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EXHIBIT 10-12
EMPLOYMENT CONTINUATION AGREEMENT
THIS AGREEMENT between New Jersey Resources Corporation, a New Jersey
corporation (the "Company"), and Xxxxxxxx X. Xxxxxx (the "Executive"), dated
as of this 5th day of June, 1996.
W I T N E S S E T H :
WHEREAS, the Company has employed the Executive in an officer position
with the Company or affiliate thereof and has determined that the Executive
holds an important position with same;
WHEREAS, the Company believes that, in the event it is confronted with
a situation that could result in a change in ownership or control of the
Company, continuity of management will be essential to its ability to evaluate
and respond to such situation in the best interests of shareholders;
WHEREAS, the Company understands that any such situation will present
significant concerns for the Executive with respect to his financial and job
security;
WHEREAS, the Company desires to assure itself of the Executive's
services during the period in which it is confronting such a situation, and to
provide the Executive certain financial assurances to enable the Executive to
perform the responsibilities of his position without undue distraction and to
exercise his judgment without bias due to his personal circumstances;
WHEREAS, to achieve these objectives, the Company and the Executive
desire to enter into an agreement providing the Company and the Executive with
certain rights and obligations upon the occurrence of a Change of Control or
Potential Change of Control (as defined in Section 2);
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is hereby agreed by and between the Company and the
Executive as follows:
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1. Operation of Agreement.
(a) Effective Date. The effective date of this Agreement shall
be the date on which a Change of Control occurs (the "Effective Date"), provided
that, except as provided in Section 1(b), if the Executive is not employed by
the Company on the Effective Date, this Agreement shall be void and without
effect.
(b) Termination of Employment Following a Potential Change of
Control. Notwithstanding Section 1(a), if (i) the Executive's employment is
terminated by the Company Without Cause (as defined in Section 6(c)) after the
occurrence of a Potential Change of Control and prior to the occurrence of a
Change of Control and (ii) a Change of Control occurs within one year of such
termination, the Executive shall be deemed, solely for purposes of determining
his rights under this Agreement, to have remained employed until the date such
Change of Control occurs and to have been terminated by the Company Without
Cause immediately after this Agreement becomes effective.
2. Definitions.
(a) Change of Control. For the purposes of this Agreement, a
"Change of Control" shall be deemed to have occurred if:
(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 25% or more of the combined Voting Power (as defined
below) of the Company's securities;
(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
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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.
(b) Potential Change of Control. For the purposes of this
Agreement, a "Potential Change of Control" shall be deemed to have occurred if:
(i) a Person commences a tender offer for securities
representing at least 20% of the Voting Power of the Company's
securities;
(ii) the Company enters into an agreement the
consummation of which would constitute a Change of Control;
(iii) proxies for the election of directors of the
Company are solicited by anyone other than the Company; or
(iv) any other event occurs which is deemed to be a
Potential Change of Control by the Board.
(c) Person Defined. For purposes of this Section 2, "Person"
shall have the meaning ascribed to such term in Section 3(a)(9) of the Exchange
Act, as supplemented by Section 13(d)(3) of the Exchange Act; provided, however,
that Person shall not include (i) the Company or any subsidiary of the Company
or (ii) any employee benefit plan sponsored by the Company or any subsidiary of
the Company.
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(d) Voting Power Defined. A specified percentage of "Voting
Power" of a company shall mean such number of the Voting Securities as shall
enable the holders thereof to cast such percentage of all the votes which could
be cast in an annual election of directors (without consideration of the rights
of any class of stock other than the common stock of the company to elect
directors by a separate class vote); and "Voting Securities" shall mean all
securities of a company entitling the holders thereof to vote in an annual
election of directors (without consideration of the rights of any class of stock
other than the common stock of the company to elect directors by a separate
class vote).
