Exhibit 10.4
Supplemental Executive
Retirement Plan Agreement
THIS AGREEMENT is entered into as of the 28th
day of November, 2008 and effective as of
January 1, 1987 , (hereinafter called the “Effective
Date”) by and between NEW JERSEY RESOURCES CORPORATION
, a corporation of New Jersey (hereinafter called the "Company"),
and LAURENCE M. DOWNES (hereinafter called the
“Employee”).
WHEREAS, the Employee is employed by the Company
and is presently CHAIRMAN & CHIEF EXECUTIVE
OFFICER;
WHEREAS, the Company desires to continue to
employ the Employee as a key employee;
WHEREAS, the Company previously entered into an
Agreement, dated January 1, 1987 (referred to, with any
amendments thereto, as the “Prior Agreement”), with the
Employee as a part of his/her employment agreement or arrangement
as an incentive for his/her continued loyal service to the
Company;
WHEREAS, the Company and the Employee now desire
to amend and restate the Prior Agreement to comply with Section
409A of the Internal Revenue Code and applicable guidance issued
thereunder (“Code Section 409A”);
WHEREAS, the Company and the Employee desire
this Agreement (also referred to as the “SERP
Agreement”) to apply to the Employee’s entire benefit
under the Prior Agreement and no portion of the benefit hereunder
is to be “grandfathered” as such term is used under
Code Section 409A.
NOW, THEREFORE, in consideration of
the premises and of the covenants and agreements herein set forth,
and for other good and valuable consideration, the receipt whereof
is hereby acknowledged, the parties hereto do covenant and agree as
follows:
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It is agreed that the
Company’s normal retirement age is sixty-five (65) and that
the Employee may retire from the Company upon the last day of the
month in which his/her sixty-fifth (65 th )
birthday occurs; provided however, that the Employee may remain in
active employment after his/her sixty-fifth (65
th ) birthday. In either event, no
benefits shall be paid to the Employee under this Agreement until
the later of the Employee’s attainment of age sixty-five
(65), or his Separation from Service (as defined herein in
accordance with Code Section 409A). A Separation from
Service shall occur where it is reasonably anticipated that no
further services will be performed after a particular date or that
the level of bona fide services the Employee will perform after a
particular date (whether as an employee or independent contractor
to the Company or an affiliate that is treated as the Company under
Code Section 409A (an “Affiliate”) will decrease
permanently to less than 50% of the average level of bona fide
services performed over the immediately preceding thirty-six (36)
month period. An Employee shall be considered to
continue employment and to not have a Separation from Service while
on a leave of absence if the leave does not exceed six (6)
consecutive months (twenty-nine (29) months for a disability leave
of absence) or, if longer, so long as the Employee retains a right
to reemployment with the Corporation or Affiliate under an
applicable statute or by contract. For this purpose, a
“disability leave of absence” is an absence due to 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 6 months, where such impairment
causes the Employee to be unable to perform the duties of his job
or a substantially similar job. Continued services
solely as a member of the Board of Directors of the Company or an
Affiliate (the “Board”) shall not prevent a Separation
from Service from occurring.
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The Company agrees that upon the
Employee’s Separation from Service at or after attainment of
age sixty-five (65) for reasons other than death, it will pay to
the Employee the sum of TWO-HUNDRED FIFTY THOUSAND DOLLARS
($250,000) (hereinafter referred to as the "SERP
Benefit”), payable in sixty (60) equal monthly
installments. The installments shall be paid upon the
first day of each calendar month commencing with the month next
following the date of such Separation from Service, and shall
continue until the aggregate of such payments equal the SERP
Benefit, at which time such monthly installments shall
terminate. In the event that the SERP Benefit has not
been fully paid to the Employee during his/her lifetime following
his/her Separation from Service, the balance of such monthly
installments shall be paid to his/her designated beneficiary as
provided in Paragraph 13 hereof. In no event shall any
distribution occur earlier than permitted under Code Section 409A.
The SERP Benefit may increase based upon a change in the
Employee’s position. Such increase shall be set forth on an
addendum to this Agreement. Such increase in the SERP Benefit shall
not change the time and form of payment of the SERP Benefit as
provided in this Agreement except as allowed under Code Section
409A.
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In the event that the Employee dies
while in active employment with the Company but prior to his or her
Separation from Service, and such death is due to a cause other
than suicide, the Company shall pay a Death Benefit in the amount
of TWO-HUNDRED FIFTY THOUSAND DOLLARS ($250,000) to his/her
designated beneficiary, in sixty (60) equal monthly
installments. The installments shall be paid on the
first day of each calendar month commencing with the month
following the date of death, and shall continue until such Death
Benefit has been fully paid. If the Employee commits
suicide, the Company shall not be obligated to pay any portion of
the Death Benefit or any increases in such benefit granted herein
or by any amendment or addendum to this Agreement made within two
(2) years next preceding the date of death, but such portion of the
Death Benefit as was granted or accrued under this or any similar
prior SERP agreement with the Company more than two (2) years
before the death by suicide shall be paid in the manner provided
above.
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No SERP or other benefits shall be
payable hereunder to the Employee, or to any other person in the
event the employment relationship between the Employee and the
Company is terminated within six (6) years from the Effective Date
for any reason other than by death, or by Separation from Service
of the Employee at or after attainment of age sixty-five
(65). In the event that the employment relationship
between the Employee and the Company continues for a period of at
least six (6) years from the Effective Date, and is thereafter
terminated for any reason other than by death prior to the
Employee’s attainment of age sixty-five (65), upon the later
of his/her Separation from Service or the Employee’s
attainment of age sixty-five (65), the Company will pay to the
Employee the Cumulative Termination Benefit for the year in which
such termination occurs, as shown in Schedule A which is attached
hereto and made a part hereof (hereinafter referred to as the
“Applicable Cumulative Termination Benefit”), in sixty
(60) equal monthly installments payable on the first day of each
calendar month, commencing with the month following the later of
the Employee’s Separation from Service or the
Employee’s attainment of age sixty-five (65). Such
Schedule A may be changed from time to time to reflect changes in
the SERP Benefit. Such substitution of a new Schedule A
shall not change the time and form of payment of the Cumulative
Termination Benefit except to the extent allowed by Code Section
409A.
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If the Employee dies after
termination of employment as provided in Paragraph 4 above, and
before any or all of the applicable Cumulative Termination Benefit
has been paid to him, then such Cumulative Termination Benefit, or
the balance of installments thereof as the case may be, shall be
paid to his/her designated beneficiary in sixty (60) equal monthly
installments (less the number of installments previously paid, if
any), payable on the first day of each ca
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