EXHIBIT 10.3
NEW JERSEY RESOURCES CORPORATION
OFFICERS' DEFERRED COMPENSATION PLAN
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NEW JERSEY RESOURCES CORPORATION
OFFICERS' DEFERRED COMPENSATION PLAN
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1. Purposes .............................................................................. 1
2. Definitions............................................................................ 1
3. Administration......................................................................... 3
4. Participation.......................................................................... 4
5. Initial Deferral Elections............................................................. 4
6. Deferral Accounts...................................................................... 5
7. Subsequent Deferral Elections.......................................................... 7
8. Settlement of Deferral Accounts........................................................ 7
9. Statements............................................................................. 9
10. Sources of Stock: Limitation on Amount of Stock-Denominated Deferrals................. 9
11. Amendment/Termination.................................................................. 10
12. General Provisions..................................................................... 10
13. Effective Date......................................................................... 12
NEW JERSEY RESOURCES CORPORATION
OFFICERS' DEFERRED COMPENSATION PLAN
1. PURPOSES. The purpose of this Officers' Deferred Compensation Plan (the
"Plan") is to provide certain members of a select group of management or highly
compensated employees of New Jersey Resources Corporation (the "Company") and
its Affiliates a means to defer receipt of specified portions of compensation
and to have such deferred amounts treated as if invested in specified investment
vehicles in order to enhance the competitiveness of the Company's executive
compensation program and, therefore, its ability to attract and retain qualified
key personnel necessary for the continued success and progress of the Company.
The provisions of this Plan shall apply only to those deferred amounts that
became vested, within the meaning of section 409A of the Code (as defined
below), subsequent to December 31, 2004.
2. DEFINITIONS. In addition to the terms defined in Section 1 above, the
following terms used in the Plan shall have the meanings set forth below:
(a) "Administrator" shall mean the person or persons to whom the
Committee has delegated the authority to take action under the Plan
(b) "Affiliate" shall mean any entity (whether or not incorporated)
which, by reason of its relationship with the Company, is required to be
aggregated with the Company under Section 414(b), 414(c), 414(m) or 414(o) of
the Code, and any joint venture or partnership 10% or more of the profits or
capital interest of which is owned by the Company or an Affiliate.
(c) "Beneficiary" shall mean any person (which may include trusts
and is not limited to one person) who has been designated by the Participant in
his or her most recent written beneficiary designation filed with the Company to
receive the benefits specified under the Plan in the event of the Participant's
death. If no Beneficiary has been designated who survives the Participant's
death, then Beneficiary means any person(s) entitled by will or, in the absence
thereof, the laws of descent and distribution to receive such benefits.
(d) "Change in Control" shall be deemed to have occurred if (1)
absent prior approval by the Board of Directors, fifty percent (50%) or more of
the Company's outstanding securities entitled to vote in elections of directors
shall be beneficially owned, directly or indirectly, by any person, entity or
group when that same person, entity or group had not owned fifty percent (50%)
or more of the Corporation prior to the most recent acquisition; or (2)
individuals constituting the Board of Directors on any given date (or the
successors of such individuals nominated by the Board of Directors on which such
individuals or such successors constituted a majority) cease to constitute a
majority of the Board of Directors within twelve (12) months of such date.
(e) "Code" shall mean the Internal Revenue Code of 1986, as amended.
References to any provision of the Code or regulation (including a proposed
regulation) thereunder shall include any successor provisions or regulations.
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(f) "Committee" shall mean the Leadership Development and
Compensation Committee of the Board of Directors of the Company or any other
directors of the Company designated as the Committee by the Board of Directors
of the Company. Except as may be otherwise required under the terms of the Plan
or by applicable law, any function of the Committee may be delegated to the
Administrator.
(g) "Deferral Account" shall mean the account or subaccount
established and maintained by the Company for specified deferrals by a
Participant, as described in Section 6. A Deferral Account will be maintained
solely as a bookkeeping entry by the Company to evidence unfunded obligations of
the Company.
(h) "Deferral Election" shall mean the form submitted by a
Participant to the Administrator instructing the Administrator as to both the
type and amount of compensation that is to be deferred and the time and form of
payment of such deferred amounts, but only if such form is filed within the time
limits prescribed by the Plan and fully complies in all other respects with the
requirements of the Plan.
(i) "Deferred Stock" shall mean a right to receive Stock at the end
of a specified deferral period.
