NEW JERSEY RESOURCES CORPORATION Performance Units Agreement
Exhibit
10.19
NEW
JERSEY RESOURCES CORPORATION
2007
Stock Award and Incentive Plan
This
Performance Units Agreement (the “Agreement”), which includes the attached
“Terms and Conditions of Performance Units” (the “Terms and Conditions”) and the
attached Exhibit A captioned “Performance Goal and Earning of
Performance Units”, confirms the grant on _________ __, ____ (the “Grant
Date”) by NEW JERSEY RESOURCES CORPORATION, a New Jersey corporation (the
"Company"), to ("Employee"),
under Sections 6(e), 6(i) and 7 of the 2007 Stock Award and Incentive Plan (the
"Plan"), of Performance Units (the "Units"), including rights to Dividend
Equivalents as specified herein, as follows:
| Target Number Granted: | _________ Units (“Target Number”) |
How Units are Earned and
Vest: The Units, if not previously forfeited, (i) will be earned, if and
to the extent that the Performance Goal defined on Exhibit A to this Agreement
are achieved, with the corresponding number of Units earned (ranging from 0% to
150% of the Target Number) as specified on Exhibit A, and (ii) will vest as to
the number of Units earned if Employee continues to be employed by the Company
or a Subsidiary through ________ __, 200__ (the "Stated Vesting Date"). In
addition, if not previously forfeited, upon a Change in Control the Units will
be deemed earned in an amount equal to the greater of the Target Number or the
number of Units to be granted based upon the actual level of achievement if the
performance period had ended at the date of the Change in Control and will
become immediately vested, and, if the stock of the Company remains publicly
traded after the Change in Control, any Units not earned will remain potentially
earnable in accordance with the terms of this Agreement. In addition, if not
previously forfeited, the Units will be deemed earned and become vested upon the
occurrence of certain events relating to Termination of Employment to the
extent provided in Section 4 of the attached Terms and Conditions. The terms
"vest" and "vesting" mean that the Units have become non-forfeitable whether or
not there occurs a voluntary Termination of Employment by Employee. If the
Performance Goal is not met (or not fully met) and the Units are not otherwise
deemed earned by the Earning Date (as defined below), the Units (or the unearned
portion of the Units) will be immediately forfeited. If Employee has a
Termination of Employment prior to a Stated Vesting Date and the Units are not
otherwise deemed earned and vested by that date, the Units will be immediately
forfeited except as otherwise provided in Section 4 of the attached Terms and
Conditions. Forfeited Units cease to be outstanding and in no event will
thereafter result in any delivery of shares of Stock to
Employee.
Performance Goal and Earning Date:
The Performance Goal and Earning Date, and the number of Units earned for
specified levels of performance at the Earning Date, shall be as specified in
Exhibit A hereto.
Settlement: Units
that are to be settled hereunder, including Units credited as a result of
Dividend Equivalents, will be settled by delivery of one share of Stock, for
each Unit being settled. Settlement shall occur at the time specified in Section
6 of the attached Terms and Conditions.
The Units are subject to the
terms and conditions of the Plan and this Agreement, including the Terms and
Conditions of Performance Units attached hereto and deemed a part hereof. The
number of Units and the kind of shares deliverable in settlement and other terms
and conditions of the Units are subject to adjustment in accordance with Section
5 of the attached Terms and Conditions and Section 11(c) of the
Plan.
Employee
acknowledges and agrees that (i) the Units are nontransferable, except as
provided in Section 3 of the attached Terms and Conditions and Section 11(b) of
the Plan, (ii) the Units are subject to forfeiture in the event of Employee's
Termination of Employment in certain circumstances prior to vesting, as
specified in Section 4 of the attached Terms and Conditions, and (iii) sales of
shares of Stock will be subject to any Company policy regulating trading by
employees.
Capitalized terms used in this
Agreement but not defined herein shall have the same meanings as in the
Plan.
IN
WITNESS WHEREOF, NEW JERSEY RESOURCES CORPORATION has caused this Agreement to
be executed by its officer thereunto duly authorized.
NEW JERSEY RESOURCES
CORPORATION
By:_____________________
[Name]
[Title]
EMPLOYEE
By:_____________________
[Name],
an individual
TERMS AND CONDITIONS OF PERFORMANCE
UNITS
The
following Terms and Conditions apply to the Performance Units granted to
Employee by NEW JERSEY RESOURCES CORPORATION (the "Company") and Units resulting
from Dividend Equivalents (as defined below), if any, as specified in the
Performance Units Agreement (of which these Terms and Conditions form a part).
