Exhibit
10.26
NEW JERSEY RESOURCES
CORPORATION
Officers’ Deferred
Compensation Plan
Amended and Restated Effective
January 1, 2009
NEW JERSEY RESOURCES
CORPORATION
Officers’
Deferred Compensation Plan
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2
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2
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5
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5
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5. Initial
Deferral Elections
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6
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6.
Deferral Accounts
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7
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7. Subsequent
Deferral Elections
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8
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8. Settlement
of Deferral Accounts
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9
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10
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10. Sources of
Stock: Limitation on Amount of Stock-Denominated
Deferrals
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10
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11.
Amendment/Termination
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11
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12. General
Provisions
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11
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13. Effective
Date
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13
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NEW JERSEY RESOURCES
CORPORATION
Officers’ Deferred
Compensation Plan
Amended and Restated Effective January 1,
2009
1.
Purposes . The purpose of this Officers’
Deferred Compensation Plan (the "Plan") is to provide
certain members of a select group of management or highly
compensated employees of New Jersey Resources Corporation (the
"Company") and its Affiliates a means to defer receipt of specified
portions of compensation and to have such deferred amounts treated
as if invested in specified investment vehicles in order to enhance
the competitiveness of the Company's executive compensation program
and, therefore, its ability to attract and retain qualified key
personnel necessary for the continued success and progress of the
Company. The provisions of this Plan shall apply only to
those deferred amounts that became vested, within the meaning of
Code Section 409A (as defined below), subsequent to December 31,
2004.
2.
Definitions. In addition to the terms defined in
Section 1 above, the following terms used in the Plan shall have
the meanings set forth below:
(a) "Administrator"
shall mean the person or persons to whom the Committee has
delegated the authority to take action under the Plan
(b) “Affiliate”
shall mean any entity (whether or not incorporated) which, by
reason of its relationship with the Company, would be considered a
single employer with the Company under Section 414(b) or 414(c) of
the Code, subject to the requirements and definitions contained in
Code Section 409A.
(c) "Beneficiary"
shall mean any person (which may include trusts and is not limited
to one person) who has been designated by the Participant in his or
her most recent written beneficiary designation filed with the
Company to receive the benefits specified under the Plan in the
event of the Participant's death. If no Beneficiary has
been designated who survives the Participant's death, then
Beneficiary means any person(s) entitled by will or, in the absence
thereof, the laws of descent and distribution to receive such
benefits.
(d) For
the purposes of this Agreement, a "Change In Control" shall be
deemed to have occurred if:
(i)
Any Person (as defined below)
acquires (or has acquired during the 12-month period ending on the
date of the most recent acquisition by such Person) Voting
Securities (as defined below), of the Company and, immediately
thereafter, is the "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 Voting
Securities of the Company representing fifty percent
(50%) or more of the combined Voting Power (as defined
below) of the Company's securities; or
(ii)
Within any 12-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 was elected to the Board by, or
on the recommendation of or with the approval of, at least a
majority of the directors who then qualified as Incumbent Directors
either actually or by prior operation of this Section 7(b);
or
(iii)
the consummation of a merger,
consolidation, share exchange, division, sale or other disposition
of all or substantially all of the assets of the Company (a
"Corporate Event"), except that a Corporate Event shall not trigger
a Change in Control under this clause (c) if the shareholders of
the Company immediately prior to such Corporate Event shall 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.
(iv)
Person Defined
. "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 ( y ) the
Company or any subsidiary of the Company or ( z ) any
employee benefit plan sponsored by the Company or any subsidiary of
the Company.
(v)
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).
(vi)
The above definitions shall be
interpreted and applied in a manner that complies with the change
in control or ownership trigger event rules under Code Section
409A.
(e) "Code"
shall mean the Internal Revenue Code of 1986, as
amended. References to any provision of the Code or
regulation (including a proposed regulation) thereunder shall
include any successor provisions or regulations.
(f) “Code
Section 409A” shall mean Section 409A of the Code and any
regulations issued thereunder.
(g) "Committee"
shall mean the Leadership Development and Compensation Committee of
the Board of Directors of the Company or any other directors of the
Company designated as the Committee by the Board of Directors of
the Company. Except
as may be otherwise required under the terms of
the Plan or by applicable law, any function of the Committee may be
delegated to the Administrator.
(h) "Deferral
Account" shall mean the account or subaccount established and
maintained by the Company for specified deferrals by a Participant,
as described in Section 6. A Deferral Account will be
maintained solely as a bookkeeping entry by the Company to evidence
unfunded obligations of the Company.