(j) "Disability" or "Disabled" shall mean that the Participant (as
defined below) 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 12 months, receiving income replacement
benefits for a period of not less than 3 months under the long term disability
provisions of the benefit plans of the Company or its Affiliates, as applicable.
(k) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended. References to any provision of the Exchange Act or rule thereunder
shall include any successor provisions or rules.
(l) "Participant" shall mean any employee of the Company or any
Affiliate who is designated by the Committee as eligible to participate in the
Plan and who makes an election to participate in the Plan.
(m) "Retirement" shall mean a Participant's Separation from Service
(as defined below) at or after attaining age 55.
(n) "Specified Employee" shall mean any Participant who is a key
employee of the Company, as defined in section 416(i) of the Code without regard
to section 416(i)(5), and who is treated as a Specified Employee pursuant to the
regulations promulgated under section 409A of the Code.
(o) "Separation from Service" shall mean the Participant resigns,
dies, retires or otherwise has a termination of employment with the Company;
provided, however, that no such termination shall be deemed to have occurred
while the Participant is on military or sick leave or other bona fide leave of
absence of six months or less, or of more than six months if the Participant's
right to re-employment with the Company is provided either by statute or by
contract.
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(p) "Stock" shall mean New Jersey Resources Corporation Common
Stock, or any other equity securities of the Company designated by the
Committee.
(q) "Trust" shall mean any trust or trusts established or designated
by the Company to hold Stock or other assets in connection with the Plan;
provided, however, that (i) such trust shall be sited in the United States, (ii)
the funding of such trust shall in no way be contingent upon the financial
condition of the Company, and (iii) the assets of such trust shall remain
subject to the claims of the general creditors of the Company in the event of an
insolvency of the Company. The Company shall be considered "insolvent" for
purposes of this Plan and any Trust if (i) the Company is unable to pay its
debts as they become due, or (ii) the Company is subject to a pending proceeding
as a debtor under the United States Bankruptcy Code.
(r) "Trustee" shall mean the trustee of a Trust.
(s) "Trust Agreement" shall mean the agreement entered into between
the Company and the Trustee to carry out the purposes of the Plan, as amended or
restated from time to time.
3. ADMINISTRATION.
(a) Authority. Except where the terms of the Plan specifically
provide otherwise, the Administrator (subject to the ability of the Committee to
restrict the Administrator) shall administer the Plan in accordance with its
terms, and shall have all powers necessary to accomplish such purpose, including
the power and authority to construe and interpret the Plan, to define the terms
used herein, to prescribe, amend and rescind rules and regulations, agreements,
forms, and notices relating to the administration of the Plan, and to make all
other determinations necessary or advisable for the administration of the Plan.
Any actions of the Committee or the Administrator with respect to the Plan shall
be conclusive and binding upon all persons interested in the Plan, except that
any action of the Administrator will not be binding on the Committee. The
Committee and Administrator may each appoint agents and delegate thereto powers
and duties under the Plan, except as otherwise limited by the Plan.
(b) Administrator. The Administrator shall be appointed by, shall
remain in office at the will of, and may be removed, with or without cause, by
the Committee, and may be one person or a committee of several persons. The
Administrator may resign at any time. The Administrator shall not be entitled to
act on or decide any matter relating solely to himself or herself or any of his
or her rights or benefits under the Plan. The Administrator shall not receive
any special compensation for serving in his or her capacity as Administrator but
shall be reimbursed for any reasonable expenses incurred in connection
therewith. No bond or other security need be required of the Administrator in
any jurisdiction.
(c) Limitation of Liability. Each member of the Committee and the
Administrator shall be entitled to, in good faith, rely or act upon any report
or other information furnished to him or her by any officer or other employee of
the Company or any Affiliate, the Company's independent certified public
accountants, or any executive compensation consultant, legal counsel, or other
professional retained by the Company to assist in the administration of the
Plan. To the maximum extent permitted by law, no member of the Committee or the
Administrator, nor any person to whom ministerial duties have been
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delegated, shall be liable to any person for any action taken or omitted in good
faith in connection with the interpretation and administration of the Plan.
(d) Indemnification. To the maximum extent permitted by law, members
of the Committee and the Administrator shall be fully indemnified and protected
by the Company with respect to any action taken or omitted in good faith in
connection with the interpretation or administration of the Plan.
(e) Plan Year. The Plan's books and records and administrative
functions shall be maintained and operated on the basis of a 12-month calendar
year commencing each January 1.
4. PARTICIPATION. The Administrator will notify each person of his or her
eligibility to participate in the Plan not later than 30 days (or such lesser
period as may be practicable in the circumstances) prior to any deadline for
filing an election form.
