Exhibit 10.7
CABOT OIL & GAS
CORPORATION
DEFERRED COMPENSATION
PLAN
(As Amended and Restated
Effective January 1, 2009)
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
Page
|
|
ARTICLE I TITLE
AND DEFINITIONS
|
|
1
|
|
1.1
|
|
Title
|
|
1
|
|
1.2
|
|
Definitions
|
|
1
|
|
|
|
ARTICLE II PARTICIPATION
|
|
6
|
|
|
|
ARTICLE III DEFERRAL ELECTIONS
|
|
7
|
|
3.1
|
|
Amount of
Deferrals
|
|
7
|
|
3.2
|
|
Procedure for
Elections
|
|
7
|
|
3.3
|
|
Investment
Elections
|
|
8
|
|
3.4
|
|
Forms and
Procedures
|
|
9
|
|
|
|
ARTICLE IV DEFERRAL ACCOUNTS AND TRUST
FUNDING
|
|
10
|
|
4.1
|
|
Deferral
Accounts
|
|
10
|
|
4.2
|
|
Company
Discretionary Contribution Account
|
|
10
|
|
4.3
|
|
Trust
Funding
|
|
11
|
|
|
|
ARTICLE V VESTING
|
|
12
|
|
|
|
ARTICLE VI DISTRIBUTIONS
|
|
13
|
|
6.1
|
|
Distribution of
Deferred Compensation and Discretionary Company
Contributions
|
|
13
|
|
6.2
|
|
Unforeseeable
Emergency Distribution
|
|
14
|
|
6.3
|
|
Forfeiture of
Unvested Amounts
|
|
15
|
|
6.4
|
|
Inability to
Locate Participant
|
|
15
|
|
6.5
|
|
Installment
Payments Deemed to be Separate Payments
|
|
15
|
|
6.6
|
|
Earnings
|
|
15
|
|
|
|
ARTICLE VII ADMINISTRATION
|
|
16
|
|
7.1
|
|
Committee
|
|
16
|
|
7.2
|
|
Committee
Action
|
|
16
|
|
7.3
|
|
Powers and
Duties of the Committee
|
|
16
|
|
7.4
|
|
Construction
and Interpretation
|
|
17
|
|
7.5
|
|
Information
|
|
17
|
|
7.6
|
|
Compensation,
Expenses and Indemnity
|
|
17
|
|
7.7
|
|
Quarterly
Statements
|
|
17
|
|
7.8
|
|
Claims and
Review Procedures
|
|
18
|
|
|
|
ARTICLE VIII MISCELLANEOUS
|
|
20
|
|
8.1
|
|
Unsecured
General Creditor
|
|
20
|
|
8.2
|
|
Restriction
Against Assignment
|
|
20
|
|
8.3
|
|
Withholding
|
|
20
|
|
8.4
|
|
Amendment,
Modification, Suspension or Termination
|
|
20
|
|
8.5
|
|
Governing
Law
|
|
21
|
|
8.6
|
|
Receipt or
Release
|
|
21
|
|
8.7
|
|
Payments on
Behalf of Persons Under Incapacity
|
|
21
|
i
|
|
|
|
|
|
8.8
|
|
Limitation of
Rights and Employment Relationship
|
|
21
|
|
8.9
|
|
Headings
|
|
21
|
|
8.10
|
|
Section
409A
|
|
21
|
ii
CABOT OIL & GAS
CORPORATION
DEFERRED COMPENSATION
PLAN
WHEREAS, effective as of
June 1, 1998, Cabot Oil & Gas Corporation (the
“Company”) established the Cabot Oil & Gas
Corporation Deferred Compensation Plan (the “Plan”) to
provide supplemental retirement income benefits for a select group
of management and highly compensated employees of the Company and
certain of its subsidiary or related companies through deferrals of
salary, bonus, performance share awards, Company contributions of
certain amounts which cannot be made to the Company 401
(k) Plan due to Internal Revenue Code limitations, amounts
payable under any Supplemental Executive Retirement Plan
(“SERP”) Agreements to which a participant in this Plan
is a party and certain Company discretionary contributions;
and
WHEREAS, the Company subsequently
amended certain provisions of the Plan, as set forth in the First
and Second Amendments to the Plan; and
WHEREAS, the Company desires to
amend the Plan to allow participants to defer the receipt of
certain benefits in order to provide a regular stream of income
during retirement in a manner that complies with Section 409A
of the Internal Revenue Code of 1986, as amended, and to make
certain other changes deemed necessary or appropriate, including
prohibiting the deferral of performance shares from and after
January 1, 2009;
NOW, THEREFORE, effective as of
January 1, 2009, the Plan is hereby amended and restated, as
follows:
ARTICLE I
TITLE AND
DEFINITIONS
1.1 Title .
This Plan shall be known as Cabot
Oil & Gas Corporation Deferred Compensation
Plan.
