NJR 8-K
New Jersey Resources Corp (NJR)
8-K
2024-11-12
For: 2024-11-06
View Original
Added on
April 08, 2026
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): November 6, 2024
(Exact name of registrant as specified in its charter)
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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(Address of principal executive offices)
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(Zip Code)
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(732 ) 938-1480
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following
provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which
registered
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933
(§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to
use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 1.01 |
Entry into a Material Definitive Agreement
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The information included in Item 2.03 of this Current Report on Form 8-K is incorporated into this Item 1.01.
| Item 2.03. |
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
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On November 7, 2024, New Jersey Resources Corporation (the “Company”) issued and sold $100 million of the Company’s 5.55% Senior Notes, Series 2024A, due November 7, 2034 (the “Notes”) to certain institutional investors in the private placement
market pursuant to a Note Purchase Agreement, dated November 7, 2024, by and among the Company and the purchasers (the “Purchasers”) party thereto (the “Note Purchase Agreement”). The Notes are guaranteed by certain unregulated subsidiaries of the
Company. The Notes are unsecured. The proceeds of the Notes will be used for general corporate purposes, including but not limited to future acquisitions, repayment of indebtedness, capital expenditures and working capital.
The Note Purchase Agreement contains customary representations and warranties of the Company and the Purchasers and also contains customary events of default and certain covenants which will limit NJR’s ability beyond agreed upon thresholds, to,
among other things: (i) incur additional debt (including a covenant which limits the amount of consolidated total debt of NJR at the end of the fiscal quarter to 70% of the consolidated total capitalization of NJR, as those terms are defined in the
Note Purchase Agreement, and a covenant limiting priority debt to 20% of NJR’s consolidated total capitalization, as those terms are defined in the Note Purchase Agreement); (ii) incur liens; (iii) make dispositions of assets; (iv) enter into
transactions with affiliates; and (v) merge, consolidate, transfer, sell or lease all or substantially all of NJR’s assets. These covenants are subject to a number of important exceptions and qualifications set forth in the Note Purchase Agreement.
| Item 5.02 |
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
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(e) Fiscal 2025 Officer Annual Incentive Plan
On November 6, 2024, the Leadership Development and Compensation Committee (the “LDCC”) of the Board of Directors (the “Board”) of the Company approved
several items relating to compensatory arrangements with its named executive officers (“NEOs”). The details of these approvals are outlined below.
On November 6, 2024, the LDCC approved the Company’s fiscal year 2025 Officer Annual Incentive Plan (the “2025 OIP”) for officers of the Company and its
subsidiaries. For fiscal year 2025, each of the Company’s NEOs participate in the 2025 OIP. The objectives for the 2025 OIP are to maintain line of sight for each executive officer by providing them with an understanding of their individual
objectives and how such objectives could be achieved based on areas that they impact, continue the linkage to corporate results and provide flexibility to determine awards based on qualitative performance assessments.
The performance criteria for receiving an annual incentive award under the 2025 OIP are net financial earnings (“NFE”), individual leadership and the
Company’s “Commitment to Stakeholders” goals. Under the 2025 OIP, a performance hurdle based on the Company’s NFE for fiscal year 2025 must be met in order to be eligible to receive an award. Each of the NEO’s annual incentive awards under the 2025
OIP is based 50 percent on the Company’s NFE, 30 percent on the NEO achieving an individual leadership component and 20 percent on the Company meeting the goals of an overall “Commitment to Stakeholders” component. Under the 2025 OIP, the target
annual incentive award opportunity for the NEOs, other than the President and Chief Executive Officer, ranges from 40 to 60 percent of base salary and the target annual incentive award opportunities for the President and Chief Executive Officer is
110 percent of base salary. Actual fiscal year 2025 cash incentive award payments under the 2025 OIP, if earned, could range from 0 percent up to 150 percent of this targeted amount for each of the NEOs. Amounts payable under the 2025 OIP that
exceeded 100 percent of the target amount could be paid in full, or in part, in the form of restricted stock units (“RSUs”) and/or Deferred Retention Stock Units (“DRSUs”) based on the President and Chief Executive Officer’s recommendation and
subsequent approval by the LDCC, or in the case of the President and Chief Executive Officer, based on the LDCC’s determination.
In addition, under the 2025 OIP, based upon the recommendations of the President and Chief Executive Officer, the LDCC reserves the ability to modify,
based upon its qualitative assessment, any annual incentive award payable. In addition, the President and Chief Executive Officer, subject to LDCC approval, may recommend special recognition awards to NEOs who have made significant contributions
and have demonstrated a sustained level of outstanding performance. The LDCC may approve special recognition awards to the President and Chief Executive Officer. The special recognition awards, if any, may be in the form of cash, RSUs or DRSUs.
Any award payable to an NEO under the 2025 OIP is subject to the Company’s compensation recoupment policies.
Long-Term Incentive Program Awards
Pursuant to grants made on November 6, 2024, the Board awarded to each of the Company’s NEOs (i) performance share units with performance criteria based
upon the Company’s total shareholder return (“FY 2025 TSR Performance Share Units”) and with performance criteria based upon the Company’s cumulative NFE per share (“FY 2025 NFE Performance Share Units”); (ii) RSUs to each of the NEOs, other than
to the President and Chief Executive Officer, Stephen D. Westhoven; and (iii) performance-based RSUs with performance criteria based upon an NFE-based performance (“PBRSUs”) goal to Mr. Westhoven (such awards, collectively, the “Awards”), all
pursuant to the Company’s 2017 Stock Award and Incentive Plan.
Performance Share Units
The FY 2025 TSR Performance Share Units vest, if at all, at the end of a 36-month performance period beginning on October 1, 2024, and ending on September
30, 2027, based on relative Company total shareholder return versus an established comparator group.
The FY 2025 NFE Performance Share Units vest, if at all, based upon the Company’s cumulative NFE per share over the 36-month period beginning on October
1, 2024, and ending on September 30, 2027.
On their vesting dates, the FY 2025 TSR Performance Share Units and FY 2025 NFE Performance Share Units (collectively, “Units”) are payable in shares of
the Company’s common stock (“Common Stock”) in amounts ranging from zero to 150 percent of the number of granted performance share units. Additional shares of Common Stock may be awarded on the vesting dates with respect to the computed value of
dividend equivalents accrued (measured against the Common Stock) during the performance measurement periods, subject to the Company’s achievement of prescribed performance goals. If the Company’s performance does not meet the minimum threshold
level, no Units will vest.
Restricted Stock Units
The RSUs awarded by the Company to the NEOs will accrue dividends and will vest in three equal installments on October 15, 2025, October 15, 2026 and
October 15, 2027, subject to continued employment of the NEO, in each case except under certain conditions. The RSUs are payable in shares of the Company’s Common Stock.
Performance-Based Restricted Stock Units
The PBRSUs awarded to Mr. Westhoven will accrue dividends and may vest in up to three equal installments on September 30, 2025, September 30, 2026, and
September 30, 2027, if the NFE-based performance goal for the fiscal year ending September 30, 2025 is achieved, and subject to his continued employment, except under certain conditions. The PBRSUs are payable in shares of the Company’s Common
Stock.
Award Agreements
The foregoing descriptions of the forms of the FY 2025 Performance Share Units Agreement - TSR, the FY 2025 Performance Share Units Agreement (NFE), the
FY 2025 Restricted Stock Units Agreement, and the FY 2025 Performance-based Restricted Stock Units Agreement (together, the “Award Agreements”), are qualified in their entirety by the terms and provisions of the Award Agreements, which are attached
hereto as Exhibit 10.1, Exhibit 10.2, Exhibit 10.3 and Exhibit 10.4, respectively, and are incorporated herein by reference.
Cautionary Statements Regarding Forward-Looking Statements
This filing contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. NJR cautions readers that the assumptions
forming the basis for forward-looking statements include many factors that are beyond NJR’s ability to control or estimate precisely, such as estimates of future market conditions and the behavior of other market participants. Words such as
“anticipates,” “estimates,” “expects,” “projects,” “intends,” “plans,” “believes,” “may,” “should” and similar expressions may identify forward-looking information and such forward-looking statements are made based upon management’s current
expectations and beliefs as of this date concerning future developments and their potential effect upon NJR. There can be no assurance that future developments will be in accordance with management’s expectations or that the effect of future
developments on NJR will be those anticipated by management. Forward-looking information in this filing includes, but is not limited to, certain statements regarding the use of proceeds.
Additional information and factors that could cause actual results to differ materially from NJR’s expectations are contained in NJR’s filings with the U.S. Securities
and Exchange Commission (“SEC”), including NJR’s Annual Reports on Form 10-K and subsequent Quarterly Reports on Form 10-Q, recent Current Reports on Form 8-K, and other SEC filings, which are available at the SEC’s web site, http:.//www.sec.gov.
Information included in this filing is representative as of today only and while NJR periodically reassesses material trends and uncertainties affecting NJR’s results of operations and financial condition in connection with its preparation of
management’s discussion and analysis of results of operations and financial condition contained in its Quarterly and Annual Reports filed with the SEC, NJR does not, by including this statement, assume any obligation to review or revise any
particular forward-looking statement referenced herein in light of future events.
| Item 9.01 |
Financial Statements and Exhibits
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(d) Exhibits
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Exhibit
Number
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Description
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$100,000,000 Note Purchase Agreement, dated as of November 7, 2024, by and among New Jersey Resources Coproration and the Purchasers party thereto.