3. Employment Period. Subject to Section 6 of this Agreement, the
Company agrees to continue the Executive in its employ, and the Executive agrees
to remain in the employ of the Company, for the period (the "Employment Period")
commencing on the Effective Date and ending on the third anniversary of the
Effective Date.
4. Position and Duties.
(a) No Reduction in Position. During the Employment Period,
the Executive's position (including titles), authority and responsibilities
shall be at least commensurate with those held, exercised and assigned
immediately prior to the Effective Date. It is understood that, for purposes of
this Agreement, such position, authority and responsibilities shall not be
regarded as not commensurate merely by virtue of the fact that a successor shall
have acquired all or substantially all of the business and/or assets of the
Company as contemplated by Section 12(b) of this Agreement. The Executive's
services shall be performed at the location where the Executive was employed
immediately preceding the Effective Date.
(b) Business Time. From and after the Effective Date, the
Executive agrees to devote substantially all of his attention during normal
business hours to the business and affairs of the Company, to the extent
necessary to discharge his responsibilities hereunder, except for (i) time spent
in managing his personal, financial and legal affairs, serving on corporate,
civic or charitable boards or committees or working for any charitable or civic
organization, in each case only if and to the extent not materially interfering
with the performance of such responsibilities, and (ii) periods of vacation and
sick leave to which he is entitled. It is expressly understood and agreed that
the Executive's continuing to serve on any boards and committees on which he is
serving or with which he is otherwise
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associated immediately preceding the Effective Date shall be deemed not to
interfere with the performance of the Executive's services to the Company.
5. Compensation.
(a) Base Salary. During the Employment Period, the Executive
shall receive a base salary at a monthly rate at least equal to the monthly
salary paid to the Executive by the Company and any of its affiliated companies
immediately prior to the Effective Date. The base salary shall be reviewed at
least once each year after the Effective Date, and may be increased (but not
decreased) at any time and from time to time by action of the Board or any
committee thereof or by any individual having authority to take such action in
accordance with the Company's regular practices. The Executive's base salary, as
it may be increased from time to time, shall hereafter be referred to as "Base
Salary". Neither the Base Salary nor any increase in Base Salary after the
Effective Date shall serve to limit or reduce any other obligation of the
Company hereunder.
(b) Annual Bonus. During the Employment Period, in addition to
the Base Salary, for each fiscal year of the Company ending during the
Employment Period, the Executive shall be afforded the opportunity to receive an
annual bonus on terms and conditions no less favorable to the Executive (taking
into account reasonable changes in the Company's goals and objectives) than the
annual bonus opportunity that had been made available to the Executive for the
fiscal year ended immediately prior to the Effective Date (the "Annual Bonus
Opportunity"). Any amount payable in respect of the Annual Bonus Opportunity
shall be paid as soon as practicable following the year for which the amount (or
prorated portion) is earned or awarded, but not later than 90 days after the
close of the calendar year for which the bonus is payable, unless electively
deferred by the Executive pursuant to any deferral programs or arrangements that
the Company may make available to the Executive.
(c) Long-term Incentive Compensation Programs. During the
Employment Period, the Executive shall participate in all long-term incentive
compensation programs ("LTICP") for key executives at a level that is
commensurate with the Executive's participation in such plans immediately prior
to the Effective Date, or, if more favorable to the Executive, at the level made
available to the Executive or other similarly situated officers at any time
thereafter.
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(d) Benefit Plans. During the Employment Period, the Executive
(and, to the extent applicable, his dependents) shall be entitled to participate
in or be covered under all pension, retirement, deferred compensation, savings,
medical, dental, health, disability, severance, group life, accidental death and
travel accident insurance plans and programs of the Company and its affiliated
companies at a level that is commensurate with the Executive's participation in
such plans immediately prior to the Effective Date, or, if more favorable to the
Executive, at the level made available to the Executive or other similarly
situated officers at any time thereafter.
