Exhibit 10.01(h)


 


EQUITABLE
RESOURCES, INC.

2007 SUPPLY LONG-TERM INCENTIVE PROGRAM

(as amended and restated December 3, 2008)


 


EQUITABLE RESOURCES, INC. (the “Company”) hereby establishes this
EQUITABLE RESOURCES, INC. 2007 SUPPLY LONG-TERM INCENTIVE PROGRAM (the “Program”)
as of this 1st day of July, 2007, as amended and restated December 3,
2008, in accordance with the terms provided herein.


 


WHEREAS, the Company maintains certain long-term incentive award plans
including the 1999 Equitable Resources, Inc. Long-Term Incentive Plan (the
“1999 Plan”) for the benefit of its employees and executives, of which the
Program is a subset;


 


WHEREAS, in order to align the interests of employees with the
interests of the shareholders, customers and the strategic objectives of the
Company, the Company desires to provide long-term incentive award opportunities
through the Program in the form of awards qualifying as “Performance Awards”
under the 1999 Plan;


 


NOW, THEREFORE, the Company
hereby adopts the Program on the following terms and conditions:


 


Section 1.  Incentive
Program Purpose. 
The purpose of the Program is to provide long-term incentive award
opportunities to key employees in the Company’s Supply segment (the “Supply
Segment” business unit) and align their interests with those of the Company’s
shareholders and customers and with the strategic objectives of the
Company.  Awards granted hereunder may be
earned by achieving pre-determined absolute performance levels and by
satisfying certain applicable employment requirements, and are forfeited if
defined performance levels or applicable employment requirements are not
achieved.  By placing a portion of the
employee’s compensation at risk, the Company has an opportunity to reward
exceptional performance or reduce the compensation opportunity when performance
does not meet expectations.  The Program
shall be construed consistent with the provision of the 1999 Plan with respect
to awards to Covered Employees, as such term is defined in the 1999 Plan, and
the deductibility of such awards under Section 162(m) of the Internal
Revenue Code of 1986, as amended (the “Code”).


 


Section 2.  Effective Date.  The effective date of this Program is July 1,
2007.  The Program will remain in effect
until the earlier of December 31, 2010 or the closing date of a Change of
Control of the Company, determined in accordance with Section 5, unless
otherwise amended or terminated as provided in Section 18 (“Termination
Date”).


 

















 


Section 3.  Eligibility. 
The Chief Executive Officer of the Company (the “CEO”) shall, in his or
her sole discretion, recommend the employees of the Company who shall be
eligible to participate in the Program. 
The CEO’s selections will become participants in the Program (the “Participants”)
only upon approval by the Compensation Committee of the Board of Directors (the
“Committee”), comprised in accordance with the requirements of the 1999
Plan.  In the event that an employee is
hired or promoted by the Company during any Performance Period, as defined
below, the employee may become eligible to participate in the Program, subject
to Committee approval, in the next succeeding Performance Period.


 


Section 4.  Performance Incentive Share Unit Awards.  Each Participant shall be allocated a number
of performance incentive share units (the “Target Share Units”) relative to one
or more of the Performance Periods, as may be specified in the award and
subject to the conditions provided herein, the value of which is determined by
reference to the Company’s stock. 
Allocations of Target Share Units shall be proposed by the CEO and
approved by the Committee.  The Target
Share Units may be increased by as much as three times the number awarded or
reduced to zero, based solely on the achievement of the Performance Condition
as described in Section 5.  The
Committee shall have no discretion to increase the Target Share Units.


 


The Target Share Units shall be held in escrow by the
Company subject to satisfaction of the terms and conditions described
below.  A Participant shall have no right
to exchange the Target Share Units for cash, stock or any other benefit and
shall be a mere unsecured creditor of the Company with respect to such share
units and any future rights to benefits.


 


Section 5.  Performance Condition.  Subject to Section 6, the total number
of Target Share Units that may be issued (“Awarded Share Units”) to a
Participant will be based on Supply Segment Revenues, as calculated below, (the
“Performance Condition”).


