Contract
Exhibit
10.20
NEW
JERSEY RESOURCES CORPORATION
2007
Stock Award and Incentive Plan
This
Restricted Stock Agreement (the "Agreement"), which includes the attached “Terms
and Conditions of Restricted Stock” (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(d) of the 2007 Stock Award and Incentive Plan (the "Plan"), of
Restricted Stock as follows:
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Number
granted:
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______________
shares of Restricted Stock
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Fair
Market Value at Grant Date:
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$
_____________ per share
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How Restricted
Stock Vests:
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The
Restricted Stock, if not previously forfeited, will vest on the dates and
as to the number of shares in the following table:
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Stated Vesting
Date
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Number of Shares That Vest at that
Date
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(INSERT VESTING SCHEDULE)
In
addition, if not previously forfeited, the Restricted Stock will become
immediately vested in full upon a Change in Control, and will become vested upon
the occurrence of certain events relating to Termination of Employment to
the extent provided in Section 3 of the attached Terms and Conditions. The terms
"vest" and "vesting" mean that the Restricted Stock has become transferable and
non-forfeitable. If Employee has a Termination of Employment prior to a Stated
Vesting Date and shares of Restricted Stock are not otherwise deemed vested by
that date, such Restricted Stock will be immediately forfeited. Forfeited
Restricted Stock ceases to be outstanding and in no event will thereafter result
in any delivery of shares of Stock to Employee.
The
Restricted Stock 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 Restricted Stock and other terms of the Restricted Stock are subject
to adjustment in accordance with Section 4(b) of the attached Terms
and Conditions and 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) Restricted Stock is nontransferable, except as
provided in Section 2 of the attached Terms and Conditions and Section 11(b) of
the Plan, (ii) the Restricted Stock is subject to forfeiture in the event of
Employee's Termination of Employment in certain circumstances prior to
vesting, as specified in Section 3 of the attached Terms and Conditions, and
(iii) sales of the shares of Stock following vesting of the Restricted Stock
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, and Employee has duly
executed this Agreement, by which each has agreed to the terms of this
Agreement.
EMPLOYEE NEW
JERSEY RESOURCES CORPORATION
By:_________________________
[Employee
Name] [Name]
[Title]
TERMS AND
CONDITIONS OF RESTRICTED STOCK
The
following Terms and Conditions apply to the Restricted Stock granted to Employee
by NEW JERSEY RESOURCES CORPORATION (the "Company"), and Restricted Stock
resulting from Dividend Equivalents (as defined below), if any, as specified in
the Restricted Stock Agreement (of which these Terms and Conditions form a
part). Certain terms of the Restricted Stock, including the number of shares
granted and vesting date(s), are set forth on the preceding pages, which is an
integral part of this Agreement.
1. General. The
Restricted 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 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. 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 Restricted Stock has become vested in accordance with the terms
of this Agreement, Employee may not transfer Restricted Stock or any rights
hereunder to any third party other than by will or the laws of descent and
distribution. This restriction on transfer precludes any sale, assignment,
pledge, or other encumbrance or disposition of the shares of Restricted Stock
(except for forfeitures to the Company).
3. Termination
Provisions. The following provisions will govern the vesting and
forfeiture of the Restricted Stock that is outstanding at the time of Employee's
Termination of Employment (as defined below), unless otherwise determined by the
Committee (subject to Section 7(a) hereof):
(a) Death, Disability or
Retirement. In the event of Employee's Termination of
Employment due to death, Disability or Retirement (as defined below), a Pro-Rata
Portion of the outstanding Restricted Stock will vest immediately. Any portion
of the outstanding Restricted Stock not vested at the date of Termination will
be forfeited.
(b) Termination by the Company or
Voluntarily by Employee. In the event of Employee's
Termination of Employment by the Company for any reason or by Employee
voluntarily (other than a Retirement), any portion of the outstanding Restricted
Stock not vested at the date of Termination will be forfeited.
(c) 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, for each tranche of Restricted Stock, a fraction the
numerator of which is the number of days that have elapsed 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 for that
tranche. A "tranche" is that portion of the Restricted Stock that has a unique
Stated Vesting Date.
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(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.
4. Dividends and
Adjustments.
(a) Dividends. In the
event of dividends or distributions on Stock, the following terms and conditions
shall apply except as provided in Section 4(b) below:
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(i) In the
event of a cash dividend or distribution on Stock or a non-cash dividend
or distribution in the form of property other than Stock payable on Stock
(including shares of a Subsidiary of the Company distributed in a
spin-off), the Company shall immediately convert such dividend or
distribution into Restricted Stock and such
additional Restricted Stock will become vested if and to the same extent
as the original Restricted Stock with respect to which the dividend or
distribution was payable becomes vested, and shall be subject to all other
terms and conditions as applied to the original Restricted
Stock.
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(ii) In the
event of a dividend or distribution in the form of Stock or split-up of
shares, the Stock issued or delivered as such dividend or distribution or
resulting from such split-up will be deemed to be additional Restricted
Stock and will become vested if and to the same extent as the original
Restricted Stock with respect to which the dividend or distribution was
payable becomes vested, and shall be subject to all other terms and
conditions as applied to the original Restricted
Stock.
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(b) Adjustments. The number and kind of shares of Restricted Stock, the number of such shares to be vested and other terms and conditions of Restricted Stock or otherwise contained in this Agreement 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 Stock resulting from any event referred to in Section 11(c) of the Plan, taking into account any Restricted 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. The Committee may determine how to treat or settle any fractional share resulting under this Agreement.
5. Other Terms of Restricted
Stock.