5. INITIAL DEFERRAL ELECTIONS.
(a) In General. To the extent authorized by the Committee, a
Participant may submit to the Administrator a Deferral Election to defer the
receipt of compensation or awards which may be in the form of cash, Stock,
Stock-denominated awards or other property to be received from the Company or an
Affiliate, including salary, annual bonus awards, long-term awards, and
compensation payable under other plans and programs, employment agreements or
other arrangements, or otherwise, as may be provided under the terms of such
plans, programs and arrangements or as designated by the Administrator (an
"Initial Deferral Election.") An Initial Deferral Election with respect to
compensation otherwise payable to the Participant in a given Plan Year shall
specify (i) the timing and form of deferred payment, lump sum or installments,
of such compensation subject to such Deferral Election to be made at a future
date specified by the Participant through which the Participant has continuously
remained an employee of the Company, or upon the Participant's Retirement, or
upon the earlier of such specified date or such Retirement, (ii) the form, but
not the timing, of deferred payments upon the Participant's Disability, and
(iii) the dollar amount or percentage of such compensation to be deferred.
Initial Deferral Elections applicable to compensation otherwise payable in
different Plan Years may specify different times and forms of payment. In
addition to any terms and conditions of deferral set forth under plans, programs
or arrangements from which receipt of the Stock-denominated award or other
compensation is deferred, the Committee may impose limitations on the amounts
permitted to be deferred and other terms and conditions of deferrals under the
Plan, including minimum and/or maximum periods of deferral. Any such
limitations, and other terms and conditions of deferral, other than those
required by section 409A of the Code to be included within this plan document,
shall be set forth in the rules relating to the Plan or election forms, other
forms, or instructions published by the Committee and/or the Administrator.
(b) Date of Election. Each Initial Deferral Election must be
received by the Administrator prior to the following dates or will have no
effect whatsoever:
(i) With respect to salary, the December 31 immediately preceding the year
in which the salary is earned;
(ii) With respect to any annual or long-term incentive pay which qualifies
as "performance-based compensation within the meaning of Section
409A(a)(4)(B)((iii), by the earlier of (A) the December 31 immediately preceding
the end of the performance measurement
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period applicable to such incentive pay or (B) the date six months prior to the
end of the performance measurement period applicable to such incentive pay;
(iii) With respect to "fiscal year compensation" as defined in regulations
promulgated under Section 409A of the Code, by the last day of the Company's
fiscal year preceding the year in which the fiscal year compensation is earned;
(iv) With respect to awards of restricted stock units or other legally binding
rights to a payment of compensation in a subsequent year that is subject to a
forfeiture condition requiring the Participant's continued services for a period
of at least 12 months, on or before the 30th day following the grant of such
award, provided that the election is made at least 12 months in advance of the
earliest date at which the forfeiture condition could lapse.
Each Initial Deferral Election shall become irrevocable at the dates specified
above, unless (i) the Participant incurs an Unforeseeable Financial Hardship (as
defined below), or (ii) as otherwise permitted both under section 409A of the
Code and by the Administrator. In the case of an Initial Deferral Election with
respect to salary earned during a Plan Year, such election shall remain valid
with respect to salary earned in succeeding Plan Years until revoked or revised
by the Participant in compliance with the deadlines and other provisions of the
Plan. An Initial Deferral Election, if submitted to the Administrator earlier
than the dates specified above, may be changed by the Participant at any time
prior to the applicable date specified above.
(c) First Year of Eligibility. Notwithstanding the above, in the
case of the Plan Year in which a Participant first becomes eligible to
participate in the Plan, the Participant may make an Initial Deferral Election
with respect to salary within 30 days after becoming so eligible, but only with
respect to salary to be paid for services to be performed subsequent to the
election.
(d) Permitted Elections Regarding Timing and Form of Payment. The
Administrator shall prescribe the form on which Initial Deferral Elections are
to be specified. With respect to the timing of payments of deferred amounts, the
Administrator may permit, in its sole discretion, Participants to select as a
commencement dates for such payments (i) a specified date, (ii) the
Participant's Retirement, or (iii) the earlier of, or later of, a specified date
or the Participant's Retirement (collectively hereinafter referred to as
"Commencement Events"). With respect to the form of payment, the Administrator
may permit either lump sum or installments, but may not permit any form of
annuity. Further, the Administrator may permit, in its sole discretion,
Participants to select different times and forms of payment for different
Commencement Events, or different times and forms for a given Commencement Event
that may occur at different dates in the future.
