Exhibit 10.11
Equitable
Resources, Inc.
2005 DIRECTORS’ DEFERRED
COMPENSATION PLAN
(amended and restated
December 3, 2008)
ARTICLE I
1.1
Purpose of Plan.
This Equitable Resources, Inc. 2005
Directors’ Deferred Compensation Plan (the “ 2005
Plan ”) hereby is created to provide an opportunity for
the members of the Board of Directors of Equitable
Resources, Inc. (the “ Board ”) to defer
payment of all or a portion of the fees to which they are entitled
as compensation for their services as members of the Board.
The 2005 Plan also shall administer the payment of stock units and
phantom stock awarded pursuant to the 1999 Equitable
Resources, Inc. Non-Employee Directors’ Stock Incentive
Plan (the “ NEDSIP ”).
ARTICLE II
DEFINITIONS
When used in this 2005 Plan and initially
capitalized, the following words and phrases shall have the
meanings indicated:
2.1
“Account” means the total of a Participant’s
Deferral Account and Phantom Stock Account under the 2005
Plan.
2.2
“Beneficiary” means the person or persons designated or deemed
to be designated by the Participant pursuant to Section 7.1 of
the 2005 Plan to receive benefits payable under the 2005 Plan in
the event of the Participant’s death.
2.3
“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 Company 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
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, the following shall not
constitute a Change in Control: (i) any acquisition by
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 and (ii) an acquisition by any person
or group of persons of not more than forty percent (40%) of the
outstanding shares of Company common stock or the combined voting
power of the then outstanding voting securities of the Company if
such acquisition resulted from the issuance of capital stock by the
Company and the issuance and the acquiring person or group was
approved in advance of such issuance by at least two-thirds of the
Continuing Directors then in office;
(c)
The Company’s termination of
its business and liquidation of its assets;
(d)
There is consummated a merger,
consolidation, reorganization, share exchange, or similar
transaction involving the Company (including a triangular merger),
in any case, unless immediately following such transaction:
(i) all or substantially all of the persons who were the
beneficial owners of the outstanding common stock and outstanding
voting securities of the Company immediately prior to the
transaction beneficially own, directly or indirectly, more than
sixty percent (60%) of the outstanding shares of common stock and
the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors of the
corporation resulting from such transaction (including a
corporation or other person which as a result of such transaction
owns the Company or all or substantially all of the Company’s
assets through one or more subsidiaries (a “Parent
Company”)) in substantially the same proportion as their
ownership of the common stock and other voting securities of the
Company immediately prior to the consummation of the transaction,
(ii) no person (other than (A) the Company, any employee
benefit plan sponsored or maintained by the Company or, if
reference was made to equity ownership of any Parent Company for
purposes of determining whether clause (i) above is satisfied
in connection with the transaction, such Parent Company, or
(B) any person or group that satisfied the requirements of
subsection (b)(ii), above) beneficially owns, directly or
indirectly, 20% or more of the outstanding shares of common stock
or the combined voting power of the voting securities entitled to
vote generally in the election of directors of the corporation
resulting from such transaction and (iii) individuals who were
members of the Board immediately prior to the consummation of the
transaction constitute at least a majority of the members of the
board of directors resulting from such transaction (or, if
reference was made to equity ownership of any Parent Company for
purposes of determining whether clause (i) above is satisfied
in connection with the transaction, such Parent Company);
or
(e)
The following individuals (sometimes
referred to herein as “Continuing Directors”) cease for
any reason to constitute a majority of the number of directors then
serving: individuals who, on the date hereof, constitute the
entire Board and any new director (other than a director whose
initial assumption of office is in connection with an actual or
threatened election contest, including but
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not limited to a consent
solicitation, relating to the election of directors of the Company)
whose appointment or election by the Board or nomination for
election by the Company’s shareholders was approved by a vote
of at least two-thirds (2/3) of the directors then still in office
who either were directors on the effective date of the Plan or
whose appointment, election or nomination for election was
previously so approved.
2.4
“Code” means
the Internal Revenue Code of 1986, as amended.
2.5
“Committee” means the Compensation Committee of the
Board.
2.6
“Company” means Equitable Resources, Inc. and any
successor thereto.
2.7
“Deferral Account” means the recordkeeping account established on
the books and records of the Company to record a
Participant’s deferral amounts under Section 5.1 of the
2005 Plan, plus or minus any investment gain or loss allocable
thereto under Section 5.4 of the 2005 Plan.
2.8
“Directors’ Fees” means the fees that are paid by the Company to
members of the Board as compensation for services performed by them
as members of the Board.