 


(a)                                  Performance Periods.  The Performance Condition shall be measured
over three Performance Periods as follows:


 


	
  Performance
  Period

  	
   

  	
  Dates

  
	
  #1

  	
   

  	
  July 1, 2007 — December 31, 2008

  
	
  #2

  	
   

  	
  January 1, 2009 — December 31, 2009

  
	
  #3

  	
   

  	
  January 1, 2010 — December 31, 2010

  



 


(i)                         For purposes of this
Program, Supply Segment Revenues shall be measured as the Sales Price
multiplied by Total Sales Volume for each Performance Period.  Sales Price shall equal $4.82 for each Performance
Period.


 


(ii)                      Total Sales Volume.  For purposes of this Program, Total Sales Volume for each Performance
Period equals the sum of the production total sales volumes (mmcfe) reported in
the applicable Form 10-Q for each quarter and, in the case of the fourth
quarter of any year, the volumes calculated for the fourth quarter by reducing 


 


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the annual production total sales volume reported in
the Form 10-K by the quarterly production total sales volumes reported in
the Forms 10-Q for the first three quarters of such year. For the avoidance of
doubt, (a) Total Sales Volume is determined solely by the volumes
reported, regardless of any subsequently identified prior period adjustment, (b) Total
Sales Volume represents the Company’s interest in gas and oil sales during the
applicable period and (c) gathered volumes are not included.  For each individual and the collective
Performance Periods, Total Sales Volume shall be measured on a basis consistent
with current practice on the date of adoption of the Program.


 


(iii)                   Allocation of Target
Share Units among Performance Periods. 
Unless otherwise specifically allocated for a particular Performance
Period or Periods, the Target Share Units for each Participant will be divided
into 20%, 30% and 50% increments for the first, second and third Performance
Periods, respectively.


 


(iv)                  Application of
Performance Condition to Individual Performance Periods.  Except as provided in Section 5(b), the
Target Share Units for each Performance Period will be multiplied by the Payout
Factor identified on the 2007 Supply Long-Term Incentive Program Payout Matrix
(Attachment A) that corresponds to the Supply Segment Revenues, as calculated
in accordance with this Program, for the relevant Performance Period.  The result of the calculation is the number
of Awarded Share Units for the Performance Period which may be issued to a
Participant contingent upon satisfaction of the Initial and Continuing
Employment Conditions set forth in Sections 6(a) and (b).


 


(v)                     Potential
Three-Year Cumulative Performance Award.  Participants who have participated in the
Program and remained employed with the Company during each of the three
Performance Periods are eligible to receive a three-year cumulative performance
award, calculated in accordance with this Section 5(a)(v), subject to
satisfaction of the Initial and Continuing Employment Conditions set forth in
Sections 6(a) and (b).  Upon
completion of the third Performance Period, the cumulative Supply Segment
Revenues for the three Performance Periods shall be calculated and measured
against the Payout Factor identified on Attachment A for such cumulative
Supply Segment Revenues.  If the
resulting cumulative Payout Factor is greater than or equal to each individual
Performance Period Payout Factor identified in accordance with subsection (iv),
above, then the Target Share Units for each Performance Period for such
eligible Participants shall be adjusted to the higher amount by using the
cumulative Payout Factor.  In the event
that any Performance Period terminates due to a Change of 


 


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Control, as provided in Section 5(b), no
cumulative performance awards shall be payable pursuant to this Section 5(a)(v).


 


(vi)                  Potential
Two-Year Cumulative Performance Award.  Participants who have participated in the Program
and remained employed during each of the second and third, but not the first,
Performance Periods are eligible to receive a two-year cumulative performance
award, calculated in accordance with this Section 5(a)(vi), subject to
satisfaction of the Initial and Continuing Employment Conditions set forth in
Sections 6(a) and (b).  Upon
completion of the third Performance Period, the cumulative Supply Segment
Revenues for the second and third Performance Periods shall be calculated and
measured against the Payout Factor identified on Attachment A for such
cumulative Supply Segment Revenues.  If
the resulting cumulative Payout Factor is greater than or equal to each
individual Performance Period Payout Factor identified for the second and third
Performance Periods in accordance with subsection (iv), above, then the Target
Share Units for the second and third Performance Periods for such eligible
Participants shall be adjusted to the higher amount by using the cumulative
Payout Factor.  In the event that any Performance
Period terminates due to a Change of Control, as provided in Section 5(b),
no cumulative performance awards shall be payable pursuant to this Section 5(a)(vi).