1.2 Definitions .
Whenever the following words and
phrases are used in this Plan, with the first letter capitalized,
they shall have the meanings specified below.
(a) “Account” or
“Accounts” shall mean a Participant’s Deferral
Account and Company Contribution Account.
(b) “Base Salary” shall
mean a Participant’s annual base salary, excluding bonus,
incentive and all other remuneration for services rendered to the
Company and prior to reduction for any salary contributions to a
plan established pursuant to Section 125 of the Code or
qualified pursuant to Section 401(k) of the Code.
(c) “Beneficiary” or
“Beneficiaries” shall mean the person or persons,
including a trustee, personal representative or other fiduciary,
last designated in writing by a Participant in accordance with
procedures established by the Committee to receive the benefits
specified hereunder in the event of the Participant’s death.
No beneficiary designation shall become effective until it is filed
with the Committee. Any designation shall be revocable at any time
through a written instrument filed by the Participant with the
Committee with or without the consent of the previous Beneficiary.
If there is no such designation or if there is no surviving
designated Beneficiary, then the Beneficiary shall be the
Participant’s surviving spouse, if any, or, if there is no
surviving spouse, the Participant’s estate. Payment by the
Company to the Beneficiary identified pursuant to the terms of this
Section 1.2(c) if no such designation exists, of all benefits
owed hereunder shall terminate any and all liability of the
Company.
(d) “Board of Directors”
or “Board” shall mean the Board of Directors of Cabot
Oil & Gas Corporation.
(e) “Bonus” shall mean
the bonus earned as of the last day of the Plan Year, provided a
Participant is in the employ of the Company on the date on which
such bonus is paid.
(f) “Code” shall mean
the Internal Revenue Code of 1986, as amended.
(g) “Committee” shall
mean the Committee appointed by the Board to administer the Plan in
accordance with Article VII.
(h) “Company” shall mean
Cabot Oil & Gas Corporation and any successor
corporations. “Company” shall include each corporation
which is a member of a controlled group of corporations (within the
meaning of Section 414(b) of the Code) of which Cabot
Oil & Gas Corporation is a component member, if the Board
provides that such corporation shall participate in the
Plan.
(i) “Company Contribution
Account” shall mean the bookkeeping account maintained by the
Company for each Participant that, pursuant to Section 4.2, is
credited with an amount equal to the applicable of the following:
the Company Discretionary Contribution Amount, Matching
Contributions, the Company DB SERP Contribution Amount, and
earnings and losses.
(j) “Company Discretionary
Contribution Amount” shall mean, if contributed by the
Company for each Participant for a Plan Year, an additional
discretionary amount allocated to a Participant under this Plan as
determined by the Company. Such amount may differ from Participant
to Participant both in amount, including no contribution, and as a
percentage of Compensation.
(k) “Company DB SERP
Contribution Amount” shall mean the amount of the benefit
provided to the Participant under the terms of the supplemental
employee retirement plan (“DB SERP”) agreement between
the Company and the Participant; provided, however, that in no
event shall a spousal death benefit payable under the terms of such
DB SERP agreement be deemed to be a Company DB SERP Contribution
Amount for purposes of this Plan.
2
(l) “Compensation” shall
mean the amount of the Base Salary and Bonus that the Participant
is entitled to receive for services rendered to the
Company.
(m) “Deferral Account”
shall mean the bookkeeping account maintained by the Committee for
each Participant that, pursuant to Section 4.1, is credited
with amounts equal to (i) the portion of Compensation that the
Participant has elected to defer, (ii) the portion of any
Performance Share Award that was credited to the Deferral Account
prior to January 1, 2009 and (iii) earnings and
losses.
(n) “Deferral Election”
shall mean a written, electronic or other form of election
permitted by the Committee pursuant to which a Participant may
elect to defer a portion of his Compensation under the
Plan.
(o) “Distributable
Amount” shall mean the vested balance in the
Participant’s Deferral Account and Company Contribution
Account.
(p) “Effective Date”
shall mean January 1, 2009.
(q) “Eligible Employee”
shall mean members of the Company’s executive management
group who are designated by the Company as eligible to participate
in this Plan.
(r) “401 (k) Plan”
shall mean the retirement plan maintained by the Company on the
Effective Date that is intended to qualify under Sections 401(a)
and 401(k) of the Code and any successor or replacement
plan.