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| 10.1 |
FY 2025 Performance Share Units Agreement – TSR
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| 10.2 |
FY 2025 Performance Share Units Agreement (NFE)
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| 10.3 |
FY 2025 Restricted Stock Units Agreement
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| 10.4 |
FY 2025 Performance-based Restricted Stock Units Agreement
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104
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Cover page in Inline XBRL format.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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NEW JERSEY RESOURCES CORPORATION
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Date: November 12, 2024
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By:
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/s/ Roberto F. Bel
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Roberto F. Bel
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Senior Vice President and Chief Financial Officer
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Exhibit 4.1
EXECUTION VERSION
New Jersey Resources Corporation
$100,000,000 5.55% Senior Notes, Series 2024A, due November 7, 2034
Note Purchase Agreement
Dated as of November 7, 2024
TABLE OF CONTENTS
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Page
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SECTION 1. AUTHORIZATION OF NOTES
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1
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Section 1.1.
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Authorization of Notes
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1
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SECTION 2. SALE AND PURCHASE OF NOTES; GUARANTY
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1
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Section 2.1.
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Sale and Purchase of Notes
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1
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Section 2.2.
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Guaranty Agreement
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1
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SECTION 3. CLOSING
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2
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SECTION 4. CONDITIONS TO CLOSING
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2
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Section 4.1.
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Representations and Warranties
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2
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Section 4.2.
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Performance; No Default
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Section 4.3.
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Compliance Certificates
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2
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Section 4.4.
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Guaranty Agreement
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Section 4.5.
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Opinions of Counsel
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3
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Section 4.6.
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Purchase Permitted by Applicable Law, Etc
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Section 4.7.
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Sale of Other Notes
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4
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Section 4.8.
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Payment of Special Counsel Fees
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4
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Section 4.9.
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Private Placement Number
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4
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Section 4.10.
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Changes in Corporate Structure
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4
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Section 4.11.
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Funding Instructions
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4
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Section 4.12.
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Debt Rating
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4
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Section 4.13.
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Proceedings and Documents
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5
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SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
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5
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Section 5.1.
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Organization; Power and Authority
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5
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Section 5.2.
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Authorization, Etc
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5
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Section 5.3.
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Disclosure
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5
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Section 5.4.
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Organization and Ownership of Shares of Subsidiaries
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Section 5.5.
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Financial Statements
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6
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Section 5.6.
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Compliance with Laws, Other Instruments, Etc
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Section 5.7.
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Governmental Authorizations, Etc
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7
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Section 5.8.
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Litigation; Observance of Statutes and Orders
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7
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Section 5.9.
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Taxes
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7
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Section 5.10.
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Title to Property; Leases
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8
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Section 5.11.
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Licenses, Permits, Etc
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8
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Section 5.12.
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Compliance with ERISA
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8
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Section 5.13.
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Private Offering by the Company
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9
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Section 5.14.
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Use of Proceeds; Margin Regulations
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9
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Section 5.15.
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Existing Debt
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9
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Section 5.16.
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Foreign Assets Control Regulations, Etc
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10
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Section 5.17.
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Status under Certain Statutes
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11
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-i-
TABLE OF CONTENTS
(continued)
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Page
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Section 5.18.
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Environmental Matters
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11
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Section 5.19.
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Notes Rank Pari Passu
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12
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SECTION 6. REPRESENTATIONS OF THE PURCHASERS
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12
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Section 6.1.
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Purchase for Investment
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12
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Section 6.2.
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Source of Funds
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12
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SECTION 7. INFORMATION AS TO COMPANY
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14
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Section 7.1.
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Financial and Business Information
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14
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Section 7.2.
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Officer’s Certificate
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17
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Section 7.3.
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Inspection
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SECTION 8. PREPAYMENT OF THE NOTES
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18
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Section 8.1.
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Maturity; Required Prepayments
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Section 8.2.
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Optional Prepayments with Make-Whole Amount
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18
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Section 8.3.
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Allocation of Partial Prepayments
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Section 8.4.
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Maturity; Surrender, Etc
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19
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Section 8.5.
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Purchase of Notes
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Section 8.6.
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Make-Whole Amount for Notes
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19
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Section 8.7.
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Offer to Prepay upon Asset Disposition
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21
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SECTION 9. AFFIRMATIVE COVENANTS
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22
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Section 9.1.
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Compliance with Law
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Section 9.2.
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Insurance
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Section 9.3.
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Maintenance of Properties
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Section 9.4.
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Payment of Taxes and Claims
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Section 9.5.
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Corporate Existence, Etc
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23
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Section 9.6.
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Ownership of Subsidiaries
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Section 9.7.
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Guaranty Agreement
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23
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Section 9.8.
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New Jersey Natural Gas Regulated Nature
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25
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Section 9.9.
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Notes to Rank Pari Passu
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25
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Section 9.10.
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Ratings on the Notes
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25
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SECTION 10. NEGATIVE COVENANTS
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Section 10.1.
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Leverage Ratio
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26
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Section 10.2.
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Limitation on Priority Debt
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26
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Section 10.3.
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Liens
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26
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Section 10.4.
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Restricted Payments
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29
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Section 10.5.
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Restrictions on Dividends of Subsidiaries, Etc
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29
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Section 10.6.
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Sale of Assets, Etc
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29
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Section 10.7.
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Merger, Consolidation, Etc
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30
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Section 10.8.
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Disposal of Ownership of a Restricted Subsidiary
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31
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-ii-
TABLE OF CONTENTS
(continued)
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Page
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Section 10.9.
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Limitations on Subsidiaries, Partnerships and Joint Ventures
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32
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Section 10.10.
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[Reserved]
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32
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Section 10.11.
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Nature of Business
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32
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Section 10.12.
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Transactions with Affiliates
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32
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Section 10.13.
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Designation of Restricted and Unrestricted Subsidiaries
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Section 10.14.
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Economic Sanctions, Etc
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SECTION 11. EVENTS OF DEFAULT
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SECTION 12. REMEDIES ON DEFAULT, ETC
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36
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Section 12.1.
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Acceleration
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36
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Section 12.2.
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Other Remedies
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37
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Section 12.3.
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Rescission
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37
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Section 12.4.
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No Waivers or Election of Remedies, Expenses, Etc
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37
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SECTION 13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES
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37
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Section 13.1.
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Registration of Notes
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38
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Section 13.2.
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Transfer and Exchange of Notes
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38
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Section 13.3.
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Replacement of Notes
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38
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SECTION 14. PAYMENTS ON NOTES
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39
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Section 14.1.
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Place of Payment
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39
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Section 14.2.
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Home Office Payment
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39
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Section 14.3.
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FATCA Information
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39
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SECTION 15. EXPENSES, ETC
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40
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Section 15.1.
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Transaction Expenses
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40
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Section 15.2.
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Certain Taxes
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40
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Section 15.3.
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Survival
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40
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SECTION 16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT
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41
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SECTION 17. AMENDMENT AND WAIVER
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41
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Section 17.1.
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Requirements
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41
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Section 17.2.
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Solicitation of Purchasers and Holders of Notes
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41
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Section 17.3.
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Binding Effect, Etc
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42
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Section 17.4.
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Notes Held by Company, Etc
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42
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SECTION 18. NOTICES
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42
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SECTION 19. REPRODUCTION OF DOCUMENTS
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43
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-iii-
TABLE OF CONTENTS
(continued)
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Page
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SECTION 20. CONFIDENTIAL INFORMATION
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44
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SECTION 21. SUBSTITUTION OF PURCHASER
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45
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SECTION 22. MISCELLANEOUS
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45
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Section 22.1.
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Successors and Assigns
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45
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Section 22.2.
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Submission to Jurisdiction; Waiver of Jury Trial
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45
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Section 22.3.
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Payments Due on Non-Business Days
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46
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Section 22.4.
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Accounting Terms
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46
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Section 22.5.
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Severability
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46
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Section 22.6.
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Construction
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47
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Section 22.7.
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Counterparts; Electronic Contracting
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47
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Section 22.8.
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Governing Law
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47
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-iv-
Attachments to Note Purchase Agreement:
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Schedule A
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—
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Information Relating to Purchasers
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Schedule B
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—
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Defined Terms
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Schedule 5.3
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—
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Disclosure Materials
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Schedule 5.4
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—
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Subsidiaries of the Company and Ownership of Subsidiary Stock
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Schedule 5.5
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—
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Financials
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Schedule 5.8
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—
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Certain Litigation
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Schedule 5.11
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—
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Patents, Etc.
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Schedule 5.15
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—
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Existing Debt
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Exhibit 1
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—
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Form of 5.55% Senior Notes, Series 2024A, due November 7, 2034
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Exhibit 2
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—
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Form of Subsidiary Guaranty Agreement
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Exhibit 4.5(a)
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—
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Form of Opinion of Special Counsel to the Company and the Guarantors
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Exhibit 4.5(b)
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—
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Form of Opinion of Special Counsel to the Purchasers
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-v-
New Jersey Resources Corporation
1415 Wyckoff Road
Wall, New Jersey 07719
$100,000,000 5.55% Senior Notes, Series 2024A, due November 7, 2034
Dated as of November 7, 2024
To Each of the Purchasers Listed in
Schedule A Hereto:
Ladies and Gentlemen:
New Jersey Resources Corporation, a New Jersey corporation (the “Company”), agrees with each of you as follows:
Section 1. Authorization of Notes.
