SECOND AMENDED AND RESTATED EQUITRANS MIDSTREAM CORPORATION
EXECUTIVE SHORT-TERM INCENTIVE PLAN
Section 1. Incentive Plan Purposes. The main purposes of the Second Amended and Restated Equitrans Midstream Corporation (the “Company”) Executive Short-Term Incentive Plan (the “Plan”) are to maintain a competitive level of total cash compensation by providing the Company’s executive officers with an opportunity to earn incentives based upon the achievement of performance goals over a specified performance period and to align the interests of the Company’s executives with those of the Company’s shareholders and other stakeholders and with the strategic objectives of the Company.
Section 2. Effective Date; Performance Periods. The Plan was originally effective January 1, 2021 and has subsequently been amended and restated effective January 1, 2022 and January 1, 2023. The Plan will remain in effect until formally amended or terminated in writing by the Company’s Board of Directors (“Board”) or the Human Capital and Compensation Committee of the Board (such committee or any successor thereof, “Committee”) and as provided in Section 14 or the occurrence of a Change of Control as provided in Section 11. Unless otherwise determined by the Committee and subject to Section 11, each performance period under the Plan (each, a “Performance Period”) shall begin on January 1 and end on December 31 of each calendar year.
Section 3. Eligibility. All executive officers of the Company shall be eligible to participate in the Plan (each, a “Participant”). Notwithstanding the foregoing, the Committee may exclude specific executive officers from participation in the Plan in its complete and sole discretion and hereby determines that all such persons who are not executive officers under Rule 16a-1(f) of the Securities Exchange Act of 1934 are excluded from participation in the Plan unless otherwise determined by the Committee.
Section 4. Administration of the Plan. The Plan shall be administered by the Committee or its delegate. On an annual or periodic basis, as determined by the Committee, for each Performance Period, (i) the Committee shall determine the Performance Metrics, as defined in Section 5, and (ii) the Committee shall set target incentive percentages (the “Target Incentive Percentages”) for all Participants. The Committee shall review the aggregate payout amounts attributable to the Target Incentive Percentages for all Participants for each Performance Period.
Prior to payment of any Award Bonus (as defined in Section 6(b)) for any Performance Period, the Committee shall certify in writing the Performance Metrics achieved and related payout factor earned for such Performance Period, which writing may include meeting minutes of the Committee.
Section 5. Program Metrics.
(a) Each Performance Period shall have specific metrics (the “Performance Metrics”). These Performance Metrics will support the business of the Company, or an affiliate of the Company, as applicable, and be based upon the specific performance measures established for the Performance Period.
(b) The Performance Metrics for each Performance Period shall be determined in writing by the Committee (which may be by meeting minutes of the Committee); provided that in no event will Performance Metrics be
established when the outcome of such Performance Metrics is no longer substantially uncertain.
(c) The Performance Metrics determined by the Committee will be objectively determinable goals based upon one or more performance measures determined at the discretion of the Committee, including, by way of example but without limitation, the following:
•earnings per share
•revenue
•expenses
•return on equity
•return on total or invested capital
•return on assets
•earnings (such as net income, EBIT and similar measures)
•cash flow (such as EBITDA, after-tax cash flow, distributable cash flow, free cash flow, retained free cash flow and similar measures)
•share price
•debt reduction or leverage
•gross margin
•operating income
•volumes metrics (such as volumes gathered, transported or processed and similar measures)
•operating efficiency metrics (such as general and administrative (G&A) metrics, unit gathering, compression and water services expenses and other midstream efficiency measures, lost and unaccounted for gas metrics, compressor or processing downtime and similar measures)
•construction efficiency metrics (such as timely completion, cost within budget and similar measures)
•methane reduction or other sustainability metrics
•closing of a transaction
•safety and environmental performance
•total shareholder return
(d) The Performance Metrics may be based either on the performance of the Company, or an affiliate, branch, department or other portion thereof, for the applicable Performance Period and/or upon a comparison of such performance with the performance of a peer group of corporations and/or partnerships, prior Company performance or other comparative measure selected by the Committee before, at, or, subject to subsection (b) above, after the time of determining each Target Bonus (as defined in Section 6(a)) for the applicable Performance Period. Performance Metrics may be specified in absolute terms, on an adjusted basis, in percentages, or in terms of growth or reduction from period to period or growth or reduction rates over time, as well as measured relative to the performance of a group of comparator companies, or a published or special index, or a stock market index, that the Committee deems appropriate. Performance Metrics need not be based upon an increase or positive result under a business criterion and could include, for example, the maintenance of the status quo, the reduction of expenses or the limitation of economic losses (measured, in each case, by reference to a specific business criterion). Performance Metrics may, but need not, be determinable in conformance with generally accepted accounting principles.