Certain terms of the Units, including the number of Units granted, vesting
date(s) and settlement date, are set forth on the cover page hereto and Exhibit
A, which are an integral part of this Agreement.
1. General. The
Units are granted to Employee under the Company's 2007 Stock Award and Incentive
Plan (the "Plan"), which has been previously delivered to Employee and/or is
available upon request to the Corporate Benefits Department. All of the
applicable terms, conditions and other provisions of the Plan are incorporated
by reference herein. Capitalized terms used in this Agreement but not defined
herein shall have the same meanings as in the Plan. If there is any conflict
between the provisions of this document and mandatory provisions of the Plan,
the provisions of the Plan govern. By accepting the grant of the Units, Employee
agrees to be bound by all of the terms and provisions of the Plan (as presently
in effect or later amended), the rules and regulations under the Plan
adopted from time to time, and the decisions and determinations of the
Leadership Development and Compensation Committee of the Company's Board of
Directors (the "Committee") made from time to time.
2. Account for
Employee. The Company shall
maintain a bookkeeping account for Employee (the "Account") reflecting the
number of Units then credited to Employee hereunder as a result of such grant of
Units and any crediting of additional Units to Employee pursuant to payments
equivalent to dividends paid on shares of Stock under Section 5 hereof
("Dividend Equivalents").
3. Nontransferability. Until
Units become settleable in accordance with the terms of this Agreement, Employee
may not transfer Units or any rights hereunder to any third party other than by
will or the laws of descent and distribution, except for transfers to a
Beneficiary or as otherwise permitted and subject to the conditions under
Section 11(b) of the Plan.
4. Termination
Provisions. The following provisions will govern the vesting and
forfeiture of the Units that are outstanding at the time of Employee's
Termination of Employment (as defined below), unless otherwise determined by the
Committee (subject to Section 8(a) hereof):
(a) Death or
Disability. In the event of Employee's Termination of
Employment due to death or Disability (as defined below) the Units will be
deemed earned in an amount equal to the greater of the Target Number or the
number of Units to be granted based upon the actual level of achievement if the
performance period had ended at the date of the Termination of
Employment. A Pro-Rata Portion (as defined below) of the Units
earned, to the extent not previously vested, will vest immediately, and such
Units, together with any then-outstanding Units that previously became vested,
will be settled in accordance with Section 6(a) hereof. Any portion
of the then-outstanding Units not earned or not vested at or before the date of
Termination will be forfeited.
(b) Termination by the Company or
Voluntarily by the Employee. In the event of Employee's
Termination of Employment by the Company for any reason or by Employee
voluntarily, the portion of the then-outstanding Units not vested at the date of
Termination will be forfeited, and the portion of the then-outstanding Units
that is vested at or before the date of Termination will be settled in
accordance with Section 6(a) hereof.
(c)
Retirement. In the event of Employee's Termination of
Employment due to Retirement (as defined below) the Units will be deemed earned
in an amount equal to fifty percent of the Target Number. A Pro-Rata
Portion (as defined below) of the Units earned, to the extent not previously
vested, will vest immediately, and such Units, together with any
then-outstanding Units that previously became vested, will be settled in
accordance with Section 6(a) hereof. Any portion of the then-outstanding Units
not earned or not vested at or before the date of Termination will be
forfeited.
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(d) Certain
Definitions. The following definitions apply for purposes of
this Agreement:
(i) "Disability"
means Employee has been incapable of substantially fulfilling the positions,
duties, responsibilities and obligations of his employment because of physical,
mental or emotional incapacity resulting from injury, sickness or disease for a
period of at least six consecutive months. The Company and Employee shall agree
on the identity of a physician to resolve any question as to Employee's
disability. If the Company and Employee cannot agree on the physician to make
such determination, then the Company and Employee shall each select a physician
and those physicians shall jointly select a third physician, who shall make the
determination. The determination of any such physician shall be final and
conclusive for all purposes of this Agreement.
(ii) "Pro
Rata Portion" means a fraction the numerator of which is the number of days that
have from the Grant Date to the date of Employee's Termination of Employment and
the denominator of which is the number of days from the Grant Date to the Stated
Vesting Date.