(e) Expenses. During the Employment Period, the Executive
shall be entitled to receive prompt reimbursement for all reasonable expenses
incurred by the Executive in accordance with the policies and procedures of the
Company as in effect immediately prior to the Effective Date. Notwithstanding
the foregoing, the Company may apply the policies and procedures in effect after
the Effective Date to the Executive, if such policies and procedures are more
favorable to the Executive than those in effect immediately prior to the
Effective Date.
(f) Vacation, Perquisites and Fringe Benefits. During the
Employment Period, the Executive shall be entitled to paid vacation, perquisites
and fringe benefits at a level that is commensurate with the paid vacation,
perquisites and fringe benefits available to the Executive immediately prior to
the Effective Date, or, if more favorable to the Executive, at the level made
available from time to time to the Executive or other similarly situated
officers at any time thereafter.
(g) Indemnification. The Company agrees that if the Executive
is made a party, or is threatened to be made a party, to any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of the fact that he is or was a director, officer or
employee of the Company, the Executive shall be indemnified and held harmless by
the Company to the fullest extent legally permitted or authorized by agreement,
or by the Company's certificate of incorporation or bylaws or resolutions of the
Board or, if greater, by the laws of the State of New Jersey, against all cost,
expense, liability and loss (including, without limitation, attorney's fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by the Executive in connection
therewith. The Company agrees to continue and maintain a directors' and
officers' liability insurance policy covering Executive to the extent the
Company provides such coverage for its other executive officers.
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(h) Office and Support Staff. The Executive shall be entitled
to an office with furnishings and other appointments, and to secretarial and
other assistance, at a level that is at least commensurate with that provided to
the Executive immediately prior to the Effective Date.
6. Termination.
(a) Death, Disability or Retirement. Subject to the provisions
of Section 1 hereof, this Agreement shall terminate automatically upon the
Executive's death, termination due to "Disability" (as defined below) or
voluntary retirement under any of the Company's retirement plans as in effect
from time to time. For purposes of this Agreement, Disability shall mean the
Executive has been incapable of substantially fulfilling the positions, duties,
responsibilities and obligations set forth in this Agreement 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 the
Executive shall agree on the identity of a physician to resolve any question as
to the Executive's disability. If the Company and the Executive cannot agree on
the physician to make such determination, then the Company and the Executive
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. The
Executive or his legal representative or any adult member of his immediate
family shall have the right to present to such physician such information and
arguments as to the Executive's disability as he, she or they deem appropriate,
including the opinion of the Executive's personal physician.
(b) Voluntary Termination. Notwithstanding anything in this
Agreement to the contrary, following a Change of Control the Executive may, upon
not less than 30 days' written notice to the Company, voluntarily terminate
employment for any reason (including early retirement under the terms of any of
the Company's retirement plans as in effect from time to time), provided that
any termination by the Executive pursuant to Section 6(d) on account of Good
Reason (as defined therein) shall not be treated as a voluntary termination
under this Section 6(b).
(c) Cause. The Company may terminate the Executive's
employment for Cause. For purposes of this Agreement, "Cause" means (i) the
Executive's conviction of a felony or the entering by the Executive of a plea of
nolo contendere to a felony charge, (ii) the Executive's gross neglect, willful
malfeasance
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or willful gross misconduct in connection with his employment hereunder which
has had a material adverse effect on the business of the Company and its
subsidiaries, unless the Executive reasonably believed in good faith that such
act or nonact was in or not opposed to the best interests of the Company, or
(iii) repeated material violations by the Executive of his obligations under
Section 4 of this Agreement, which violations are demonstrably willful and
deliberate on the Executive's part and which result in material damage to the
Company's business or reputation.
