NJR ENERGY SERVICES COMPANY Deferred Stock Retention Award Agreement
Exhibit 10.25
NJR
ENERGY SERVICES COMPANY
This
Deferred Stock Retention Award Agreement (the "Agreement"), which includes the
attached “Terms and Conditions of Deferred Stock,” confirms the grant on
November 11, 2008 (the “Grant Date”) by NJR ENERGY SERVICES COMPANY, a New
Jersey corporation (the "Company"), to XXXXXX X. XXXXXXX
("Employee"), under Section 6(e) of the 2007 Stock Award and Incentive Plan (the
"Plan"), of Deferred Stock as follows:
Based upon his or her contribution to
the success of NJR ENERGY SERVICES COMPANY (“NJRES”) in fiscal year 2008,
Employee is hereby awarded a deferred stock retention award (“Retention Award”)
of 5,654.509 deferred
stock units of New Jersey Resources Corporation (“NJR”) common stock issued
under the Plan (“Deferred Stock”). No dividends or distributions on NJR Common
Stock will be applied to the Deferred Stock.
Beginning on November 11, 2011, the
Retention Award will be paid to Employee in quarterly installments on the
following schedule:
This
payout will be in the form of fully transferable shares of NJR common stock. In
addition, if not previously forfeited, the Retention Award will be paid in full
upon a Change in Control, and will be immediately paid upon the occurrence of
certain events relating to Disability and death to the extent provided in
Section 3 of the attached Terms and Conditions.
Conditions
to Retention Award: Employee is not
required to continue his/her employment with NJRES in order to receive
distribution of the Retention Award. However, NJRES’ obligation to pay the
Retention Award and Employee’s right to distribution of the Retention Award are
conditioned upon the following:
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Employee
may not compete with the energy trading and wholesale energy operations of
NJRES in any geographical area where NJRES is doing business including,
but not limited to, competition by engaging in energy trading and
wholesale energy operations with, or on behalf of, yourself or any person,
corporation, partnership or any other business entity; and Employee may
not engage in natural gas supply acquisitions, negotiating transportation
agreements and monitoring natural gas control activities or regulated
wholesale marketing activity at, or for, companies providing energy
services within the state of New Jersey;
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Employee
shall not solicit any NJRES customers, vendors or employees including, but
not limited to, interaction with existing or prospective customers,
vendors or employees of NJRES that takes place in an effort to establish,
maintain and/or further a business relationship with such customers,
vendors or employees, diversion of a customer’s or prospective customer’s
business from NJRES or other interference with NJRES’ business with an
existing or prospective customer, vendor or employee, even if such
customer, vendor or employee initiates contact with
you;
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Employee
shall not disclose any confidential information related to NJR’s or any of
its subsidiaries’ business plans or
practices;
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Employee
shall not make any statements, either verbally or in writing, that are
disparaging with regard to NJR or any of its subsidiaries (including, but
not limited to, NJRES) or their respective executives and Board members;
and
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Employee
shall not engage in any financial or other misconduct that results in the
termination of Employee’s employment for “Cause.” For purposes
of this letter, "Cause" means (A) 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 Employee’s employment hereunder which has had a
significant adverse effect on the business of NJR or any of 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 NJR or any
of its subsidiaries, or (C) repeated material violations by Employee of
his or her obligations under any applicable employment agreement or policy
of NJR or any of its subsidiaries, which have continued after written
notice thereof from NJR or any of its subsidiaries, which violations are
demonstrably willful and deliberate on Employee’s part and which result in
material damage to NJR or any of its subsidiaries’ business or
reputation.
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If it is
determined by the Leadership Development and Compensation Committee of the NJR
Board of Directors that Employee has engaged in any of the above activities
prior to full distribution of the Retention Award, any unpaid portion of the
Retention Award will be forfeited.
The value of the Retention Award will
not be taxable to Employee until it is distributed and will, at that time, be
equal to the value of the current fair market value of the shares of NJR common
stock. Required withholding taxes will be deducted in the form of shares from
the share payout as described in Section 7(c) of the attached Terms and
Conditions, unless Employee has elected at least 90 days prior to payout to
satisfy the tax obligations by other means.
The Retention Award will not be
considered as compensation for purposes of any pension or retirement plan, or
other plan that provides for benefits based on Employee’s level of
compensation.
The Retention Award 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 of
employee of NJR or any of its subsidiaries for any period of time, or at any
particular rate of compensation.
The validity, construction, and effect
of this Agreement and the Retention Award 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.
If any provision in this Agreement is
held to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions will in no way be affected or
impaired thereby. In the event that any provision of this Agreement is not
enforceable in accordance with its terms, such provision shall be reformed to
make it enforceable in a manner which provides NJR and its subsidiaries the
maximum rights permitted by law.
The terms of this Retention Award are
governed by the Plan and this Agreement, including the attached Terms and
Conditions. 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) receipt of a copy of the Plan and agrees to be
bound by all the terms and provisions thereof, (ii) the Deferred Stock is
nontransferable, except as provided in Section 2 of the attached Terms and
Conditions and Section 11(b) of the Plan, (iii) the Deferred Stock is subject to
forfeiture as described above in certain limited circumstances prior to
payout, and (iv) sales of the shares following payout of the Deferred Stock will
be subject to the Company's policy governing the purchase and sale of NJR
securities.
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IN
WITNESS WHEREOF, NEW JERSEY ENERGY SERVICES COMPANY has caused this Agreement to
be executed by its officer thereunto duly authorized, and Employee has duly
executed this Agreement, by which each has agreed to the terms of this
Agreement.
/s/ Xxxxxxxx X.