(i) “Deferral
Election” shall mean the form submitted by a Participant to
the Administrator instructing the Administrator as to both the type
and amount of compensation that is to be deferred and the time and
form of payment of such deferred amounts, but only if such form is
filed within the time limits prescribed by the Plan and fully
complies in all other respects with the requirements of the
Plan.
(j) "Deferred
Stock" shall mean a right to receive Stock at the end of a
specified deferral period.
(k) "Disability"
or “Disabled” shall mean that the Participant (as
defined below) is, 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, receiving income replacement benefits for a period of not
less than 3 months under the long term disability provisions of the
benefit plans of the Company or its Affiliates, as
applicable.
(l) "Exchange
Act" shall mean the Securities Exchange Act of 1934, as
amended. References to any provision of the Exchange Act
or rule thereunder shall include any successor provisions or
rules.
(m) "Participant"
shall mean any employee of the Company or any Affiliate who is
designated by the Committee as eligible to participate in the Plan
and who makes an election to participate in the Plan.
(n)
“Retirement” shall mean a Participant’s
Separation from Service (as defined below) at or after attaining
age 55 (including a Separation from Service at or after age 55 due
to a Disability).
(o) “Specified
Employee” shall mean any Participant who is a key employee of
the Company, as defined in Section 416(i) of the Code without
regard to Section 416(i)(5) of the Code, and who is determined to
be a Specified Employee pursuant to procedures adopted by the Board
of Directors of the Company or its delegate in accordance with Code
Section 409A .
(p) “Separation
from Service” shall mean the Participant resigns, dies,
retires or otherwise has a termination of employment with the
Company and its Affiliates subject to the following additional
rules and the requirements of Code Section 409A. A
Separation from Service shall occur where it is reasonably
anticipated that no further services will be performed after that
date or that the level of bona fide services the Participant will
perform after that date (whether as an employee or independent
contractor) will permanently decrease to less than 50% of the
average level of bona fide services performed over the immediately
preceding thirty-six (36) month period. A Participant
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 6 consecutive months (29 months for a disability
leave of absence) or, if longer, so long as the Participant retains
a right to reemployment with the Company or an 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 Participant to be unable to perform the duties of his
job or a substantially similar job. Continued services
solely as a director of the Company or an Affiliate shall not
prevent a Separation from Service from occurring.
(q) "Stock"
shall mean New Jersey Resources Corporation Common Stock, or any
other equity securities of the Company designated by the
Committee.
(r) "Trust"
shall mean any trust or trusts established or designated by the
Company to hold Stock or other assets in connection with the Plan;
provided , however , that (i) such trust shall be
sited in the United States, (ii) the funding of such trust shall in
no way be contingent upon the financial condition of the Company,
and (iii) the assets of such trust shall remain subject to the
claims of the general creditors of the Company in the event of an
insolvency of the Company. The Company shall be
considered “insolvent” for purposes of this Plan and
any Trust if (i) the Company is unable to pay its debts as they
become due, or (ii) the Company is subject to a pending proceeding
as a debtor under the United States Bankruptcy Code.
(s) "Trustee"
shall mean the trustee of a Trust.
(t) "Trust
Agreement" shall mean the agreement entered into between the
Company and the Trustee to carry out the purposes of the Plan, as
amended or restated from time to time.
(a)
Authority . Except where the terms of the Plan
specifically provide otherwise, the Administrator (subject to the
ability of the Committee to restrict the Administrator) shall
administer the Plan in accordance with its terms, and shall have
all powers necessary to accomplish such purpose, including the
power and authority to construe and interpret the Plan, to define
the terms used herein, to prescribe, amend and rescind rules and
regulations, agreements, forms, and notices relating to the
administration of the Plan, and to make all other determinations
necessary or advisable for the administration of the
Plan. Any actions of the Committee or the Administrator
with respect to the Plan shall be conclusive and binding upon all
persons interested in the Plan, except that any action of the
Administrator will not be binding on the Committee. The
Committee and Administrator may each appoint agents and delegate
thereto powers and duties under the Plan, except as otherwise
limited by the Plan.
(b)
Administrator . The Administrator shall be
appointed by, shall remain in office at the will of, and may be
removed, with or without cause, by the Committee, and may be one
person or a committee of several persons. The
Administrator may resign at any time. The Administrator
shall not be entitled to act on or decide any matter relating
solely to himself or herself or any of his or her rights or
benefits under the Plan. The Administrator shall not
receive any special compensation for serving in his or her capacity
as Administrator but shall be reimbursed for any reasonable
expenses incurred in connection therewith. No bond or
other security need be required of the Administrator in any
jurisdiction.
