Form 8-K NATIONAL FUEL GAS CO For: Jun 17
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NATIONAL FUEL GAS COMPANY
DEFERRED COMPENSATION PLAN FOR DIRECTORS AND OFFICERS
Amended and Restated Effective September 1, 2021
1. Purpose; Effective Date. The Board of Directors (the Board) of National Fuel Gas Company (the Company) adopts this amended and restated Deferred Compensation Plan for Directors and Officers (the Plan) for the purpose of providing an unfunded nonqualified deferred compensation plan for directors and officers. The Plan was initially adopted effective as of September 1, 2020; the amendment and restatement is effective for Deferral Elections submitted on or after September 1, 2021 (the Restatement Date).
2. Eligibility. Persons eligible to defer compensation under the Plan shall consist of each person who is a director of the Company (each, a Director) and, as of the Restatement Date, each person who is an officer of the Company or its subsidiaries (each, an Officer).
3. Deferral Elections. (a) Election to Participate. Except to the extent otherwise permitted by the Compensation Committee of the Board (the Committee) in accordance with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the Code), and the regulations promulgated thereunder (Section 409A), a Director may elect to defer Fees and Share Awards (as each such term is defined in Section 4) under the Plan, and an Officer may elect to defer Salary and Discretionary Bonus (as each such term is defined in Section 4) under the Plan. Such election to defer may be made by submitting a written election to the Company or its third party designee, to defer Fees, Share Awards, Salary and Discretionary Bonus, as applicable, no later than the last day of the calendar year immediately prior to the calendar year in respect of which the services related to such Fees, Share Awards, Salary or Discretionary Bonus are performed. An Officer also may defer (i) all or any portion of any Performance-Based Bonus or (ii) any RSU Settlement or PSU Settlement (as each such term is defined in Section 4) to be earned or awarded during the Companys fiscal year beginning October 1 by submitting a Deferral Election not later than the immediately preceding September 30, provided that (A) such Performance-Based Bonus or PSU Settlement is to be earned over a period of not less than 12 months and constitutes performance-based compensation as to which the performance period ends no earlier than six months after, and the deferred amount is not substantially certain to be paid as of, the date of such Deferral Election (a Performance Conditioned Election) and/or (B) any such RSU Settlement is subject to forfeiture if the Officer does not perform services for the Company continuously for a period of at least 12 months following the date on which the Officer obtains a legally binding right to such award (a Service Conditioned Election).
Notwithstanding the foregoing, any Director or Officer who becomes initially eligible to participate on or after the Restatement Date may file a Deferral Election at any time within 30 days after the later of (i) the Restatement Effective Date or (ii) the date on which such person receives written notice of his or her eligibility under the Plan to defer (x) eligible compensation that is payable with respect to services performed after the date of such Deferral Election and/or (y) with respect to an Officer, any outstanding (1) RSU Settlement as to which a Service Conditioned Election may be made and as to which the settlement date occurs at least 12 months following such 30th day (an RSU Transition Election) or (2) PSU Settlement as to which a Performance Conditioned Election may be made.
Notwithstanding the foregoing, a Deferral Election with respect to any RSU Settlement or PSU Settlement that is outstanding at the time of the election may not be made for any increment other than 100%, unless the Company determines otherwise.
Any Director or Officer who elects to participate in the Plan shall be referred to as a Participant. All deferral elections under the Plan will be made in writing on a form (which may include an electronic form) specified by the Company (a Deferral Election).
(b) Effectiveness of Election. A Deferral Election submitted by a Participant shall become effective as soon as administratively practicable. Unless otherwise stated in the form of election, a Deferral Election submitted by a Participant shall automatically continue from year to year and shall be irrevocable with respect to an item of compensation once the deferral deadline for that compensation has passed, but the Participant may modify or terminate a Deferral Election for compensation to be earned or awarded in any subsequent fiscal or calendar year or performance period as described in Section 3(a) by submitting a revised Deferral Election or otherwise giving written notice to the Company at any time on or prior to the deferral deadline for that compensation.