6. DEFERRAL ACCOUNTS.
(a) Establishment; Crediting of Amounts Deferred. One or more
Deferral Accounts will be established for each Participant, as determined by the
Administrator. The amount of compensation or awards deferred with respect to
each Deferral Account will be credited to such Account as of the date on which
such amounts would have been paid to the Participant but for the Participant's
election to defer receipt hereunder, unless otherwise determined by the
Administrator. Stock-denominated awards deferred with respect to each Deferral
Account will be credited to the Participant's Deferral Account as units of
Deferred Stock, with one share of Stock equal to one unit of Deferred Stock as
opposed to cash amounts valued by reference to the market price of Stock. With
respect to any fractional shares of Stock or Stock-denominated awards, the
Administrator, in its sole discretion, shall pay such fractional shares to the
Participant in cash, credit the Deferral Account with cash in lieu of depositing
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fractional shares into the Deferral Account, or credit the Deferral Account with
a fraction of a share calculated to at least three decimal places. The amounts
of hypothetical income and appreciation and depreciation in value of such
Account will be credited and debited to, or otherwise reflected in, such Account
from time to time. Unless otherwise determined by the Administrator, amounts
credited to a Deferral Account shall be deemed invested in a hypothetical
investment as of the date of deferral.
(b) Hypothetical Investments. Subject to the provisions of Sections
6(c), amounts credited to a Deferral Account shall be deemed to be invested, at
the Participant's direction, in one or more investment vehicles as may be
specified from time to time by the Administrator. The Administrator may change
or discontinue any hypothetical investment vehicle available under the Plan in
its discretion; provided, however, that each affected Participant shall be given
the opportunity, without limiting or otherwise impairing any other right of such
Participant regarding changes in investment directions, to redirect the
allocation of his or her Deferral Account deemed invested in the discontinued
investment vehicle among the other hypothetical investment vehicles, including
any replacement vehicle. The time and form of payments of hypothetical
investment earnings shall be the same as those applicable to the deferred
amounts to which such earnings are attributable.
(c) Allocation and Reallocation of Hypothetical Investments. A
Participant may allocate amounts credited to his or her Deferral Account to one
or more of the hypothetical investment vehicles authorized under the Plan.
Subject to the rules established by the Administrator, if more than one
hypothetical investment vehicle is provided, a Participant may reallocate
amounts credited to his or her Deferral Account as allowed and provided for by
the Administrator. The Administrator may, in its discretion, restrict allocation
into or reallocation by specified Participants into or out of specified
investment vehicles or specify minimum or maximum amounts that may be allocated
or reallocated by Participants.
(d) Trusts. The Administrator may, in its discretion, establish one
or more Trusts (including sub-accounts under such Trust(s)), and deposit therein
amounts of cash, Stock, or other property not exceeding the amount of the
Company's obligations with respect to a Participant's Deferral Account
established under this Section 6. In such case, the amounts of hypothetical
income and appreciation and depreciation in value of such Deferral Account shall
be equal to the actual income on, and appreciation and depreciation of, the
assets in such Trust(s). Other provisions of this Section 6 notwithstanding, the
timing of allocations and reallocations of assets in such a Deferral Account,
and the investment vehicles available with respect to such Deferral Account, may
be varied to reflect the timing of actual investments of the assets of such
Trust(s) and the actual investments available to such Trust(s).
(e) Restrictions on Participant Direction. The provisions of Section
6(b) and 6(c) notwithstanding, the Administrator may restrict or prohibit
reallocations of amounts deemed invested in specified investment vehicles, and
subject such amounts to a risk of forfeiture and other restrictions, in order to
conform to restrictions applicable to Stock, a Stock-denominated award, or any
other award or amount deferred under the Plan and resulting in such deemed
investment, to comply with any applicable law or regulation, or for such other
purpose as the Administrator may determine is not inconsistent with the Plan.
Notwithstanding any other provision of the Plan to the contrary, amounts
credited as Deferred Stock to a Participant's Deferral Account may not be
reallocated or deemed reinvested in any other investment vehicle, but shall
remain as Deferred Stock until such time as the Deferral Account is settled in
accordance with Section 8.
