect, wholly owned subsidiary of EQT and (b) immediately thereafter, the Surviving Corporation merged with and into EQT RE, a wholly owned subsidiary of EQT, with EQT RE surviving as an indirect wholly owned subsidiary of EQT (together, the “ Mergers ”);

 

WHEREAS, contemporaneously herewith, EQT, the MLP and the other parties to the Original Omnibus Agreement are amending and restating the Original Omnibus Agreement in its entirety to reflect the effects of the Mergers and to make certain other changes (as so amended and restated, the “ Amended Omnibus Agreement ”); and

 

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WHEREAS, the Parties desire by their execution of this Agreement to amend and restate the Original Agreement in its entirety to reflect the effects of the Mergers and to make certain other changes.

 

NOW THEREFORE, in consideration of the promises and the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows, effective as of the Effective Date:

 

Section 1.                                           Secondment of Seconded Employees .

 

(a)                                  EQT shall provide, or cause to be provided, to the MLP the Seconded Employees (as defined below) to operate, construct, manage and maintain the Facilities in an efficient and prudent manner. Subject to EQT’s right to be reimbursed for such expenses in accordance with this Agreement, the EQT Entities shall pay all expenses incurred by the EQT Entities in connection with the retention of the Seconded Employees, including, but not limited to, compensation, salaries, wages and overhead and administrative expenses, charged to or incurred by the EQT Entities, and, if applicable, social security taxes, workers compensation insurance, retirement and insurance benefits and other such expenses. Any Seconded Employees retained by the EQT Entities may be union or non-union employees, and the EQT Entities shall have the sole right to negotiate the terms and provisions of any labor or other agreements with the unions to which such employees belong. EQT shall provide, or cause to be provided, all workers who will perform the MLP Employee Services.

 

(b)                                  During the term of this Agreement, EQT shall second, or shall cause to be seconded, all employees of the EQT Entities that provide the MLP Employee Services to the MLP. Each such employee who EQT seconds to the MLP shall, during the time that such employee is seconded to the MLP under this Agreement (the “ Period of Secondment ”), be referred to individually herein as a “ Seconded Employee ” and, collectively, as the “ Seconded Employees .”

 

(c)                                   The Seconded Employees will remain at all times employees of the applicable EQT Entity, but, in addition, during the Period of Secondment they will also be joint employees of the MLP. For the avoidance of doubt, the Parties acknowledge that the Seconded Employees may, during the Period of Secondment, be called upon to perform services for both the MLP and the EQT Entities. EQT retains the right to terminate the secondment of any Seconded Employee for any reason at any time or to hire or discharge the Seconded Employees with respect to their employment with the EQT Entities. The MLP will have the right to terminate the secondment to it of any Seconded Employee for any reason at any time, upon prior written notice to EQT, but at no time will the MLP have the right to terminate any Seconded Employee’s employment by the applicable EQT Entity. Upon the termination of the secondment of any Seconded Employee, such Seconded Employee will cease performing services for the MLP.

 

(d)                                  In the course and scope of performing any Seconded Employee’s job functions for the MLP, the Seconded Employee will report to the MLP’s management, and will be under the direct management and supervision of the MLP with respect to such Seconded Employee’s day-to-day activities, provided however that the applicable EQT Entity shall have final authority to direct, supervise, and control the Seconded Employees.

 

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(e)                                   Those Seconded Employees who serve as supervisors or managers and who are called upon to oversee the work of other Seconded Employees providing MLP Employee Services at the Facilities or to otherwise provide management support on behalf of the MLP are designated by the MLP as supervisors to act on the behalf of the MLP in supervising the Seconded Employees pursuant to Section 1(d)  above. Any such Seconded Employee will be acting on the behalf of the MLP when supervising the work of the Seconded Employees or when they are otherwise providing management or executive support on behalf of the MLP.

 

(f)                                    EQT shall obtain workers’ compensation coverage as defined and required by law on behalf of both the EQT Entities employing Seconded Employees and the MLP, and the MLP shall be considered an employer for the purposes of its status as a dual, joint- or co-employer under the relevant workers’ compensation regime. EQT shall at all times during the term of this Agreement cause the MLP to be an additional named insured on such workers’ compensation or similar insurance policies.