4. Compensation Eligible for Deferral. A Director may elect to defer receipt of all or any whole percentage of the annual retainer payable in cash for service as a director (Fees), subject to such minimum annual aggregate Fee deferral as the Committee shall specify from time to time. A Director may elect to defer receipt of all or a portion, in 25% increments, of any quarterly issuance of Common Stock which is made as part of a Directors annual retainer and issued under the 2009 Non-Employee Director Equity Compensation Plan (a Share Award) or any successor plan thereto. An Officer may elect to defer receipt of all or any whole percentage of (i) the annual base salary payable in cash for services as an Officer (Salary) and/or (ii) any discretionary bonus payable in cash (Discretionary Bonus), each subject to such minimum annual aggregate compensation deferral as the Company shall specify from time to time. Subject to Section 3(a), an Officer may also elect to defer receipt of all or any whole percentage of any performance-based bonus payable in cash (Performance-Based Bonus), and receipt of
all or a portion, in 25% increments, of any issuance of Common Stock which is to be made as a part of a settlement of (i) restricted stock units granted to the Officer under the 2010 Equity Compensation Plan (an RSU Settlement) or any successor plan thereto, and/or (ii) performance shares and performance units granted to the Officer under the 2010 Equity Compensation Plan (a PSU Settlement) or any successor plan thereto.
5. Accounts. (a) Accounts. The Company shall establish on its books one or more separate accounts (individually, an Account and collectively, the Accounts) for each Participant, as may be elected: a Company Stock Account, which shall be denominated in shares of Common Stock, including fractional shares, a Cash Account, which shall be denominated in U.S. dollars, and an RSU Transition Account, to record the amounts deferred by a Participant under the terms of an RSU Transition Election.
(b) Allocation of Deferrals among Accounts. Any Share Award, RSU Settlement or PSU Settlement deferred by a Participant shall be credited to the Company Stock Account. All other compensation deferred by a Participant shall be credited to the Cash Account. Any RSU Transition Account will be treated as part of the Stock Account solely for the purpose of determining earnings credits on such Account.
(c) Crediting of Deferrals. The credits for deferred cash Fees, Salary and/or Bonus shall be entered on the Companys books of account at the time that such compensation would otherwise have been paid but for the Deferral Election. The credit for any Share Award, RSU Settlement or PSU Settlement shall be entered on the Companys books of account at the time that the corresponding shares of Common Stock would have been issuable but for the Deferral Election.
(d) Transfers among Accounts. Participants may elect in writing to transfer amounts previously credited to the Cash Account to the Company Stock Account, but shall be limited to four such transfers per calendar year. No transfers may be made out of a Company Stock Account unless otherwise permitted under Section 5(g)(iv). The Committee or the Company, as applicable, may require that designated fees be deducted from amounts transferred to or from Company Stock Accounts. All transfers are subject to the Companys Policy on Insider Trading in National Fuel Gas Company Securities.
(e) Valuation of Stock; Dividend Credits. Any dollar amount transferred or credited to a Company Stock Account shall be deemed to increase the number of shares of Common Stock recorded as the balance of that Account based on the closing market price of the Common Stock reported for the day of the transfer or credit or, if such day is not a trading day, the next trading day. As of each date for payment of dividends on the Common Stock, each Participants Account shall be credited with the amount of dividends that would be paid on the number of shares recorded as the balance of that Account as of the record date for such dividend, and the dollar value of such dividend
equivalents shall be deemed reinvested in additional units of Common Stock based on the closing market price of the Common Stock reported for the date the corresponding dividend is payable to shareholders.
(f) Cash Account Interest. Interest shall be credited to the Cash Account of each Participant as of the last day of each calendar quarter. The rate of interest to be applied at the end of each calendar quarter shall be the quarterly equivalent of an annual yield that is equal to the annual yield on Moodys Average Corporate Bond Yield as of the last day of the immediately preceding quarter, as published by Moodys Investors Service, Inc. (or any successor thereto), or if such index is no longer published, a substantially similar index selected by the Board. Interest shall be calculated for each calendar quarter based upon the average daily balance of the Participants Cash Account during the quarter.
(g) Effect of Corporate Transaction on Company Stock Accounts and RSU Transition Accounts. At the time of consummation of a Corporate Transaction (as defined below), if any, the amount credited to a Participants Company Stock Account and RSU Transition Account shall be converted into a credit for cash or common stock of the acquiring company (Acquirer Stock) based on the consideration received by shareholders of the Company in the Corporate Transaction, as follows:
(i) Stock Transaction. If holders of Common Stock receive Acquirer Stock in the Corporate Transaction, then (1) the amount credited to each Participants Company Stock Account and RSU Transition Account shall be converted into a credit for the number of shares of Acquirer Stock that the Participant would have received as a result of the Corporate Transaction if the Participant had actually held the Common Stock credited to his or her Company Stock Account and RSU Transition Account immediately prior to the consummation of the Corporate Transaction, and (2) Company Stock Accounts and RSU Transition Accounts will thereafter be denominated in shares of Acquirer Stock and ongoing deferrals into Company Stock Accounts and RSU Transition Accounts, if any, shall continue to be made in accordance with outstanding deferral elections into the Company Stock Accounts and RSU Transition Accounts as so denominated.
