exh10-4.htm


     

     

    
      Exhibit
10.4

    

    


    


    Supplemental
Executive Retirement Plan Agreement

    


    Amended
and Restated

    


    


    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”).

    


    


    W I T N E S S E T
H

    


    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:

    


    
      	
              1.  

            	
              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 (65th)
      birthday occurs; provided however, that the Employee may remain in active
      employment after his/her sixty-fifth (65th)
      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.

            


    

    


    


    
      
        
          
             

          

           


        

        
          -1-

          
            

          

        

        
           


        

      

    

    


    


    
      	
              2.  

            	
              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.

            


    

    


    
      	
              3.  

            	
              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.

            


    

    


    
      	
              4.  

            	
              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.

            


    

    


    
      	
              5.   

            	
              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 calendar month commencing with the month following the
      date of death, until the applicable Cumulative Termination Benefit shall
      have been paid in full.

            


    

    


    
      	
              6.  

            	
              Notwithstanding
      anything to the contrary contained in the original Agreement or in any
      amendment or addendum thereto, it is hereby agreed that upon the
      occurrence of a Change In Control (as defined herein), the Employee shall
      immediately become fully vested in the SERP Benefit set forth in Paragraph
      2 of this Agreement, or in the then most recent amendment or addendum
      thereto (whichever amount is greater), and that in the event the
      Employee’s employment is thereafter terminated for any reason or if the
      Employee resigns for any reason within two years of the Change in Control,
      said SERP Benefit shall be paid to the Employee in sixty (60) equal
      monthly installments  payable on the first day of each calendar
      month commencing with the month following the date of termination, until
      the applicable Cumulative Termination Benefit shall have been paid in
      full. In the event that the Employee dies after termination of employment
      pursuant to this Paragraph 6, and before any or all of the SERP Benefit
      has been paid to him, then such SERP 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 calendar month commencing with the month following the date of
      death, until the applicable Cumulative Termination Benefit shall have been
      paid in full.

            


    

    


    
      
        
           


        

        
          -2-

          
            

          

        

        
           


        

      

    

    


    


    
      	
              7.  

            	
              For the purposes of this
      Agreement:

            


    

    


    
      	
              (a)  

            	
               
      a "Change In Control" shall be deemed to have occurred
  if:

            


    

    


    
      	
               
      

            	
              (i)

            	
              Any
      Person (as defined below) has acquired 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 members of the Board 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 Board member who was not a
      Board member 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
      Board members who then qualified as Incumbent Directors either actually or
      by prior operation of this Section 7(a)(ii);
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 (iii) 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.

            


    

    


    
      	
              (b)  

            	
              For
      purposes of this Section 7, "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.

            


    

    


    
      	
              (c)  

            	
              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).

            


    

    


    
      	
              (d)  

            	
              The
      above definition of a Change in Control is intended to meet the
      requirements of a permissible change in control payment event under Code
      Section 409A and shall be interpreted and applied to the Employee in
      accordance with Code Section 409A.

            


    

    


    
      	
              8.  

            	
              Any
      dispute or controversy arising out of or in connection with the
      interpretation or application of the provisions of paragraphs 6 or 7 of
      this Agreement shall be settled exclusively by arbitration in accordance
      with the rules of the American Arbitration Association then in effect and
      the applicable law of the State of New Jersey pertaining to the
      arbitration of disputes, and judgment may be entered on the arbitrator’s
      award in any court having jurisdiction.  All costs and expenses
      of such arbitration, including the reasonable counsel fees, costs and
      expenses incurred by the Employee in either prosecuting or defending the
      arbitration proceeding, shall be borne and paid by the
      Company.  Any reimbursement of costs or expenses to be paid by
      the Company under this paragraph 8 shall be paid no later than the end of
      calendar year following the calendar year during which the cost or
      expenses are incurred.

            


    

    


    
      
        
           


        

        
          -3-

          
            

          

        

        
           


        

      

    

    


    


    
      	
              9.  

            	
              Notwithstanding
      anything else herein to the contrary, payments of benefits hereunder
      caused by the Separation from Service (including death) of the Employee
      may be delayed for a period of no more than six (6) months following such
      Separation from Service, if the Employee is determined by the Board of the
      Company or its delegate to meet the definition of a “specified employee”
      (as defined under Code Section 409A) but only if such delay in payment is
      required in order to comply with the requirements of Code Section
      409A.  No interest shall accrue or be paid in the event of a
      delay in payment.