 

(g)                                   The MLP shall not be a participating employer in any benefit plan of the EQT Entities. The applicable EQT Entities shall remain solely responsible for all obligations and liabilities arising with respect to any benefit plans relating to any Seconded Employees and the MLP shall not assume any benefit plan or have any obligations or liabilities arising thereunder, in each case except for costs properly chargeable to the MLP.

 

Section 2.                                           The MLP Employee Services .

 

The MLP may terminate any of the MLP Employee Services on thirty (30) days’ prior written notice to EQT. In the event the MLP terminates the MLP Employee Services, the MLP shall pay EQT or any other EQT Entities designated by EQT the Services Reimbursement (as defined below) for the last month (or portion thereof) in which it received such terminated services. Upon payment thereof, the MLP shall have no further services payment obligations to EQT pursuant to this Agreement with respect to such terminated services.

 

Section 3.                                           Expense Reimbursement .

 

(a)                                  The MLP shall reimburse EQT or any other EQT Entities designated by EQT (in a form mutually agreed upon by the MLP and EQT) for all reimbursable expenses under Section 3(b)  incurred by the EQT Entities in connection with the performance of the MLP Employee Services with respect to the Seconded Employees (including, where applicable, former Seconded Employees) during the preceding period (the “ Services Reimbursement ”). The Services Reimbursement shall be made on a monthly basis or at such other intervals as the Parties may agree from time to time. For the avoidance of doubt, the Services Reimbursement does not include any amounts payable by the MLP or its general partner to EQT with respect to reimbursement for general or administrative services provided by the EQT Entities in accordance with the Amended Omnibus Agreement.

 

(b)                                  The Services Reimbursement for each period during the Period of Secondment shall include all costs and expenses (including administrative costs) incurred for such period by the EQT Entities for the Seconded Employees (including, where applicable, former Seconded Employees), including but not limited to the following costs and expenses set forth below:

 

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(i)                                      salary, wages and cash bonuses (including payroll and withholding taxes associated therewith);

 

(ii)                                   401(k) plan costs and expenses for employer contributions made by the EQT Entities, and any deferred compensation plan costs and expenses for employer contributions made by the EQT Entities;

 

(iii)                                retirement and cash balance plan contributions and administrative expenses;

 

(iv)                               equity awards or cash or equity-based incentive awards granted by the EQT Entities;

 

(v)                                  cash or premiums actually paid, or expenses actually incurred, with respect to vacation, sick leave, short term disability benefits, personal leave and maternity;

 

(vi)                               cash or premiums actually paid, or expenses incurred, with respect to medical, dental and prescription drug coverage;

 

(vii)                            flexible benefits plan, including medical care and dependent care expense reimbursement programs;

 

(viii)                         cash or premiums actually paid, or expenses incurred, with respect to disability insurance;

 

(ix)                               fifty (50) percent of the cost of workers’ compensation and employer’s liability insurance premiums;

 

(x)                                  cash or premiums actually paid, or expenses incurred, with respect to life insurance and accidental death and dismemberment insurance; and

 

(xi)                               contributions and administrative expenses related to retiree welfare benefits.

 

Notwithstanding the above, any Seconded Employee Expenses paid or reimbursed by the MLP with respect to a plan that is self-insured by the EQT Entities will reflect actual costs incurred rather than premiums paid.

 

(c)                                   The costs and expenses described in Section 3(b)  are referred to as “ Seconded Employee Expenses .” Where it is not reasonably practicable to determine the amount of such a cost or expense, the MLP and EQT shall mutually agree on the method of determining or estimating such cost or expense.

 

Section 4.                                           Payment . The MLP and EQT acknowledge and agree that the EQT Entities shall be responsible for paying the Seconded Employee Expenses (or providing the employee benefits with respect thereto, as applicable) to the Seconded Employees, but that the MLP shall be responsible for reimbursing EQT or any other EQT Entities designated by EQT for the Seconded

 

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Employee Expenses to the extent provided under Section 3(b)  of this Agreement, except that, to the extent required by law, the MLP and EQT agree to establish a consolidated account with the appropriate governmental authority or otherwise make appropriate arrangements for direct payment of workers’ compensation premiums in those jurisdictions where it is necessary.

 

Section 5.                                           Term . This Agreement shall remain in force and effect from the Effective Date until terminated by either Party on thirty (30) days’ prior written notice to the other Party.

 

Section 6.                                           General Provisions .

