exv10w3







Exhibit 10.3




NATIONAL FUEL GAS COMPANY

EXECUTIVE ANNUAL CASH INCENTIVE PROGRAM




     NATIONAL FUEL GAS COMPANY (the “Company”) hereby establishes this NATIONAL FUEL GAS COMPANY
EXECUTIVE ANNUAL CASH INCENTIVE PROGRAM (the “Program”) as of the 1st day of October, 2008, and as
further revised this 10th day of December, 2009, in accordance with the terms provided herein.



     Section 1. Incentive Program Purpose. The purposes of the Program are to enable the
Company and its majority-owned subsidiaries (the “Subsidiaries”) to attract, retain, motivate and
reward officers and key employees by providing them with short-term incentive opportunities
directly linked to the Company’s and the individual’s performance.



     Section 2. Eligibility. Except for those executive officers who are participating
for the same period in the National Fuel Gas Company Annual At Risk Compensation Incentive Plan,
each officer of the Company and its Subsidiaries who has been designated by the Board as an
“executive officer” for purposes of the Securities Exchange Act of 1934, as amended, shall
participate in this Program (each, an “Executive Participant”). In addition, the Chief Executive
Officer of the Company (the “CEO”), at his sole discretion, may select other officers or key
employees of the Company and its Subsidiaries to participate in the Program (each, a “Designated
Participant”).



     Section 3. Performance Periods and Target Incentives. With respect to each Executive
Participant and each Designated Participant (each, a “Participant”), the CEO shall establish a
target incentive opportunity (the “Target Incentive”) applicable to such Participant with respect
to any Performance Period, which shall be a percentage of base salary; provided that, the Target
Incentive with respect to each Executive Participant shall be subject to the approval of the
Compensation Committee of the Company of the Board of Directors (the “Committee”). A “Performance
Period” shall be the then-current fiscal year of the Company. In the event that an employee
becomes an officer or an executive officer after the commencement of any Performance Period
(including by reason of having first been hired after the commencement of the Performance Period),
the CEO shall determine the basis, if any, on which such person shall be permitted to participate
in the Program for such Performance Period (including, but not limited to, whether the
Participant’s Target Incentive will be pro-rated to reflect his or her eligibility for only a
portion of the Performance Period). In the event that the work responsibilities of a Participant
changes during the Performance Period, the CEO may change one or more of the Performance Conditions
and/or the Target Incentive associated with said Performance Period; provided however, that any
such change with respect to an Executive Participant is subject to the approval of the Committee.



     Section 4. Performance Conditions and Performance Levels.



     (a) Establishment of Performance Conditions. No later than ninety days following the
beginning of the Performance Period, the CEO shall establish the performance objectives (the
“Performance Conditions”) which must be achieved for a Participant to receive payment in respect of
his or her Target Incentive (or a specified multiple thereof) for that Performance Period;













 




provided
that the Performance Conditions and the levels of achievement for an Executive Participant shall be
approved by the Committee. The Performance Conditions may be based on the performance of the
Company or one or more of its Subsidiaries, either on an absolute or comparative basis, and/or upon
individual performance criteria established for the Participant or a class of Participants. The
Performance Conditions need not be the same for each Participant, or for the same Participant with
respect to different Performance Periods. Where more than one Performance Condition is
established, the Performance Conditions shall allocate the Target Incentive among the Performance
Conditions, provided that, for this purpose, multiple Performance Conditions may be combined and
treated as a single Performance Condition. At least seventy-five percent (75%) of a Participant’s
Target Incentive will be dependent on objective Performance Conditions. Twenty-five percent (25%)
of a Participant’s Target Incentive may be designated as discretionary.




     (b) Threshold, Target and Maximum Performance Levels. With respect to each
Performance Period, the CEO shall establish, at a minimum, a threshold level of performance (or the
portion thereof allocable to a particular Performance Condition or Conditions (the “Allocable
Portion”)) at which 100% of the Target Incentive shall be payable and a maximum level of
performance at which 200% of the Target Incentive will be payable, subject in each case to the
CEO’s discretion to reduce the amount payable to any Participant based on such factors as the
CEO shall determine. For performance levels between two established performance levels, the
percent of Target Incentive (or any Allocable Portion) payable will be determined by mathematical
interpolation, where appropriate.