(iii) “Retirement”
means the Employee terminates employment at or after age 65, or at or after age
55 with 20 or more years of service.
(iv) “Subsidiary”
means any subsidiary corporation of the Company within the meaning of Section
424(f) of the Code (“Section 424(f) Corporation”) and any partnership, limited
liability company or joint venture in which either the Company or Section 424(f)
Corporation is at least a fifty percent (50%) equity participant.
(v) "Termination
of Employment" and “Termination” means the earliest time at which Employee is
not employed by the Company or a Subsidiary of the Company and is not serving as
a non-employee director of the Company or a Subsidiary of the
Company.
5. Dividend
Equivalents and Adjustments.
(a) Dividend
Equivalents. Dividend Equivalents will be credited on Units
(other than Units that, at the relevant record date, previously have been
settled or forfeited) and deemed reinvested in additional
Units. Dividend Equivalents will be credited with respect to unearned
Units, earned but not vested Units, and vested but not settled
Units. Dividend Equivalents will be credited as follows, except that
the Company may vary the manner of crediting (for example, by crediting cash
dividend equivalents rather than additional Units) for administrative
convenience:
(i) Cash Dividends. If
the Company declares and pays a dividend or distribution on shares of Stock in
the form of cash, then additional Units shall be credited to Employee's Account
in lieu of payment or crediting of cash dividend equivalents equal to the number
of Units credited to the Account as of the relevant record date multiplied by
the amount of cash paid per share of Stock in such dividend or distribution
divided by the Fair Market Value of a share of Stock at the payment date for
such dividend or distribution.
(ii) Non-Share
Dividends. If the Company declares and pays a dividend or
distribution on shares of Stock in the form of property other than shares
of Stock, then a number of additional Units shall be credited to Employee's
Account as of the payment date for such dividend or distribution equal to the
number of Units credited to the Account as of the record date for such dividend
or distribution multiplied by the fair market value of such property actually
paid as a dividend or distribution on each outstanding share of Stock at such
payment date, divided by the Fair Market Value of a share of Stock at such
payment date.
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(iii) Share Dividends and
Splits. If the Company declares and pays a dividend or
distribution on shares of Stock in the form of additional shares of Stock, or
there occurs a forward split of shares of Stock, then a number of additional
Units shall be credited to Employee's Account as of the payment date for such
dividend or distribution or forward split equal to the number of Units credited
to the Account as of the record date for such dividend or distribution or split
multiplied by the number of additional shares of Stock actually paid as a
dividend or distribution or issued in such split in respect of each outstanding
share of Stock.
(b) Adjustments. The
number of Units credited to Employee's Account shall be appropriately adjusted
in order to prevent dilution or enlargement of Employee's rights with respect to
Units or to reflect any changes in the number of outstanding shares of Stock
resulting from any event referred to in Section 11(c) of the Plan, taking into
account any Units credited to Employee in connection with such event under
Section 5(a) hereof. In furtherance of the foregoing, in the event of an equity
restructuring, as defined in FAS 123R, which affects the shares of Stock,
Employee shall have a legal right to an adjustment to Employee’s Units which
shall preserve without enlarging the value of the Units, with the manner of such
adjustment to be determined by the Committee in its discretion.
(c) Risk of Forfeiture and Settlement of
Units Resulting from Dividend Equivalents and Adjustments. Units which
directly or indirectly result from Dividend Equivalents on or adjustments to a
Unit granted hereunder shall be subject to the same risk of forfeiture and other
conditions as apply to the granted Unit and will be settled at the same time as
the granted Unit.
6. Settlement and
Deferral.
(a) Settlement
Date. Units granted hereunder that have been earned and
vested, together with Units credited as a result of Dividend Equivalents with
respect thereto, shall be settled by delivery of one share of Stock for each
Unit being settled. Settlement of a Unit granted hereunder shall occur at the
Stated Vesting Date; provided, however, that settlement shall occur earlier (i)
within 90 days after the date of death of Employee, (ii) within 60 days after
termination due to Disability (subject to Section 6(c)(iii) hereof if Employee
is not “disabled” within the meaning of Code Section 409A), (iii) upon a Change
in Control except that, if the Units are subject to Section 6(c) hereof, no
distribution shall be triggered if the Change in Control does not involve an
event that comes within the definition under Code Section 409A), or (iv) within
60 days after a Termination of Employment if and to the extent specified in
Section 4(b) hereof; and provided further, that settlement shall be deferred if
so elected by Employee in accordance with Section 6(b) hereof. Settlement of
Units which directly or indirectly result from Dividend Equivalents on Units
granted hereunder shall occur at the time of settlement of the granted
Unit.