 


(b)                                 Change of Control.  Notwithstanding Section 9 of the 1999
Plan, the performance criteria and other restrictions and conditions on any
outstanding award shall not automatically lapse or be deemed to be achieved,
fulfilled or waived in the event of a Change of Control, as then defined in the
1999 Plan.  The Committee may, in the
event of a Change of Control, cause the then-current Performance Period to
terminate on the date of the Change of Control. 
If the Performance Period terminates, the Supply Segment Revenues shall
be calculated for the number of reported calendar quarters in the Performance
Period.  The Supply Segment Revenue
amounts identified on Exhibit A for the then-current Performance Period
shall be divided by four (or six in the case of the first Performance Period)
and multiplied by the number of reported calendar quarters in such Performance
Period, and compared to actual Supply Segment Revenues, calculated in
accordance with this Program to determine the corresponding Payout Factor.  The Target Share Units for the then-current
Performance Period will be multiplied by the corresponding Payout Factor.  The result of this calculation will then be
multiplied by a fraction, the numerator of which is the number of completed
days within the then-current Performance Period and the denominator of which is
the number of days in the Performance Period, to calculate the Awarded Share
Units for such Performance Period that will be paid to a Participant,
contingent upon satisfaction of the Initial and Continuing Employment
Conditions set forth in Sections 6(a) and (b).


 


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Section 6.  Employment Conditions.  Payments under the Program are expressly
contingent upon satisfaction of the condition set forth in subsection 6(a) (the
“Initial Employment Condition”) and subsection 6(b) (the “Continuing
Employment Condition”).  The Initial
Employment Condition and the Continuing Employment Condition are collectively
referred to herein as the “Employment Conditions”.  Awarded Share Units calculated in accordance
with Section 5 shall vest upon satisfaction of the Employment Conditions.


 


(a)                                  Initial Employment
Condition:  Termination during or prior
to commencement of a Performance Period. 
Target Share Units applicable to a particular Performance Period shall
be forfeited if the Participant’s employment is terminated for any reason
during, or if the Participant is not otherwise employed by the Company
throughout, the Performance Period.


 


(b)                                 Continuing Employment
Condition:  Termination following a
Performance Period.


 


(i)                                     Awarded Share Units
applicable to the first Performance Period shall be forfeited if the
Participant’s employment is terminated for any reason after the end of the
first Performance Period and prior to the earlier of (x) the second
anniversary of the end of the first Performance Period or (y) the early
termination of the then-current Performance Period by reason of a Change of
Control or otherwise, except for (i) an involuntary termination of
Participant’s employment by the Company for reasons other than misconduct,
failure to perform or other cause, (ii) the Participant’s death or (iii) the
Participant’s disability, as defined in Section 409A(a)(2)(C) of the
Code.


 


(ii)                                  Awarded Share Units
applicable to the second Performance Period shall be forfeited if the
Participant’s employment is terminated for any reason after the end of the
second Performance Period and prior to the earlier of (x) the first
anniversary of the end of the second Performance Period or (y) the early
termination of the then-current Performance Period by reason of a Change of
Control or otherwise, except for (i) an involuntary termination of
Participant’s employment by the Company for reasons other than misconduct,
failure to perform or other cause, (ii) the Participant’s death or (iii) the
Participant’s disability, as defined in Section 409A(a)(2)(C) of the
Code.


 


(iii)                               Awarded Share Units
applicable to the third Performance Period and the cumulative Performance
Periods, as set forth in Section 5(a)(v) and (vi), shall be forfeited
if the Participant’s employment is terminated for any reason prior to the end
of the third Performance Period.


 


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Notwithstanding
the foregoing, Awarded Share Units shall be forfeited if the Participant’s
employment is terminated by reason of voluntary resignation prior to the date
of payment.  For purposes of this
Program, the effective date of a Participant’s termination shall be the date on
which the Participant ceased to perform services as an employee of the Company,
without regard to accrued vacation, severance or other benefits or the
characterization thereof on the payroll records of the Company.