(ii) Cash or Other Property Transaction. If holders of Common Stock receive cash or other property in the Corporate Transaction, then the amount credited to a Participants Company Stock Account and RSU Transition Account shall be transferred to the Participants Cash Account and converted into a cash credit for the amount of cash or the value of the property that the Participant would have received as a result of the Corporate Transaction if the Participant had actually held the Common Stock credited to his or her Company Stock Account and RSU Transition Account immediately prior to the consummation of the Corporate Transaction.
(iii) Combination Transaction. If holders of Common Stock receive Acquirer Stock and cash or other property in the Corporate Transaction, then (1) the amount credited to each Participants Company Stock Account and RSU Transition Account shall be converted in part into a credit for Acquirer Stock under Section 5(g)(i) and in part into a credit for cash under Section 5(g)(ii) in the same proportion as such consideration is received by shareholders, and (2) ongoing deferrals into Company Stock Accounts and RSU Transition Accounts, if any, shall continue to be made in accordance with outstanding deferral elections into Company Stock Accounts and RSU Transition Accounts in accordance with Section 5(g)(i).
(iv) Election Following Stock Transaction. For a period of 12 months following the consummation of any Corporate Transaction which results in Participants having Company Stock Accounts and RSU Transition Accounts denominated in Acquirer Stock, each Participant shall have a one-time right to elect to transfer the entire amount in the Participants Company Stock Account and RSU Transition Account into the Participants Cash Account; provided, however, that this election shall not be available if the Corporate Transaction results in holders of Common Stock becoming holders of all of the outstanding common stock of a parent corporation of the Company. Such election shall be made by written notice to the Company and shall be effective on the date received by the Company. If such an election is made, the amount of cash to be credited to the Participants Cash Account shall be determined by multiplying the number of shares of Acquirer Stock in the Participants Company Stock Account and RSU Transition Account by the closing market price of the Acquirer Stock reported for the effective date of the election or, if such day is not a trading day, the next trading day. All transfers are subject to the Companys Policy on Insider Trading in National Fuel Gas Company Securities.
(v) For purposes of this Plan, a Corporate Transaction shall mean any of the following:
(1) any consolidation, merger or plan of share exchange involving the Company (a Merger) pursuant to which shares of Common Stock would be converted into cash, securities or other property;
(2) 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
(3) the adoption of any plan or proposal for the liquidation or dissolution of the Company.
6. Payment of Benefits. (a) Plan Benefits. Each Deferral Election shall include an election by the Participant whether to receive distribution of the amounts deferred pursuant to the Deferral Election in a lump sum or in 5, 10 or 15 annual installments. If a Participant does not affirmatively elect to receive installment payments, distribution of the Participants Account shall be made in a lump sum. Payment elections shall be irrevocable with respect to compensation once the deferral deadline for that compensation has passed. Except to the extent otherwise permitted by the Company, Participants may not make different payment elections with respect to subsequent deferrals of compensation.
(b) Commencement of Payments. Payment of benefits to Participants shall commence in January of the year following the Participants Separation from Service, as defined in Treasury Regulations §1.409A-1(h); provided, however, that the transferability restrictions in paragraph 7(b) of the 2009 Non-Employee Director Equity Compensation Plan, if applicable, shall apply to shares distributed with respect to Deferrable Compensation and Dividend Equivalents related thereto, but with the minimum two year holding requirement measured from the date the Deferred Compensation is credited under this Plan. Notwithstanding the foregoing, if later than the date otherwise set forth in this Section 6(b), payment of any amount credited to an RSU Transition Account with respect to any RSU Settlement will commence in the January next following the fifth anniversary of the last vesting date applicable to such deferred RSU Settlement, and be paid in a lump sum or, if applicable, over any remaining number of elected installments.
(c) Specified Employees. Notwithstanding any other provision of this Plan, payment to a specified employee (as defined in Treas. Reg. 1.409A-1(i)) will commence on the later of the date provided in this Plan or the seventh month following Separation from Service, valued on the last day of the month next preceding the seventh month.
(d) Form of Payments. Benefits payable to a Participant from a Company Stock Account shall be paid as a distribution of Common Stock, with any fractional shares payable in cash. Benefits payable to a Participant from a Cash Account shall be paid in cash.