(s) “Fund” or
“Funds” shall mean one or more of the investment funds
selected by the Committee pursuant to
Section 3.3(b).
(t) “Future Date
Withdrawal” shall mean the distribution date elected by the
Participant for the withdrawal of all amounts of Compensation,
vested Matching Contributions and vested Company Discretionary
Contribution Amounts deferred in a given Plan Year, and earnings
and losses attributable thereto, as set forth on the election form
for such Plan Year.
(u) “Interest” shall
mean, for each Fund, an amount equal to the net rate of gain or
loss on the assets of such Fund, as calculated on a daily
basis.
(v) “Investment Fund
Subaccount” means one of the separate subaccounts into which
a Participant’s Deferral Account is divided pursuant to a
Participant’s election under Section 3.3(a).
(w) “Matching
Contribution” means, for a given Plan Year, 6% of
Compensation minus the actual amount of matching contributions made
to the Company’s 401(k) Plan by the Company provided,
however, that in no event shall the Matching Contribution exceed
the excess of the dollar limit imposed by Code Section 402(g)
over the actual amount of matching contribution made to the 401
(k) Plan by the Company.
(x) “Participant” shall
mean any Eligible Employee who becomes a Participant in this Plan
in accordance with Article II.
3
(y) “Payment Date” shall
mean
(i) except as provided in
Section 1.2(y)(ii), the 15th business day following the
earlier of (A) the date of Participant’s termination of
employment or (B) the Participant’s death;
and
(ii) in the case of a Participant
who is a Specified Employee on the Payment Date otherwise
applicable in Section 1.2(y)(i), the 15th business day
following the earlier of (A) the expiration of six months
following the date such Specified Employee separates from service
or (B) the date of the Specified Employee’s
death.
(z) “Performance Share
Award” shall mean the amount payable to a Participant
pursuant to the Performance Share Award Agreement between the
Company and such Participant. Effective as of January 1, 2009,
Performance Share Awards may not be deferred under the terms of
this Plan.
(aa) “Plan” shall mean
Cabot Oil & Gas Corporation Deferred Compensation Plan set
forth herein, now in effect, or as amended from time to
time.
(bb) “Plan Year” shall
mean the period of twelve consecutive months beginning on each
January 1 and ending on December 31.
(cc) “Retirement” shall
mean the termination of employment by the Participant on or
after
(i) with respect to an individual
who is an Eligible Employee or Participant as of the Effective
Date, the date of his attainment of age 55 with 10 years of active
service with the Company; and
(ii) with respect to all other
individuals, the date designated by the Committee at the time he is
notified of his status as an Eligible Employee, which shall be
either (A) the date of his attainment of age 55 with 10 years
of active service with the Company or (B) the date of his
attainment of age 65 with 5 years of active service with the
Company.
(dd) “Section 409A”
shall mean Section 409A of the Code and all related
regulations and notices in effect thereunder.
(ee) “Specified
Employee” shall mean a Participant who, on the date of his
termination of employment with the Company, is treated as a
Specified Employee by the Company in accordance with the
requirements of Section 409A.
(ff) “Trust” shall mean
Cabot Oil & Gas Corporation Deferred Compensation Plan
Trust.
4
(gg) “Unforeseeable
Emergency” shall mean a severe financial hardship to the
Participant resulting from:
(i) a sudden and unexpected illness
or accident of the Participant or of his spouse, beneficiary or
dependent (as defined in Section 152 of the Code without
regard to Section 152(b)(1), Section 152(b)(2) and
Section 152(d)(1)(B));
(ii) loss of a Participant’s
property due to casualty and not otherwise covered by insurance;
or
(iii) such other similar
extraordinary and unforeseeable circumstances arising as a result
of events beyond the Participant’s control.
Except as otherwise provided herein,
“Unforeseeable Emergency” shall not include the
purchase of a home or the payment of college tuition.
The Committee shall have the sole
authority and discretion to determine whether a Participant has
experienced an Unforeseeable Emergency and may require the
Participant to submit such documentary evidence as the Committee,
in its sole discretion, deems necessary to establish the existence
or non-existence of an Unforeseeable Emergency and/or the amount of
such distribution. The Committee shall have the sole discretion and
authority to establish the time period within which Participant
must provide any such documentary evidence.
5
ARTICLE II
PARTICIPATION
An Eligible Employee shall become a
Participant when designated as such by the Committee.
6
ARTICLE III
DEFERRAL
ELECTIONS
3.1 Amount of Deferrals
.
