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Exhibit 10.12
Equitable Resources, Inc.
EMPLOYEE DEFERRED COMPENSATION PLAN
Amended and Restated Effective December 3, 2003
EQUITABLE RESOURCES, INC. EMPLOYEE DEFERRED COMPENSATION PLAN
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ARTICLE I1.1 Statement of PurposeThis is the Equitable Resources, Inc. Employee Deferred Compensation Plan (the “Plan”) made in the form of this Plan and in related agreements between the Employer and certain management or highly compensated employees. The purpose of the Plan is to provide management and highly compensated employees of the Employer with the option to defer the receipt of portions of their compensation payable for services rendered to the Employer. It is intended that the Plan will assist in attracting and retaining qualified individuals to serve as officers and managers of the Employer. 5ARTICLE IIDEFINITIONSWhen used in this Plan and initially capitalized, the following words and phrases shall have the meanings indicated:
2.1 Account.“Account” means the sum of a Participant’s Deferral Account and Matching Account.
2.2 Base Salary.
“Base Salary” means a Participant’s base earnings paid by the Employer to a Participant without regard to any increases or decreases in base earnings as a result of an election to defer base earnings under this Plan or (ii) an election between benefits or cash provided under a Plan of an Employer maintained pursuant to Section 125 or 401(k) of the Code, and as limited in Exhibit B attached hereto. 2.3 Beneficiary.
“Beneficiary” means the person or persons designated or deemed to be designated by the Participant pursuant to Article VII to receive benefits payable under the Plan in the event of the Participant’s death. 2.4 Board.
“Board” means the Board of Directors of the Company. 2.5 Bonus.
“Bonus” means a Participant’s bonus or sales commission paid by the Employer to a Participant under the plans listed in Exhibit B attached hereto and to the degree limited in Exhibit B, as applicable, without regard to any decreases as a result of an election to defer all or any portion of a bonus under this Plan or (ii) an election between benefits or cash provided under a plan of the Employer maintained pursuant to Section 401(k) of the Code. 2.6 Change in Control.
“Change in Control” means any of the following events:
(a) The sale or other disposition by the Company of all or substantially all of its assets to a single purchaser or to a group of purchasers, other than to a corporation with respect to which, following such sale or disposition, more than eighty percent (80%) of, respectively, the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of the Board of Directors is then owned beneficially, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the outstanding Company common stock and the combined voting power of the then outstanding voting securities immediately prior to such sale or disposition in substantially the same proportion as their ownership of the outstanding Company common stock and voting power immediately prior to such sale or disposition.
(b) The acquisition in one or more transactions by any person or group, directly or indirectly, of beneficial ownership of twenty percent (20%) or more of the
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outstanding shares of Company common stock or the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of the Board; provided, however, that any acquisition by (x) the Company or any of its subsidiaries, or any employee benefit plan (or related trust) sponsored or maintained by the Company or any of its subsidiaries or (y) any person that is eligible, pursuant to Rule 13d-1(b) under the Exchange Act (as such rule is in effect as of November 1, 1995) to file a statement on Schedule 13G with respect to its beneficial ownership of Company common stock and other voting securities whether or not such person shall have filed a statement on Schedule 13G, unless such person shall have filed a statement on Schedule 13D with respect to beneficial ownership of fifteen percent (15%) or more of the Company’s voting securities, shall not constitute a Change of Control;
(c) The Company’s termination of its business and liquidation of its assets;
(d) The reorganization, merger or consolidation of the Company into or with another person or entity, by which reorganization, merger or consolidation the persons who hold one hundred percent (100%) of the voting securities of the Company prior to such reorganization, merger or consolidation receive or continue to hold less than sixty percent (60%) of the outstanding voting shares of the new or continuing corporation; or
(e) If, during any two-year period, less than a majority of the members of the Board are persons who were either (i) nominated or recommended for election by at least two-thirds vote of the persons who were members of the Board or nominated by the Board at the beginning of the period, or (ii) elected by at least two-thirds vote of the persons who were members of the Board at the beginning of the period. 2.7 Code.
“Code” means the Internal Revenue Code of 1986, as amended. 2.8 Committee.
“Committee” has the meaning set forth in Section 8.1. 2.9 Company.
“Company” means Equitable Resources, Inc. and any successor thereto. 2.10 Compensation.