(d) Good Reason. Following the occurrence of a Change of
Control, the Executive may terminate his employment for Good Reason. For
purposes of this Agreement, "Good Reason" means the occurrence of any of the
following, without the express written consent of the Executive, after the
occurrence of a Change of Control:
(i) (A) the assignment to the Executive of any duties
inconsistent with the Executive's position, authority or
responsibilities as contemplated by Section 4 of this Agreement, or (B)
any other material adverse change in such position, including titles,
authority or responsibilities;
(ii) any failure by the Company to comply with any of
the provisions of Section 5 of this Agreement, other than an
insubstantial or inadvertent failure remedied by the Company promptly
after receipt of notice thereof given by the Executive;
(iii) the Company's requiring the Executive to be
based at any office or location more than 35 miles (or such other
distance as shall be set forth in the Company's relocation policy as in
effect at the Effective Time) from that location at which he performed
his services specified under the provisions of Section 4 immediately
prior to the Change of Control, except for travel reasonably required
in the performance of the Executive's responsibilities;
(iv) any other material breach of this Agreement by
the Company; or
(v) any failure by the Company to obtain the
assumption and agreement to perform this Agreement by a successor as
contemplated by Section 12(b).
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In no event shall the mere occurrence of a Change of Control, absent any further
impact on the Executive, be deemed to constitute Good Reason.
(e) Notice of Termination. Any termination by the Company for
Cause or by the Executive for Good Reason shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 13(e).
For purposes of this Agreement, a "Notice of Termination" means a written notice
given, in the case of a termination for Cause, within 10 business days of the
Company's having actual knowledge of the events giving rise to such termination,
and in the case of a termination for Good Reason, within 180 days of the
Executive's having actual knowledge of the events giving rise to such
termination, and which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated, and (iii) if the termination date
is other than the date of receipt of such notice, specifies the termination date
of the Executive's employment (which date shall be not more than 15 days after
the giving of such notice). The failure by the Executive to set forth in the
Notice of Termination any fact or circumstance which contributes to a showing of
Good Reason shall not waive any right of the Executive hereunder or preclude the
Executive from asserting such fact or circumstance in enforcing his rights
hereunder.
(f) Date of Termination. For the purpose of this Agreement,
the term "Date of Termination" means (i) in the case of a termination for which
a Notice of Termination is required, the date of receipt of such Notice of
Termination or, if later, the date specified therein, as the case may be, and
(ii) in all other cases, the actual date on which the Executive's employment
terminates during the Employment Period.
7. Obligations of the Company upon Termination.
(a) Death or Disability. If the Executive's employment is
terminated during the Employment Period by reason of the Executive's death or
Disability, this Agreement shall terminate without further obligations to the
Executive or the Executive's legal representatives under this Agreement other
than those obligations accrued hereunder at the Date of Termination, and the
Company shall pay to the Executive (or his beneficiary or estate) (i) the
Executive's full Base Salary through the Date of Termination (the "Earned
Salary"), (ii) any vested amounts or vested benefits owing to the Executive
under the Company's otherwise applicable
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employee benefit plans and programs, including any compensation previously
deferred by the Executive (together with any accrued earnings thereon) and not
yet paid by the Company and any accrued vacation pay not yet paid by the Company
(the "Accrued Obligations"), and (iii) any other benefits payable due to the
Executive's death or Disability under the Company's plans, policies or programs
(the "Additional Benefits").
Any Earned Salary shall be paid in cash in a single lump sum
as soon as practicable, but in no event more than 30 days (or at such earlier
date required by law), following the Date of Termination. Accrued Obligations
and Additional Benefits shall be paid in accordance with the terms of the
applicable plan, program or arrangement.
(b) Cause and Voluntary Termination. If the Executive's
employment shall be terminated for Cause or voluntarily terminated by the
Executive (other than on account of Good Reason following a Change of Control),
the Company shall pay the Executive (i) the Earned Salary in cash in a single
lump sum as soon as practicable, but in no event more than 10 days, following
the Date of Termination, and (ii) the Accrued Obligations in accordance with the
terms of the applicable plan, program or arrangement.
(c) Termination by the Company other than for Cause and
Termination by the Executive for Good Reason.