 

(a)                                  This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, except that the Parties recognize that to the extent that any term of this Agreement must be interpreted in light of the law of the state in which a Seconded Employee is employed, those terms shall be interpreted accordingly.

 

(b)                                  Any notice, demand or communication required or permitted under this Agreement shall be in writing and delivered personally, by reputable courier or by telecopier, and shall be deemed to have been duly given as of the date and time reflected on the delivery receipt, if delivered personally or sent by reputable courier service, or on the automatic telecopier receipt, if sent by telecopier, addressed as follows:

 

If to EQT:

 

EQT Corporation

EQT Plaza

625 Liberty Avenue, Suite 1700

Pittsburgh, PA 15222

Attention: General Counsel

Facsimile: (412) 553-5970

 

with a copy (which will not constitute notice) to:

 

Baker Botts L.L.P.

30 Rockefeller Plaza

New York, NY 10112

Attention: Michael L. Bengtson

Facsimile: (212) 259-2504

 

If to the MLP:

 

Rice Midstream Partners LP

c/o Rice Midstream Management LLC, its General Partner

EQT Plaza

625 Liberty Avenue, Suite 1700

Pittsburgh, PA 15222

Attention: General Counsel

Facsimile: (412) 553-5970

 

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with a copy (which will not constitute notice) to:

 

Baker Botts L.L.P.

30 Rockefeller Plaza

New York, NY 10112

Attention: Michael L. Bengtson

Facsimile: (212) 259-2504

 

A Party may change its address for the purposes of notices hereunder by giving notice to the other Parties specifying such changed address in the manner specified in this Section 6(b) .

 

(c)                                   This Agreement may be amended or modified from time to time only by the written agreement of EQT and the MLP.

 

(d)                                  This Agreement may be executed in any number of counterparts with the same effect as if all signatory Parties had signed the same document. All counterparts shall be construed together and shall constitute one and the same instrument.

 

(e)                                   If any provision of this Agreement or the application thereof to any person or circumstance shall be held invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by law.

 

(f)                                    To the extent any Party is prevented by Force Majeure from performing its obligations, in whole or in part, under this Agreement, and if such Party (“ Affected Party ”) gives notice and details of the Force Majeure to the other Parties as soon as reasonably practicable, then the Affected Party shall be excused from the performance with respect to any such obligations (other than the obligation to make payments). “ Force Majeure ” means any act of God, fire, flood, storm, explosion, terrorist act, rebellion or insurrection, loss of electrical power, computer system failures, finding of illegality, strikes and labor disputes or any similar event or circumstance that prevents a Party from performing its obligations under this Agreement, but only if the event or circumstance: (i) is not within the reasonable control of the Affected Party; (ii) is not the result of the fault or negligence of the Affected Party; and (iii) could not, by the exercise of due diligence, have been overcome or avoided.

 

(g)                                   This Agreement will be binding upon, and will inure to the benefit of, the Parties and their respective successors, permitted assigns and legal representatives.

 

(h)                                  This Agreement does not form a partnership or joint venture between the Parties. This Agreement does not make either Party an agent or a legal representative of the other Party. The Parties shall not assume or create any obligation, liability, or responsibility, expressed or implied, on behalf of or in the name of the other Party.

 

(i)                                      No Party shall have the right to assign its rights or obligations under this Agreement without the prior written consent of the other Parties. The provisions of this Agreement are enforceable solely by the Parties, and no other person (including any Seconded Employee) shall

 

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have the right, separate and apart from the Parties, to enforce any provision of this Agreement or to compel any Party to comply with the terms of this Agreement.

 

(j)                                     The Parties hereby acknowledge and agree that, by the execution of this Agreement, EQT RE assigns unto EQT its rights under this Agreement, effective as of the date hereof, and EQT hereby assumes and agrees to duly and timely pay, perform and discharge any and all of the liabilities and obligations of EQT RE under this Agreement to the full extent that EQT RE would have been obligated to pay, perform and discharge such liabilities and obligations under this Agreement but for such assumption by EQT. The MLP hereby waives any rights it may have pursuant to this Agreement to object to the assignment of this Agreement by EQT RE.

 

[ Signature page follows ]

 

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AS WITNESS HEREOF, the Parties have caused this Employee Secondment Agreement to be executed by their duly authorized representatives on the date herein above mentioned.