     Section 5. Performance Achievement. Payment of any compensation under the Program is
expressly contingent upon achievement, in whole or in part, of the Performance Conditions for such
Performance Period. The amount payable to a Participant with respect to his or her Target
Incentive (or the Allocable Portion) with respect to any Performance Conditions will be determined
based on the assessment of achievement against such Performance Conditions with respect to such
Performance Period. To the extent that any Performance Condition is based on the individual
performance of a Participant that is not otherwise objectively determinable by application of a
formula or other mathematical or statistical measure, the level of achievement of such Performance
Condition shall be determined based on the CEO’s subjective determination of the individual’s
performance.



     Section 6. Payment of Cash. Except as provided in Section 8, any amount payable to a
Participant in respect of any Performance Period shall be paid to the Participant (or, where
applicable, the Participant’s beneficiary or legal representative) in a single lump sum cash amount
not later than 21/2 months after the end of the calendar year in which the
relevant Performance Period ends.



     Section 7. Employment Conditions to Payment.



     (a) Full Award Requires Service for Entire Performance Period. To be entitled to
payment in full of any amount payable in respect of any Target Incentive, a Participant must be in
the continuous employ of the Company or a Subsidiary from the date he or she is selected as a
Participant through the last day of the applicable Performance Period. Except as provided in



2









 




Section 7(b), if a Participant’s employment terminates for any reason during a Performance Period
(including, but not limited to, the Participant’s voluntary resignation), such Participant shall be
entitled to receive payment of the amount, if any, determined pursuant to Section 7(c).




     (b) Termination for Cause or Termination Before Six Months of the Performance Period Have
Passed. If a Participant’s employment is terminated (i) for “Cause” at any time prior to
payment of any amount in respect of any Target Incentive under Section 6, or (ii) for any other
reason and fewer than six months of the Performance Period have passed, then such Participant shall
forfeit any right to receive any payment in respect of his or her Target Incentive for that
Performance Period (regardless of whether the Performance Period shall have been completed and an
amount would otherwise have been payable to the Participant in respect of his or her Target
Incentive). For purposes of this Plan, the term “Cause” means (i) the
Participant’s failure to follow or comply with a reasonable and lawful written directive of the
Board of Directors or the CEO, (ii) the Participant’s failure to perform the substantial
responsibilities of his or her position, (iii) any act of dishonesty, gross negligence, or
misconduct by the Participant, including any violation of a material Company policy or breach of
fiduciary duty owed by the Participant to the Company (even if no harm results from such act),
(iv) the Participant’s conviction of or entering a plea of guilty or nolo contendere to a
crime constituting a felony or the Participant’s willful violation of any law, rule or regulation,
or (v) the Participant engages in,
or is interested in, (as owner, partner, shareholder, employee, director, agent, consultant or
otherwise), any business which is a “competitor” of the Company. “Competitor” of the Company is
any corporation, sole proprietorship, partnership, joint venture, syndicate, trust or any other
form of organization or parent, subsidiary or division of any of the foregoing, which is engaged in
the transportation, purchase, brokering, marketing or trading of natural gas or other energy
products or services which are competitive to the Company’s products or services, any of which is
engaged in within 50 miles of the geographic area in which the Company is engaged in such
competitive business, provided that a present or future investment in the securities of companies
listed on a national securities exchange or traded on the over-the-counter market to the extent
such investments do not exceed 2% of the total outstanding shares of such company will not
constitute engagement or interest in a “competitor.”