(b) Elective
Deferral. The Committee may determine to permit Employee to
elect to defer settlement (or redefer) if such election would be permissible
under Code Section 409A . In addition to any applicable requirements under Code
Section 409A , any such deferral election shall be made only while Employee
remains employed and at a time permitted under Code Section 409A. Any elective
deferral will be subject to such additional terms and conditions as the Vice
President – Corporate Services, or the officer designated by the Company as
responsible for administration of the Agreement, may reasonably
impose.
(c) Compliance with Code Section
409A. Other provisions of this Agreement notwithstanding, if
Units are subject to taxation under Code Section 409A (“§ 409A”) (i.e., the
Units are not excluded or exempted under Code Section 409A; Note: an elective
deferral under Section 6(b) would cause the Units to be subject to Code Section
409A), settlement shall be subject to the following rules:
(i) The
Company shall have no authority to accelerate distributions relating to such
Units in excess of the authority permitted under Code Section 409A;
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(ii) Any
distribution relating to such Units triggered by Employee’s termination of
employment and intended to qualify under Code Section 409A shall be made only at
the time that Employee has had a “separation from service” within the meaning of
Code Section 409A. A “separation from service”
will occur where it is reasonably anticipated that no further services will be
performed after that date or that the level of bona fide services the Employee
will perform after that date (whether as an employee or independent contractor)
will permanently decrease to less than 50% of the average level of bona fide
services performed over the immediately preceding thirty-six (36) month
period.;
(iii) Any
distribution relating to such Units subject to Code Section 409A that would be
made within six months following a separation from service of a “Specified
Employee” as defined under Code Section 409A and as determined under procedures
adopted by the Board of Directors of the Company shall instead occur on the
first day of the seventh month following the Separation from Service (or upon
the Employee’s death, if earlier) . In the case of installments, this
delay shall not affect the timing of any installment otherwise payable after the
six-month delay period;
(iv) If
any portion of such Units scheduled to vest at a single specified date (a
vesting “tranche”) is partly deemed a 409A Award and partly deemed exempt from §
409A (as a short-term deferral or otherwise), the time of settlement of only the
portion of the Award subject to Code Section 409A shall be subject to the
provisions of this Section 6; and
(v) Any
rights of Employee or retained authority of the Company with respect to Units
hereunder shall be automatically modified and limited to the extent necessary so
that Employee will not be deemed to be in constructive receipt of income
relating to the Units prior to the distribution of shares to Employee and so
that Employee shall not be subject to any penalty under Code Section
409A.
7. Employee
Representations and Warranties Upon Settlement. As a condition
to the settlement of the Units, the Company may require Employee to make any
representation or warranty to the Company as may be required under any
applicable law or regulation.
8. Miscellaneous.
(a) Binding Agreement; Written
Amendments. This Agreement shall be binding upon the heirs,
executors, administrators and successors of the parties. This Agreement
constitutes the entire agreement between the parties with respect to the Units,
and supersedes any prior agreements or documents with respect to the Units. No
amendment or alteration of this Agreement which may impose any additional
obligation upon the Company shall be valid unless expressed in a written
instrument duly executed in the name of the Company, and no amendment,
alteration, suspension or termination of this Agreement which may materially
impair the rights of Employee with respect to the Units shall be valid unless
expressed in a written instrument executed by Employee.
(b) No Promise of
Employment. The Units and the granting thereof shall not
constitute or be evidence of any agreement or understanding, express or implied,
that Employee has a right to continue as an officer or employee of the Company
for any period of time, or at any particular rate of compensation.
(c) Governing Law. The
validity, construction, and effect of this Agreement shall be determined in
accordance with the laws (including those governing contracts) of the state of
New Jersey, without giving effect to principles of conflicts of laws, and
applicable federal law.
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(d) Fractional Units and
Shares. The number of Units credited to Employee's Account
shall include fractional Units calculated to at least three decimal places,
unless otherwise determined by the Committee. Unless settlement is effected
through a third-party broker or agent that can accommodate fractional shares
(without requiring issuance of a fractional Share by the Company), upon
settlement of the Units Employee shall be paid, in cash, an amount equal to the
value of any fractional Share that would have otherwise been deliverable in
settlement of such Units.