 

	EQT CORPORATION
	By:	/s/ Steven T. Schlotterbeck
	Name:	Steven T. Schlotterbeck
	Title:	President and Chief Executive Officer
	RICE MIDSTREAM PARTNERS LP
	By:	Rice Midstream Management LLC, its general partner
	By:	/s/ Robert J. McNally
	Name:	Robert J. McNally
	Title:	Senior Vice President and Chief Financial Officer
	FOR THE LIMITED PURPOSES SET FORTH IN SECTION 6(J):
	EQT RE, LLC
	By:	/s/ David E. Schlosser, Jr.
	Name:	David E. Schlosser, Jr.
	Title:	President

 

Signature Page to Amended and Restated Employee Secondment Agreement

 

Exhibit 10.3

 

FORM OF INDEMNIFICATION AGREEMENT

 

This Indemnification Agreement (this “ Agreement ”) is made effective as of the      day of November, 2017, by and among Rice Midstream Partners LP, a Delaware limited partnership (the “ Partnership ”), Rice Midstream Management LLC, a Delaware limited liability company and the general partner of the Partnership (the “ Company ”), and [NAME] (“ Indemnitee ”), a director and/or officer of the Company.

 

WHEREAS , it is essential to the Partnership and the Company that the Company retain and attract as directors and officers the most capable persons available; and

 

WHEREAS , Indemnitee is a director and/or officer of the Company and in that capacity is performing a valuable service for the Company and the Partnership; and

 

WHEREAS , the Amended and Restated Agreement of Limited Partnership of the Partnership (as may be amended from time to time, the “ Partnership Agreement ”) provides for indemnification of and advancement of expenses to the directors and officers of the Company for liabilities and expenses they incur in their capacities as such, and the Partnership Agreement provides that such right to indemnification and advancement of expenses need not be exclusive; and

 

WHEREAS , the Amended and Restated Limited Liability Company Agreement of the Company (as may be amended from time to time, the “ LLC Agreement ”) provides for indemnification of and advancement of expenses to the directors and officers of the Company for liabilities and expenses they incur in their capacities as such, and the LLC Agreement provides that such right to indemnification and advancement of expenses need not be exclusive; and

 

WHEREAS , in recognition of Indemnitee’s need for protection against personal liability in order to enhance Indemnitee’s continued service to the Partnership and the Company in an effective manner, Indemnitee’s reliance on the Partnership Agreement and the LLC Agreement, and in part to provide Indemnitee with specific contractual assurance that the protection promised in the Partnership Agreement and the LLC Agreement will be available to Indemnitee in accordance with the terms hereof, the Company and the Partnership desire to provide in this Agreement for the indemnification of and the advancement of expenses to Indemnitee to the fullest extent permitted by law (whether partial or complete) and as set forth in this Agreement and, to the extent insurance is maintained, for the continued coverage of Indemnitee under the Company’s directors’ and officers’ liability insurance policies (the
“ D & O Insurance ”).

 

NOW, THEREFORE , in consideration of the premises and the covenants contained herein and of Indemnitee continuing to serve the Partnership and the Company directly or, at the Company’s request, another enterprise, and intending to be legally bound hereby, the parties hereto agree as follows:

 

1.                                       Indemnity of Indemnitee .

 

(a)                                  Each of the Partnership and the Company hereby agrees to indemnify and hold harmless, to the fullest extent permitted by law but subject to the limitations expressly provided in the Partnership Agreement and the LLC Agreement, Indemnitee from and against any and all losses, claims, damages, liabilities (joint or several), expenses (including legal fees and expenses), judgments, fines, ERISA excise taxes, penalties, interest, settlements or other amounts arising from any and all threatened, pending or

 

 

completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals (hereinafter, “ a proceeding ”), in which Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of Indemnitee’s status as a director or officer of the Company or is or was serving at the request of the Company as a manager, managing member, general partner, director, officer, fiduciary, or trustee of another Person (as defined in the LLC Agreement), including service with respect to employee benefit plans, and acting (or refraining to act) in such capacity on behalf of or for the benefit of the Partnership and the Company;  provided , that Indemnitee shall not be indemnified and held harmless pursuant to this Agreement, the Partnership Agreement or the LLC Agreement if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which Indemnitee is seeking indemnification, Indemnitee acted in Bad Faith (as defined in the Partnership Agreement) or, in the case of a criminal matter, acted with knowledge that Indemnitee’s conduct was unlawful.