(e) Payment Timing and Valuation. All lump sum payments or installment payments due under the Plan in any year shall be paid on a date in January determined by the Company. All payments shall be based on Account balances as of the close of business on the last trading day of the immediately preceding month. If a Participant elects to receive payment of the Participants Account in installments, the amount of each installment payment shall be determined by dividing the Cash Account balance or the
number of stock units in the Stock Account, as applicable, by the number of remaining installments, including the current installment to be paid. Any fractional unit payable shall be paid in cash.
(f) Designation of Beneficiaries; Death.
(i) Each Participant shall have the right, at any time, to designate any person or persons as the Participants beneficiary or beneficiaries (both primary as well as secondary) to whom benefits under this Plan shall be paid in the event of the Participants death prior to complete distribution of the benefits due under the Plan. Each beneficiary designation shall be in written form prescribed by the Company and will be effective only if filed with the Company during the Participants lifetime. Such designation may be changed by the Participant at any time without the consent of a beneficiary. If no designated beneficiary survives the Participant, the balance of the Participants benefits shall be paid to the Participants surviving spouse or, if no spouse survives, to the Participants estate.
(ii) Upon the death of a Participant, notwithstanding any contrary provisions of Section 6, benefit payments to the Participants beneficiary shall commence no later than January of the year following the Participants death. Any benefits payable after the death of a Participant shall otherwise be paid in accordance with the payment elections for such benefits that would have applied if the Participant had not died.
(g) Payment to Guardian. If a benefit under the Plan is payable to a minor or a person declared incompetent or to a person incapable of handling the disposition of his or her property, the Committee may direct payment of such Plan benefit to the guardian, legal representative or person responsible for the care and custody of such minor, incompetent or person. The Committee may require proof of incompetence, minority, incapacity or guardianship as it may deem appropriate prior to distribution of the Plan benefit. Such distribution shall completely discharge the Committee and the Company from all liability with respect to such benefit.
(a) Committee Duties. This Plan shall be administered by the Committee. The Committee shall have responsibility for the general administration of the Plan and for carrying out its intent and provisions. Notwithstanding any other provision of the Plan to the contrary, the Committee may (i) establish the maximum deferrable amount with respect to any item of compensation eligible for deferral, (ii) allow Deferral Elections to be made as to any item of compensation at any time that such election would be permissible under Section 409A and (iii) establish such rules, restrictions and conditions as it shall deemed necessary or appropriate for the efficient and effective administration of the Plan. The Committee shall have the authority interpret the Plan, to correct any
inconsistency or omission in the Plan and have such powers and duties as may be necessary to discharge its responsibilities. The Committee may, from time to time, employ other agents and delegate to them such administrative duties as it sees fit, and may from time to time consult with counsel who may be counsel to the Company.
(b) Binding Effect of Decisions. The decision or action of the Committee in respect of any question arising out of or in connection with the administration, interpretation and application of the Plan and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon all persons having any interest in the Plan.
8. Amendment and Termination of the Plan. The Board or the Committee may amend, modify, terminate or discontinue the Plan at any time; provided that no such action shall reduce the amount credited to a Participants Account immediately prior to such action, or change the time, method or manner in which the Participants Account is then being distributed, except to the extent that an accelerated payment of the amounts credited to the Accounts may be effected in accordance with the applicable provisions of Section 409A.
(a) Unsecured General Creditor. The Accounts shall be established solely for the purpose of measuring the amounts owed to Participants or beneficiaries under the Plan. Participants and their beneficiaries, heirs, successors and assigns shall have no legal or equitable rights, interest or claims in any property or assets of the Company, nor shall they be beneficiaries of, or have any rights, claims or interests in any mutual funds, other investment products or the proceeds therefrom owned or which may be acquired by the Company. The Companys obligation under the Plan shall be that of an unfunded and unsecured promise to pay money in the future, and the rights of Participants and beneficiaries shall be no greater than those of unsecured general creditors of the Company. Notwithstanding the foregoing provisions of this Section 9(a), the Company may, at any time, establish one or more trusts, but the assets thereof shall be subject to the claims of the Companys creditors. To the extent any benefits provided under the Plan are actually paid from any such trust, the Company shall have no further obligation with respect thereto, but to the extent not so paid, such benefits shall remain the obligation of, and shall be paid by, the Company. Any shares of Common Stock held in trust under this Plan, including but not limited to shares issued in connection with Share Awards, RSU Settlements, PSU Settlements, transfers of amounts from Cash Accounts to Company Stock Accounts, and the reinvestment of dividends, shall be issued under the 2009 Non-Employee Director Equity Compensation Plan or the 2010 Equity Compensation Plan, or any respective successor plan thereto, as applicable, and shall count against the shares available for issuance under such applicable plan.