 


Section 7.  Dividends. 
Following the end of the Performance Period and until payment therefor
or forfeiture thereof, each Awarded Share Unit for such Performance Period, as
calculated in accordance with Section 5, will be cumulatively credited
with dividends that are paid on the Company’s common stock in the form of
additional share units.  These additional
share units shall be deemed to have been purchased on the last business day of
the month in which the record date for the dividend occurs using the closing
stock price for the Company as reported in The
Wall Street Journal and shall be subject to all the same conditions
and restrictions as provided in this Program applicable to the underlying
Awarded Share Units.


 


Section 8.  Payment.  Subject to Sections 5 and 6, Awarded Share
Units shall be payable within two and one-half months following the end of the
year in which the Awarded Share Units have vested and are no longer subject to
a substantial risk of forfeiture; provided, however,
in the event that any such amounts are conditioned upon a separation from
service and not compensation the Participant could receive without separating
from service, then no such payments may be made to a Participant who is a “specified
employee” under Section 409A of the Code until the first day following the
six-month anniversary of the Participant’s separation from service.


 


Such Awarded Share Units will be distributed in cash, the amount of
which shall be calculated based upon each Awarded Share Unit being equal in
value to a corresponding share of Company stock as determined under the 1999
Plan as of the date on which the final Performance Period ends, or in any case
if such day is not a business day, the next succeeding business day.


 


Payments under the Program are expressly contingent upon achievement of
the Performance Condition and may not exceed the value calculated in accordance
with the terms hereof.  The maximum
amount payable to any one Participant under the Program in any one calendar
year shall be the amount set forth and as calculated in the 1999 Plan, as
approved by shareholders of the Company.


 


Section 9.  Responsibilities of the Committee. 
The Committee has responsibility for all aspects of the Program’s
administration, including:


 


·                  Determining and certifying in writing the
extent to which the Performance Condition and other conditions have been
achieved prior to any payments under the Program,


 


·                  Ensuring that the Program is administered
in accordance with its provisions,


 


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·                  Approving Program Participants,


 


·                  Interpreting and administering the
Program and any instrument or agreement relating to, or award made under, the
Program,


 


·                  Authorizing Target Share Unit awards to
Participants,


 


·                  Ruling on any disagreement between
Program Participants, the Company, and any other interested parties to the
Program,


 


·                  Adopting, amending, suspending, waiving
and rescinding such rules and regulations as deemed necessary or advisable
to administer the Program,


 


·                  Making decisions and determinations as
required under the Program or as deemed necessary or advisable for
administration of the Program,


 


·                  Prescribing the form of any award
agreement, which need not be identical for each Participant, and


 


·                  Maintaining final authority to modify or
terminate the Program at any time.


 


The
interpretation and construction by the Committee of any provisions of the
Program or of any Target Share Units or Awarded Share Units shall be
final.  All conditions of the Target
Share Units must be approved by the Committee. 
As early as practicable prior to or during the Performance Period, the
Committee shall approve the number of Target Share Units to be awarded to each
Participant.  The associated terms and
conditions of the Program will be communicated to Participants as close as
possible to the date an award is made. 
The Participant will sign and return a participant agreement to the Chief
Human Resources Officer or his or her designee.


 


Section 10.  Tax Consequences to Participants. 
It is intended that: (i) until the Performance Condition and
applicable Employment Conditions are satisfied and payment is made, a
Participant’s right to an award under this Program shall be considered to be
subject to a substantial risk of forfeiture in accordance with those terms as
defined or referenced in Sections 83(a), 409A and 3121(v)(2) of the Code; (ii) the
Awarded Share Units shall be subject to employment taxes only upon the
satisfaction of the Performance Condition and applicable Employment Conditions;
and (iii) until the Awarded Share Units are actually paid to the
Participant, the Participants shall have merely an unfunded, unsecured promise
to be paid the benefit, and such unfunded promise shall not consist of a
transfer of “property” within the meaning of Code Section 83.  It is further intended that, because a
Participant cannot actually or constructively receive the Target or Awarded
Share Units prior to payment, the Participant will not be in actual or
constructive receipt of the Target or Awarded Share Units within the meaning of
Code Section 451 until they are actually paid.


