Stock Option Agreement
Exhibit 10.18
NEW
JERSEY RESOURCES CORPORATION
2007
Stock Award and Incentive Plan
This
Stock Option Agreement (the “Agreement”), which includes the attached “Terms and
Conditions of Option Grant” (the “Terms and Conditions”), confirms the grant on
_________ __, 200__ (the “Grant Date”) by NEW JERSEY RESOURCES CORPORATION, a
New Jersey corporation (the "Company"), to ("Employee")
under Section 6(b) of the 2007 Stock Award and Incentive Plan (the "Plan"), of a
non-qualified stock option (the "Option") to purchase shares of Stock (the
"Option Shares"), as follows:
Option Shares
purchasable: __________ shares of Stock
Exercise
Price: $
__________ per share of Stock
Option vests and becomes
exercisable: The Option shall vest and become
exercisable as to 25% of the Option Shares, cumulatively, on each of the first,
second, third, and fourth anniversaries of the Grant Date (rounded to the
nearest whole Share); provided, however, that [the Option will become
immediately vested and exercisable upon the occurrence of certain events
relating to Termination of Employment, in accordance with Section 4 of the
attached Terms and Conditions, and] any unvested portion of the Option will
automatically become fully vested and exercisable upon a Change in
Control.
Expiration Date: _______ __, 20__ (the
"Stated Expiration Date") or, in the event of Termination of Employment (as
defined in Section 4 of the attached Terms and Conditions), the date the Option
ceases to be exercisable under Section 4 of the attached Terms and Conditions
(the earlier of which time is the “Expiration Date”). [If, at the date on which
the Option or any portion thereof is to expire or terminate, the Fair Market
Value of an Option Share exceeds the Exercise Price and if the Option or portion
thereof that will expire or terminate is otherwise exercisable, the Option shall
be automatically exercised by the withholding of Option Shares acquired on such
exercise to pay the exercise price and applicable withholding
taxes.]
The
Option is subject to the terms and conditions of the Plan and this Agreement,
including the attached Terms and Conditions. The number and kind of shares of
Stock purchasable, the Exercise Price, and other terms and conditions are
subject to adjustment in accordance with Section 11(c) of the Plan. Capitalized
terms used in this Agreement but not defined herein shall have the same meanings
as in the Plan.
Employee
acknowledges and agrees that (i) the Option is nontransferable, except as
provided in Section 6 of the attached Terms and Conditions and Section 11(b) of
the Plan, (ii) the Option is subject to forfeiture in the event of Employee's
Termination of Employment in certain circumstances, as specified in Section
4 of the attached Terms and Conditions, and (iii) sales of shares of Stock
acquired on exercise of the Option will be subject to the Company's policy
regulating trading by employees.
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
___________________________
[Name], an individual
TERMS AND
CONDITIONS OF OPTION GRANT
The
following Terms and Conditions apply to the Option granted to Employee by NEW
JERSEY RESOURCES CORPORATION (the "Company"), as specified in the Stock Option
Agreement (of which these Terms and Conditions form a part). Certain specific
terms of the Option, including the number of shares of Stock purchasable,
vesting, the Stated Expiration Sate and Expiration Date, and Exercise Price, are
set forth on the cover page hereto, which is an integral part of this
Agreement.
1. General. The
Option is granted to Employee under the Company's 2007 Stock Award and Incentive
Plan (the "Plan"), which has previously been 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. The Option is a
non-qualified stock option (not an incentive stock option as defined under
Section 422 of the Internal Revenue Code of 1986, as amended).
2. Right to Exercise
Option. Subject to all applicable laws, rules, regulations and
the terms of the Plan and this Agreement, Employee may exercise the Option only
after the time and to the extent the Option has become vested and exercisable
and prior to or on the Expiration Date of the Option.
3. Method of
Exercise. To exercise the Option, Employee must (a) give written notice
to the Vice President, Corporate Services or Secretary of the Company or any
other officer or agent (including any third-party administrator) as the Company
may designate, which notice shall specifically refer to this Agreement, state
the number of Option Shares as to which the Option is being exercised, and the
name in which he or she wishes the shares of Stock thereby acquired to be
issued, which notice shall be signed by Employee, and (b) pay in full to the
Company the Exercise Price of the Option for the number of shares of Stock being
purchased either (i) in cash (including by check), payable in United States
dollars, (ii) by delivery of shares of Stock by Employee or,
if then permitted by the Company, by directing the Company to withhold shares of
Stock acquired on such exercise having a Fair Market Value, determined as of the
date the Option is exercised, equal to all or the part of the aggregate Exercise
Price being paid in this way, or (iii) in any other manner then permitted by the
Committee. Once Employee gives notice of exercise, such notice may not be
revoked. When Employee exercises the Option, or part thereof, the Company will
transfer shares of Stock to Employee in certification form or make such a
transfer (or make a non-certificated credit) to Employee's brokerage account at
a designated securities brokerage firm or otherwise deliver shares of Stock to
Employee. No Employee or Beneficiary shall have at any time any rights with
respect to shares of Stock covered by this Agreement prior to the valid exercise
as specified herein, and no adjustment shall be made for dividends or other
rights for which the record date is prior to such valid exercise.