(b) Non-assignability. Neither a Participant nor any other person shall have the right to commute, sell, assign, transfer, pledge, anticipate, mortgage or otherwise encumber, transfer, hypothecate or convey in advance of actual receipt the amounts, if any, payable hereunder, or any part thereof, which are, and all rights to which are, expressly declared to be non-assignable and nontransferable. No part of the amounts payable shall, prior to actual payment, be subject to seizure or sequestration for the payment of any debts, judgments, alimony or separate maintenance owed by a Participant or any other person, nor be transferable by operation of law in the event of a Participants or any other persons bankruptcy or insolvency.
(c) No Right to Association. Nothing in this Plan shall be deemed to give a Participant the right to be retained in the service of the Company or to interfere with the right of the Company to terminate the services of a Participant at any time.
(d) No Rights as a Shareholder. Neither a Participant nor any other person shall have any rights or privileges of a shareholder with respect to any units of Common Stock credited to the Participants Account, except that, if the Company determines to establish a trust to fund its obligations hereunder, the Committee may allow Participants to direct the vote on shares of Company Stock held in such trust to fund the obligations corresponding to the Participants Account.
(e) Adjustments to Common Stock. In the event of any change in the Common Stock by reason of a merger, consolidation, reorganization, recapitalization, stock dividend, stock split, combination or exchange of shares, or any other change in corporate structure, the number of shares credited to the Accounts shall be adjusted in such manner as a majority of the Board shall determine to be fair under the circumstances.
(f) Acceleration of Payments. If any amounts deferred pursuant to the Plan are includible in gross income by a Participant prior to payment of such amounts (including by reason of the Plans failure to meet the requirements of Section 409A), an amount equal to the amount required to be included in the Participants income shall be immediately paid to such Participant, notwithstanding the Participants election hereunder.
(g) Compliance With Laws and Regulations. The Plan, and the obligations of the Company under the Plan, shall be subject to all applicable federal and state laws, rules and regulations, and to such approvals by any regulatory or governmental agency as may be required. The Company, in its discretion, may (1) postpone the issuance or delivery of Common Stock or any other action permitted under the Plan to permit the Company, with reasonable diligence, to complete such stock exchange listing or registration or qualification of such Common Stock or other required action under any federal or state law, rule or regulation or (2) require a Participant to make such representations and furnish such information as it may consider appropriate in connection
with the issuance or delivery of Common Stock in compliance with applicable laws, rules and regulations. The Company shall not be obligated to sell or issue Common Stock in violation of any such laws, rules or regulations, and neither the Company nor its directors, officers or employees shall have any obligation or liability to a Participant with respect to the Participants Account (or Common Stock issuable thereunder) because of any actions taken pursuant to the provisions of this Section 9(g).
(h) Governing Law. The provisions of this Plan shall be construed and interpreted according to the laws of the State of New Jersey, except as preempted by federal law.
(i) Validity. In case any provision of this Plan shall be held illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining parts hereof, but this Plan shall be construed and enforced as if such illegal and invalid provisions had never been inserted herein.
(j) Notice. Any notice or filing required or permitted to be given to the Company or the Committee under the Plan shall be sufficient if in writing and hand delivered, or sent by registered or certified mail, to the Secretary of the Company. Such notice shall be deemed given as of the date of delivery or, if delivery is made by mail, as of the date shown on the postmark on the receipt for registration or certification.
(k) Successors. The provisions of this Plan shall bind and inure to the benefit of the Company and its respective successors and assigns. The term successors as used herein shall include any corporate or other business entity which shall, whether by merger, consolidation, purchase or otherwise acquire all or substantially all of the business and assets of the Company, and any successor thereto.
(l) Immunity from Liability. Neither the Company nor any person acting for the Company or the Board in the administration of the Plan shall incur any liability for anything done or omitted to be done in administering the Plan or making any determination required by the Plan, except in the case of willful misconduct or gross negligence.
(m) Tax Withholding on Officers. Under current law, all deferrals credited to an Officers Accounts will be treated as wages subject to FICA tax, and the Company will be required to withhold FICA tax from the Officers. The amount required to be withheld for FICA tax may, to the extent administratively practicable, be withheld from the non-deferred portion, if any, of the same compensation; provided, however, that the Company may withhold the amount required to be withheld for FICA tax from other non-deferred compensation payable to the Officer unless the Officer otherwise pays such amount to the Company. Any distributions made hereunder to an Officer shall be subject to all income and employment tax withholding required therefrom at applicable law, including any employment taxes that are due because deferred amounts were not previously treated as FICA wages.
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