Xxxxxx
XXXXXXXX
X. XXXXXX
Chairman
and Chief Executive Officer
Acknowledged
/s/Xxxxxx X.
Xxxxxxx 12/31/08
XXXXXX X.
XXXXXXX Date
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TERMS AND
CONDITIONS OF DEFERRED STOCK
The
following Terms and Conditions apply to the Deferred Stock granted to Employee
by NJR ENERGY SERVICES COMPANY (the "Company"), as specified in the Deferred
Stock Retention Award Agreement (of which these Terms and Conditions form a
part). Certain terms and conditions of the Retention Award, including
the number of shares granted and payment date(s), are set forth on the preceding
pages, which are an integral part of this Agreement.
1. General. The
Deferred Stock is granted to Employee under the Company's 2007 Stock Award and
Incentive Plan (the "Plan"), a copy of which has been previously delivered to
Employee and/or is available upon request to the Human Resources
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. 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. Nontransferability. Until
such time as the Deferred Stock has been distributed in accordance with the
terms of this Agreement, Employee may not transfer Deferred Stock 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. This
restriction on transfer precludes any sale, assignment, pledge, or other
encumbrance or disposition of the shares of Deferred Stock (except for
forfeitures to the Company).
3. Early Payment
Provisions. The following provisions will govern the payment of the
Deferred Stock that is outstanding at the time of Employee's death or
Disability:
(a) Death. In the
event of Employee's death, the unpaid Deferred Stock will be paid immediately to
the Employee’s Beneficiary.
(b) Disability. In the
event of Employee’s Disability (as defined below), the unpaid Deferred Stock
will be paid immediately to the Employee.
"Disability"
means Employee has been unable to engage in any substantial gainful activity for
a period of six consecutive months 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. 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.
4. Dividends and
Adjustments.
(a) Dividends. No dividends or
distributions on NJR Common Stock will be applied to the Deferred
Stock.
(b) Adjustments. The
number and kind of shares of Deferred Stock, the number of such shares to be
distributed and other terms and conditions of Deferred Stock or otherwise
contained in this Agreement, other than the time and form of payment of the
Deferred Stock, shall be appropriately adjusted, in order to prevent dilution or
enlargement of Employee’s rights hereunder, to reflect any changes in the number
of outstanding shares of Common Stock resulting from any event referred to in
Section 11(c) of the Plan, taking into account any Deferred Stock or other
amounts paid or credited to Employee in connection with such event under Section
4(a) hereof, in the sole discretion of the Committee subject to the requirements
of Code Section 409A.The Committee may determine how to treat or settle any
fractional share resulting under this Agreement.
5. 409A
Award. The Deferred Stock payable under the Agreement is a
409A Award and is subject to all applicable terms and conditions set forth in
Section 11(k) of the Plan. All provisions of the Agreement shall be
interpreted in a manner as to comply with Section 11(k) of the Plan and Code
Section 409A.
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6. Other Terms of Deferred
Stock.
(a) Voting and Other Shareholder
Rights. Employee shall not be entitled to vote Deferred Stock
on any matter submitted to a vote of holders of Common Stock, and shall not have
all other rights of a shareholder of the Company until the Deferred Stock is
distributed to Employee as described in the Agreement.
(b) Consideration for Grant of Deferred
Stock. Employee shall not be required to pay cash
consideration for the grant of the Deferred Stock, but Employee's performance of
services to the Company prior to the payout of the Deferred Stock shall be
deemed to be consideration for this grant of Deferred Stock.
(c) Xxxxxxx Xxxxxxx Policy
Applicable. Employee acknowledges that sales of shares
resulting from Deferred Stock that have been distributed will be subject to the
Company's policies governing the purchase and sale of Company
securities.
(d) Certificates Evidencing Deferred
Stock. On the date any Deferred Stock subject to the Retention
Award becomes payable (the “Payment Date”), such Deferred Stock shall be paid by
the Company delivering to the Employee, a number of shares of NJR common stock
equal to the number of shares of Deferred Stock that become payable upon that
Payment Date. The Company shall issue the shares either (i) in certificate
form or (ii) in book entry form, registered in the name of the Employee.
Delivery of any certificates will be made to the Employee’s last address
reflected on the books of the Company unless the Company is otherwise instructed
in writing. Neither the Employee nor any of the Employee’s successors, heirs,
assigns or personal representatives shall have any further rights or interests
in any Deferred Stock that are so paid.
(e) Stock Powers. Employee agrees to
execute and deliver to the Company one or more stock powers, in such form as may
be specified by the General Counsel, authorizing the transfer of the Deferred
Stock to the Company, at the Grant Date or upon request at any time
thereafter.
7. Employee
Representations and Warranties and Release. As a condition
to any non-forfeiture of the Deferred Stock that would be distributed to
Employee upon Disability, the Company may require Employee (i) to make any
representation or warranty to the Company as may be required under any
applicable law or regulation, and (ii) to execute a release from claims against
the Company arising at or before the date of such release, in such form as may
be specified by the Company.
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 Deferred Stock, and supersedes any prior agreements or documents with
respect to the Deferred Stock. 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
Deferred Stock shall be valid unless expressed in a written instrument executed
by Employee. All amendments must comply with the requirements of Code
Section 409A.
(b) 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.
(c) Mandatory Tax Withholding. Unless
otherwise determined by the Committee, at the time of payment of the Deferred
Stock to Employee, the Company will withhold from any Shares deliverable, in
accordance with Section 11(d)(i) of the Plan, the number of Shares having a
value nearest to, but not exceeding, the amount of income and employment taxes
required to be withheld under applicable local 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 payment of the Deferred
Stock.
(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,
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 (including
voting rights) covered by this Agreement prior to the settlement and
distribution of the Shares as specified herein.l
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