(i) Lump Sum Payments. If, during the Employment
Period, the Company terminates the Executive's employment other than
for Cause, or following a Change of Control the Executive terminates
his employment for Good Reason, the Company shall pay to the Executive
the following amounts:
(A) the Executive's Earned Salary;
(B) a cash amount (the "Severance Amount") equal
to three times the sum of (x) the
Executive's annual Base Salary and (y) an
amount equal to the average of the annual
bonuses paid to the Executive with respect
to
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(1) Three times in the case of chief executive officer.
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each of the last three calendar years ended
prior to the Change of Control (or, if at
the Date of Termination, the Executive has
been employed for less than three full
calendar years, for the number of full
calendar years during which the Executive
was employed);
(C) the Accrued Obligations.
The Earned Salary and Severance Amount shall be paid in cash in a
single lump sum as soon as practicable, but in no event more than 30
days (or at such earlier date required by law), following the Date of
Termination. Accrued Obligations shall be paid in accordance with the
terms of the applicable plan, program or arrangement.
(ii) Continuation of Benefits. If, during the
Employment Period, the Company terminates the Executive's employment
other than for Cause, or following a Change of Control the Executive
terminates his employment for Good Reason, the Executive (and, to the
extent applicable, his dependents) shall be entitled, after the Date of
Termination until the earlier of (1) the [second](2) anniversary of the
Date of Termination (the "End Date") and (2) the date the Executive
becomes eligible for comparable benefits under a similar plan, policy
or program of a subsequent employer, to continue participation in all
of the Company's employee and executive welfare and fringe benefit
plans (the "Benefit Plans"). To the extent any such benefits cannot be
provided under the terms of the applicable plan, policy or program, the
Company shall provide a comparable benefit under another plan or from
the Company's general assets. The Executive's participation in the
Benefit Plans will be on the same terms and conditions that would have
applied had the Executive continued to be employed by the Company
through the End Date.
(iii) Vesting and Exercisability of Stock Options.
If, during the Employment Period, the Company terminates the
Executive's employment other than for Cause, or the Executive
terminates his employment for Good Reason, all outstanding options held
by the Executive
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(2) Third anniversary in the case of chief executive officer.
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to purchase shares of Common Stock of the Company ("Options") shall
become fully vested on the date of such termination of employment and
the Executive shall have the right to exercise the Options, whether or
not such Options would otherwise be exercisable, for a period of ninety
days following such termination of employment (or, if less, until the
end of the stated term of the Options).
(d) Discharge of the Company's Obligations. Except as
expressly provided in the last sentence of this Section 7(d), the amounts
payable to the Executive pursuant to this Section 7 (whether or not reduced
pursuant to Section 7(e)) following termination of his employment shall be in
full and complete satisfaction of the Executive's rights under this Agreement
and any other claims he may have in respect of his employment by the Company or
any of its subsidiaries. Such amounts shall constitute liquidated damages with
respect to any and all such rights and claims and, upon the Executive's receipt
of such amounts, the Company shall be released and discharged from any and all
liability to the Executive in connection with this Agreement or otherwise in
connection with the Executive's employment with the Company and its
subsidiaries. Nothing in this Section 7(d) shall be construed to release the
Company from its commitment to indemnify the Executive and hold the Executive
harmless from and against any claim, loss or cause of action arising from or out
of the Executive's performance as an officer, director or employee of the
Company or any of its subsidiaries or in any other capacity, including any
fiduciary capacity, in which the Executive served at the request of the Company
to the maximum extent permitted by applicable law.
(e) Limit on Payments by the Company.
(i) Application of Section 7(e). In the event that
any amount or benefit paid or distributed to the Executive pursuant to
this Agreement, taken together with any amounts or benefits otherwise
paid or distributed to the Executive by the Company or any affiliated
company (collectively, the "Covered Payments"), would be an "excess
parachute payment" as defined in Section 280G of the Internal Revenue
Code of 1986, as amended (the "Code"), and would thereby subject the
Executive to the tax (the "Excise Tax") imposed under Section 4999 of
the Code (or any similar tax that may hereafter be imposed), the
provisions of this Section 7(e) shall apply to determine the amounts
payable to Executive pursuant to this Agreement.