 

(b)                                  To the fullest extent permitted by law, the Partnership and the Company shall pay the expenses (including legal fees and expenses) incurred by Indemnitee who is indemnified pursuant to Section 1(a) in defending any proceeding prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which Indemnitee is seeking indemnification pursuant to this Agreement, the Partnership Agreement or the LLC Agreement, Indemnitee is not entitled to be indemnified, promptly after receipt by the Partnership and the Company of a written request therefor stating in reasonable detail the expenses incurred or to be incurred.

 

(c)                                   If a claim under paragraph (a) or (b) of this section is not paid in full by the Partnership and the Company within forty-five (45) days after a written claim has been received by the Partnership and the Company, Indemnitee may, at any time thereafter, bring suit against the Partnership and the Company to recover the unpaid amount of the claim.  The burden of proving that indemnification or advances are not appropriate shall be on the Partnership and the Company.  Indemnitee shall also be entitled to be paid the expenses of prosecuting such claim to the extent he or she is successful in whole or in part on the merits or otherwise in establishing his or her right to indemnification or to the advancement of expenses.  The Partnership and the Company shall pay such fees and expenses in advance of the final disposition of such action on the terms and conditions set forth in Section 1(b).

 

(d)                                  The termination of any proceeding to which Indemnitee is a party by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall not create a presumption that Indemnitee did not meet any standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.

 

(e)                                   The obligations of the Partnership and the Company hereunder are joint and several; provided, however, that the Partnership and the Company hereby agree that, as between themselves, the Partnership shall pay and perform all such obligations to the greatest extent possible.

 

2.                                       Maintenance of Insurance .

 

(a)                                  The Company represents that a summary of the terms of the policies of D & O Insurance in effect as of the date hereof is attached hereto as Exhibit A (the “ Insurance Policies ”).  Subject only to the provisions of Section 2(b) hereof, each of the Partnership and the Company agrees that, so long as Indemnitee shall continue to serve as a director or officer of the Company (or shall continue at the request of the Company to serve as a manager, managing member, general partner, director, officer, fiduciary, or trustee of another Person, including service with respect to employee benefit plans) and thereafter so long as Indemnitee shall be subject to any proceeding by reason of the fact that Indemnitee was a director or officer of the Company (or served in any of said other capacities), the Company shall purchase and

 

2

 

maintain in effect for the benefit of Indemnitee one or more valid, binding and enforceable policy or policies of D & O Insurance providing coverage at least comparable to that provided pursuant to the Insurance Policies.

 

(b)                                  The Company shall not be required to maintain said policy or policies of D & O Insurance in effect if the Board of Directors of the Company determines that (i) the premium cost for such insurance is substantially disproportionate to the amount of coverage, (ii) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance or (iii) said insurance is not otherwise reasonably available; provided, however, that in the event the then Board of Directors makes such a judgment, the Company shall purchase and maintain in force a policy or policies of D & O Insurance in the amount and with such coverage as the Board of Directors determines to be reasonably available.

 

(c)                                   If and to the extent the Company, acting under Section 2(b), does not purchase and maintain in effect the policy or policies of D & O Insurance described in Section 2(a), the Partnership and the Company shall, to the fullest extent permitted by law, indemnify and hold harmless Indemnitee to the full extent of the coverage which would otherwise have been provided by such policies. The rights of Indemnitee hereunder shall be in addition to all other rights of Indemnitee under the remaining provisions of this Agreement.

 

3.                                       Continuation of Indemnity .

 

The obligations of the Partnership and the Company hereunder shall be applicable to any and all claims made after the date hereof regardless of when the facts upon which such claims are based occurred, including times prior to the date hereof. All agreements and obligations of the Partnership and the Company contained in this Agreement shall continue during the period Indemnitee is a director or officer of the Company (or is serving at the request of the Company as a manager, managing member, general partner, director, officer, fiduciary, or trustee of another Person, including service with respect to employee benefit plans) and shall continue as to an Indemnitee who has ceased to serve in such capacity and inure to the benefit of the heirs, successors, assigns and administrators of Indemnitee.