     (c) Termination for Any Other Reason and the Passing of Six or More Months of the
Performance Period. Subject to the last sentence of this Section 7(c), if a Participant’s
employment terminates during a Performance Period for any reason other than Cause and six or more
months of the Performance Period have passed, the amount payable to the Participant in respect of
the Participant’s Target Incentive for any Performance Period shall be equal to the product of
(x) the amount that would have been payable in respect of the Participant’s Target
Incentive had such Participant been employed for the entire Performance Period (as determined in
accordance with Section 5 based on the CEO’s assessment of the achievement of the Performance
Conditions for the Performance Period) multiplied by (y) the Participant’s Pro-Rata
Fraction. With respect to any Participant, the “Pro-Rata Fraction” is a fraction, the
numerator of which is the number of days in the Performance Period completed prior to and including
the date of Participant’s termination of employment, and the denominator of which is the total
number of days in the Performance Period. To the extent a Participant becomes entitled to receive
any payment as provided in this Section 7(c), such payment shall be made not later than 2 1/2 months
after the end of the calendar year in which the relevant Performance Period ends. Any payment to a
Participant



3









 




pursuant to this Section 7(c) shall be subject to the CEO’s discretion described in
Section 4(b), as well as such terms and conditions (including, but not limited to, the execution of
a release and/or certain restrictive covenants in favor of the Company) as the CEO shall determine
not later than the date of such Participant’s termination of employment.




     Section 8. Change of Control. In the event of a Change of Control, all then in
progress Performance Periods shall be deemed to have ended as of the end of the last fiscal quarter
of the Company ended prior to the occurrence of such Change of Control and the rights of each
Participant to receive payment in respect of any outstanding Target Incentive shall be determined
in the following manner: (i) the Performance Period shall be deemed to have ended as of the
end of the fiscal quarter ended coincident with or immediately prior to the occurrence of such
Change of Control; (ii) the CEO, as determined immediately prior to such Change of Control,
shall certify the amount payable with respect to each Target Incentive based on achievement of the
Performance Conditions through the end of the truncated Performance Period, but annualizing the
performance for the then current fiscal year and subject to such other adjustments, if any,
specified by the Committee at the time such Performance Conditions are first established; and
(iii) the amount payable to each Participant shall be equal to the product of (A)
the amount determined pursuant to subclause (ii) and (B) a fraction, the numerator of which
is
the number of days in the Performance Period completed prior to, and including, the Change of
Control and the denominator of which is the total number of days in the Performance Period.



     For purposes of this Plan, a “Change in Control” shall mean:




     (i) either (a) receipt by the Company of a report on Schedule 13D, or an
amendment to such a report, filed with the Securities and Exchange Commission (the “SEC”)
pursuant to Section 13(d) of the 1934 Act disclosing that any person (as such term is used
in Section 13(d) of the 1934 Act) (“Person”), is the beneficial owner, directly or
indirectly, of twenty (20) percent or more of the outstanding stock of the Company or
(b) actual knowledge by the Company of facts, on the basis of which any Person is
required to file such a report on Schedule 13D, or to make an amendment to such a report,
with the SEC (or would be required to file such a report or amendment upon the lapse of the
applicable period of time specified in Section 13(d) of the 1934 Act) disclosing that such
Person is the beneficial owner, directly or indirectly, of twenty (20) percent or more of
the outstanding stock of the Company;




     (ii) purchase by any Person, other than the Company, a Subsidiary or any employee
benefit plan of the Company or any Subsidiary, of shares pursuant to a tender or exchange
offer to acquire any stock of the Company (or securities convertible into stock) for cash,
securities or any other consideration, provided that, after consummation of the offer, such
Person is the beneficial owner (as defined in Rule 13d-3 under the 1934 Act), directly or
indirectly, of twenty (20) percent or more of the outstanding stock of the Company
(calculated as provided in paragraph (d) of Rule 13d-3 under the 1934 Act in the case of
rights to acquire stock);




     (iii) consummation 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



4









 






a consolidation or merger of the Company in which holders of its stock 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




     (iv) a change in the majority of the members of the Board of Directors within a
24-month period unless the election or nomination for election by the Company’s shareholders
of each new director was approved by the vote of at least two-thirds of the directors then
still in office who were in office at the beginning of the 24-month period.