2.9
“Enrollment Form” means the agreement to participate and related
elections filed by a Participant pursuant to Section 5.1 of
the 2005 Plan, in the form prescribed by the Committee, directing
the Company to reduce the amount of Directors’ Fees otherwise
currently payable to the Participant and credit such amount to the
Participant’s Deferral Account hereunder.
2.10
“Hardship Withdrawal” shall have the meaning set forth in
Section 6.3 of the 2005 Plan.
2.11
“Investment Options” means the investment options described in
Exhibit A to the 2005 Plan into which a Participant may direct
all or part of his or her Deferral Account.
2.12
“Investment Return Rate” means:
(a)
In the case of an Investment Option
named in Exhibit A 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” );
(b)
In the case of a Investment Option
named in Exhibit A of an equity investment nature, the
increase or decrease in deemed value and any 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
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accordance with the procedures
applicable to investments in the Equitable Resources Common Stock
Fund under the Equitable 401(k) Plan.
2.13
“Irrevocable Trust” means a grantor trust that may be
established prior to the occurrence of a Change in Control of the
Company to assist the Company in fulfilling its obligations under
this 2005 Plan but which shall be established by the
Company in the event of a Change in Control of the Company.
All amounts held in such Irrevocable Trust shall remain subject to
the claims of the general creditors of the Company and Participants
in this 2005 Plan shall have no greater rights to any amounts held
in any such Irrevocable Trust than any other unsecured general
creditor of the Company.
2.14
“Participant” means any non-employee member of the Board
(i) who receives an award of Phantom Stock under the NEDSIP
and/or (ii) who elects to participate in the 2005 Plan for
purposes of deferring his or her Directors’ Fees by filing an
Enrollment Form with the Committee pursuant to
Section 5.1 of the 2005 Plan.
2.15
“Phantom Stock” means those shares of the common stock or stock
units of the Company:
(i)
awarded pursuant to the NEDSIP,
and
(ii)
which will be distributed to
eligible 2005 Plan Participants in the medium elected by the 2005
Plan Participant and on the date or permissible payment event
specified in the Phantom Stock Agreement, which date or permissible
payment event is deemed to be incorporated by reference
herein.
2.16
“Phantom Stock Account” means the recordkeeping account established on
the books and records of the Company to record the number of shares
of Phantom Stock allocated to a Participant under the 2005
Plan.
2.17
“Phantom Stock Agreement” means any agreements and/or terms of award of
Phantom Stock under the NEDSIP pursuant to which Phantom Stock is
or may be payable.
2.18
“2005 Plan” means this Equitable Resources, Inc. 2005
Directors’ Deferred Compensation Plan, as amended from time
to time.
2.19
“Plan Year” means the twelve-month period commencing each
January 1 and ending on December 31.
2.20
“Valuation Date” means the last day of each calendar quarter and
any other date determined by the Committee or specified
herein.
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ARTICLE III
ELIGIBILITY AND
PARTICIPATION
3.1
Eligibility for Phantom Stock Account.
Eligibility to participate in the 2005 Plan for
purposes of the Phantom Stock Account under Article IV of the
2005 Plan is limited to those non-employee members of the Board who
receive Phantom Stock pursuant to the terms of the NEDSIP. An
eligible Board member shall commence participation in the 2005 Plan
for purposes of the Phantom Stock Account on the date on which an
award of Phantom Stock is made pursuant to the terms of the
NEDSIP.
3.2
Eligibility for Deferral Account.
Eligibility to participate in the 2005 Plan for
purposes of deferring Directors’ Fees under Section 5.1
of the 2005 Plan is limited to non-employee members of the
Board. An eligible Board member shall commence participation
in the 2005 Plan for purposes of deferring Directors’ Fees as
of the first day of the Plan Year following the receipt of his or
her Enrollment Form by the Committee in the preceding calendar
year or within 30 days of first becoming eligible to participate in
the 2005 Plan, aggregated within the meaning of Section 409A
of the Code, if such date occurs after the commencement of the Plan
Year.
ARTICLE IV
PHANTOM STOCK
ACCOUNT
4.1
Phantom Stock Award.
As of the date of any Phantom Stock award
pursuant to the terms of the NEDSIP, the Phantom Stock Account of a
Participant eligible for such award shall be credited with the
number of Phantom Stock units as specified in such award. The
Company shall not be required to contribute any shares or other
property to the Irrevocable Trust for such awards.
4.2
Valuation of Phantom Stock Account; Deemed Reinvestment of
Dividends.