(e) When the Performance Metrics are determined by the Committee, the weighting assigned to, and the levels of achievement (e.g., Threshold, Target, Maximum) for, if any, each Performance Metric shall be specified. In addition, the Committee may specify that any determination of achievement of the Performance Metrics shall exclude or otherwise objectively adjust for any specified circumstance or event that occurs during the Performance Period, including, by way of example but without limitation, the following: (i) non-recurring items impacting the calculation; (ii) the effect of changes in tax laws, accounting principles or other laws or provisions; and (iii) acquisitions or divestitures.
Section 6. Target and Award Bonuses.
(a)Subject to Section 10(a), a Participant’s target bonus is calculated by multiplying the Participant’s Target Incentive Percentage by such Participant’s annualized base salary, each as of September 30th of the applicable Performance Period (or with respect to Section 10(b) or Section 11, the Participant’s date of termination as a result of Participant’s death, disability (as defined below), retirement (as defined below), or termination without Cause (as defined below), or the date of the Change of Control, as applicable, if earlier) (the “Target Bonus”).
(b) A Participant’s award bonus (“Award Bonus”) is determined following the end of the applicable Performance Period. Award Bonuses for each Performance Period are calculated by multiplying (i) the Participant’s Target Bonus by (ii) the payout factor attributable to the actual level of achievement for each Performance Metric.
(c)The Committee shall have no discretion to increase any Award Bonus that would otherwise be payable based upon attainment of the Performance Metrics, but the Committee may in its discretion reduce or eliminate such Award Bonus (including such relevant portion thereof in the event of the fatality of, or a serious injury to, a Company employee or contractor); provided, however, that the exercise of such negative discretion shall not be permitted to result in any increase in the amount of any Award Bonus payable to any other Participant. Notwithstanding the foregoing, the Committee shall have the discretion to designate an aggregate payment amount (a “Discretionary Pool”) that may be paid to any or all of the Participants in such amounts and to such Participants as determined by the CEO in his or her sole discretion; provided that, the Committee must approve any payment from the Discretionary Pool. In the event any payments are made from a Discretionary Pool, the timing of such payments shall be in accordance with the provisions of Section 6(e) or, if applicable, Section 9(d). For purposes of clarity, any payment to a Participant from the Discretionary Pool shall be in excess of the payment amount such Participant is entitled to based upon attainment of the Performance Goals under his or her award.
(d) The maximum aggregate Award Bonus payable to any Participant for any calendar year is $5,000,000.
(e) Except as provided in Section 7 of the Plan, Award Bonuses shall be paid in cash no later than 2½ months after the end of a Performance Period in
which the right to payment is no longer subject to a substantial risk of forfeiture; provided, further, that the Committee has determined and certified in writing the extent to which the Performance Metrics have been attained and the Award Bonuses have been earned.
Section 7. Form of Payment. The Committee may, in its discretion, determine to satisfy, in whole or in part, an obligation for any Award Bonus by issuing, in substitution for a cash payment, in whole or in part, shares of Company common stock having a fair market value (measured as of the date of the Committee’s determination of the payment amount) equal to the cash payment, under and pursuant to the terms of the Equitrans Midstream Corporation 2018 Long-Term Incentive Plan, as amended, modified, and/or supplemented from time to time, or any successor, substitute, or replacement plan (the “LTIP”).
Section 8. Impact on Benefit Plans. Payments under the Plan 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 or as otherwise determined by the Committee.
Section 9. Tax Consequences.
(a) It is intended that nothing in this Plan shall cause the Participants in the Plan to be taxed currently under the Constructive Receipt or Economic Benefit Doctrines and as expressed in Sections 451 and 83 of the Internal Revenue Code of 1986, as amended (the “Code”). The terms, requirements and limitations of this Plan shall be interpreted and applied in a manner consistent with such intent.
(b) It is intended that the Award Bonuses payable under the Plan shall either be exempt from the application of, or comply with, the requirements of Section 409A of the Code. The Plan shall be construed in a manner that effects such intent. Nevertheless, the tax treatment of the benefits provided under the Plan or any Award Bonus is not warranted or guaranteed. None of the Company, its affiliates and their respective directors, officers, employees or advisers shall be held liable for any taxes, interest, penalties or other monetary amounts owed by any Participant or other taxpayer as a result of the Plan or any Award Bonus.