(c)
Limitation of Liability . Each member of the
Committee and the Administrator shall be entitled to, in good
faith, rely or act upon any report or other information furnished
to him or her by any officer or other employee of the Company or
any Affiliate, the Company's independent certified public
accountants, or any executive compensation consultant, legal
counsel, or other professional retained by the Company to assist in
the administration of the Plan. To the maximum extent
permitted by law, no member of the Committee or the Administrator,
nor any person to whom ministerial duties have been delegated,
shall be liable to any person for any action taken or omitted in
good faith in connection with the interpretation and administration
of the Plan.
(d)
Indemnification. To the maximum extent permitted
by law, members of the Committee and the Administrator shall be
fully indemnified and protected by the Company with respect to any
action taken or omitted in good faith in connection with the
interpretation or administration of the Plan.
(e)
Plan Year . The Plan’s books and records
and administrative functions shall be maintained and operated on
the basis of a 12-month calendar year commencing each January
1.
4.
Participation. The Administrator will notify
each person of his or her eligibility to participate in the Plan
not later than 30 days (or such lesser period as may be practicable
in the circumstances) prior to any deadline for filing an election
form.
5.
Initial Deferral Elections.
(a) In
General. To the extent authorized by the Committee, a
Participant may submit to the Administrator a Deferral Election to
defer the receipt of compensation or awards which may be in the
form of cash, Stock, Stock-denominated awards or other property to
be received from the Company or an Affiliate, including salary,
annual bonus awards, long-term awards, and compensation
payable under other plans and programs, employment agreements or
other arrangements, or otherwise, as may be provided under the
terms of such plans, programs and arrangements or as designated by
the Administrator (an “Initial Deferral
Election.”) An Initial Deferral Election with
respect to compensation otherwise payable to the Participant in a
given Plan Year shall specify (i) the timing and form of deferred
payment, lump sum or installments, of such compensation subject to
such Deferral Election to be made at a future date specified by the
Participant through which the Participant has continuously remained
an employee of the Company, or upon the Participant’s
Retirement, or upon the earlier of such specified date or such
Retirement, and (ii) the dollar amount or percentage of such
compensation to be deferred. Initial Deferral Elections
applicable to compensation otherwise payable in different Plan
Years may specify different times and forms of
payment. In addition to any terms and conditions of
deferral set forth under plans, programs or arrangements from which
receipt of the Stock-denominated award or other compensation is
deferred, the Committee may impose limitations on the amounts
permitted to be deferred and other terms and conditions of
deferrals under the Plan, including minimum and/or maximum periods
of deferral. Any such limitations, and other terms and
conditions of deferral, other than those required by Code Section
409A to be included within this plan document, shall be set forth
in the rules relating to the Plan or election forms, other forms,
or instructions published by the Committee and/or the
Administrator.
(b)
Date of Election . Each Initial Deferral Election
must be received by the Administrator prior to the following dates
or will have no effect whatsoever:
(i) With respect to
salary, the December 31 immediately preceding the year in which the
salary is earned;
(ii) With respect to any
annual or long-term incentive pay which qualifies as
“performance-based compensation” within the meaning of
Code Section 409A, by the earlier of (A) the December 31
immediately preceding the end of the performance measurement period
applicable to such incentive pay or (B) the date six months prior
to the end of the performance measurement period applicable to such
incentive pay provided such additional requirements set forth in
Code Section 409A are met;
(iii)
With respect to “fiscal year compensation” as defined
under Code Section 409A, by the last day of the Company’s
fiscal year preceding the year in which the fiscal year
compensation is earned;
(iv) With respect to
awards of restricted stock units or other legally binding rights to
a payment of compensation in a subsequent year that is subject to a
forfeiture condition requiring the Participant’s continued
services for a period of at least 12 months, on or before the
30 th
day following the grant of such
award, provided that the election is made at least 12 months in
advance of the earliest date at which the forfeiture condition
could lapse.
Each Initial Deferral Election shall
become irrevocable at the dates specified above, unless (i) the
Participant incurs an Unforeseeable Financial Hardship (as defined
below), or (ii) as otherwise permitted both under Code Section 409A
and by the Administrator. In the case of an Initial
Deferral Election with respect to salary earned during a Plan Year,
such election shall remain valid with respect to salary earned in
succeeding Plan Years until revoked or revised by the Participant
in compliance with the deadlines and other provisions of the
Plan. An Initial Deferral Election, if submitted to the
Administrator earlier than the dates specified above, may be
changed by the Participant at any time prior to the applicable date
specified above.