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(ii) Calculation of Benefits. Immediately following
delivery of any Notice of Termination, the Company shall notify the
Executive of the aggregate present value of all termination benefits to
which he would be entitled under this Agreement and any other plan,
program or arrangement as of the projected Date of Termination,
together with the projected maximum payments, determined as of such
projected Date of Termination that could be paid without the Executive
being subject to the Excise Tax.
(iii) Imposition of Payment Cap. If the aggregate
value of all compensation payments or benefits to be paid or provided
to the Executive under this Agreement and any other plan, agreement or
arrangement with the Company exceeds the amount which can be paid to
the Executive without the Executive incurring an Excise Tax, then the
amounts payable to the Executive under this Section 7 shall be reduced
(but not below zero) to the maximum amount which may be paid hereunder
without the Executive becoming subject to such an Excise Tax (such
reduced payments to be referred to as the "Payment Cap"). In the case
of the Chief Executive Officer, this projected Payment Cap will only
apply if it will result in his receiving a greater net after tax amount
than he would have received without applying such limt. In the event
that the Executive receives reduced payments and benefits hereunder,
the Executive shall have the right to designate which of the payments
and benefits otherwise provided for in this Agreement that he will
receive in connection with the application of the Payment Cap.
(iv) Application of Section 280G. For purposes of
determining whether any of the Covered Payments will be subject to the
Excise Tax and the amount of such Excise Tax,
(A) (x) whether there are Covered Payments as
"parachute payments" within the meaning of
Section 280G of the Code, and (y) whether
there are "parachute payments" in excess of
the "base amount" (as defined under Section
280G(b)(3) of the Code) shall be determined
in the good faith by the Company's
independent certified public accountants
appointed prior to the Effective Date or tax
counsel selected by such accountants (the
"Accountants"), and
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(B) the value of any non-cash benefits or any
deferred payment or benefit shall be
determined by the Accountants in accordance
with the principles of Section 280G of the
Code.
(v) Adjustments in Respect of the Payment Cap. If the
Executive receives reduced payments and benefits under this Section
7(e)(or this Section 7(e) is determined not to be applicable to the
Executive because the Accountants conclude that Executive is not
subject to any Excise Tax) and it is established pursuant to a final
determination of a court or an Internal Revenue Service proceeding (a
"Final Determination") that, notwithstanding the good faith of the
Executive and the Company in applying the terms of this Agreement, the
aggregate "parachute payments" within the meaning of Section 280G of
the Code paid to the Executive or for his benefit are in an amount that
would result in the Executive's being subject to an Excise Tax, then
any amounts actually paid to or on behalf of the Executive which are
treated as excess parachute payments shall be deemed for all purposes
to be a loan to the Executive made on the date of receipt of such
excess payments, which the Executive shall have an obligation to repay
to the Company on demand, together with interest on such amount at the
applicable Federal rate (as defined in Section 1274(d) of the Code)
from the date of the payment hereunder to the date of repayment by the
Executive. If the Executive receives reduced payments and benefits by
reason of this Section 7(e) and it is established pursuant to a Final
Determination that the Executive could have received a greater amount
without exceeding the Payment Cap, then the Company shall promptly
thereafter pay the Executive the aggregate additional amount which
could have been paid without exceeding the Payment Cap, together with
interest on such amount at the applicable Federal rate (as defined in
Section 1274(d) of the Code) from the original payment due date to the
date of actual payment by the Company.