As of each Valuation Date, the value of a
Participant’s Phantom Stock Account shall equal (i) the
value of the number of shares of Phantom Stock credited to such
account as of the last Valuation Date, plus (ii) the value of
the number of shares of Phantom Stock deemed to have been credited
to such account as a result of the deemed reinvestment of any
dividends deemed to have been paid on such Phantom Stock since the
last Valuation Date. Any dividends paid on the common stock
of the Company shall be deemed to be paid on the Phantom Stock
under the 2005 Plan in an equal amount; provided, however, that to
the extent they are paid in a form other than additional shares of
the common stock of the Company, they shall be deemed to be
immediately reinvested in such number of shares of the common stock
of the Company as are represented by the aggregate amount of the
dividends divided by the value of one share of the common stock of
the Company on the date the dividend is paid.
For purposes of this 2005 Plan, the
“value” of a share of Phantom Stock shall be deemed to
equal the closing price of a share of Company common stock as
listed on the New York Stock
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Exchange ( “NYSE” ) on any
date of reference. In the event that the date of reference is
a date on which the NYSE is not open for business, the value of a
share of Phantom Stock shall equal the average of the closing
prices on the dates immediately preceding and following the date of
reference during which the NYSE was open for business.
Notwithstanding anything in this 2005 Plan to the contrary, the
Company may adopt alternate procedures for determining the value of
Phantom Stock in the event Company common stock ceases to be traded
on the NYSE or to reflect the occurrence of a Conversion Event
described in Section 4.3.
For purposes of determining the value of the
Phantom Stock credited to a Participant’s Phantom Stock
Account as of any time of reference, each share of Phantom Stock
shall be deemed equivalent in value to one share of the outstanding
shares of common stock of the Company. For purposes of
valuing a Participant’s Phantom Stock Account upon the
termination of his or her membership on the Board, the Valuation
Date shall be the business day coincident with the termination of
the Participant’s Board membership.
4.3
Adjustment and Substitution of Phantom Stock.
In the event of: (a) a stock split
(or reverse stock split) with respect to the common stock of the
Company; (b) the conversion of the common stock of the Company
into another form of security or debt instrument of the Company;
(c) the reorganization, merger or consolidation of the Company
into or with another person or entity; or (d) any other action
which would alter the number of, and/or shareholder rights of,
holders of outstanding shares of the common stock of the Company
(collectively, a “Conversion Event” ), then,
notwithstanding the fact that 2005 Plan Participants have no rights
to the shares of Company common stock represented by their Phantom
Stock Account nor to the shares of such Company common stock which
may be contributed by the Company to the Irrevocable Trust, the
number of shares of Phantom Stock then allocated to a
Participant’s Phantom Stock Account shall be deemed to be
converted, to the extent possible, to reflect any such Conversion
Event to the same extent as the shares of holders of outstanding
shares of Company common stock would have been converted upon the
occurrence of the Conversion Event. On and after any such
Conversion Event, this 2005 Plan shall be applied, mutatis
mutandis, as if the Participant’s Phantom Stock Account
was comprised of the cash, securities, notes or other instruments
into which the outstanding shares of Company common stock was
converted. Following the occurrence of a Conversion Event,
the Board is authorized to amend the 2005 Plan as it, in its sole
discretion, determines to be necessary or appropriate to address
any administrative or operational details presented by the
Conversion Event which are not addressed in the 2005
Plan.
4.4
Shareholder Rights.
Except as specifically provided herein, an award
of Phantom Stock under the 2005 Plan shall not entitle a
Participant to voting rights or any other rights of a shareholder
of the Company.
4.5
Statement of Phantom Stock Account.
As soon as administratively feasible following
the last day of each calendar quarter, the Committee shall provide
to each eligible Participant a statement of the value of his or her
Phantom Stock Account as of the most recent Valuation
Date.
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ARTICLE V
DEFERRAL
ACCOUNT
5.1
Deferral of Directors’ Fees.
Any non-employee member of the Board may elect
to defer a specified percentage of his or her Directors’ Fees
under the 2005 Plan by submitting to the Committee a written
Enrollment Form. Such election shall be effective with
respect to Directors’ Fees paid for services performed by
such Participant beginning the first day of the Plan Year following
the receipt by the Committee of the Participant’s Enrollment
Form in the preceding calendar year and shall remain in effect
for the Plan Year. A Participant may not withdraw or amend
his or her Enrollment Form during the Plan Year.
5.2
Investment Direction.
A Participant may direct that amounts deferred
pursuant to his or her Enrollment Form be deemed to be
invested in one