     Section 9. Administration. The CEO (or such other officer or officers to whom the
CEO shall delegate such responsibility (each, a “Delegate”)) shall administer and interpret the
Plan. The CEO shall establish the Performance Conditions for any Performance Period in accordance
with Section 4 and determine whether such Performance Conditions have been obtained with respect to
such Performance Period in accordance with Section 5. Any determination made by the CEO under the
Plan shall be final and conclusive. The CEO (or any Delegate) may employ such legal counsel,
consultants and agents (including counsel or agents who are employees of the Company or a
Subsidiary) as it may deem desirable for the administration of the Plan and may rely upon any
opinion received from any such counsel or consultant or agent and any computation received from
such consultant or agent. All expenses incurred in the administration of the Plan, including,
without limitation, for the engagement of any counsel, consultant or agent, shall be paid by the
Company. Neither the CEO nor any Delegate shall be liable for any action or determination made in
good faith under the Program or with respect to any Target Incentive awarded or payable thereunder.



     Section 10. Nonassignment. A Participant shall not be permitted to assign, alienate
or otherwise transfer any interest in his or her Target Incentive and any attempt to do so shall be
void. A Participant’s interests under this Plan shall not be subject to garnishment or execution
or levy of any kind, and any attempt to cause any benefits to be so subjected shall not be
recognized. This Plan shall be an unfunded plan and a Participant shall have only the rights of a
general creditor of the Company with respect to such Participant’s interest under this Plan.



     Section 11. Impact on Benefit Plans. Payments under the Program shall be considered
as earnings for purposes of any of the Company’s employee benefit plans, programs or arrangements,
including, but not limited to, its qualified retirement plans or non-qualified retirement plans or
for any other retirement or benefit plan, unless otherwise excluded under the terms of any such
plan. Nothing herein shall prevent the Company from maintaining additional compensation plans and
arrangements, provided however that no payments shall be made under such plans and
arrangements if the effect thereof would be the payment of compensation otherwise



5









 




payable under
this Program regardless of whether the applicable Performance Condition was attained.




     Section 12. Successors. The obligation of the Company under the Program shall be
binding upon the successors and assigns of the Company.



     Section 13. Applicable Law. This Program shall be governed by and construed under
the laws of the State of New York without regard to its conflict of law provisions.



     Section 14. Severability. In the event that any one or more of the provisions of
this Program shall be held to be invalid, illegal or unenforceable, the validity, legality or
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.



     Section 15. Tax Withholding. The Company shall have the power to withhold from any
amount payable hereunder an amount sufficient to satisfy federal, state and local or non-U.S.
withholding tax requirements on any amount payable under this Program.



     Section 16. No Voluntary Election to Defer. Unless and to the extent expressly
permitted by the Company on such terms and conditions as it shall deem necessary or appropriate, no
amount payable under the Program may be electively deferred by a Participant past the date as of
which such amount would otherwise be paid hereunder. Notwithstanding the foregoing, the Company
may defer payment of any amount payable in respect of any Target Incentive if and to the extent
such payment would, if made at the time otherwise required under the Program, not be deductible by
the Company or any Subsidiary by reason of Section 162(m) of the Internal Revenue Code of 1986, as
amended (the “Code”). Notwithstanding anything in this Program to the contrary, any deferral of
payment permitted or required in accordance with this Section 16 shall at all times comply with the
applicable provisions of Section 409A of the Code and all determinations with respect thereto shall
be made in a manner intended to avoid the imposition on any Participant of the additional taxes set
forth in such Section 409A.



     Section 17. No Guarantee of Employment. Nothing in this Plan shall interfere with or
limit in any way the right of the Company or a Subsidiary to terminate any Participant’s employment
at any time, nor confer upon any Participant any right to continue in the employ of the Company or
a Subsidiary.



     Section 18. Headings. The descriptive headings of the Sections of this Program are
inserted for convenience of reference only and shall not constitute a part of this Program. Except
when otherwise indicated by the context, the singular shall be read and interpreted as the plural
(when appropriate), and the plural shall include the singular.



     Section 19. Amendment or Termination of this Program. This Program may be amended,
suspended or terminated by the Company at any time upon approval by the Compensation Committee of
the Board of Directors (or such other committee of that the Board shall authorize to take such
action). Notwithstanding the foregoing, no amendment, suspension or termination shall adversely
affect a Participant’s rights with respect to any Target Incentive previously established, except
as provided herein.



6