EXHIBIT 10.5
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT
THIS AGREEMENT is entered into as of the ____ day of
________________ by and between NEW JERSEY RESOURCES CORPORATION, a corporation
of New Jersey (hereinafter called the "Company"), and ______________
(hereinafter called the "Employee").
WITNESSETH
WHEREAS, the Employee is employed by the Company and is presently
(title) ;
WHEREAS, the Company desires to continue to employ the Employee as a
key employee;
WHEREAS, the Company desires to enter into this Agreement with the
Employee as a part of his/her employment agreement or arrangement as an
incentive for his/her continued loyal service to the Company.
NOW, THEREFORE, in consideration of the premises and of the
covenants and agreements herein set forth, and for other good and valuable
consideration, the receipt whereof is hereby acknowledged, the parties hereto do
covenant and agree as follows:
1. It is agreed that the Employee shall retire from active employment
with the Company upon the last day of the month in which his/her
65th birthday occurs; provided however, that with the consent of the
Board of Directors of the Company, the Employee may remain in active
employment after his/her 65th birthday. In either event, the word
"retirement" as used in this Agreement shall refer to the actual
retirement of the Employee from active employment at or after
his/her 65th birthday, and that no benefits shall be paid to the
Employee under this Agreement until such actual retirement from
active employment with the Company, except as otherwise provided
herein.
2. The Company agrees that following the Employee's retirement at or
after attainment of age 65, it will pay to the Employee the sum of
____________ ($________) (hereinafter referred to as the "Deferred
Compensation Benefit"), payable in sixty (60) monthly installments.
The installments shall be paid upon the first day of each calendar
month commencing with the month next following the date of such
retirement, and shall continue until the aggregate of such payments
equal the Deferred Compensation Benefit, at which time such monthly
installments shall terminate. In the event that the Deferred
Compensation Benefit has not been fully paid to the Employee during
his/her lifetime following his/her retirement, the balance of such
monthly installments shall be paid to his/her designated beneficiary
as provided in Paragraph 11 hereof. In no event shall any
distribution occur earlier than permitted under Section 409A of the
Internal Revenue Code.
3. In the event that the Employee dies while in active employment with
the Company but prior to retirement, and such death is due to a
cause other than suicide, the Company shall pay a Death Benefit in
the amount of ______________ ($___________) to his/her designated
beneficiary, in sixty (60) equal monthly installments. The
installments shall be paid on the first day of each calendar month
commencing with the month following the date of death,
and shall continue until such Death Benefit has been fully paid. If
the Employee commits suicide, the Company shall not be obligated to
pay any portion of the Death Benefit or any increases in such
benefit granted herein or by any amendment to this Agreement made
within two (2) years next preceding the date of death, but such
portion of the Death Benefit as was granted or accrued under this or
any similar prior agreement for deferred compensation with the
Company more than two (2) years before the death by suicide shall be
paid in the manner provided above.
4. No deferred compensation or other benefits shall be payable
hereunder to the Employee, or to any other person in the event the
employment relationship between the Employee and the Company is
terminated within six (6) years from the date hereof for any reason
other than by death, or by retirement of the Employee at or after
attainment of age 65. In the event that the employment relationship
between the Employee and the Company continues for a period of at
least six (6) years from the date hereof, and is thereafter
terminated for any reason other than by death, prior to his/her
retirement at or after attainment of age 65, the Company will pay to
the Employee the Cumulative Termination Benefit for the year in
which such termination occurs, as shown in Schedule A which is
attached hereto and made a part hereof (hereinafter referred to as
the "Applicable Cumulative Termination Benefit"), in sixty (60)
equal monthly installments payable on the first day of each calendar
month, commencing with the month following the date on which the
Employee shall attain the age of 65.
5. If the Employee dies after termination of employment as provided in
Paragraph 4 above, and before any or all of the applicable
Cumulative Termination Benefit has been paid to him, then such
Cumulative Termination Benefit, or the balance of installments
thereof as the case may be, shall be paid to his/her designated
beneficiary in sixty (60) equal monthly installments (less the
number of installments previously paid, if any), payable on the
first day of each calendar month commencing with the month following
the date of death, until the applicable Cumulative Termination
Benefit shall have been paid in full.
6. Notwithstanding anything to the contrary contained in the original
Agreement or in any amendment thereto, it is hereby agreed that upon
the occurrence of a Change In Control (as defined herein), the
Employee shall immediately become fully vested in the Deferred
Compensation Benefit set forth in Paragraph 2 of this Agreement, or
in the then most recent amendment thereto (whichever amount is
greater), and that in the event the Employee's employment is
thereafter terminated for any reason or if the Employee resigns for
any reason, said Deferred Compensation Benefit shall be paid to the
Employee in sixty (60) equal monthly installments payable on the
first day of each calendar month commencing with the month following
the date of termination, until the applicable Cumulative Termination
Benefit shall have been paid in full. In the event that the Employee
dies after termination of employment pursuant to this Paragraph 6,
and before any or all of the Deferred Compensation Benefit has been
paid to him, then such Deferred Compensation Benefit, or the balance
of installments thereof, as the case may be, shall be paid to
his/her designated beneficiary in sixty (60) equal monthly
installments (less the number of installments previously paid, if
any), payable on the first day of each calendar month commencing
with the month following the date of death, until the applicable
Cumulative Termination Benefit shall have been paid in full.