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(f) Dividend Equivalents. Except as provided in Section 6(d),
dividend equivalents will be credited on Deferred Stock credited to a
Participant's Deferral Account as follows:
(i) Cash and Non-Stock Dividends. If the Company declares and pays a
dividend on Stock in the form of cash or property other than shares of
Stock, then a number of additional shares of Deferred Stock shall be
credited to a Participant's Deferral Account as of the payment date for
such dividend equal to (A) the number of shares of Deferred Stock credited
to the Deferral Account as of the record date for such dividend,
multiplied by (B) the amount of cash plus the fair market value of any
property other than shares actually paid as a dividend on each share at
such payment date, divided by (C) the fair market value of a share of
Stock at such payment date.
(ii) Stock Dividends and Splits. If the Company declares and pays a
dividend on Stock in the form of additional shares of Stock, or there occurs a
forward split of Stock, then a number of additional shares of Deferred Stock
shall be credited to the Participant's Deferral Account as of the payment date
for such dividend or forward Stock split equal to (A) the number of shares of
Deferred Stock credited to the Deferral Account as of the record date for such
dividend or split, multiplied by (B) the number of additional shares actually
paid as a dividend or issued in such split in respect of each share of Stock.
7. SUBSEQUENT DEFERRAL ELECTIONS . The Plan Administrator may, in its sole
discretion, permit Participants to submit additional deferral elections with
respect to amounts previously subject to an Initial Deferral Election in order
to delay, but not to accelerate, a payment, or to change the form of payment of
an amount of deferred compensation (a "Subsequent Deferral Election"), but if,
and only if, the following conditions are satisfied: (i) the Subsequent Deferral
Election must not take effect until 12 months after the date on which it is
made, (ii) in the case of a payment other than a payment attributable to the
Participant's Disability, death or on account of the occurrence of an
Unforeseeable Emergency (as defined below), the Subsequent Election further
defers the payment for a period of not less than 5 years from the date such
payment would otherwise have been made, or in the case of installment payments,
5 years from the date the first installment was scheduled to be paid, and (iii)
the Subsequent Election is received by the Administrator at least 12 months
prior to the date the payment would otherwise have been made, or in the case of
installment payments, 12 months prior to the date the first installment was
scheduled to be paid. In addition, Participants may be further permitted to
revise the form of payment they have elected, or the number of installments
elected, provided that such revisions comply with the requirements of clauses
(i), (ii), and (iii) above.
8. SETTLEMENT OF DEFERRAL ACCOUNTS.
(a) Medium of Payment. The Company shall settle a Participant's
Deferral Account, and discharge all of its obligations to pay deferred
compensation under the Plan with respect to such Deferral Account, by payment of
cash or, in the discretion of the Administrator, by delivery of other assets
(including Stock) having a fair market value equal to the amount credited to the
Deferral Account. Notwithstanding any other provision of the Plan to the
contrary, amounts credited as Deferred Stock to a Participant's Deferral Account
shall be settled by delivery of shares of Stock.
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(b) Forfeitures Under Other Plans and Arrangements. To the extent
that Stock or any other award or amount (i) is deposited in a Trust pursuant to
Section 6 in connection with a deferral of Stock, a Stock-denominated award, or
any other award or amount under another plan, program, employment agreement or
other arrangement and (ii) is forfeited pursuant to the terms of such plan,
program, agreement or arrangement, the Participant shall not be entitled to the
value of such Stock and other property related thereto (including without
limitation, dividends and distributions thereon) or other award or amount, or
proceeds thereof.
(c) Payments Under the Plan. No payment may be made under the Plan
earlier than the Participant's Separation from Service, Disability, the date
specified in a Deferral Election, or the occurrence of a Change-in-Control or
Unforeseeable Emergency. Payments in settlement of a Deferral Account shall be
made as soon as practicable after the date or dates (including upon the
occurrence of specified events, as may be directed by the Participant in his or
her election relating to such deferred amount. For the purposes of section 409A
of the Code, the entitlement to a series of installment payments will be treated
as the entitlement to a single payment. Irrespective of any elections made by a
Participant, all amounts credited to a Participant's Deferral Account will be
paid out in a single lump sum in the event of the Participant's Separation from
Service with the Company (i) within 60 days following a Change-In-Control or
(ii) other than upon Retirement or Disability.