8. Non-exclusivity of Rights. Except as expressly provided herein,
nothing in this Agreement shall prevent or limit the Executive's continuing or
future participation in any benefit, bonus, incentive or other plan or program
provided by the Company or any of its affiliated companies and for which the
Executive may qualify, nor shall anything herein limit or otherwise prejudice
such rights as the Executive may have under any other agreements with the
Company or any of its affiliated companies, including employment agreements or
stock option agreements.
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Amounts which are vested benefits or which the Executive is otherwise entitled
to receive under any plan or program of the Company or any of its affiliated
companies at or subsequent to the Date of Termination shall be payable in
accordance with such plan or program.
9. No Mitigation or Offset. The Executive shall have no obligation to
seek other employment and, except as expressly provided in Sections 7(c)(ii),
there shall be no offset against amounts due to Executive under this Agreement
on account of any remuneration attributable to subsequent employment that he may
obtain. The Company's obligation to make the payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any circumstances, including, without limitation, any set-off,
counterclaim, recoupment, defense or other right which the Company may have
against the Executive or others, including, without limitation, any claim
arising due to the Executive's violation of his covenants under Section 11(a)
hereof. In the event that the Executive shall in good faith give a Notice of
Termination for Good Reason and it shall thereafter be determined that Good
Reason did not exist, the employment of the Executive shall, unless the Company
and the Executive shall otherwise mutually agree, be deemed to have terminated,
at the date of giving such purported Notice of Termination, by mutual consent of
the Company and the Executive and the Executive shall be entitled to receive
only his Earned Salary and the Accrued Obligations which he would have been
entitled to receive upon a voluntary termination.
10. Legal Fees and Expenses. If the Executive asserts any claim in any
contest (whether initiated by the Executive or by the Company) as to the
validity, enforceability or interpretation of any provision of this Agreement,
the Company shall pay the Executive's legal expenses (or cause such expenses to
be paid) including, without limitation, his reasonable attorney's fees, on a
quarterly basis, upon presentation of proof of such expenses in a form
acceptable to the Company, provided that the Executive shall reimburse the
Company for such amounts, plus simple interest thereon at the 90-day United
States Treasury Xxxx rate as in effect from time to time, compounded annually,
if the Executive shall not prevail, in whole or in part, as to any material
issue as to the validity, enforceability or interpretation of any provision of
this Agreement.
11. Confidential Information; Company Property. By and in consideration
of the salary and benefits to be provided by the Company hereunder, including
the severance arrangements set forth herein, the Executive agrees that:
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(a) Confidential Information. The Executive shall hold in a
fiduciary capacity for the benefit of the Company all secret or confidential
information, knowledge or data relating to the Company or any of its affiliated
companies, and their respective businesses, (i) obtained by the Executive during
his employment by the Company or any of its affiliated companies and (ii) not
otherwise public knowledge (other than by reason of an unauthorized act by the
Executive). After termination of the Executive's employment with the Company,
the Executive shall not, without the prior written consent of the Company,
unless compelled pursuant to an order of a court or other body having
jurisdiction over such matter, communicate or divulge any such information,
knowledge or data to anyone other than the Company and those designated by it.
The Executive acknowledges and agrees that the covenants and obligations of the
Executive with respect to confidentiality relate to special, unique and
extraordinary matters and that a violation of any of the terms of such covenants
and obligations will cause the Company irreparable injury for which adequate
remedies are not available at law. Therefore, the Executive agrees that the
Company shall be entitled to an injunction, restraining order or such other
equitable relief (without the requirement to post bond) restraining Executive
from committing any violation of the covenants and obligations contained in this
Section 11(a). These remedies are cumulative and are in addition to any other
rights and remedies the Company may have at law or in equity.
(b) Company Property. Except as expressly provided herein,
promptly following the Executive's termination of employment, the Executive
shall return to the Company all property of the Company and all copies thereof
in the Executive's possession or under his control, except that the Executive
may retain his personal notes, diaries, Rolodexes, calendars and correspondence.