“Compensation” means the Base Salary and Bonus payable with respect to an Eligible Employee for each Plan Year.
2.11 Credited Service.
“Credited Service” means the sum of all periods of a Participant’s employment by the Company or a Selected Affiliate for which service credit is given under the Equitable Resources Pension Plan, as then in effect. 2.12 Deferral Account.
“Deferral Account” means the account maintained on the books of the Employer for the purpose of accounting for the amount of Compensation and Other Income that each Participant elects or is required to defer under the Plan and for the amount of investment return credited thereto for each Participant pursuant to Article V.
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2.13 Deferral Amount.
“Deferral Amount” means the Regular Deferral Amounts, Elective Deferral Amounts and Required Deferral Amounts deferred by a Participant under Section 4.1. 2.14 Deferral Benefit.
“Deferral Benefit” means the benefit payable to a Participant or his or her Beneficiary pursuant to Article VI. 2.15 Deferral Election.
“Deferral Election” means the written election made by a Participant to defer Compensation or Other Income pursuant to Article IV. “Regular Deferral Election” shall mean the written election made by a Participant to defer Compensation pursuant to Section 4.1(a). “Other Income Deferral Election” shall mean the written election made by a Participant to defer Other Income pursuant to Section 4.1(b). 2.16 Disability.
“Disability” means a Participant’s Disability as defined under the Company’s Long Term Disability Plan or its successors.
2.17 Early Retirement.
“Early Retirement” will be granted by the Committee at its sole discretion. 2.18 Eligible Employee.
“Eligible Employee” means a highly compensated or management employee of the Employer who is designated by the Committee, by name or group or description, in accordance with Section 3.1, as eligible to participate in the Plan. 2.19 Elective Deferral Amount.
“Elective Deferral Amount” means the amount of Other Income deferred by a Participant under Section 4.1(b). 2.20 Employer.
“Employer” means, with respect to a Participant, the Company or the Selected Affiliate which pays such Participant’s Compensation. 2.21 Hardship Withdrawal.
“Hardship Withdrawal” has the meaning set forth in Section 6.4. 2.22 Investment Return Rate.
“Investment Return Rate” means:
(a) In the case of an investment named in Exhibit C of a fixed income nature, the interest deemed to be credited as determined in accordance with the procedures applicable to the same investment option provided under the Equitable Resources, Inc. Employee Savings Plan, originally adopted September 1, 1985, as amended (“Equitable 401(k) Plan”);
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(b) In the case of an investment named in Exhibit C of an equity investment nature, the increase or decrease in deemed value and dividends deemed to be credited as determined in accordance with the procedures applicable to the same investment option provided under the Equitable 401(k) Plan; or
(c) In the case of the Equitable Resources Common Stock Fund, the increase or decrease in the deemed value, and the reinvestment in the Equitable Resources Common Stock Fund of any dividends deemed to be credited, as determined in accordance with the procedures applicable to investments in the Equitable Resources Common Stock Fund under the Equitable 401(k) Plan. 2.23 Matching Account.
“Matching Account” means the account maintained on the books of the Employer for the purpose of accounting for the Matching Amount and for the amount of investment return credited thereto for each Participant pursuant to Article V. 2.24 Matching Amount.
“Matching Amount” means the Matching Amounts credited to a Participant’s Matching Account under Section 4.2. 2.25 Other Income.
“Other Income” means cash awards, excluding Compensation, paid by the Employer to a Participant and awards of restricted stock to a Participant pursuant to another plan of the Company. 2.26 Participant.
“Participant” means any Eligible Employee who elects to participate by filing a Participation Agreement or who is automatically enrolled with respect to a Required Deferral. 2.27 Participation Agreement.
“Participation Agreement” means the agreement filed by a Participant, in the form prescribed by the Committee, pursuant to Section 3.2. 2.28 Plan.
“Plan” means the Equitable Resources, Inc. Deferred Compensation Plan, as amended from time to time. 2.29 Plan Year.
“Plan Year” means a twelve-month period commencing January 1 and ending the following December 31. 2.30 Regular Deferral Amount.
“Regular Deferral Amount” means the amount of Compensation deferred by a Participant under Section 4.1(a). 92.31 Required Deferral Amount.
“Required Deferral Amount” means the amount, other than Compensation, automatically credited to a Participant’s Deferral Account pursuant to the terms of a special benefit or bonus plan (other than a plan listed on Exhibit B). 2.32 Retirement.