(d) In-Service Payments Under the Plan. (i) Date Specified In A
Deferral Election. Payments will commence on any date specified by a Participant
in an Initial Deferral Election or Subsequent Deferral Election, pursuant to the
form specified in such election, to the extent payment of the applicable
deferred amounts has not already commenced as at such date pursuant to other
applicable provisions of the Plan. (ii) Unforeseeable Emergency. Other
provisions of the Plan notwithstanding, if, upon the written application of a
Participant, the Committee determines that the Participant has an Unforeseeable
Emergency, the Committee may, in its sole discretion, direct the payment to the
Participant of all or a portion of the balance of a Deferral Account in a lump
sum payment, provided that any such withdrawal shall be limited by the Committee
to the amount reasonably necessary to meet the emergency, including amounts
needed to pay any income taxes or penalties reasonably anticipated to result
from the payment. No payment may be made to the extent that such emergency is or
may be relieved through reimbursement or compensation from insurance or
otherwise, by liquidation of the Participant's assets, to the extent the
liquidation of such assets would not cause severe financial hardship, or by
cessation of deferrals under the Plan. For purposes of this Plan, an
"Unforeseeable Emergency" shall mean a severe financial hardship of the
Participant or the Participant's beneficiary resulting from an illness or
accident of the Participant or beneficiary, the Participant's or beneficiary's
spouse or dependent (as defined in section 152(a) of the Code); loss of the
Participant's or beneficiary's property due to casualty; or other similar
extraordinary and unforeseeable circumstances arising as a result of events
beyond the control of the Participant or beneficiary. (iii) Change In Control.
Other provisions of the Plan notwithstanding, upon the occurrence of an event or
transaction constituting a Change In Control, the Administrator will direct the
payment to the Participant of the balance of his or her Deferral Account as a
lump sum as soon as practicable following such occurrence.
(e) Payments Upon Separation from Service. (i) Retirement or
Disability. Upon the Separation from Service of the Participant due to his or
her Retirement or Disability, payments of deferred amounts shall commence as
soon as practicable in the form specified by the Participant on his or her
Deferral Election (ii) Separation from Service Other than Retirement or
Disability. Upon the Separation from Service of the Participant due to reasons
other the Retirement or Disability, the entire balance of the Participant's
Deferral Account shall
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be paid to the Participant in a lump sum as soon as practicable following such
Separation from Service.
(f) Specified Employees. Other provisions of the Plan
notwithstanding, payment may not be made to a Participant who is a Specified
Employee before the date that is 6 months after the date of termination of
employment (other than a termination caused by death or Disability) (the "Six
Month Date") or, if earlier, the date of death of the Participant. To effectuate
this requirement, all payments otherwise due to the Participant under the terms
of the Plan, or pursuant to the terms of a valid Initial Deferral Election or
Subsequent Deferral Election made by the Participant, before the Six Month Date
will be paid to the Participant, with simple interest calculated at a prime rate
determined and applied by the Administrator at the Six Month Date, as soon as
practicable following the Six Month Date.
(g) Delay of Payments. Any payment otherwise due under the terms of
the Plan which would (i) not be deductible in whole or in part under section
162(m) of the Code, (ii) violate a loan covenant or similar contractual
requirement, or (iii) violate Federal securities laws or other applicable law
may not be made until the earliest date on which such payment no longer is
nondeductible or violates such contracts or laws.
(h) Acceleration of Payments. The Administrator may not permit the
acceleration of the time or schedule of any payment or amount scheduled to be
paid pursuant to the Plan, unless such acceleration of the time or schedule is
(i) necessary to fulfill a domestic relations order (as defined in section
414(p)(1)(B) of the Code) or to comply with a certificate of divestiture (as
defined in section 1043(b)(2) of the Code), (ii) de minimis in nature (as
defined in regulations promulgated under section 409A of the Code), (iii) to be
used for the payment of FICA taxes on amounts deferred under the Plan, or (iv)
equal to amounts included in the federal personal taxable income of the
Participant under section 409A of the Code.
9. STATEMENTS. The Administrator will furnish written statements to each
Participant reflecting the amount credited to a Participant's Deferral Accounts
and transactions therein not less frequently than once each calendar quarter.
Such written statements shall be in addition to any information or communication
available to a Participant with respect to his Deferral Account through other
means, such as the internet or telephony.
10. SOURCES OF STOCK: LIMITATION ON AMOUNT OF STOCK-DENOMINATED DEFERRALS.
If shares of Stock are deposited under the Plan in a Trust pursuant to Section 6
in connection with a deferral of a Stock-denominated award under another plan,
program, employment agreement or other arrangement that provides for the
issuance of shares, the shares so deposited shall be deemed to have originated,
and shall be counted against the number of shares reserved, under such other
plan, program or arrangement. Shares of Stock actually delivered in settlement
of Deferral Accounts shall be originally issued shares or treasury shares, in
the discretion of the Committee. If the Committee authorizes deemed investments
in Stock by Participants deferring cash, any shares to be deposited under the
Plan in a Trust in connection with such deemed investments in Stock shall be
solely treasury shares or shares acquired in the market by or on behalf of the
Trust. For this purpose, a total of 200,000 shares of Stock held in treasury by
the Company, offset by the number of shares issued under the Compensation
Deferral Plan of the Company, are hereby reserved for issuance under the Plan,
subject to adjustment to reflect stock splits, stock dividends, and other
extraordinary corporate
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events resulting in adjustments to the number of shares reserved under stock
option plans of the Company.