Section 1.1. Authorization of Notes. The Company will authorize the issue and sale
of $100,000,000 aggregate principal amount of its 5.55% Senior Notes, Series 2024A, due November 7, 2034 (as amended, restated or otherwise modified from time to time pursuant to Section 17, the “Notes”, such term to include any such notes issued in substitution therefor pursuant to Section 13). The Notes
shall be substantially in the form set out in Exhibit 1, with such changes therefrom, if any, as may be approved by the Purchasers and the Company. Certain capitalized and other terms used in this Agreement
are defined in Schedule B. References to a “Schedule” or an “Exhibit” are references to a Schedule or Exhibit, as applicable, attached to this Agreement unless otherwise specified. References to a
“Section” are references to a Section of this Agreement unless otherwise specified.
Section 2. Sale and Purchase of Notes; Guaranty.
Section 2.1. Sale and Purchase of Notes. Subject to the terms and conditions of
this Agreement, the Company will issue and sell to each Purchaser and each Purchaser will purchase from the Company, at the Closing provided for in Section 3, Notes in the principal amount specified opposite
such Purchaser’s name in Schedule A at the purchase price of 100% of the principal amount thereof. The Purchasers’ obligations hereunder are several and not joint obligations and no Purchaser shall have any
obligation or liability to any Person for the performance or non-performance of any obligation by any other Purchaser hereunder.
Section 2.2. Guaranty Agreement. The obligations of the Company hereunder and under
the Notes are absolutely, unconditionally and irrevocably guaranteed by each Restricted Subsidiary existing on the Closing Date (as defined below) and each other Subsidiary from time to time required to guaranty the Notes pursuant to Section 9.7 (each a “Guarantor” and, collectively, the “Guarantors”), pursuant to that certain Subsidiary Guaranty Agreement
dated as of the Closing Date (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “Guaranty Agreement”) substantially in the form of Exhibit 2, and subject to the
provisions of Section 9.7(c).
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Section 3. Closing.
The sale and purchase of the Notes to be purchased by each Purchaser shall occur at the offices of ArentFox Schiff LLP, 1301 Avenue of the Americas, 42nd floor, New York, New York 10019 at 11:00 a.m., New York, New York time (the “Closing”), on November 7, 2024 (the “Closing
Date”). At the Closing, the Company will deliver to each Purchaser the Notes to be purchased by such Purchaser in the form of a single Note (or such greater number of Notes in denominations of at least $100,000 as such Purchaser may
request) dated the Closing Date and registered in such Purchaser’s name (or in the name of its nominee), against delivery by such Purchaser to the Company or its order of immediately available funds in the amount of the purchase price therefor by
wire transfer of immediately available funds for the account of the Company in accordance with the funding instructions provided pursuant to Section 4.11. If at the Closing the Company shall fail to tender
the Notes to any Purchaser to be purchased by such Purchaser as provided above in this Section 3, or any of the conditions specified in Section 4 shall not have been
fulfilled to such Purchaser’s satisfaction, such Purchaser shall, at its election, be relieved of all further obligations under this Agreement, without thereby waiving any rights such Purchaser may have by reason of such failure or such
nonfulfillment.
Section 4. Conditions to Closing.
Each Purchaser’s obligation to purchase and pay for the Notes to be sold to such Purchaser at the Closing is subject to the fulfillment to such Purchaser’s satisfaction, prior to or at the Closing,
of the following conditions:
Section 4.1. Representations and Warranties. (a) The representations and warranties
of the Company in this Agreement shall be true and correct as of the date of this Agreement and at the time of the Closing, except for such representations and warranties as of a specified date (which representations and warranties shall be correct
in all material respects as of such specified date).
(b) The representations and warranties of each Guarantor in the Guaranty Agreement shall be correct as of the date of this
Agreement and at the time of the Closing, except for such representations and warranties as of a specified date (which representations and warranties shall be correct in all material respects as of such specified date).
Section 4.2. Performance; No Default. The Company and each Guarantor shall have
performed and complied with all agreements and conditions contained in this Agreement or in the Guaranty Agreement, as applicable, required to be performed or complied with by it prior to or at the Closing. Before and after giving effect to the
issue and sale of the Notes (and the application of the proceeds thereof as contemplated by Section 5.14), no Default or Event of Default shall have occurred and be continuing.
Section 4.3. Compliance Certificates.
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(a) Officer’s Certificate. (1) The Company shall have delivered to such Purchaser an
Officer’s Certificate, dated the Closing Date, certifying that the conditions specified in Sections 4.1, 4.2 and 4.10 have
been fulfilled.
(2) Each Guarantor shall have delivered to such Purchaser an Officer’s Certificate, dated the Closing Date, certifying that the
conditions specified in Sections 4.1(b) and 4.2 have been fulfilled.
(3) A duly authorized Senior Financial Officer shall execute and deliver to each such Purchaser an Officer’s Certificate dated
the Closing Date stating that such officer has reviewed the provisions of this Agreement and setting forth the information and computations (in sufficient detail) required to establish whether after giving effect to the issuance of the Notes and
after giving effect to the application of the proceeds thereof, the Company is in compliance with the requirements of Section 10.1 as of June 30, 2024.
(b) Secretary’s Certificate. (1) The Company shall have delivered to such Purchaser a
certificate of its Secretary, dated the Closing Date, certifying as to (i) the resolutions attached thereto and other corporate proceedings relating to the authorization, execution and delivery of the Notes and this Agreement and (ii) the Company’s
organizational documents then in effect.
(2) Each Guarantor shall have delivered to such Purchaser a certificate of its Secretary, dated the Closing Date, certifying as
to (i) the resolutions attached thereto and other corporate or similar proceedings relating to the authorization, execution and delivery of the Guaranty Agreement and (ii) such Guarantor’s organizational documents then in effect.
Section 4.4. Guaranty Agreement. The Guaranty Agreement shall have been duly
authorized, executed and delivered by each Guarantor and shall be in full force and effect and such Purchaser shall have received a duly executed copy thereof.
Section 4.5. Opinions of Counsel. Such Purchaser shall have received opinions in form
and substance satisfactory to such Purchaser, dated the Closing Date (a) from Melissa Abraham, Esq., Assistant General Counsel of the Company, and of Troutman Pepper Hamilton Sanders LLP, special counsel for the Company and the Guarantors, covering
the matters set forth in Exhibit 4.5(a) and covering such other matters incident to the transactions contemplated hereby as such Purchaser or special counsel to the Purchasers may reasonably request (and the Company hereby instructs its counsel to
deliver such opinion to such Purchaser) and (b) from ArentFox Schiff LLP, special counsel to the Purchasers of the Notes, in connection with such transactions, substantially in the form set forth in Exhibit 4.5(b) and covering such other matters
incident to such transactions as such Purchaser may reasonably request.
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Section 4.6. Purchase Permitted by Applicable Law, Etc. On the Closing Date, such
Purchaser’s purchase of Notes shall (a) be permitted by the laws and regulations of each jurisdiction to which such Purchaser is subject, without recourse to provisions (such as Section 1405(a)(8) of the New York Insurance Law) permitting limited
investments by insurance companies without restriction as to the character of the particular investment, (b) not violate any applicable law or regulation (including, without limitation, Regulation T, U or X of the Board of Governors of the Federal
Reserve System) and (c) not subject such Purchaser to any tax, penalty or liability under or pursuant to any applicable law or regulation which law or regulation was not in effect on the date of this Agreement. If requested by such Purchaser, such
Purchaser shall have received an Officer’s Certificate certifying as to such matters of fact as such Purchaser may reasonably specify to enable it to determine whether such purchase is so permitted.
Section 4.7. Sale of Other Notes. Contemporaneously with the Closing the Company
shall sell to each other Purchaser and each other Purchaser shall purchase the Notes as specified in Schedule A.
Section 4.8. Payment of Special Counsel Fees. Without limiting the provisions of Section 15.1, the Company shall have paid on or before the Closing the reasonable fees, charges and disbursements of special counsel to the Purchasers referred to in Section
4.5(b) to the extent reflected in a statement of such counsel rendered to the Company at least one Business Day prior to the Closing.
Section 4.9. Private Placement Number. A Private Placement Number issued by CUSIP
Global Services (in cooperation with the SVO) shall have been obtained for the Notes.
Section 4.10. Changes in Corporate Structure. The Company shall not have changed its
jurisdiction of incorporation or been a party to any merger or consolidation and shall not have succeeded to all or any substantial part of the liabilities of any other entity at any time following the date of the most recent financial statements
referred to in Schedule 5.5.
Section 4.11. Funding Instructions. At least five Business Days prior to the Closing
Date, such Purchaser shall have received written instructions executed by an authorized officer of the Company on letterhead of the Company directing the manner of the payment of funds and setting forth (a) the name and address of the transferee
bank, (b) such transferee bank’s ABA number, (c) the account name and number into which the purchase price for the applicable Notes is to be deposited, which account shall be fully opened and able to receive micro deposits in accordance with this Section 4.11 at least five Business Days prior to Closing Date and (d) the name and telephone number of the account representative at the Company responsible for (1) verifying receipt of such funds and (2)
verifying the information set forth in the instructions. Each Purchaser has the right, but not the obligation, upon written notice (which may be by email) to the Company, to elect to deliver a micro deposit (less than $51.00) to the account
identified in the written instructions no later than two Business Days prior to Closing Date. If a Purchaser delivers a micro deposit, a Responsible Officer must verbally verify the receipt and amount of the micro deposit to such Purchaser on a
telephone call initiated by such Purchaser prior to the Closing. The Company shall not be obligated to return the amount of the micro deposit, nor will the amount of the micro deposit be netted against the Purchaser’s purchase price of the Notes to
be issued at the Closing.