 

4.                                       Contribution .

 

If the full indemnification provided in Section 1 hereof may not be paid to Indemnitee because such indemnification is prohibited by law, then in respect of any actual or threatened proceeding in which the Partnership or the Company is jointly liable with Indemnitee (or would be if joined in such proceeding), the Partnership and the Company shall contribute to the amount of expenses incurred by Indemnitee for which indemnification is not available in such proportion as is appropriate to reflect (i) the relative benefits received by the Partnership or the Company on the one hand and Indemnitee on the other hand from the transaction from which such proceeding arose and (ii) the relative fault of the Partnership or the Company on the one hand and of Indemnitee on the other in connection with the events that resulted in such expenses, as well as any other relevant equitable considerations.  The relative fault of the Partnership or the Company (which shall be deemed to include the applicable entity’s other directors, officers and employees) on the one hand and of Indemnitee on the other hand shall be determined by reference to, among other things, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such expenses.  Each of the Partnership and the Company agrees that it would not be just and equitable if contribution pursuant to this section were determined by any method of allocation which does not take account of the foregoing equitable considerations.

 

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5.                                       Notification and Defense of Claim .

 

As soon as practicable after receipt by Indemnitee of actual knowledge of any proceeding, Indemnitee shall notify the Partnership and the Company thereof if a claim in respect thereof may be or is being made by Indemnitee against the Partnership or the Company under this Agreement; provided, that the failure of Indemnitee to give such notice shall not relieve the Partnership or the Company of its obligations hereunder except to the extent the Partnership or the Company is actually prejudiced by such failure.  With respect to any proceeding as to which Indemnitee has so notified the Partnership and the Company:

 

(a)                                  The Partnership and the Company will be entitled to participate therein at their own expense; and

 

(b)                                  Except as otherwise provided below, the Partnership and the Company may assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After the Partnership and the Company notify Indemnitee of their election to so assume the defense, the Partnership and the Company will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense, other than reasonable costs of investigation, including an investigation in connection with determining whether there exists a conflict of interest of the type described in (ii) of this paragraph, or as otherwise provided in this paragraph. Indemnitee shall have the right to employ his or her counsel in such action, suit or proceeding but the fees and expenses of such counsel incurred after the Partnership and the Company notify Indemnitee of their assumption of the defense shall be at the expense of Indemnitee unless: (i) the Partnership and the Company authorize Indemnitee’s employment of counsel; (ii) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Partnership, the Company and Indemnitee in the conduct of the defense or (iii) the Partnership and the Company shall not have employed counsel to assume the defense of such action within a reasonable time after the Partnership and the Company have notified Indemnitee of their election to assume the defense, in each of which cases the fees and expenses of counsel shall be at the expense of the Partnership and the Company. The Partnership and the Company shall not be entitled to assume the defense of any proceeding brought by or on behalf of the Partnership or the Company or as to which Indemnitee shall have made the conclusion described in (ii) of this paragraph.

 

(c)                                   The Partnership and the Company shall not be obligated to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim effected without their written consent.  The Partnership and the Company shall not settle any action or claim in any manner which would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent.  None of the Partnership, the Company or Indemnitee shall unreasonably withhold its consent to any proposed settlement.

 

6.                                       Undertaking to Repay Expenses .

 

In the event it shall ultimately be determined by a court that Indemnitee is not entitled to be indemnified for the expenses paid by the Partnership and the Company pursuant to Section 1(b) hereof or otherwise or was not entitled to be fully indemnified, Indemnitee shall repay to the Partnership and the Company such amount of the expenses, or the appropriate portion thereof, so paid or advanced.  Indemnitee shall reimburse the Partnership and the Company for any amounts paid by the Partnership and the Company as indemnification of expenses to the extent Indemnitee receives payment for the same expenses from any insurance carrier or from another party.

 

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7.                                       Notice .

 

Any notice to the Partnership or the Company shall be directed to Rice Midstream Management LLC, EQT Plaza, 625 Liberty Avenue, Suite 1700, Pittsburgh, Pennsylvania 15222, Attention: Corporate Secretary (or such other address as the Partnership or the Company shall designate in writing to Indemnitee).

 

8.                                       Severability .

 

If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever:

 

(a)                                  the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and

 

(b)                                  to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.

 

9.                                       Indemnification Under this Agreement Not Exclusive .

 

(a)                                  The rights to indemnification and to the advancement of expenses provided by this Agreement shall not be deemed to be exclusive of any other rights to which Indemnitee may be entitled under any statute, any provision of the Certificate of Limited Partnership of the Partnership, the Certificate of Formation of the Company, the Partnership Agreement, the LLC Agreement, or any other agreement, any vote of members or directors, or otherwise, both as to action in Indemnitee’s official capacity and as to action in another capacity while holding such office.  The protection and rights provided by this Agreement and all of such other protections and rights are intended to be cumulative.  To the extent that a change in law (whether by statute or judicial decision) permits greater indemnification under such provisions than would be afforded currently under this Agreement, it is the intention of the parties that Indemnitee enjoy by this Agreement the greater benefits so afforded by such change.