(c) Notwithstanding anything in the Plan to the contrary, to the extent that any Award Bonus would constitute non-exempt “deferred compensation” for purposes of Section 409A of the Code and would be payable or distributable under the Plan by reason of the occurrence of a Change of Control, or the Participant’s disability or separation from service, such amount or benefit will not be payable or distributable to the Participant by reason of such circumstance unless the circumstances giving rise to such Change of Control, disability or separation from service meet any description or definition of “change in control event”, “disability” or “separation from service”, as the case may be, in Section 409A of the Code and applicable regulations (without giving effect to any elective provisions that may be available under such definition). This provision does not prohibit the vesting of any Award Bonus upon a change of control, disability or separation from service, however defined. If this provision prevents the payment or distribution of any Award Bonus, such
payment shall be made on the date that would have applied absent such designated event or circumstance.
(d) Notwithstanding anything in the Plan to the contrary, to the extent that any Award Bonus would constitute non-exempt “deferred compensation” for purposes of Section 409A of the Code and would otherwise be payable under this Plan by reason of a Participant’s separation from service during a period in which the Participant is a Specified Employee (as defined below), then, subject to any permissible acceleration of payment by the Committee under Treas. Reg. Section 1.409A-3(j)(4)(ii) (domestic relations order), (j)(4)(iii) (conflicts of interest), or (j)(4)(vi) (payment of employment taxes): (i) the amount of such non-exempt deferred compensation that would otherwise be payable during the six-month period immediately following the Participant’s separation from service will be accumulated through and paid or provided on the first day of the seventh month following the Participant’s separation from service (or, if the Participant dies during such period, within 30 days after the Participant’s death) (in either case, the “Required Delay Period”); and (ii) the normal payment or distribution schedule for any remaining payments or distributions will resume at the end of the Required Delay Period. For purposes of this Plan, the term “Specified Employee” has the meaning given such term in Code Section 409A and the final regulations thereunder, provided, however, that, as permitted in such final regulations, the Company’s Specified Employees and its application of the six-month delay rule of Code Section 409A(a)(2)(B)(i) shall be determined in accordance with rules adopted by the Board or any committee of the Board, which shall be applied consistently with respect to all nonqualified deferred compensation arrangements of the Company, including this Plan.
Section 10. Change of Status. In making decisions regarding executive officers’ participation in the Plan, the Committee may consider any factors that they may consider relevant. The following guidelines are provided as general guidelines regarding employee status changes:
(a) New Hire. Newly hired executive officers hired on or prior to September 30 during any Performance Period are eligible to participate in the Plan and earn a pro rata Award Bonus for such Performance Period. Target Incentive Percentages for newly hired Participants are determined by the Committee.
(b) Termination. No amount shall be paid to an executive officer who resigns for any reason before such executive officer’s Award Bonus is paid; provided, however, a pro rata Award Bonus may be paid based on actual performance as of the end of the Performance Period in the event of the executive officer’s termination of employment as a result of his or her death, disability or retirement or such executive officer’s termination by the Company without Cause; provided the executive officer otherwise qualifies for payment of an Award Bonus. In the event that an Award Bonus is paid on behalf of an executive officer who has terminated employment by reason of death, any such payments or other amounts due shall be paid to the executive officer’s estate in accordance with the provisions of Section 6(e) or, if applicable, Section 9(d), but subject to the Committee’s overall discretion as provided in Section 6(c). In the event an Award Bonus is paid on behalf of an executive officer who has terminated
by reason of disability or retirement or if such executive officer’s employment is terminated by the Company without Cause, any amount earned shall be paid to such Participant on such pro-rata basis in accordance with the provisions of Section 6(e) or, if applicable, Section 9(d), but subject to the Committee’s overall discretion as provided in Section 6(c).
For purposes of this Section 10(b), “retirement” means a Participant’s voluntary termination of employment with the Company and its subsidiaries after he or she has (i) a length of service of at least ten (10) years and (ii) a combined age and length of service equal to at least sixty (60) years. A Participant’s length of service will be determined by the Company, in its sole discretion, based on the Company’s internal payroll records. For purposes of this Section 10(b), service with EQT Corporation prior to November 13, 2018 shall be treated the same as service with the Company and its subsidiaries, provided that the Participant was assigned to the Company in connection with the separation from EQT Corporation. The termination of a Participant’s employment by the Company shall not qualify as retirement.