Section 4.12. Debt Rating. The Company shall have delivered, or caused to be
delivered, to such Purchaser, (a) a Private Rating Letter issued by an Acceptable Rating Agency setting forth the initial Debt Rating for the Notes and (b) the related Private Rating Rationale Report with respect to such Debt Rating.
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Section 4.13. Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated by this Agreement and all documents and instruments incident to such transactions shall be satisfactory to such Purchaser and special counsel to the Purchasers, and such Purchaser and special counsel to
the Purchasers shall have received all such counterpart originals or certified or other copies of such documents as such Purchaser or special counsel to the Purchasers may reasonably request.
Section 5. Representations and Warranties of the Company.
The Company represents and warrants to each Purchaser that:
Section 5.1. Organization; Power and Authority. The Company is a corporation duly
organized, validly existing and in good standing under the laws of its jurisdiction of incorporation, and is duly qualified as a foreign corporation and is in good standing in each jurisdiction in which such qualification is required by law, other
than those jurisdictions as to which the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company has the corporate power and authority to own
or lease the properties it purports to own or lease, to transact the business it transacts and proposes to transact, to execute and deliver this Agreement and the Notes and to perform the provisions hereof and thereof.
Section 5.2. Authorization, Etc. (a) This Agreement and the Notes have been duly
authorized by all necessary corporate action on the part of the Company, and this Agreement constitutes, and upon execution and delivery thereof each Note will constitute, a legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except as such enforceability may be limited by (1) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (2) general
principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) The Guaranty Agreement has been duly authorized by all necessary corporate or other action on the part of each Guarantor, and
the Guaranty Agreement constitutes a legal, valid and binding obligation of each Guarantor enforceable against each Guarantor in accordance with its terms, except as such enforceability may be limited by (1) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (2) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
Section 5.3. Disclosure. The Company, through its agents, Mizuho Securities USA LLC
and Huntington Securities, Inc., has delivered to each Purchaser a copy of an Investor Presentation, dated September 11, 2024 (the “Investor Presentation”), relating to the transactions contemplated
hereby. Except as disclosed in Schedule 5.3, this Agreement, the Investor Presentation, the documents, certificates or other writings identified in Schedule 5.3 and
the financial statements listed in Schedule 5.5 (collectively, the “Disclosure Documents”), taken as a whole, do not contain any untrue statement of a material fact
or omit to state any material fact necessary to make the statements therein not misleading in light of the circumstances under which they were made. Except as disclosed in the Disclosure Documents, since September 30, 2023 there has been no change
in the financial condition, operations, business or properties of the Company, any of its Restricted Subsidiaries or New Jersey Natural Gas except changes that, individually or in the aggregate, would not reasonably be expected to have a Material
Adverse Effect.
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Section 5.4. Organization and Ownership of Shares of Subsidiaries. (a) Schedule 5.4 is (except as noted therein) complete and correct lists of (i) the Company’s Subsidiaries as of the Closing Date, showing, as to each Subsidiary, the correct name thereof, the jurisdiction of its
organization, the percentage of shares of each class of its capital stock or similar equity interests outstanding owned by the Company and each other Subsidiary and whether or not such Subsidiary is a Restricted Subsidiary, an Inactive Subsidiary
and/or a Regulated Entity and (ii) the Company’s directors and executive officers.
(b) All of the outstanding shares of capital stock or similar equity interests of each Restricted Subsidiary and New Jersey
Natural Gas shown in Schedule 5.4 as being owned by the Company and its Subsidiaries have been validly issued, are fully paid and nonassessable and are owned by the Company or another Subsidiary free and
clear of any Lien (except as otherwise disclosed in Schedule 5.4).
(c) Each Restricted Subsidiary identified in Schedule 5.4 and New Jersey Natural Gas is
a corporation or other legal entity duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, and is duly qualified as a foreign corporation or other legal entity and is in good standing in each
jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Each such Restricted Subsidiary and New Jersey Natural Gas has the corporate or other power and authority to own or lease the properties it purports to own or lease, to transact the business it transacts and proposes to transact
and, in the case of each Restricted Subsidiary that is a Guarantor, to execute and deliver the Guaranty Agreement and to perform the provisions thereof.
Section 5.5. Financial Statements. The Company has delivered to each Purchaser
copies of the consolidated financial statements of the Company and its Subsidiaries listed in Schedule 5.5. All of said financial statements (including in each case the related schedules and notes) fairly
present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the respective dates specified in such Schedule and the consolidated results of their operations and cash flows for the respective
periods so specified and have been prepared in accordance with GAAP consistently applied throughout the periods involved except as set forth in the notes thereto (subject, in the case of any interim financial statements, to normal year-end
adjustments). The Company and its Subsidiaries did not have, on the date of such financial statements, any Material liabilities that are not disclosed on such financial statements or otherwise disclosed in the Disclosure Documents.
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Section 5.6. Compliance with Laws, Other Instruments, Etc. The execution, delivery
and performance by the Company of this Agreement and the Notes and the execution and delivery by each Guarantor of the Guaranty Agreement will not (a) contravene, result in any breach of, or constitute a default under, or result in the creation of
any Lien in respect of any property of the Company, any Restricted Subsidiary or New Jersey Natural Gas under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate charter or by-laws, or any other Material
agreement or instrument to which the Company, any Restricted Subsidiary or New Jersey Natural Gas is bound or by which the Company, any Restricted Subsidiary or New Jersey Natural Gas or any of their respective properties may be bound or affected,
(b) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree or ruling of any court, arbitrator or Governmental Authority applicable to the Company, any Restricted Subsidiary or New Jersey
Natural Gas or (c) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to the Company, any Restricted Subsidiary or New Jersey Natural Gas.
Section 5.7. Governmental Authorizations, Etc. No consent, approval or authorization
of, or registration, filing or declaration with, any Governmental Authority is required to be done or made, as the case may be, by the Company or any Guarantor in connection with the execution, delivery or performance by (a) the Company of this
Agreement or the Notes or (b) any Guarantor of the Guaranty Agreement, in each case, other than such consents, approvals, authorizations, registrations, filings or declarations that have been obtained or made prior to the Closing Date.
Section 5.8. Litigation; Observance of Statutes and Orders. (a) Except as disclosed
in Schedule 5.8, there are no actions, suits or proceedings pending or, to the knowledge of the Company, threatened against or affecting the Company, any Restricted Subsidiary or New Jersey Natural Gas or
any property of the Company, any Restricted Subsidiary or New Jersey Natural Gas in any court or before any arbitrator of any kind or before or by any Governmental Authority that, individually or in the aggregate, would reasonably be expected to
have a Material Adverse Effect.
(b) None of the Company, any Restricted Subsidiary or New Jersey Natural Gas is in default under any order, judgment, decree or
ruling of any court, arbitrator or Governmental Authority or is in violation of any applicable law, ordinance, rule or regulation (including, without limitation, ERISA (with respect to any Plan), Environmental Laws or the USA PATRIOT Act) of any
Governmental Authority, which default or violation, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
Section 5.9. Taxes. The Company and its Subsidiaries have filed all income tax
returns that are required to have been filed in any jurisdiction, and have paid all taxes shown to be due and payable on such returns and all other taxes and assessments payable by them, to the extent such taxes and assessments have become due and
payable and before they have become delinquent, except for any taxes and assessments (a) the amount of which is not, individually or in the aggregate, Material or (b) the amount, applicability or validity of which is currently being contested in
good faith by appropriate proceedings and with respect to which the Company or a Subsidiary, as the case may be, has established adequate reserves in accordance with GAAP. The charges, accruals and reserves on the books of the Company and its
Subsidiaries in respect of Federal, state or other taxes for all fiscal periods are adequate. The Federal income tax liabilities of the Company and its Subsidiaries have been determined by the Internal Revenue Service and paid for all fiscal years
up to and including the fiscal year ended September 30, 2023.
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Section 5.10. Title to Property; Leases. The Company, its Restricted Subsidiaries and
New Jersey Natural Gas have good and sufficient title related to the ownership of their respective Material properties, including all such Material properties reflected in the most recent audited balance sheet referred to in Section 5.5 or purported to have been acquired by the Company, any Restricted Subsidiary or New Jersey Natural Gas after said date (except as sold or otherwise disposed of in the ordinary course of business or
otherwise to the extent not prohibited hereunder), in each case free and clear of Liens prohibited by this Agreement, except for those defects in title and Liens that, individually or in the aggregate, would not have a Material Adverse Effect. All
Material leases are valid and subsisting and are in full force and effect in all material respects.
Section 5.11. Licenses, Permits, Etc. Except as disclosed in Schedule 5.11, the Company, its Restricted Subsidiaries and New Jersey Natural Gas own or possess all licenses, permits, franchises, authorizations, patents, copyrights, proprietary software, service marks,
trademarks, trade names and domain names or rights thereto, that are Material, without known conflict with the rights of others, except for those conflicts that, individually or in the aggregate, would not have a Material Adverse Effect.