(a) Voting and Other Shareholder
Rights. Employee shall be entitled to vote Restricted Stock on
any matter submitted to a vote of holders of Stock, and shall have all other
rights of a shareholder of the Company except as expressly limited by this
Agreement and the Plan.
(b) Consideration for Grant of
Restricted Stock. Employee shall be required to pay no cash
consideration for the grant of the Restricted Stock, but Employee's performance
of services to the Company prior to the vesting of the Restricted Stock shall be
deemed to be consideration for this grant of Restricted Stock.
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(c) Xxxxxxx Xxxxxxx Policy
Applicable. Employee acknowledges that sales of shares
resulting from Restricted Stock that has become vested will be subject to the
Company's policies regulating trading by executive officers and
employees.
(d) Certificates Evidencing Restricted
Stock. Restricted Stock
shall be evidenced by issuance of one or more certificates in the name of
Employee, bearing an appropriate legend referring to the terms, conditions, and
restrictions applicable hereunder, and shall remain in the physical custody of
the General Counsel of the Company or his designee until such time as such
shares of Restricted Stock have become vested and the restrictions hereunder
have therefore lapsed. In addition, Restricted Stock shall be subject to such
stop-transfer orders and other restrictive measures as the General Counsel of
the Company shall deem advisable under federal or state securities laws, rules
and regulations thereunder, and rules of the New York Stock Exchange, or to
implement the terms, conditions and restrictions hereunder, and the General
Counsel may cause a legend or legends to be placed on any such certificates to
make appropriate reference to the terms, conditions and restrictions
hereunder.
(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 Restricted Stock to the Company, at the
Grant Date or upon request at any time thereafter.
6. Employee
Representations and Warranties and Release. As a condition
to any non-forfeiture of the Restricted Stock that vests upon Termination of
Employment, 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.
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
Restricted Stock, and supersedes any prior agreements or documents with respect
to the Restricted 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 Restricted Stock
shall be valid unless expressed in a written instrument executed by
Employee.
(b) No Promise of
Employment. The Restricted Stock 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) Mandatory Tax
Withholding. Unless otherwise determined by the Committee, at
the time of vesting the Company will withhold from any shares of Stock
deliverable, 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 of the Restricted
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 or the officer designated by the Company as responsible for
the 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.
(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.
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Sample
Section 83(b) Election Form
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Election
Statement Under Internal Revenue Code Section 83(b)
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Taxpayer
Name:
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_____________
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Address:
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_______________________________________________
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Social
Security or Taxpayer ID Number:
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______________________________
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Description
of Property:
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_____
[number] shares of common stock of New Jersey Resources Corporation
granted as a an award of Restricted Stock on _____ __,
200__
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Taxable
Year for which the election is being made:
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200__
(year of grant of Restricted Stock)
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Nature
of the restriction:
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Restricted
Stock is non-transferable and subject to a risk of forfeiture until
vesting, The Restricted Stock vests __% per year on the first __
anniversaries of the grant date.
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Fair
market value of stock on date of transfer:
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$_____
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Amount
paid to purchase the stock:
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$-
0 -
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I
have furnished copies of this statement to persons required by U.S.
Treasury Regulation 1.83-2(d)
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________________
Signature of Taxpayer
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Date
_________________
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________________
Print or type signature
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This is a
sample Election Form which may be used to make a Section 83(b) election to be
taxed on a grant of Restricted Stock at the time of grant rather than at the
time of vesting. You are free to use whatever election form you and your
financial advisor deem appropriate. New Jersey Resources Corporation (the
"Company") makes no recommendation as to whether a person granted Restricted
Stock should make a Section 83(b) election, but issues the following cautionary
statements:
Cautionary
Statements:
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(1)
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If
you make a Section 83(b) election and later forfeit the Restricted Stock,
you will not be able to rescind the election, claim a capital loss
relating to the shares, receive a refund of the taxes paid, apply the
taxes paid to any other liability you may have, or otherwise get any
benefit whatsoever from your payment of taxes on the Restricted Stock.
This is a risk that you will avoid if you do not file a Section 83(b)
election, because absent the election you will be taxed at the time the
Restricted Stock vests (if it is not previously forfeited) based on the
fair market value of the shares at the time of
vesting.
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(2)
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You
must have cash available to pay the taxes due as a result of your making a
Section 83(b) election, including withholding taxes. You may not sell any
of the shares of Restricted Stock and you may not direct us to withhold
any of the shares of Restricted Stock to satisfy this
obligation.
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(3)
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In
considering whether you might benefit from a Section 83(b) election, you
should consider alternatives that might be of greater benefit. A Section
83(b) election could be advantageous if the market value of the shares of
Restricted Stock has gone up significantly at the time of vesting.
However, if you do not make a Section 83(b) election but, instead, you use
the cash that you would have paid in taxes to invest in additional shares
of Company common stock in the market, in some cases your total return,
net of taxes, would be greater. This strategy would also avoid the risk
described in (1) above.
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(4)
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Filing
a Section 83(b) election represents an increased financial investment in
Company common stock. As an employee and based on your other equity awards
and ownership of Company common stock, your financial well-being may
already be significantly tied to the financial success of the Company. You
should consider whether your savings and financial assets are adequately
diversified before making a Section 83(b)
election.
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How
to File a Section 83(b) Election
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(1)
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To
be valid, the Section 83(b) Election Form must be filed with the Internal
Revenue Service within 30 days after grant of the Restricted
Stock.
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(2)
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To
file the Section 83(b) Election, send it to the IRS Office where you file
your income tax return. It is recommended that you send it certified mail,
return receipt requested, so that you have proof of
filing.
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(3)
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You
must also send a copy to the Company. Please address the copy to the
attention of Vice President, Human
Resources.
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(4)
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Attach
a copy of the 83(b) when you file your income
taxes.
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