7. For the purposes of this Agreement, a "Change In Control" shall be
deemed to have occurred if:
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(i) Any Person (as defined below) has acquired, "beneficial
ownership" (within the meaning of Rule 13d-3, as promulgated
under Section 13(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) of securities of the Company
representing fifty percent (50%) or more of the combined
Voting Power (as defined below) of the Company's securities;
or
(ii) Within any 24-month period, the persons who were directors of
the Company immediately before the beginning of such period
(the "Incumbent Directors") shall cease (for any reason other
than death) to constitute at least a majority of the Board or
the board of directors of any successor to the Company,
provided that any director who was not a director at the
beginning of such period shall be deemed to be an Incumbent
Director if such director (A) was elected to the Board by, or
on the recommendation of or with the approval of, at least
two-thirds of the directors who then qualified as Incumbent
Directors either actually or by prior operation of this
Section 2(a)(ii) and (B) was not designated by a person who
has entered into an agreement with the Company to effect a
Corporate Event, as described in Section 2(a)(iii); or
(iii) The stockholders of the Company approve a merger,
consolidation, share exchange, division, sale or other
disposition of all or substantially all of the assets of the
Company (a "Corporate Event"), as a result of which the
shareholders of the Company immediately prior to such
Corporate Event shall not hold, directly or indirectly,
immediately following such Corporate Event a majority of the
Voting Power of (x) in the case of a merger or consolidation,
the surviving or resulting corporation, (y) in the case of a
share exchange, the acquiring corporation or (z) in the case
of a division or a sale or other disposition of assets, each
surviving, resulting or acquiring corporation which,
immediately following the relevant Corporate Event, holds more
than 10% of the consolidated assets of the Company immediately
prior to such Event.
8. Notwithstanding anything else herein to the contrary, payments of
benefits hereunder caused by the termination of employment
(including death) of the Employee may be delayed for a period of no
more than six (6) months following such termination of employment,
if the Employee is determined to meet the definition of a "Specified
Employee," but only if such delay in payment is required in order to
comply with the requirements of Section 409A of the Internal Revenue
Code. "Specified Employee" means a key employee, as defined in
Section 416 (i) of the Internal Revenue Code, of the Company and its
affiliates.
9. Any dispute or controversy arising out of or in connection with the
interpretation or application of the provisions of paragraphs 6 or 7
of this Agreement shall be settled exclusively by arbitration in
accordance with the rules of the American Arbitration Association
then in effect and the applicable law of the State of New Jersey
pertaining to the arbitration of disputes, and judgment may be
entered on the arbitrator's award in any court having jurisdiction.
All costs and expenses of such arbitration, including the reasonable
counsel fees, costs and expenses incurred by the Employee in either
prosecuting or defending the arbitration proceeding, shall be borne
and paid by the Company.
10. It is agreed that neither the Employee nor any other person shall
have any right to commute, bequeath, pledge, sell, assign, transfer,
levy upon or otherwise encumber the rights to receive any payments
hereunder, which payments and the rights thereto are expressly
declared to be
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non-transferable and non-assignable, and in the event of any
attempted disposition of such payments or rights in violation hereof
the Company shall have no further liability hereunder.
11. The Employee shall designate in writing, to be annexed hereto, one
or more beneficiaries to whom the benefits in the event of his/her
death shall be paid pursuant to paragraphs 2, 3, 5 or 6 hereof. In
the absence of such designation, or in the event no designated
beneficiary survives the Employee, then any such benefits shall be
payable in like manner to the Employee's executor or administrator.
In the event of the death of all designated beneficiaries after
commencement but prior to completion of payment of the installments
of benefits, the balance thereof shall be payable in like manner to
the executor or administrator of the last surviving beneficiary.
12. This Agreement shall be binding upon the parties hereto, and upon
the heirs, executors, administrators, or other personal
representatives and designated beneficiaries of the Employee, and
upon the successors and assigns of the Company.
13. During the lifetime of the Employee, this Agreement may be amended
or terminated at any time or times, in whole or in part, by the
mutual written agreement of the Employee and the Company.
14. This Agreement shall be executed in duplicate, each copy of which
when executed and delivered shall be an original, but both copies
shall, together, constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused these presents to
be duly executed in their respective name and their respective seals to be
hereunto affixed and attested, the day and year first above written.
NEW JERSEY RESOURCES CORPORATION
________________________________ Date: ______________________
XXXXXXXX X. XXXXXX
Chairman & CEO
________________________________ Date: ______________________
Witness
________________________________ Date: ______________________
EMPLOYEE
________________________________ Date: ______________________
Witness
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DESIGNATION OF BENEFICIARY
I hereby designate the following person (or persons) as my beneficiary (or
beneficiaries) to whom the benefits provided hereunder in the event of my death
shall be paid pursuant to this Agreement:
Name: ___________________________________
Address: ___________________________________
___________________________________
Relationship to Employee: ___________________________________
DATED:______________________________
SIGNED:_____________________________
(employee)
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(EMPLOYEE'S NAME)
EFFECTIVE _____________
SCHEDULE "A"
CUMULATIVE TERMINATION
YEAR AGE BENEFIT
1998 $
1999 $
2000 $
2001 $
2002 $
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020
2021
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