Section 5.12. Compliance with ERISA. (a) The Company and each ERISA Affiliate have
operated and administered each Plan in compliance with all applicable laws except for such instances of noncompliance as have not resulted in and would not reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any
ERISA Affiliate has incurred any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans (as defined in Section 3 of ERISA) with respect to any Plan, other than for claims
for benefits and funding obligations in the ordinary course, and no event, transaction or condition has occurred or exists with respect to any Plan that would reasonably be expected to result in the incurrence of any such liability under Title I or
IV of ERISA or the penalty or excise tax provisions of the Code by the Company or any ERISA Affiliate, or in the imposition of any Lien under Section 430 of the Code or Section 4068 of ERISA on any of the rights, properties or assets of the Company
or any ERISA Affiliate, other than any such liabilities or Liens as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect.
(b) The present value of the aggregate benefit liabilities under each of the Plans which are subject to Title IV of ERISA (other
than Multiemployer Plans), determined as of the end of such Plan’s most recently ended plan year on the basis of the actuarial assumptions specified for funding purposes in such Plan’s most recent actuarial valuation report, did not exceed the
aggregate current value of the assets of such Plans allocable to such benefit liabilities by more than $25,000,000. The term “benefit liabilities” has the meaning specified in Section 4001 of ERISA and the terms “current value” and “present value”
have the meanings specified in Section 3 of ERISA.
(c) The Company and its ERISA Affiliates have not incurred withdrawal liabilities under Section 4201 or 4204 of ERISA (and are
not subject to contingent withdrawal liabilities under Section 4204) in respect of Multiemployer Plans that, individually or in the aggregate, are reasonably expected to result in a Material Adverse Effect.
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(d) The accumulated post-retirement benefit obligation (determined as of the last day of the Company’s most recently ended
fiscal year in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 715-60, without regard to liabilities attributable to continuation coverage mandated by Section 4980B of the Code) of the Company, its
Restricted Subsidiaries and New Jersey Natural Gas is not reasonably expected to result in a Material Adverse Effect.
(e) The execution and delivery of this Agreement and the issuance and sale of the Notes hereunder will not involve any
transaction that is subject to the prohibitions of Section 406(a)(1)(A)-(D) of ERISA or in connection with which a tax could be imposed pursuant to Section 4975(c)(1)(A)‑(D) of the Code. The representation by the Company in the first sentence of
this Section 5.12(e) with respect to each Purchaser is made in reliance upon and subject to the accuracy of such Purchaser’s representation in Section 6.2 as to the
sources of the funds used to pay the purchase price of the Notes to be purchased by such Purchaser.
Section 5.13. Private Offering by the Company. Neither the Company nor anyone
authorized to act on its behalf has offered the Notes or the Guaranty Agreement or any similar securities for sale to, or solicited any offer to buy any of the same from, or otherwise approached or negotiated in respect thereof with, any Person
other than the Purchasers and not more than 35 other Institutional Investors of the type described in clause (c) of the definition thereof, each of which has been offered the Notes and the Guaranty Agreement at a private sale for investment.
Neither the Company nor anyone authorized to act on its behalf has taken, or will take, any action that would subject the issuance or sale of the Notes or the execution and performance of the Guaranty Agreement to the registration requirements of
Section 5 of the Securities Act.
Section 5.14. Use of Proceeds; Margin Regulations. The Company will apply the proceeds
of the sale of the Notes for general corporate purposes, including, but not limited to future acquisitions, repayment of indebtedness, capital expenditures and working capital. No part of the proceeds from the sale of the Notes hereunder will be
used, directly or indirectly, for the purpose of buying or carrying any margin stock within the meaning of Regulation U of the Board of Governors of the Federal Reserve System (12 CFR 221), or for the purpose of buying or carrying or trading in any
securities under such circumstances as to involve the Company in a violation of Regulation X of said Board (12 CFR 224) or to involve any broker or dealer in a violation of Regulation T of said Board (12 CFR 220). Margin stock does not constitute
more than 25% of the value of the consolidated assets of the Company and its Subsidiaries and the Company does not have any present intention that margin stock will constitute more than 25% of the value of such assets. As used in this Section, the terms “margin stock” and “purpose of buying or carrying” shall have the meanings assigned to them in said Regulation U.
Section 5.15. Existing Debt. (a) Except as described therein, Schedule 5.15 sets forth a complete and correct list of all outstanding Debt of the Company, its Restricted Subsidiaries and New Jersey Natural Gas as of June 30, 2024, since which date there has been no Material change in the
amounts, interest rates, sinking funds, installment payments or maturities of the Debt of the Company, its Restricted Subsidiaries or New Jersey Natural Gas, except as described in Schedule 5.15. None of
the Company, any Restricted Subsidiary or New Jersey Natural Gas is in default in the payment of any principal or interest on any Debt of the Company, such Restricted Subsidiary or New Jersey Natural Gas and no event or condition exists with
respect to any Debt of the Company, any Restricted Subsidiary or New Jersey Natural Gas the outstanding principal amount of which exceeds $10,000,000 that would permit (or that with notice or the lapse of time, or both, would permit) one or more
Persons to cause such Debt to become due and payable before its stated maturity or before its regularly scheduled dates of payment.
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(b) Neither the Company nor any Subsidiary is a party to, or otherwise subject to any provision contained in, any instrument
evidencing Debt of the Company or such Subsidiary, any agreement relating thereto or any other agreement (including, but not limited to, its charter or other organizational document) which limits the amount of, or otherwise imposes restrictions on
the incurring of, Debt of the Company or any Guarantor, except as provided in any Bank Credit Agreement and as otherwise specifically indicated in Schedule 5.15.
Section 5.16. Foreign Assets Control Regulations, Etc.
(a) Neither the Company nor any Controlled Entity (i) is a Blocked Person, (ii) has been notified that its name appears or may
in the future appear on a State Sanctions List or (iii) is a target of sanctions that have been imposed by the United Nations or the European Union.
(b) Neither the Company nor any Controlled Entity (i) has violated, been found in violation of, or been charged or convicted
under, any applicable U.S. Economic Sanctions Laws, Anti-Money Laundering Laws or Anti-Corruption Laws or (ii) to the Company’s knowledge, is under investigation by any Governmental Authority for possible violation of any U.S. Economic Sanctions
Laws, Anti-Money Laundering Laws or Anti-Corruption Laws.
(c) No part of the proceeds from the sale of the Notes hereunder:
(i) constitutes or will constitute funds obtained on behalf of any Blocked Person or will otherwise be used by the Company or
any Controlled Entity, directly or indirectly, (A) in connection with any investment in, or any transactions or dealings with, any Blocked Person, (B) for any purpose that would cause any Purchaser to be in violation of any U.S. Economic Sanctions
Laws or (C) otherwise in violation of any U.S. Economic Sanctions Laws;
(ii) will be used, directly or indirectly, in violation of, or cause any Purchaser to be in violation of, any applicable
Anti-Money Laundering Laws; or
(iii) will be used, directly or indirectly, for the purpose of making any improper payments, including bribes, to any Governmental
Official or commercial counterparty in order to obtain, retain or direct business or obtain any improper advantage, in each case which would be in violation of, or cause any Purchaser to be in violation of, any applicable Anti-Corruption Laws.
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(d) The Company has established procedures and controls which it reasonably believes are adequate (and otherwise comply with
applicable law) to ensure that the Company and each Controlled Entity is and will continue to be in compliance with all applicable U.S. Economic Sanctions Laws, Anti-Money Laundering Laws and Anti-Corruption Laws.
Section 5.17. Status under Certain Statutes. Neither the Company nor any Subsidiary is
an “investment company” registered or required to be registered under the Investment Company Act of 1940 or an “affiliated person” of an “investment company” or an “affiliated person” of such “affiliated person” or under the “control” of an
“investment company” as such terms are defined in the Investment Company Act of 1940, as amended, and shall not become such an “investment company” or such an “affiliated person” or under such “control.” Neither the Company nor any Subsidiary is a
“holding company” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company” within the meaning of the Public Utility Holding Company Act of 2005, as amended.
Based upon the immediately preceding sentence, neither the Company nor the issue and sale of the Notes is subject to regulation under the Public Utility Holding Company Act of 2005, as amended. Neither the Company nor any Subsidiary is subject to
the ICC Termination Act of 1995, as amended, or the Federal Power Act, as amended. Neither the Company nor any Subsidiary (other than New Jersey Natural Gas) is subject to any Federal or state statute or regulation limiting its ability to incur
Debt.
Section 5.18. Environmental Matters. Except as disclosed in Schedule 5.8, none of the Company, any Restricted Subsidiary or New Jersey Natural Gas has actual knowledge of any claim or has received any written notice of any claim, and no proceeding has been instituted raising any claim
against the Company, any of its Restricted Subsidiaries or New Jersey Natural Gas or any of their respective real properties now or formerly owned, leased or operated by any of them or other assets, alleging any damage to the environment or
violation of any Environmental Laws, except, in each case, such as would not reasonably be expected to result in a Material Adverse Effect. Except as otherwise disclosed in Schedule 5.8:
(a) none of the Company, any Restricted Subsidiary or New Jersey Natural Gas has actual knowledge of any facts which would give
rise to any claim, public or private, of violation of Environmental Laws or damage to the environment emanating from, occurring on or in any way related to real properties now or formerly owned, leased or operated by any of them or to other assets
or their use, except, in each case, such as would not reasonably be expected to result in a Material Adverse Effect;
(b) none of the Company, any of its Restricted Subsidiaries or New Jersey Natural Gas has stored any Hazardous Materials on real
properties now or formerly owned, leased or operated by any of them or has disposed of any Hazardous Materials in a manner contrary to any Environmental Laws in each case in any manner that would reasonably be expected to result in a Material
Adverse Effect; and
(c) all buildings on all real properties now owned, leased or operated by the Company, any of its Restricted Subsidiaries or New
Jersey Natural Gas are in compliance with applicable Environmental Laws, except where failure to comply would not reasonably be expected to result in a Material Adverse Effect.
