AMENDED AND RESTATED
NATIONAL FUEL GAS COMPANY
2007 ANNUAL AT RISK COMPENSATION INCENTIVE PLAN
As used with
respect to At Risk Awards, the following terms shall have the
following meanings:
(a)
“Acceleration Date” means (i) in the event
of a Change in Ownership, the date on which such change occurs, or
(ii) with respect to an Eligible Employee who is eligible for
treatment under paragraph 8 hereof on account of the termination of
his employment following a Change in Control, the date on which
such termination occurs.
(b)
“Award Notice” means a written notice from the
Company to a Participant that sets forth the terms and conditions
of an Award in addition to the terms and conditions established by
this Plan and by the Committee’s exercise of its
administrative powers.
(c)
“At Risk Award” means an award granted by the
Committee to a Participant under this Plan, and entitling the
Participant to a cash payment based upon the extent to which
specified Performance Goals are attained for a specified
Performance Period, pursuant to such terms and conditions as the
Committee may establish in an Award Notice. No Eligible Employee
may receive more than one At Risk Award under this Plan in any
fiscal year. In no event will the maximum value of any At Risk
Award to any Eligible Employee in any fiscal year exceed the lower
of (i) twice that employee’s base salary for that fiscal
year, or (ii) two million dollars. An At Risk Award may be
granted singly, in combination or in the alternative with other
Awards granted under any Company benefit plan.
(d)
“Board” means the Board of Directors of the
Company.
(e)
“Cause” means (i) the willful and continued
failure by a Participant to substantially perform his duties with
his employer after written warnings specifically identifying the
lack of substantial performance are delivered to him by his
employer, or (ii) the willful engaging by a Participant in
illegal conduct which is materially and demonstrably injurious to
the Company or a Subsidiary.
(f)
“Change in Control” shall be deemed to have
occurred at such time as (i) any “person” within
the meaning of Section 14(d) of the Exchange Act, other than the
Company, a Subsidiary, or any employee benefit plan or plans
sponsored by the Company or any Subsidiary, is or has become the
“beneficial owner,” as defined in Rule 13d-3 under
the Exchange Act, directly or indirectly, of twenty percent (20%)
or more of the combined voting power of the outstanding securities
of the Company ordinarily having the right to vote at the election
of directors, or (ii) approval by the shareholders of the
Company of (a) any consolidation or merger of the Company in
which the Company is not the continuing or surviving corporation or
pursuant to which shares of stock of the
Company would
be converted into cash, securities or other property, other than a
consolidation or merger of the Company in which the common
shareholders of the Company immediately prior to the consolidation
or merger have substantially the same proportionate ownership of
common stock of the surviving corporation immediately after the
consolidation or merger as immediately before, or (b) any
consolidation or merger in which the Company is the continuing or
surviving corporation but in which the common shareholders of the
Company immediately prior to the consolidation or merger do not
hold at least a majority of the outstanding common stock of the
continuing or surviving corporation (except where such holders of
Common Stock hold at least a majority of the common stock of the
corporation which owns all of the Common Stock of the Company), or
(c) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or
substantially all the assets of the Company, or
(iii) individuals who constitute the Board on January 1,
2007 (the “Incumbent Board”) have ceased for any reason
to constitute at least a majority thereof, provided that any person
becoming a director subsequent to January 1, 2007 whose
election, or nomination for election by the Company’s
shareholders, was approved by a vote of at least three-quarters
(3/4) of the directors comprising the Incumbent Board (either by
specific vote or by approval of the proxy statement of the Company
in which such person is named as nominee for director without
objection to such nomination) shall be, for purposes of this Plan,
considered as though such person were a member of the Incumbent
Board.
(g)
“Change in Ownership” means a change which
results directly or indirectly in the Company’s Common Stock
ceasing to be actively traded on a national securities exchange or
the National Association of Securities Dealers Automated Quotation
System.
(h)
“Code” means the Internal Revenue Code of 1986,
and the rules, regulations and interpretations promulgated
thereunder, as amended from time to time.
(i)
“Committee” means the Compensation Committee of
the Board, or such other committee designated by the Board as
authorized to administer this Plan with respect to At Risk Awards.
The Committee shall consist of not less than two members, each of
whom shall be “outside directors” as defined by Section
162(m) of the Code and the rules, regulations and interpretations
promulgated thereunder, as amended from time to time.
(j)
“Common Stock” means the common stock of the
Company.
(k)
“Company” means National Fuel Gas
Company.
(l)
“Eligible Employee” means those employees of the
Company or its Subsidiaries who are expected to constitute
“covered employees” within the meaning of Section
162(m) of the Code for the applicable fiscal year(s), and any other
key management employee to whom an At Risk Award has been granted
by the Committee.
(m)
“Exchange Act” means the Securities Exchange Act
of 1934, as amended from time to time.
2
(n)
“Good Reason” means a good faith determination
made by a Participant that there has been any (i) material
change by the Company of the Participant’s functions, duties
or responsibilities which change could cause the
Participant’s position with the Company to become of less
dignity, responsibility, importance, prestige or scope, including,
without limitation, the assignment to the Participant of duties and
responsibilities inconsistent with his positions,
(ii) assignment or reassignment by the Company of the
Participant without the Participant’s consent, to another
place of employment more than 30 miles from the Participant’s
current place of employment, or (iii) reduction in the
Participant’s total compensation or benefits or any component
thereof, provided in each case that the Participant shall specify
the event relied upon for such determination by written notice to
the Board at any time within six months after the occurrence of
such event.
(o)
“Participant” means any individual who is
holding an At Risk Award granted by the Committee under this
Plan.
(p)
“Performance Period” means the period
established by the Committee in the Award Notice, for measurement
of the extent to which a Performance Goal has been
satisfied.
(q)
“Performance Goal” means the performance
objectives of earnings per share, Subsidiary net income and
customer service/other goals, established by the Committee for each
Eligible Employee who receives an At Risk Award.
(r)
“Plan” means this Amended and Restated National
Fuel Gas Company 2007 Annual At Risk Compensation Incentive Plan,
as amended from time to time. Any reference in this Plan to a
paragraph number refers to that portion of this Plan.
(s)
“Subsidiary” means a corporation or other
business entity in which the Company directly or indirectly has an
ownership interest of eighty percent (80%) or more.
With respect to At
Risk Awards the Committee is given full authority to (a) make
reasonable, good faith interpretations of this Plan and of Section
162(m) of the Code, to the extent not addressed by regulation,
proposed regulation or publicly available interpretation of the
Internal Revenue Service; (b) determine who shall be Eligible
Employees and select Eligible Employees to receive At Risk Awards;
(c) determine all the other terms and conditions of an At Risk
Award, including the time or times of making At Risk Awards to
Eligible Employees, the Performance Period, Performance Goals, and
levels of At Risk Awards to be e
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