For purposes of this Section 10(b), “disability” shall mean that the Participant (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, or (ii) is, by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Participant’s employer; provided, however, to the extent necessary to avoid tax penalties under Section 409A of the Code, “disability” means “disability” as defined in Section 409(a)(2)(C) of the Code.
For purposes of this Section 10(b), “Cause” means: (i) Participant’s conviction of a felony, a crime of moral turpitude or fraud or Participant’s having committed fraud, misappropriation or embezzlement in connection with the performance of Participant’s duties; (ii) Participant’s willful and repeated failures to substantially perform assigned duties; or (iii) Participant’s violation of any provision of a written employment-related agreement between Participant and the Company or express significant policies of the Company. If the Company terminates Participant’s employment for Cause, the Company shall give Participant written notice setting forth the reason for Participant’s termination not later than 30 days after such termination.
Nothing in the Plan shall confer any right on any executive officer to continue in the employ of the Company or its affiliates. In the event any payments are made under the guidelines provided in this Section 10, the timing of such payments shall be in accordance with the provisions of Section 6(e) or, if applicable, Section 9(d).
Section 11. Change of Control. In the event of a Change of Control of the Company, as then defined under the LTIP, the Performance Period shall end on the date of the Change of Control, and the Performance Metrics shall be deemed to have been
achieved at the greater of target or actual levels for the pro-rata portion of the Performance Period that elapsed through the date of the Change of Control (which deemed achievement shall be taken into account for all purposes of this Plan in calculating Award Bonuses). In such event, any Award Bonus earned shall be paid to Participants on such pro-rata basis in accordance with the provisions of Section 6(e) or, if applicable, Section 9(d), but subject to the Committee’s overall discretion as provided in Section 6(c).
Section 12. Compensation Recoupment Policy. Any Award Bonuses paid to Participants shall be subject to the terms and conditions of the Equitrans Midstream Corporation Compensation Recoupment Policy, effective June 17, 2019, as may be amended, modified, and/or supplemented from time to time and any successor, substitute, or replacement policy thereto. In addition, the Committee may specify in an incentive award agreement that the Participant’s rights, payments and benefits with respect to an incentive award shall be subject to reduction, cancellation, forfeiture or recoupment upon the occurrence of certain specified events, in addition to any otherwise applicable vesting or performance conditions of an incentive award.
Section 13. Dispute Resolution. Any dispute regarding the payment of benefits under the Plan shall be resolved in accordance with the Equitrans Midstream Corporation Short-Term Incentive Plan Dispute Resolution Procedures, effective February 17, 2021, as may be amended or restated from time to time. A copy of any such procedures is available upon request from the Company’s Corporate Secretary and is available on the Library page of the Paycor Benefits Portal, which can be found at https://hcm.paycor.com/authentication/signin or through the HR ERC through Mainline Connect.
Section 14. Amendment or Termination of this Plan. The Board and the Committee shall each have the right to amend or terminate the Plan at any time. No Participant shall have any vested right, interest or entitlement to any Award Bonus hereunder prior to its payment. The Company shall notify affected Participants in writing of any material amendment that, in the Company’s discretion, may adversely affect the Participant or any Plan termination.
Section 15. Governing Law. The validity, interpretation, construction and effect of the Plan and any rules and regulations relating to the Plan shall be governed by the laws of the Commonwealth of Pennsylvania (without regard to the conflicts of laws thereof), and applicable federal law.
Section 16. Withholding. The Company or any of its affiliates shall have the authority and the right to deduct or withhold, or require a Participant to remit to the Company or such affiliate an amount sufficient to satisfy federal, state and local taxes (including the Participant’s FICA obligation) required by law to be withheld.
Section 17. Severability. If any provision of the Plan is or becomes or is deemed invalid, illegal or unenforceable in any jurisdiction, or would disqualify the Plan under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to applicable laws. If such provision cannot be construed or deemed amended without, in the determination of the Committee, materially altering the intent of the Plan, it shall be deleted and the remainder of the Plan shall remain in full force and effect; provided, however, that, unless otherwise determined by the Committee, the provision shall not be construed or deemed amended or deleted with respect to any Participant whose rights and obligations under the Plan are not subject to the law of such jurisdiction or the law deemed applicable by the Committee.