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Section 5.19. Notes Rank Pari Passu. The obligations of the Company under this
Agreement and the Notes rank at least pari passu in right of payment with all other unsecured Senior Debt (actual or contingent) of the Company, including, without limitation, all unsecured Senior Debt of
the Company described in Schedule 5.15 hereto.
Section 6. Representations of the Purchasers.
Section 6.1. Purchase for Investment. Each Purchaser severally represents that it is
purchasing the Notes for its own account or for one or more separate accounts maintained by such Purchaser or for the account of one or more pension or trust funds and not with a view to the distribution thereof, provided that the disposition of
such Purchaser’s or such pension or trust fund’s property shall at all times be within such Purchaser’s or such pension or trust fund’s control. Each Purchaser represents that it is an “accredited investor,” as defined in Rule 501(a)(1), (2), (3)
or (7) of Regulation D under the Securities Act. Each Purchaser understands that the Notes have not been registered under the Securities Act and may be resold only if registered pursuant to the provisions of the Securities Act or if an exemption
from registration is available, except under circumstances where neither such registration nor such an exemption is required by law, and that the Company is not required to register the Notes. Each Purchaser also represents that the Company has
made available to it, a reasonable time prior to the consummation of the transactions contemplated hereby, the opportunity to ask questions and receive answers concerning the terms and conditions of the offering of the Notes that it is purchasing
or shall purchase and to obtain any additional information which the Company possesses or could acquire without unreasonable effort or expense; provided that the foregoing shall not be construed as limiting the ability of any Purchaser to rely on
the representations and warranties contained herein and in the Guaranty Agreement.
Section 6.2. Source of Funds. Each Purchaser severally represents that at least one
of the following statements is an accurate representation as to each source of funds (a “Source”) to be used by such Purchaser to pay the purchase price of the Notes to be purchased by such Purchaser
hereunder:
(a) the Source is an “insurance company general account” (as the term is defined in the United States Department of Labor’s
Prohibited Transaction Exemption (“PTE”) 95-60) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the NAIC (the “NAIC Annual Statement”)) for the general account contract(s) held by or on behalf of any employee benefit plan together with the amount of the reserves and liabilities for the general account contract(s) held
by or on behalf of any other employee benefit plans maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the same employee organization in the general account do not exceed 10% of the total reserves and liabilities
of the general account (exclusive of separate account liabilities) plus surplus as set forth in the NAIC Annual Statement filed with such Purchaser’s state of domicile; or
(b) the Source is a separate account that is maintained solely in connection with such Purchaser’s fixed contractual obligations
under which the amounts payable, or credited, to any employee benefit plan (or its related trust) that has any interest in such separate account (or to any participant or beneficiary of such plan (including any annuitant)) are not affected in any
manner by the investment performance of the separate account; or
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(c) the Source is either (1) an insurance company pooled separate account, within the meaning of PTE 90-1 or (2) a bank collective
investment fund, within the meaning of PTE 91-38 and, except as disclosed by such Purchaser to the Company in writing pursuant to this clause (c), no employee benefit plan or group of plans maintained by the same employer or employee organization
beneficially owns more than 10% of all assets allocated to such pooled separate account or collective investment fund; or
(d) the Source constitutes assets of an “investment fund” (within the meaning of Part VI of PTE 84-14 (the “QPAM Exemption”)) managed by a “qualified professional asset manager” or “QPAM” (within the meaning of Part VI of the QPAM Exemption), no employee benefit plan’s assets that are managed by the QPAM in such
investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Part VI(c)(1) of the QPAM Exemption) of such employer or by the same
employee organization and managed by such QPAM, represent more than 20% of the total client assets managed by such QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a Person controlling or
controlled by the QPAM maintains an ownership interest in the Company that would cause the QPAM and the Company to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (i) the identity of such QPAM and (ii) the names of any
employee benefit plans whose assets in the investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Part VI(c)(1) of the QPAM
Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, have been disclosed to the Company in writing pursuant to this clause (d); or
(e) the Source constitutes assets of a “plan(s)” (within the meaning of Part IV(h) of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor
a Person controlling or controlled by the INHAM (applying the definition of “control” in Part IV(d)(3) of the INHAM Exemption) owns a 10% or more interest in the Company and (1) the identity of such INHAM and (2) the name(s) of the employee benefit
plan(s) whose assets constitute the Source have been disclosed to the Company in writing pursuant to this clause (e); or
(f) the Source is a governmental plan; or
(g) the Source is one or more employee benefit plans, or a separate account or trust fund comprised of one or more employee
benefit plans, each of which has been identified to the Company in writing pursuant to this clause (g); or
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(h) the Source does not include assets of (i) any employee benefit plan, other than a plan exempt from the coverage of ERISA, or
(ii) any “plan” as defined in Section 4975(e)(1) of the Code.
As used in this Section 6.2, the terms “employee benefit plan,” “governmental plan,” and “separate account” shall have the respective meanings assigned to such terms in
Section 3 of ERISA.
Section 7. Information as to Company.
Section 7.1. Financial and Business Information. The Company shall deliver to each
Purchaser and each holder of Notes that is an Institutional Investor:
(a) Quarterly Statements — within 60 days after the end of each quarterly fiscal
period in each fiscal year of the Company (other than the last quarterly fiscal period of each such fiscal year), duplicate copies of:
(1) a consolidated and consolidating balance sheet of the Company and its Subsidiaries and New Jersey Natural Gas and its
Subsidiaries (if any) as at the end of such quarter, and
(2) consolidated and consolidating statements of income and cash flows of the Company and its Subsidiaries and New Jersey Natural
Gas and its Subsidiaries (if any) for such quarter and (in the case of the second and third quarters) for the portion of the fiscal year ending with such quarter,
setting forth in each case in comparative form the figures for the corresponding periods in the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP applicable to
quarterly financial statements generally, and certified by a Senior Financial Officer as fairly presenting, in all material respects, the financial position of the companies being reported on and their results of operations and cash flows, subject
to changes resulting from normal year-end adjustments, provided that delivery within the time period specified above of copies of the Company’s Quarterly Report on Form 10‑Q prepared in compliance with the requirements therefor and filed with the
U.S. Securities and Exchange Commission shall be deemed to satisfy the requirements of this Section 7.1(a), and provided, further, that the Company shall be deemed to have made such delivery of such Form
10‑Q if it shall have timely made such Form 10‑Q available on “EDGAR” and on its home page on the worldwide web (at the date of this Agreement located at: http//www.njresources.com under “Investor Relations – Financial Reports”) and shall have
given such holder prompt notice of such availability on EDGAR and on its home page in connection with each delivery (such availability and notice thereof being referred to as “Electronic Delivery”);
(b) Annual Statements — within 120 days after the end of each fiscal year of the
Company, duplicate copies of:
(1) a consolidated and consolidating balance sheet of the Company and its Subsidiaries and New Jersey Natural Gas and its
Subsidiaries (if any) as at the end of such year, and
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(2) consolidated and consolidating statements of income and cash flows of the Company and its Subsidiaries and New Jersey Natural
Gas and its Subsidiaries (if any), for such year,
setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP, with such consolidated financial statements
accompanied by an opinion thereon (without a “going concern” or similar qualification or exception and without any qualification or exception as to the scope of the audit on which such opinion is based) of independent certified public accountants
of recognized national standing, which opinion shall state that such financial statements present fairly, in all material respects, the financial position of the companies being reported upon and their results of operations and cash flows and have
been prepared in conformity with GAAP, and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and that such audit provides a reasonable basis
for such opinion in the circumstances, provided that the delivery within the time period specified above of the Company’s Annual Report on Form 10‑K for such fiscal year (together with the Company’s annual report to shareholders, if any, prepared
pursuant to Rule 14a‑3 under the Exchange Act) prepared in accordance with the requirements therefor and filed with the U.S. Securities and Exchange Commission shall be deemed to satisfy the requirements of this
Section 7.1(b), and provided, further, that the Company shall be deemed to have made such delivery of such Form 10‑K if it shall have timely made Electronic Delivery thereof;
(c) SEC and Other Reports — with reasonable promptness, upon their becoming available,
one copy of (1) each financial statement, report, notice or proxy statement sent by the Company, any Restricted Subsidiary or New Jersey Natural Gas to its principal lending banks as a whole (excluding information sent to such banks in the ordinary
course of administration of a bank facility, such as information relating to pricing and borrowing availability) or to its public securities holders generally and (2) each regular or periodic report, each registration statement that shall have
become effective (without exhibits except as expressly requested by such holder), and each final prospectus and all amendments thereto filed by the Company, any Restricted Subsidiary or New Jersey Natural Gas with the U.S. Securities and Exchange
Commission, excluding in any event confidential correspondence delivered by any of the foregoing Persons to the U.S. Securities and Exchange Commission; provided that the Company shall be deemed to have made such delivery of such reports,
registration statements, prospectuses and amendments if it shall have timely made Electronic Delivery thereof.