“Retirement” means the termination of a Participant who has reached age 65. 2.33 Selected Affiliate.
“Selected Affiliate” means (1) any company in an unbroken chain of companies beginning with the Company if each of the companies other than the last company in the chain owns or controls, directly or indirectly, stock possessing not less than 50 percent of the total combined voting power of all classes of stock in one of the other companies, or (2) any partnership or joint venture in which one or more of such companies is a partner or venturer, each of which shall be selected by the Committee. 2.34 Total Desired Match.
“Total Desired Match” has the meaning set forth in Section 4.2(a). 2.35 Valuation Date.
“Valuation Date” means a date on which the amount of a Participant’s Account is valued as provided in Article V. The Valuation Date shall be the last day of each calendar quarter and any other date determined by the Committee.
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ARTICLE III
ELIGIBILITY AND PARTICIPATION3.1 Eligibility.
Eligibility to participate in the Plan is limited to Eligible Employees. From time to time, and subject to Section 3.4, the Committee shall prepare, and attach to the Plan as Exhibit A, a complete list of the Eligible Employees, by individual name or by reference to an identifiable group of persons or by descriptions of the components of compensation of an individual which would qualify individuals who are eligible to participate, and all of whom shall be a select group of management or highly compensated employees. 3.2 Participation.
(a) Regular Deferrals. Participation in the Plan shall be limited to Eligible Employees who elect to participate in the Plan by filing a Participation Agreement with the Committee. An Eligible Employee shall commence participation in the Plan upon the first day of the Plan Year following the receipt of his or her Participation Agreement by the Committee or within 30 days of becoming a Participant if such date occurs after the commencement of the Plan Year.
(b) Required Deferrals . Notwithstanding (a), an Eligible Employee who is required to defer a Required Deferral Amount into the Plan under Section 4.1(c) shall automatically become a Participant in the Plan regardless of whether the Participant files a Participation Agreement. 3.3 Change in Participation Status.
(a) Regular Deferral and Elective Deferral Amounts. Except as otherwise required in Section 3.2(b) and as otherwise provided in Section 3.3(b) below, a Participant may elect to terminate his or her participation in the Plan at any time by filing a written notice thereof with the Committee. A termination of participation with respect to Regular Deferral and/or Elective Deferral Amounts will become effective as of the beginning of the next Plan Year following receipt of the termination election by the Committee and in accordance with the Committee’s prevailing administrative procedures.
(b) Required Deferral Amounts . A Participant shall only be permitted to terminate the deferral of Required Deferral Amounts in accordance with the provisions of the governing employee benefit or bonus plan under which the payment was made.
(c) Amounts Credited Prior to Termination . Amounts credited to such Participant’s Account with respect to periods prior to the effective date of a termination described in (a) or (b) shall continue to be payable pursuant to, receive investment credit on, and otherwise be governed by, the terms of the Plan. 3.4 Ineligible Participant
Notwithstanding any other provisions of this Plan to the contrary, if the Committee determines that any Participant may not qualify as a “management or highly compensated employee” within the meaning of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or regulations thereunder, the Committee may determine, in its sole discretion, that such Participant shall cease to be eligible to participate in this Plan. Upon such determination, the Employer shall distribute (in cash and/or in kind, as applicable) to the Participant an amount equal to the vested amount credited to his Account as soon as administratively practicable. Upon such payment, no benefit shall thereafter be payable under
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this Plan either to the Participant or any Beneficiary, and all of the Participant’ s elections as to the time and manner of payment of his Account will be deemed to be canceled. 12ARTICLE IVDEFERRAL OF COMPENSATION4.1 Deferral Amounts.
(a) Regular Deferral Amount . With respect to each Plan Year, a Participant may elect to defer a specified percentage of his or her Compensation as provided in Exhibit B. A Participant may change the percentage of his or her Compensation to be deferred by filing a new Regular Deferral Election with the Committee. Any permitted changes in such deferral election shall be effective as of the first day of the Plan Year immediately following the Plan Year in which such Deferral Election is filed with the Committee and shall continue in effect for future years.
(b) Elective Deferral Amount . A Participant may elect to defer a specified percentage or designated item of Other Income to the extent such income is attributable to services performed by the Participant after the election becomes effective, and, with respect to Other Income granted in the form of restricted p | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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