(e) Mandatory Tax Withholding. Unless
otherwise determined by the Committee, at the time of vesting and/or settlement
the Company will withhold from any shares of Stock deliverable in settlement of
the Units, in accordance with Section 11(d)(i) of the Plan, the number of shares
of Stock having a value nearest to, but not exceeding, the amount of income and
employment taxes required to be withheld under applicable laws and regulations,
and pay the amount of such withholding taxes in cash to the appropriate taxing
authorities. Employee will be responsible for any withholding taxes not
satisfied by means of such mandatory withholding and for all taxes in excess of
such withholding taxes that may be due upon vesting or settlement of
Units.
(f) Statements. An
individual statement of each Employee's Account will be issued to Employee at
such times as may be determined by the Company. Such a statement shall reflect
the number of Units credited to Employee's Account, transactions therein during
the period covered by the statement, and other information deemed relevant by
the Company. Such a statement may be combined with or include information
regarding other plans and compensatory arrangements. Employee's statements shall
be deemed a part of this Agreement, and shall evidence the Company's obligations
in respect of Units, including the number of Units credited as a result of
Dividend Equivalents (if any). Any statement containing an error shall not,
however, represent a binding obligation to the extent of such error,
notwithstanding the inclusion of such statement as part of this
Agreement.
(g) Unfunded
Obligations. The grant of the Units and any provision for
distribution in settlement of Employee's Account hereunder shall be by means of
bookkeeping entries on the books of the Company and shall not create in Employee
any right to, or claim against any, specific assets of the Company, nor result
in the creation of any trust or escrow account for Employee. With respect to
Employee's entitlement to any distribution hereunder, Employee shall be a
general creditor of the Company.
(h) Notices. Any
notice to be given the Company under this Agreement shall be addressed to the
Company at its principal executive offices, in care of the Vice President –
Corporate Services, or the officer designated by the Company as responsible for
administration of the Agreement, and any notice to Employee shall be addressed
to Employee at Employee’s address as then appearing in the records of the
Company.
(i) Shareholder
Rights. Employee and any Beneficiary shall not have any rights
with respect to shares of Stock (including voting rights) covered by this
Agreement prior to the settlement and distribution of the shares of Stock as
specified herein.
5
Exhibit
A
NEW
JERSEY RESOURCES CORPORATION
2007
Stock Award and Incentive Plan
Performance
Goal and Earning of Performance Units
The number of Performance Units earned
by Participant shall be determined as of _______ __, 200_ [last day of
performance period] (the "Earning Date"), based on the Company’s “Total
Shareholder Return Performance" in the ___-fiscal-year period ending at that
date as compared against an established group of comparable companies (the
"Comparison Group") selected by the Committee and attached hereto as Schedule A.
The number of Units earned will then be determined based on the following
grid:
|
Company
Total Shareholder Return Performance -- Percentile
Achieved
|
Units
Earned as Percentage of Target Units
|
|
Less
than 30th
|
0%
|
|
30th
|
__%
|
|
40th
|
__%
|
|
50th
|
__%
|
|
60th
|
__%
|
|
70th
|
__%
|
|
80th
|
__%
|
|
90th
and above
|
150%
|
Upon
achievement of Total Shareholder Return at a percentile between 30th and
40th,
40th
and 50th,
50th
and 60th, or
between 60th and
70th,
70th
and 80th, or
between 80th and
90th, the
Units earned will be mathematically interpolated on a straight-line
basis.
Determinations
of the Committee regarding Total Shareholder Return performance, such
performance as a percentile within the Comparison Group, the resulting Units
earned and related matters will be final and binding on Participant. The
Committee shall specify a reasonable methodology for dealing with companies in
the Comparison Group that cease to be publicly traded companies engaged in a
business comparable to that of the Company, subject to compliance with Treasury
Regulation § 1.162-27(e)(2). Total Shareholder Return shall be calculated in a
manner that reflects the economic return to shareholders, such that any equity
restructuring of the Company or any company in the Comparison Group shall not
have the effect of enlarging or reducing the rights of Employee except to the
extent of its effects on the real economic return of a shareholder.
6
Schedule
A
[List of
Companies in Comparison Group]
7