(d) Notice of Default or Event of Default — with reasonable promptness, and in any
event within five days after a Responsible Officer becoming aware of the existence of any Default or Event of Default, a written notice specifying the nature and period of existence thereof and what action the Company is taking or proposes to take
with respect thereto;
(e) ERISA Matters — with reasonable promptness, and in any event within five days
after a Responsible Officer becoming aware of any of the following, a written notice setting forth the nature thereof and the action, if any, that the Company or an ERISA Affiliate proposes to take with respect thereto:
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(1) with respect to any Plan, the occurrence of any reportable event, as defined in Section 4043(c) of ERISA and the regulations
thereunder, for which notice thereof has not been waived pursuant to such regulations as in effect on the date of this Agreement; or
(2) the taking by the PBGC of steps to institute, or the threatening in writing by the PBGC of the institution of, proceedings
under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or the receipt by the Company or any ERISA Affiliate of a notice from a Multiemployer Plan that such action has been taken by the PBGC with
respect to such Multiemployer Plan; or
(3) the occurrence of any event or transaction that results in the incurrence of any liability by the Company or any ERISA
Affiliate pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans with respect to any Plan, or in the imposition of any Lien under Section 430 of the Code or Section 4068 of ERISA,
or any successor thereto, on any of the rights, properties or assets of the Company or any ERISA Affiliate, if such liability or Lien, taken together with any other such liabilities or Liens then existing, would reasonably be expected to have a
Material Adverse Effect;
(f) Unrestricted Subsidiaries — at such time as either (1) the aggregate amount of the
total assets of all Unrestricted Subsidiaries (for this purpose, excluding New Jersey Natural Gas) exceeds 10% of the consolidated total assets of the Company and its Subsidiaries determined in accordance with GAAP or (2) one or more Unrestricted
Subsidiaries (for this purpose, excluding New Jersey Natural Gas) account for more than 10% of the consolidated gross revenues of the Company and its Subsidiaries determined in accordance with GAAP, and within the respective periods provided in
paragraphs (a) and (b) above, financial statements of the character and for the dates and periods as in said paragraphs (a) and (b) covering each Unrestricted Subsidiary (or groups of Unrestricted Subsidiaries on a consolidated basis, excluding New
Jersey Natural Gas) together with consolidating statements reflecting eliminations or adjustments required in order to reconcile such financial statements to the corresponding consolidated financial statements of the Company and its Subsidiaries
delivered pursuant to paragraphs (a) and (b) above; provided, that to the extent that the financial statements required by paragraphs (a) and (b) above shall already provide such consolidating financial information for such Unrestricted
Subsidiaries or group of Unrestricted Subsidiaries (or such Unrestricted Subsidiary or group of Unrestricted Subsidiaries represent one or more reportable segments, and the footnotes to the financial statements required by paragraphs (a) and (b)
include consolidating information with respect to such segment or segments in a manner substantially consistent with Note 15 to the Company’s Annual Report on Form 10-K for the year ended September 30, 2023 and Note 14 to the Company’s Quarterly
Report on Form 10-Q for the quarter ended June 30, 2024), then this paragraph (f) shall not be applicable;
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(g) Debt Rating — promptly following the occurrence thereof, notice of any change in
the Debt Rating for the Notes (to the extent such Debt Rating is not a public rating); and
(h) Requested Information — with reasonable promptness, such other data and information
relating to the business, operations, affairs, financial condition, assets or properties of the Company, any of its Restricted Subsidiaries or New Jersey Natural Gas (including, but without limitation, actual copies of the Company’s Form 10-Q and
Form 10-K) or relating to the ability of the Company to perform its obligations hereunder and under the Notes as from time to time may be reasonably requested by any such Purchaser or holder of Notes.
Section 7.2. Officer’s Certificate. Each set of financial statements delivered to a
Purchaser or a holder of Notes pursuant to Section 7.1(a) or Section 7.1(b) shall be accompanied by a certificate of a Senior Financial Officer setting forth (which,
in the case of Electronic Delivery of any such financial statements, shall be by separate concurrent delivery of such certificate to each holder of Notes):
(a) Covenant Compliance — the information (including reasonably detailed calculations)
required in order to establish whether the Company was in compliance with the requirements of Section 10.1 and Section 10.2 during the quarterly or annual period
covered by the statements then being furnished (including with respect to each such Section, where applicable, the calculations of the maximum or minimum amount, ratio or percentage, as the case may be, permissible under the terms of such Sections,
and the calculation of the amount, ratio or percentage then in existence). In the event that the Company or any Subsidiary has made an election to measure any financial liability using fair value (which election is being disregarded for purposes
of determining compliance with this Agreement pursuant to Section 22.4) as to the period covered by any such financial statement, such Senior Financial Officer’s certificate as to such period shall include a
reconciliation from GAAP with respect to such election; and
(b) Event of Default — a statement that such Senior Financial Officer has reviewed the
relevant terms hereof and has made, or caused to be made, under his or her supervision, a review of the transactions and conditions of the Company and its Subsidiaries from the beginning of the quarterly or annual period covered by the statements
then being furnished to the date of the certificate and that such review shall not have disclosed the existence during such period of any condition or event that constitutes a Default or an Event of Default that is continuing as of the end of such
quarterly or annual period, as the case may be, and, if any such condition or event then exists (including, without limitation, any such event or condition resulting from the failure of the Company or any Subsidiary to comply with any Environmental
Law), specifying the nature and period of existence thereof and what action the Company shall have taken or proposes to take with respect thereto.
Section 7.3. Inspection. The Company shall permit the representatives of each
Purchaser and each holder of Notes that is an Institutional Investor:
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(a) No Default — if no Default under Section 11(b)
or an Event of Default then exists, at the expense of such Purchaser or such holder and upon reasonable prior written notice to the Company, to visit the principal executive office of the Company, to discuss the affairs, finances and accounts of
the Company, its Restricted Subsidiaries and New Jersey Natural Gas with the Company’s officers, and, with the consent of the Company (which consent will not be unreasonably withheld) to visit the other offices and properties of the Company, each
Restricted Subsidiary and New Jersey Natural Gas, all at such reasonable times during normal business hours and as often as may be reasonably requested in writing; and
(b) Default — if a Default under Section 11(b)
or an Event of Default then exists, at the expense of the Company, upon prior written notice to the Company, to visit and inspect any of the offices or properties of the Company, any Restricted Subsidiary or New Jersey Natural Gas, to examine all
their respective books of account, records, reports and other papers, to make copies and extracts therefrom, and to discuss their respective affairs, finances and accounts with their respective officers and independent public accountants (and by
this provision the Company authorizes said accountants to discuss the affairs, finances and accounts of the Company, its Restricted Subsidiaries and New Jersey Natural Gas), all at such times during normal business hours and as often as may be
requested.
Section 8. Prepayment of the Notes.
Section 8.1. Maturity; Required Prepayments. As provided therein, the entire unpaid
principal balance of each Note shall be due and payable on the stated maturity date thereof. The Notes shall not be subject to required prepayments.
Section 8.2. Optional Prepayments with Make-Whole Amount. The Company may, at its
option, upon notice as provided below, prepay at any time all, or from time to time any part of, the Notes, in an amount not less than $1,000,000 in aggregate principal amount of the Notes then outstanding in the case of a partial prepayment, at
100% of the aggregate principal amount so prepaid together with interest accrued thereon to the date of such prepayment and the Make-Whole Amount, if any, determined for the prepayment date with respect to such principal amount; provided that, any
time on or after August 7, 2034, the Company may, at its option, upon notice as provided below, prepay all or any part of the Notes at 100% of the aggregate principal amount so prepaid together with interest accrued thereon to the date of such
prepayment. The Company will give each holder of Notes to be prepaid pursuant to this Section 8.2 written notice of such optional prepayment under this Section 8.2
not less than 30 days and not more than 60 days prior to the date fixed for such prepayment. Each such notice shall specify such date (which shall be a Business Day), the aggregate principal amount of the Notes to be prepaid on such date, the
principal amount of each Note held by such holder to be prepaid (determined in accordance with Section 8.3), and the interest to be paid on the prepayment date with respect to such principal amount being
prepaid, and shall be accompanied by a certificate of a Senior Financial Officer as to the estimated Make-Whole Amount due in connection with such prepayment (calculated as if the date of such notice were the date of the prepayment), setting forth
the details of such computation. Two Business Days prior to such prepayment, the Company shall deliver to each holder of Notes to be prepaid pursuant to this Section 8.2 a certificate of a Senior Financial
Officer specifying the calculation of such Make-Whole Amount as of the specified prepayment date.
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Section 8.3. Allocation of Partial Prepayments. In the case of each partial
prepayment of the Notes pursuant to Section 8.2 hereof, the principal amount of the Notes to be prepaid shall be allocated among all of the Notes at the time outstanding in proportion, as nearly as
reasonably practicable, to the respective unpaid principal amounts thereof not theretofore called for prepayment. All partial purchases of the Notes made pursuant to Section 8.5(b) and partial prepayments
of the Notes made pursuant to Section 8.7 shall be applied only to the Notes of the holders who have elected to participate in such purchase or prepayment of the Notes.