 


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Section 11.  Nonassignment.  A
Participant shall not be permitted to assign, alienate or otherwise transfer
his or her Target or Awarded Share Units and any attempt to do so shall be
void.


 


Section 12.  Impact on
Benefit Plans. 
Payments under the Program shall not be considered as earnings for
purposes of the Company’s qualified retirement plans or any such retirement or
benefit plan unless specifically provided for and defined under such
plans.  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 payable under this Program regardless of whether the Performance
Condition was attained.


 


Section 13.  Successors;
Changes in Stock. 
The obligation of the Company under the Program shall be binding upon
the successors and assigns of the Company. 
If a dividend or other distribution shall be declared upon the Company’s
common stock payable in shares of Company common stock, the Target and Awarded
Share Units shall be adjusted by adding thereto the number of shares of Company
common stock which would have been distributable thereon if such Target and
Awarded Share Units had been actual Company shares and outstanding on the date
fixed for determining the shareholders entitled to receive such stock dividend
or distribution.  In the event of any
spin-off, split-off or split-up, or dividend in partial liquidation, dividend
in property other than cash, or extraordinary distribution to shareholders of
the Company’s common stock, the Target and Awarded Share Units shall be
appropriately adjusted to prevent dilution or enlargement of the rights of
Participants which would otherwise result from any such transaction, provided
such adjustment shall be consistent with Code Section 162(m).


 


In the case of a Change of Control, any obligation under the Program
shall be handled in accordance with the terms of Section 5(b) hereof.  In any case in which the Company’s common
stock is changed into or becomes exchangeable for a different number or kind of
shares of stock or other securities of the Company or another corporation, or
cash or other property, whether through reorganization, reclassification,
recapitalization, stock split-up, combination of shares, merger or
consolidation, then there shall be substituted for each performance incentive
share units constituting an award, units representing the number and kind of
shares of stock or other securities (or cash or other property) into which each
outstanding share of the Company’s common stock shall be so changed or for
which each such share shall be exchangeable (and substituting the Federal
one-year Treasury Bill interest rate for dividends in the case of units
represented by cash or property).  In the
case of any such adjustment, the Target and Awarded Share Units shall remain
subject to the terms of the Program.


 


Section 14.  Dispute Resolution. 
The Participant may make a claim to the Committee with regard to a
payment of benefits provided herein.  If
the Committee receives a claim in writing, the Committee must advise the
Participant of its decision on the claim in writing in a reasonable period of
time after receipt of the claim (not to exceed 120 days).  The notice shall set forth the following
information:


 


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(a)                                  The specific basis for its decision,


 


(b)                                 Specific reference to pertinent Program
provisions on which the decision is based,


 


(c)                                  A description of any additional material
or information necessary for the Participant to perfect a claim and an
explanation of why such material or information is necessary, and


 


(d)                                 An explanation of the Program’s claim
review procedure.


 


Section 15.  Applicable Law.  This
Program shall be governed by and construed under the laws of the Commonwealth
of Pennsylvania without regard to its conflict of law provisions.


 


Section 16.  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 17.  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.


 


Section 18.  Amendment or Termination of this Program.  This Program may be amended, suspended or
terminated by the Company at any time upon approval by the Committee without
liability therefor, including without limitation any potential liability for
potential cumulative performance awards described in Section 5(a)(v) and
(vi) hereof; provided, however, the Committee may not amend, suspend or
terminate the Program with respect to the then-current Performance Period
except within the first 30 days of such Performance Period and no amendment,
suspension or termination shall adversely affect a Participant’s rights to his
or her award for prior Performance Periods, subject to satisfaction of the
applicable Employment Conditions set forth in Section 6.  Notwithstanding the foregoing, the Company
may amend this Program from time to time without any Participant’s consent to
the extent deemed necessary or appropriate, in its sole discretion, to effect
compliance with Section 409A of the Code, including regulations and
interpretations thereunder, which amendments may result in a reduction of
benefits provided hereunder and/or other unfavorable changes to
Participants.  Upon termination of the
Program, all Target Share Units shall automatically be forfeited and terminate
without further action required of the Company. 
Amendment, suspension or termination must be approved by the Committee.


 


*            *            *


 


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