            


    

    


    
      	
              10.  

            	
              Any
      payment otherwise due under the terms of this Agreement which would (a)
      not be deductible in whole or in part under Section 162(m) of the Code, or
      (b) violate Federal securities laws or other applicable law may not be
      made until the earliest date on which such payment no longer is
      nondeductible or violates such laws. Payment may be delayed for a
      reasonable period in accordance with the provisions of Code Section 409A
      (including in the event the payment is not administratively practical due
      to events beyond the recipient’s control such as where the recipient is
      not competent to receive the benefit payment, there is a dispute as to
      amount due or the proper recipient of such benefit payment, or additional
      time is needed to calculate the amount payable). No interest shall accrue
      or be paid because of any delay of
payment.

            


    

    


    
      	
              11.  

            	
              The
      Company may not permit the acceleration of the time or schedule of any
      payment or amount scheduled to be paid pursuant to this Agreement, unless
      such acceleration of the time or schedule is (a) to comply with conflicts
      of interest or ethics laws (as defined in Code Section 409A ), (b) to be
      used for the payment of FICA, income taxes on the FICA withholding or
      other approved taxes on benefits under this Agreement, (c) is necessary to
      pay an amount equal to the amount included in the income of the Employee
      under Code Section 409A or (d) as otherwise allowed under Code Section
      409A.

            


    

    


    
      	
              12.  

            	
              It
      is agreed that neither the Employee nor any other person shall have any
      right to commute, bequeath, pledge, sell, assign, transfer, levy upon or
      otherwise encumber the rights to receive any payments hereunder, which
      payments and the rights thereto are expressly declared to be
      non-transferable and non-assignable, and in the event of any attempted
      disposition of such payments or rights in violation hereof the Company
      shall have no further liability
hereunder.

            


    

    


    
      	
              13.  

            	
              The
      Employee shall designate in writing, to be annexed hereto, one or more
      beneficiaries to whom the benefits in the event of his/her death shall be
      paid pursuant to paragraphs 2, 3, 5 or 6 hereof.  In the absence
      of such designation, or in the event no designated beneficiary survives
      the Employee, then any such benefits shall be payable in like manner to
      the Employee’s executor or administrator.  In the event of the
      death of all designated beneficiaries after commencement but prior to
      completion of payment of the installments of benefits, the balance thereof
      shall be payable in like manner to the executor or administrator of the
      last surviving beneficiary.

            


    

    


    
      	
              14.  

            	
              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
regulations.

            


    

    


    
      	
              15.  

            	
              This
      Agreement shall be binding upon the parties hereto, and upon the heirs,
      executors, administrators, or other personal representatives and
      designated beneficiaries of the Employee, and upon the successors and
      assigns of the Company.

            


    

    


    
      	
              16.  

            	
              This
      Agreement hereby amends and restates the Prior Agreement in its entirety.
      During the lifetime of the Employee, this Agreement may be amended or
      terminated at any time or times, in whole or in part, by the mutual
      written agreement of the Employee and the Company, and only in accordance
      with Code Section 409A.

            


    

    


    
      	
              17.  

            	
              The
      benefits under this Agreement are designed to comply with the requirements
      of Code Section 409A.  The Company shall interpret and
      administer this Agreement in a manner as to comply with Code Section
      409A.  Notwithstanding the foregoing, however, the Company shall
      not be liable to the Employee or any other person if any benefit under
      this Agreement does not comply with Code Section 409A or the Employee or
      any other person is otherwise subject to any additional tax or penalty
      under Code Section 409A.  Each Employee is solely responsible
      for the payment of any tax liability (including any taxes and penalties
      that may arise under Code Section 409A) that may arise from any benefit
      under this Agreement.

            


    

    


    
      	
              18.  

            	
              This
      Agreement shall be executed in duplicate, each copy of which when executed
      and delivered shall be an original, but both copies shall, together,
      constitute one and the same
instrument.