12. Successors.
(a) This Agreement is personal to the Executive and, without
the prior written consent of the Company, shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors. The Company shall require any
successor to all or substantially all of the business and/or assets of the
Company, whether direct
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or indirect, by purchase, merger, consolidation, acquisition of stock, or
otherwise, by an agreement in form and substance satisfactory to the Executive,
expressly to assume and agree to perform this Agreement in the same manner and
to the same extent as the Company would be required to perform if no such
succession had taken place.
13. Miscellaneous.
(a) Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New Jersey, applied
without reference to principles of conflict of laws.
(b) Arbitration. Except to the extent provided in Section
11(a), any dispute or controversy arising under or in connection with this
Agreement shall be resolved by binding arbitration. The arbitration shall be
held in Newark, New Jersey and except to the extent inconsistent with this
Agreement, shall be conducted in accordance with the Expedited Employment
Arbitration Rules of the American Arbitration Association (or such other
voluntary arbitration rules applicable to employment contract disputes) in
effect at the time of the arbitration, supplemented, as necessary, by those
principles which would be applied by a court of law or equity. The arbitrator
shall be acceptable to both the Company and the Executive. If the parties cannot
agree on an acceptable arbitrator, the dispute shall be heard by a panel of
three arbitrators, one appointed by each of the parties and the third appointed
by the other two arbitrators.
(c) Amendments. This Agreement may not be amended or modified
otherwise than by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
(d) Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the matters referred to
herein. No other agreement relating to the terms of the Executive's employment
by the Company, oral or otherwise, shall be binding between the parties unless
it is in writing and signed by the party against whom enforcement is sought.
There are no promises, representations, inducements or statements between the
parties other than those that are expressly contained herein. The Executive
acknowledges that he is entering into this Agreement of his own free will and
accord, and with no duress, that he has read this Agreement and that he
understands it and its legal consequences.
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(e) Notices. All notices and other communications hereunder
shall be in writing and shall be given by hand-delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive: at the home address the Executive noted on the
records of the Company
If to the Company: New Jersey Resources Corporation
0000 Xxxxxxx Xxxx
Xxxx, Xxx Xxxxxx 00000
Attn.: Secretary
or to such other address as either party shall have furnished to the
other in writing in accordance herewith. Notice and communications shall be
effective when actually received by the addressee.
(f) Tax Withholding. The Company shall withhold from any
amounts payable under this Agreement such Federal, state or local taxes as shall
be required to be withheld pursuant to any applicable law or regulation.
(g) Severability; Reformation. In the event that one or more
of the provisions of this Agreement shall become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not be affected thereby. In the
event that any of the provisions of any of Section 11(a) are not enforceable in
accordance with its terms, the Executive and the Company agree that such Section
shall be reformed to make such Section enforceable in a manner which provides
the Company the maximum rights permitted at law.
(h) Waiver. Waiver by any party hereto of any breach or
default by the other party of any of the terms of this Agreement shall not
operate as a waiver of any other breach or default, whether similar to or
different from the breach or default waived. No waiver of any provision of this
Agreement shall be implied from any course of dealing between the parties hereto
or from any failure by either party hereto to assert its or his rights hereunder
on any occasion or series of occasions.
(i) Counterparts. This Agreement may be executed in
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counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(j) Captions. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect.
IN WITNESS WHEREOF, the Executive has hereunto set his hand
and the Company has caused this Agreement to be executed in its name on its
behalf, and its corporate seal to be hereunto affixed and attested by its
Secretary, all as of the day and year first above written.
NEW JERSEY RESOURCES CORPORATION
/s/ XXXXX X. XXXXXX
--------------------------------------------
By:
Title: Senior Vice President and Secretary
WITNESSED:
/s/ XXXXXX X. XXXXXX
--------------------
/s/ XXXXXXXX X. XXXXXX
----------------------
EXECUTIVE
WITNESSED:
/s/ XXXXXXXXX XXXX
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