The amount specified by any Deferral
Election applicable to a Participant’s Base Salary and/or
Bonus shall be stated as a percentage that shall not exceed 100% of
the sum of Base Salary and Bonus of the Participant. The Committee,
in its sole and absolute discretion, may limit the total amount
deferred by a Participant in order to satisfy Social Security tax
(including Medicare), income tax and employee benefit plan
withholding requirements. The minimum contribution that may be made
in any Plan Year by an Eligible Employee is $2,500, provided that
such minimum contribution can be satisfied from Base Salary and/or
Bonus.
3.2 Procedure for Elections
.
Subject to any modifications,
additions or exceptions that the Committee, in its sole discretion,
deems necessary or appropriate, the following terms shall apply to
any Deferral Election:
(a) Timing of Election
.
(i) Initial Deferral
Election.
(A) Base Salary . An Eligible
Employee who wishes to defer the receipt of all or a portion of his
Base Salary must submit a Deferral Election to the Committee before
December 15 of the Plan Year immediately preceding the Plan
Year to which the Deferral Election applies. Notwithstanding the
previous sentence, an Eligible Employee may elect to defer the
receipt of all or a portion of his Base Salary by submitting a
Deferral Election to the Committee within 30 days of the date on
which he first becomes eligible to participate in the Plan. Each
Deferral Election shall only be effective with respect to
Compensation earned after the date of its submission to the
Committee. If an Eligible Employee fails to submit a Deferral
Election in a timely manner, he shall be deemed by the Committee to
have elected not to defer any portion of his Base Salary under the
Plan for the applicable Plan Year.
(B) Bonus . An Eligible
Employee who wishes to defer the receipt of any portion of a Bonus
that is contingent upon his attainment of written performance
criteria applicable to a performance period of at least 12
consecutive months must submit a Deferral Election to the Committee
on a date established by the Committee that occurs no less than six
months before the close of the performance period applicable to
such Bonus; provided, however, that (1) on the date of such
Deferral Election, the Eligible Employee is employed by the Company
and has been continuously employed by the Company since the later
of (x) the beginning of such performance period or
(y) the date that the performance criteria applicable to such
Bonus are established in writing (which shall occur within 90 days
of the beginning of such performance period), and (2) in no
event shall any such Deferral Election be made after the time when
the Eligible Employee’s entitlement to the Bonus is readily
ascertainable.
7
(C) Matching Contribution .
Notwithstanding the foregoing, the Company may, in its discretion,
direct that Matching Contributions shall be credited to
Participant’s Account without regard to the status of his
Deferral Election.
(ii) Subsequent Deferral
Election . An Eligible Employee who had not elected to
participate in the Plan at the time when he was initially eligible
to do so may make a subsequent Deferral Election with respect to
his Compensation for a subsequent Plan Year. Such Deferral Election
must be made on or before December 15 of the Plan Year
immediately preceding the Plan Year for which he desires to
participate and shall apply only to Compensation in respect of
services performed in the Plan Year following the Plan Year in
which the Deferral Election is made.
(b) Term . Each
Participant’s Deferral Election shall remain in effect for
Compensation paid during the current and all future Plan Years
until the earliest of (i) the date the Participant separates
from service, (ii) the first day of the next succeeding Plan
Year following the date the Participant revokes such Deferral
Election or makes a subsequent Deferral Election but only with
respect to Compensation for services performed in the future Plan
Years or (iii) the first day of the next succeeding Plan Year
after which the Committee determines that such Participant’s
Deferral Contributions shall cease. The deferral of a DB SERP
amount shall be separate from and independent of any other Deferral
Election under this Plan as to time and form of payment.
(c) DB SERP Deferral . An
Eligible Employee who becomes entitled to a Company DB SERP
Contribution Amount shall be deemed to have deferred 100% of such
amount under the terms of this Plan.
(d) Cessation and Recommencement
of Deferral Elections . A Participant who has previously
terminated a Deferral Election may only elect to recommence the
deferral of his Compensation under this Plan, by filing a new
Deferral Election with respect to the deferral of Compensation
during the next Plan Year. Such Deferral Election must be made on a
form provided by the Committee and shall be subject to the terms
and provisions of Section 3.1.
3.3 Investment Elections
.
(a) At the time a Participant makes
a Deferral Election, the Participant shall designate the types of
Funds the Participant’s Account will be deemed to be invested
in for purposes of determining the amount of Interest to be
credited to that Account. In making the designation pursuant to
this Section 3.3, the Participant may specify that all or any
multiple of his Account in whole percentage increments (equal to or
greater than 1%) be deemed to be invested in one or more of the
types of Funds provided under the Plan as communicated from time to
time by the Committee. A Participant may change the designation
made under this Section 3.3 effective as of the next following
business day, by following the procedures set forth by the
Committee; provided, however, that the portion of
Participant&rsquo