            


    

    


    
      
        
           


        

        
          -4-

          
            

          

        

        
           


        

      

    

    


    


    IN WITNESS WHEREOF, the parties hereto
have caused these presents to be duly executed in their respective name and
their respective seals to be hereunto affixed and attested, the day and year
first above written.

    


    NEW
JERSEY RESOURCES CORPORATION

    


    


    
      	
              /s/ Glenn C.
      Lockwood

            	
              Date:

            	
              11/26/08

            
	
              GLENN
      C. LOCKWOOD

            	 
      	 
      
	
              Senior
      Vice President & Chief Financial Officer

            	 
      	 
      
	 
      	 
      	 
      
	
               /s/ Denise S.
      Gray

            	
              Date:

            	
              11/26/08

            
	
              Witness

            	 
      	 
      
	 
      	 
      	 
      
	
               /s/
      Laurence M. Downes

            	
              Date:

            	
              11/26/08

            
	
              LAURENCE
      M. DOWNES

            	 
      	 
      
	
              Chairman
      & Chief Executive Officer

            	 
      	 
      
	 
      	 
      	 
      
	
              /s/ Denise S.
      Gray

            	
              Date:

            	
              11/26/08

            
	
              Witness

            	 
      	 
      


    

    


    


    


    


    
      
        
           


        

        
          -5-

          
            

          

        

        
           


        

      

    

    


    


    
      	
               
      

            	
              DESIGNATION
      OF BENEFICIARY

            


    

    


    
      	
               
      

            	
              I
      hereby designate the following person (or persons) as my beneficiary (or
      beneficiaries) to whom the benefits provided hereunder in the event of my
      death shall be paid pursuant to this
Agreement:

            


    

    


    


    
      	
               
      

            	
              PRIMARY
      BENEFICIARY(IES):

            


    

    
      	
               

              Name:

            	
               

              Address:

            	
               

              Social
      Security #

            	
               

              Relationship
      to Employee:

            	
               

              Percentage

            
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      


    

    


    
      	
               
      

            	
              SECONDARY
      BENEFICIARY(IES)*:

            


    

    
      	
               

              Name:

            	
               

              Address:

            	
               

              Social
      Security #

            	
               

              Relationship
      to Employee:

            	
               

              Percentage

            
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      


    

    
      	
               
      

            	
              *In
      the event that primary beneficiary(ies) predecease
    employee.

            


    

    


    


    


    


    
      	
              SIGNED:_________________________________

            	
              DATED:_____________________________

            


    

    


    


    


    


    
      
        
           


        

        
          -6-

          
            

          

        

        
           


        

      

    

    


    


    
      
        	
                 
      

              	
                (employee’s
      name)

              


      

    

    


    
      	
               
      

            	
              EFFECTIVE
      _____________

            


    

    


    


    


    
      	
              YEAR

            	
              AGE

            	 
      	
              SCHEDULE
      "A"

              CUMULATIVE
      TERMINATION

              BENEFIT

            
	 
      	 
      	 
      	 
      
	
              1998

            	 
      	 
      	
               $

            
	
              1999

            	 
      	 
      	
               $

            
	
              2000

            	 
      	 
      	
               $

            
	
              2001

            	 
      	 
      	
               $

            
	
              2002

            	 
      	 
      	
               $

            
	
              2003

            	 
      	 
      	 
      
	
              2004

            	 
      	 
      	 
      
	
              2005

            	 
      	 
      	 
      
	
              2006

            	 
      	 
      	 
      
	
              2007

            	 
      	 
      	 
      
	
              2008

            	 
      	 
      	 
      
	
              2009

            	 
      	 
      	 
      
	
              2010

            	 
      	 
      	 
      
	
              2011

            	 
      	 
      	 
      
	
              2012

            	 
      	 
      	 
      
	
              2013

            	 
      	 
      	 
      
	
              2014

            	 
      	 
      	 
      
	
              2015

            	 
      	 
      	 
      
	
              2016

            	 
      	 
      	 
      
	
              2017

            	 
      	 
      	 
      
	
              2018

            	 
      	 
      	 
      
	
              2019

            	 
      	 
      	 
      
	
              2020

            	 
      	 
      	 
      
	
              2021

            	 
      	 
      	 
      


    

    


    


    


    


    
      
        
           


        

        
          -7-