4. Termination
Provisions. The following provisions will govern the vesting,
exercisability and expiration of the Option in the event of Employee's
Termination of Employment (as defined below) at a time that the Option remains
outstanding, unless the Committee determines to provide more favorable terms (in
this regard, Employee shall be entitled to any more favorable terms provided in
any valid employment agreement or other agreement with the
Company):
(a) Death or
Disability. In the event of Employee's Termination of
Employment due to death or Disability (as defined below), any unvested portion
of the Option, to the extent then outstanding, will vest and become immediately
exercisable in full, and the Option will remain exercisable, in accordance with
Section 11(b) of the Plan, until the earlier of one year after such Termination
of Employment or the Stated Expiration Date, at which time the Option will
terminate.
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(b) Retirement. In the
event of Employee's Termination of Employment due to Retirement (as defined
below), the Option, to the extent then outstanding, will not be forfeited, but
will remain outstanding until the date that is the earlier of one year after
such Termination or the Stated Expiration Date, at which time the Option will
terminate; provided, however, that any portion of the Option not exercisable as
of the date of Termination will become exercisable at the date upon which it
would have vested had Employee continued to be employed by the Company through
that date if that date occurs on or before the date the Option will terminate;
and provided further, that any portion of the Option that is not vested at the
date of Termination will not become vested thereafter by operation of this
provision and will terminate upon Termination.
(c) Termination by the Company Without
Cause. In the event of Employee's Termination of Employment by
the Company without Cause (as defined below), the portion of the
then-outstanding Option not vested and exercisable at the date of Termination
will terminate, and any portion of the then-outstanding Option that is vested
and exercisable at the date of Termination will terminate at the earlier of
three months after Termination of Employment or the Stated Expiration
Date.
(d) Termination by the Company for
Cause. In the event of Employee's Termination of Employment by
the Company for Cause (as defined below), the Option, whether or not then vested
and exercisable, immediately will terminate.
(e) Termination by the Employee
Voluntarily. In the event of Employee's voluntary Termination
of Employment, the portion of the then-outstanding Option not vested and
exercisable at the date of Termination will terminate, and any portion of the
then-outstanding Option that is vested and exercisable at the date of
Termination will terminate at the earlier of three months after Termination of
Employment or the Stated Expiration Date.
(f) Certain
Definitions. The following definitions apply for purposes of
this Agreement:
(i) "Cause"
means (A) Employee’s conviction of a felony or the entering by Employee of a
plea of nolo
contendere to a felony charge, (B) Employee's gross neglect, willful
malfeasance or willful gross misconduct in connection with his employment
hereunder which has had a significant adverse effect on the business of the
Company and its subsidiaries, unless Employee reasonably believed in good faith
that such act or non-act was in or not opposed to the best interests of the
Company, or (C) repeated material violations by Employee of his or her
obligations under any applicable employment agreement or Company policy which
have continued after written notice thereof from the Company, which violations
are demonstrably willful and deliberate on Employee's part and which result in
material damage to the Company's business or reputation.
(ii) "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.
(iii) "Retirement"
means retirement on a normal, early or postponed retirement date within the
meaning of the Corporation's pension plan applicable to the Employee at the date
of grant.
(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.
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(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. Employee
Representations and Warranties Upon Exercise and Related Terms. As a condition
to the exercise of the Option, the Company may require Employee to make any
representation or warranty to the Company as may be required under any
applicable law or regulation.
6. Nontransferability. Employee
may not transfer the Option or any rights hereunder to any third party other
than by will or the laws of descent and distribution, and, during Employee's
lifetime, only Employee or his or her duly appointed guardian or legal
representative may exercise the Option, except for transfers to a Beneficiary in
the event of death or as otherwise permitted and subject to the conditions under
Section 11(b) of the Plan.
7. 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 Option,
and supersedes any prior agreements or documents with respect to the Option. 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 Option shall be valid unless
expressed in a written instrument executed by Employee.
(b) No Promise of
Employment. The Option 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.
(d) Tax
Withholding. Unless otherwise determined by the Committee,
Employee must make arrangements satisfactory to the Company to pay or provide
for payment of withholding taxes due upon exercise of the Option. The Committee
may require or permit Employee to elect to have the Company withhold from the
shares of Stock deliverable upon exercise of the Option the number of whole
shares of Stock having a Fair Market Value not exceeding the amount of income
and employment taxes required to be withheld under applicable laws and
regulations, and pay the Fair Market Value of such withheld shares of Stock in
cash to the appropriate taxing authorities. Employee will be responsible for any
withholding taxes not satisfied by means of such withholding and for all taxes
in excess of such withholding taxes that may be due upon exercise of the
Option.
(e) 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 this Agreement, and any notice to Employee shall be addressed
to Employee at Employee’s address as then appearing in the records of the
Company.
(f) Shareholder Rights. Employee and
any Beneficiary shall not have any rights with respect to shares of Stock
(including voting rights) purchasable upon exercise of the Option prior to the
valid exercise of the Option.
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