11. AMENDMENT/TERMINATION.
(a) In General. The Committee may, with prospective or retroactive
effect, amend, alter, suspend, discontinue, or terminate the Plan at any time
without the consent of Participants, stockholders, or any other person;
provided, however, that, without the consent of a Participant, no such action
shall materially and adversely affect the rights of such Participant with
respect to any rights to payment of amounts credited to such Participant's
Deferral Account.
(b) Termination and Payment. Notwithstanding the provisions of
section 11(a), the Committee may, in its sole discretion, terminate the Plan (in
whole or in part) with respect to one or more Participants and distribute to
such affected Participants the amounts credited to their Deferral Accounts in a
lump sum as soon as reasonably practicable following such termination, but if,
and only if, (i) all nonqualified defined contribution deferred compensation
plans maintained by the Company and its Affiliates are terminated, (ii) no
payments other than payments that would be payable under the terms of the Plan
if the termination had not occurred are made within 12 months of the termination
of the Plan, (iii) all payments of Deferral Account balances are made within 24
months of the termination of the Plan, and (iv) the Company acknowledges to the
Participants that it will not adopt any new nonqualified defined contribution
deferred compensation plans at any time within 5 years following the date of the
termination of the Plan.
12. GENERAL PROVISIONS.
(a) Limits on Transfer of Awards. Other than by will or the laws of
descent and distribution, no right, title or interest of any kind in the Plan
shall be transferable or assignable by a Participant or his or her Beneficiary
or be subject to alienation, anticipation, encumbrance, garnishment, attachment,
levy, execution or other legal or equitable process, nor subject to the debts,
contracts, liabilities or engagements, or torts of any Participant or his or her
Beneficiary. Any attempt to alienate, sell, transfer, assign, pledge, garnish,
attach or take any other action subject to legal or equitable process or
encumber or dispose of any interest in the Plan shall be void.
(b) Receipt and Release. Payments (in any form) to any Participant
or Beneficiary in accordance with the provisions of the Plan shall, to the
extent thereof, be in full satisfaction of all claims for the awards or other
compensation deferred and relating to the Deferral Account to which the payments
relate against the Company or any Affiliate, the Committee, or the
Administrator, and the Administrator may require such Participant or
Beneficiary, as a condition to such payments, to execute a receipt and release
to such effect. In the case of any payment under the Plan of less than all
amounts then credited to an account in the form of Stock, the amounts paid shall
be deemed to relate to the Stock credited to the account at the earliest time.
(c) Unfunded Status of Awards; Creation of Trusts. The Plan is
intended to constitute an "unfunded" plan for deferred compensation and
Participants shall rely solely on the unsecured promise of the Company for
payment hereunder. With respect to any payment not yet made to a Participant
under the Plan, nothing contained in the Plan shall give a Participant any
rights that are greater than those of a general unsecured creditor of the
Company; provided, however, that the Committee may authorize the creation of
Trusts, including but not limited to
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the Trusts referred to in Section 6 hereof, or make other arrangements to meet
the Company's obligations under the Plan, which Trusts or other arrangements
shall be consistent with the "unfunded" status of the Plan unless otherwise
determined by the Committee.
(d) Compliance. A Participant in the Plan shall have no right to
receive payment (in any form) with respect to his or her Deferral Account until
legal and contractual obligations of the Company relating to establishment of
the Plan and the making of such payments shall have been complied with in full.
In addition, the Company shall impose such restrictions on Stock delivered to a
Participant hereunder and any other interest constituting a security as it may
deem advisable in order to comply with the Securities Act of 1933, as amended,
the requirements of any stock exchange or automated quotation system upon which
the Stock is then listed or quoted, any applicable state securities laws, any
provision of the Company's Certificate of Incorporation or Bylaws, or any other
law, regulation, or binding contract to which the Company is a party.