 

(b)                                  It is the intention of the parties in entering into this Agreement that the insurers under any D & O Insurance policy shall be obligated ultimately to pay any claims by Indemnitee which are covered by such policy or to give such insurers any rights against the Company under or with respect to this Agreement, including, without limitation, any right to be subrogated to any of Indemnitee’s right hereunder, unless otherwise expressly agreed to by the Company in writing, and the obligation of such insurers to the Company or Indemnitee shall not be deemed to be reduced or impaired in any respect by virtue of the provisions of this Agreement.

 

10.                                Miscellaneous .

 

(a)                                  This Agreement shall be interpreted and enforced in accordance with the laws of the State of Delaware.

 

(b)                                  This Agreement shall be binding upon Indemnitee and upon the Partnership and the Company, their successors and assigns, and shall inure to the benefit of Indemnitee and his or her heirs, executors, personal representatives and assigns, and to the benefit of the Partnership and the Company

 

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and their successors and assigns.  If the Company or the Partnership shall merge or consolidate with another company or shall sell, lease, transfer or otherwise dispose of all or substantially all of its assets to one or more Persons or groups (in one transaction or series of transactions), (i) the Company and the Partnership shall cause the successor in the merger or consolidation or the transferee of the assets that is receiving the greatest portion of the assets or earning power transferred pursuant to the transfer of the assets, by agreement in form and substance satisfactory to Indemnitee, to expressly assume all of the Company’s and the Partnership’s obligations under and agree to perform this Agreement, and (ii) the term “Company” or “Partnership”, as applicable, whenever used in this Agreement shall mean and include any such successor or transferee .

 

(c)                                   As used in this Agreement, no matter adjudicated by a court order shall be deemed “determined” or “ultimately determined,” and no matter shall be deemed to be a “final disposition,” unless and until (i) the time to appeal, petition for writ of certiorari or allocatur, or otherwise seek appellate review or to move for reargument, rehearing or reconsideration of the order has expired and no appeal, petition for writ of certiorari, allocatur, or other appellate review, or proceedings for reargument, rehearing, or reconsideration shall then be pending, or (ii) in the event that an appeal, petition for writ of certiorari or allocatur, or other appellate review or reargument, rehearing or reconsideration thereof has been sought, such order shall have been affirmed by the highest court to which such order was appealed or review thereof shall have been denied by the highest court from which a writ of certiorari or allocatur, or other appellate review or reargument, rehearing, or reconsideration was sought, and the time to take any further appeal, to petition for writ of certiorari or allocatur, to otherwise seek appellate review, or to move for reargument, rehearing, or reconsideration shall have expired.

 

(d)                                  No amendment, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by each of the parties hereto; provided, however, that the Partnership or the Company may amend this Agreement from time to time without Indemnitee’s consent to the extent deemed to be necessary or appropriate, in its sole discretion, to effect compliance with Section 409A of the Internal Revenue Code, including regulations and interpretations thereunder, which amendments may result in a reduction of benefits provided hereunder and/or other unfavorable changes to Indemnitee.

 

(e)                                   This Agreement is intended to provide for the indemnification of, and/or purchase of insurance policies providing for payments of, expenses and damages incurred with respect to bona fide claims against Indemnitee, as a service provider, or the Partnership and the Company, as the service recipient, in accordance with Treas. Reg. Section 1.409A-1(b)(10), pursuant to which the Agreement shall not provide for the deferral of compensation.  The Agreement shall be construed consistently, and limited in accordance with, the provisions of such regulation.

 

[Signature page follows]

 

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IN WITNESS WHEREOF , the parties have executed this Agreement on and as of the day and year first above written.

 

	RICE MIDSTREAM PARTNERS LP
	By:	Rice Midstream Management LLC
		its general partner
		By:
		Name:
		Title:
	RICE MIDSTREAM MANAGEMENT LLC
	By:
	Name:
	Title:
	INDEMNITEE
	Name: [NAME]

 

[ Signature Page to RMP Indemnification Agreement ]