Other provisions of this Plan notwithstanding, deferrals under this Plan shall
comply with the requirements of Section 409A of the Code and, in accordance with
U.S. federal income tax laws and Treasury Regulations (including proposed
regulations) hereunder as presently in effect or hereafter implemented, (i) if
the timing of any distribution under this Plan would result in the imposition of
tax penalties under Section 409A, then such distribution will be made at the
earliest date after the specified payment date on which that distribution can be
effected without resulting in such tax penalties; (ii) the Company shall have no
authority to accelerate any payment hereunder except as permitted under Section
409A and regulations thereunder; and (iii) any rights of any Participant or
retained authority of the Company with respect to deferrals hereunder shall be
automatically modified and limited to the extent necessary so that no
Participant will be deemed to be in constructive receipt of income relating to
the deferrals nor subject to any penalty under Section 409A.
(e) Other Participant Rights. No Participant shall have any of the
rights or privileges of a stockholder of the Company under the Plan, including
as a result of the crediting of Stock-denominated units or other amounts to a
Deferral Account, or the creation of any Trust and deposit of such Stock
therein, except at such time as Stock may be actually delivered in settlement of
a Deferral Account. No provision of the Plan or transaction hereunder shall
confer upon any Participant any right to be employed by the Company or an
Affiliate, or to interfere in any way with the right of the Company or an
Affiliate to increase or decrease the amount of any compensation payable to such
Participant. Subject to the limitations set forth in Section 12(a) hereof, the
Plan shall inure to the benefit of, and be binding upon, the parties hereto and
their successors and assigns.
(f) Tax Withholding. The Company and any Affiliate shall have the
right to deduct from amounts otherwise payable in settlement of a Deferral
Account any sums that federal, state, local or foreign tax law requires to be
withheld with respect to such payment. Shares may be withheld to satisfy such
obligations in any case where taxation would be imposed upon the delivery of
shares, except that shares issued or delivered under any plan, program,
employment agreement or other arrangement may be withheld only in accordance
with the terms of such plan, program, employment agreement or other arrangement
and any applicable rules, regulations, or resolutions thereunder.
(g) Governing Law. The validity, construction, and effect of the
Plan and any rules and regulations relating to the Plan shall be determined in
accordance with the laws of the
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State of New Jersey, without giving effect to principles of conflicts of laws,
and applicable provisions of federal law.
(h) Limitation. A Participant and his or her Beneficiary shall
assume all risk in connection with any decrease in value of the Deferral Account
and neither the Company, the Committee nor the Administrator shall be liable or
responsible therefor.
(i) Adjustments. In the event that any dividend or other
distribution (whether in the form of cash, Stock, or other property),
recapitalization, forward or reverse split, reorganization, merger,
consolidation, spin-off, combination, repurchase, share exchange, liquidation,
dissolution or other similar corporate transaction or any other event or
condition occurs that affects the Stock such that an adjustment is determined by
the Administrator or the Committee to be appropriate in order to prevent
dilution or enlargement of a Participant's rights under the Plan, then the
Administrator or the Committee may, in such manner as it may deem equitable,
adjust any or all of the number and kind of shares of Stock to be issued upon
settlement of Deferred Stock then credited to a Deferral Account under the Plan.
(j) Construction. The captions and numbers preceding the sections of
the Plan are included solely as a matter of convenience of reference and are not
to be taken as limiting or extending the meaning of any of the terms and
provisions of the Plan. Whenever appropriate, words used in the singular shall
include the plural or the plural may be read as the singular.
(k) Severability. In the event that any provision of the Plan shall
be declared illegal or invalid for any reason, said illegality or invalidity
shall not affect the remaining provisions of the Plan but shall be fully
severable, and the Plan shall be construed and enforced as if said illegal or
invalid provision had never been inserted herein.
(l) Status. The establishment and maintenance of, or allocations and
credits to, the Deferral Account of any Participant shall not vest in any
Participant any right, title or interest in and to any Plan or Company assets or
benefits except at the time or times and upon the terms and conditions and to
the extent expressly set forth in the Plan and in accordance with the terms of
the Trust.
13. EFFECTIVE DATE. The Plan shall be effective as of January 1, 2005.
IN WITNESS WHEREOF, New Jersey Resources Corporation has caused this
Plan to be executed this 16th day of May, 2006.
NEW JERSEY RESOURCES CORPORATION
Attest: /s/ Rhonda M. Figueroa By: /s/ Laurence M. Downes
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Rhonda M. Figueroa Laurence M. Downes
Corporate Secretary Chairman and Chief Executive Officer
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