Section 8.4. Maturity; Surrender, Etc. In the case of each prepayment of Notes
pursuant to this Section 8, the principal amount of each Note to be prepaid shall mature and become due and payable on the date fixed for such prepayment (which shall be a Business Day), together with
interest on such principal amount accrued to such date and the applicable Make-Whole Amount, if any. From and after such date, unless the Company shall fail to pay such principal amount when so due and payable, together with the interest and
Make-Whole Amount, if any, as aforesaid, interest on such principal amount shall cease to accrue. Any Note paid or prepaid in full shall be surrendered to the Company and cancelled and shall not be reissued, and no Note shall be issued in lieu of
any prepaid principal amount of any Note.
Section 8.5. Purchase of Notes. The Company will not, and will not permit any Affiliate to, purchase,
redeem, prepay or otherwise acquire, directly or indirectly, any of the outstanding Notes except (a) upon the payment or prepayment of the Notes in accordance with the terms of this Agreement and the Notes or (b) pursuant to an offer to purchase
made by the Company or an Affiliate pro rata to the holders of all Notes at the time outstanding upon the same terms and conditions. Any such offer shall provide each holder with sufficient information which, in the opinion of the Company, when
taken together with information with respect to the Company and its Subsidiaries that may be available on the website of the U.S. Securities and Exchange Commission (presently www.sec.gov), would enable such holder to make an informed decision with
respect to such offer, and shall remain open for at least 15 Business Days. If the holders of more than 50% of the principal amount of the Notes then outstanding accept such offer, the Company shall promptly notify the remaining holders of the
Notes of such fact and the expiration date for the acceptance by holders of Notes of such offer shall be extended by the number of days necessary to give each such remaining holder at least 10 Business Days from its receipt of such notice to accept
such offer. The Company will promptly cancel all Notes acquired by it or any Affiliate pursuant to any payment, prepayment or purchase of Notes pursuant to any provision of this Agreement and no Notes may be issued in substitution or exchange for
any such Notes.
Section 8.6. Make-Whole Amount for Notes. The term “Make-Whole Amount” shall mean, with respect to any Note, an amount equal to the excess, if any, of the Discounted Value of the Remaining Scheduled Payments with respect to the Called Principal of such Note over the amount of such
Called Principal, provided that the Make-Whole Amount may in no event be less than zero. For the purposes of determining the Make-Whole Amount, the following terms have the following meanings:
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“Called Principal” shall mean, with respect to any Note, the principal
of such Note that is to be prepaid pursuant to Section 8.2 or has become or is declared to be immediately due and payable pursuant to Section 12.1, as the context
requires.
“Discounted Value” shall mean, with respect to the Called Principal of
any Note, the amount obtained by discounting all Remaining Scheduled Payments with respect to such Called Principal from their respective scheduled due dates to the Settlement Date with respect to such Called Principal, in accordance with
accepted financial practice and at a discount factor (applied on the same periodic basis as that on which interest on the Notes is payable) equal to the Reinvestment Yield with respect to such Called Principal.
“Reinvestment Yield” shall mean, with respect to the Called Principal of
any Note, 0.50% over the yield to maturity implied by the ask-side yield(s) reported as of 10:00 a.m. (New York, New York time) on the second Business Day preceding the Settlement Date with respect to such Called Principal, on the display
designated as “Page PX1” (or such other display as may replace Page PX1) on Bloomberg Financial Markets for the most recently issued actively traded on-the-run U.S. Treasury securities (“Reported”) having a maturity equal to the Remaining
Average Life of such Called Principal as of such Settlement Date. If there are no such U.S. Treasury securities Reported having a maturity equal to such Remaining Average Life, then such implied yield to maturity will be determined by (a)
converting U.S. Treasury bill quotations to bond equivalent yields in accordance with accepted financial practice and (b) interpolating linearly between the yields Reported for the applicable most recently issued actively traded on-the-run U.S.
Treasury securities with the maturities (1) closest to and greater than such Remaining Average Life and (2) closest to and less than such Remaining Average Life. The Reinvestment Yield shall be rounded to the number of decimal places as appears
in the interest rate of the applicable Note.
If such yields are not Reported or the yields Reported as of such time are not ascertainable (including by way of interpolation), then “Reinvestment Yield” means, with respect to
the Called Principal of any Note, 0.50% over the yield to maturity implied by the U.S. Treasury constant maturity yields reported, for the latest day for which such yields have been so reported as of the second Business Day preceding the Settlement
Date with respect to such Called Principal, in Federal Reserve Statistical Release H.15 (or any comparable successor publication) for the U.S. Treasury constant maturity having a term equal to the Remaining Average Life of such Called Principal as
of such Settlement Date. If there is no such U.S. Treasury constant maturity having a term equal to such Remaining Average Life, such implied yield to maturity will be determined by interpolating linearly between (1) the U.S. Treasury constant
maturity so reported with the term closest to and greater than such Remaining Average Life and (2) the U.S. Treasury constant maturity so reported with the term closest to and less than such Remaining Average Life. The Reinvestment Yield shall be
rounded to the number of decimal places as appears in the interest rate of the applicable Note.
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“Remaining Average Life” shall mean, with respect to any Called
Principal, the number of years obtained by dividing (i) such Called Principal into (ii) the sum of the products obtained by multiplying (a) the principal component of each Remaining Scheduled Payment with respect to such Called Principal by (b)
the number of years, computed on the basis of a 360-day year composed of twelve 30-day months and calculated to two decimal places, that will elapse between the Settlement Date with respect to such Called Principal and the scheduled due date of
such Remaining Scheduled Payment.
“Remaining Scheduled Payments” shall mean, with respect to the Called
Principal of any Note, all payments of such Called Principal and interest thereon that would be due after the Settlement Date with respect to such Called Principal and if no payment of such Called Principal were made prior to its scheduled due
date, provided that if such Settlement Date is not a date on which interest payments are due to be made under the terms of the Notes, then the amount of the next succeeding scheduled interest payment will be reduced by the amount of interest
accrued to such Settlement Date and required to be paid on such Settlement Date pursuant to Section 8.2 or Section 12.1.
“Settlement Date” shall mean, with respect to the Called Principal of
any Note, the date on which such Called Principal is to be prepaid pursuant to Section 8.2 or has become or is declared to be immediately due and payable pursuant to Section
12.1, as the context requires.
Section 8.7. Offer to Prepay upon Asset Disposition.
(a) Notice and Offer. In the event of a Transfer where the Company has elected to
apply all or a portion of the Net Proceeds Amount of such Transfer as a Debt Prepayment Application pursuant to Section 10.6(b), the Company shall, no later than the 305th day following the date of such
Transfer, give written notice of such event (an “Asset Disposition Prepayment Event”) to each holder of Notes. Such notice shall contain, and shall constitute, an irrevocable offer to prepay a Ratable
Portion of the Notes held by such holder on the date (which shall be a Business Day) specified in such notice (the “Asset Disposition Prepayment Date”) which date shall be not less than 30 days and not more
than 60 days after such notice.
(b) Acceptance and Payment. A holder of Notes may accept or reject the offer to
prepay pursuant to this Section 8.7 by causing a notice of such acceptance or rejection to be delivered to the Company at least 10 days prior to the Asset Disposition Prepayment Date. A failure by a holder
of the Notes to respond to an offer to prepay made pursuant to this Section 8.7 shall be deemed to constitute a rejection of such offer by such holder. If so accepted, such offered prepayment in respect of
the Ratable Portion of the Notes of each holder that has accepted such offer shall be due and payable on the Asset Disposition Prepayment Date. Such offered prepayment shall be made at 100% of the aggregate Ratable Portion of the Notes of each
holder that has accepted such offer, together with interest on that portion of the Notes then being prepaid accrued to the Asset Disposition Prepayment Date, but without any Make-Whole Amount. If any holder of a Note rejects or is deemed to have
rejected such offer of prepayment, the Company may use the Ratable Portion for such Note for general corporate purposes.
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(c) Officer’s Certificate. Each offer to prepay the Notes pursuant to this Section 8.7 shall be accompanied by a certificate, executed by a Senior Financial Officer and dated the date of such offer, specifying: (1) the Asset Disposition Prepayment Date; (2) that such offer is being made
pursuant to this Section 8.7 and that the failure by a holder to respond to such offer by the deadline established in Section 8.7(b) shall result in such offer to
such holder being deemed rejected; (3) the Ratable Portion of each such Note offered to be prepaid; (4) the interest that would be due on the Ratable Portion of each such Note offered to be prepaid, accrued to the Asset Disposition Prepayment Date;
(5) that the conditions of this Section 8.7 have been satisfied and (6) in reasonable detail, a description of the nature and date of the Asset Disposition Prepayment Event giving rise to such offer of
prepayment.
Section 9. Affirmative Covenants.
So long as any of the Notes are outstanding, the Company covenants that:
Section 9.1. Compliance with Law. The Company will, and will cause each of its
Subsidiaries to, comply with all laws, ordinances or governmental rules or regulations to which each of them is subject, including, without limitation, ERISA (with respect to any Plan), Environmental Laws, the USA PATRIOT Act and the other laws and
regulations that are referred to in Section 5.16, and will obtain and maintain in effect all licenses, certificates, permits, franchises and other governmental authorizations necessary to the ownership of
their respective properties or to the conduct of their respective businesses, in each case to the extent necessary to ensure that non-compliance with such laws, ordinances or governmental rules or regulations or failures to obtain or maintain in
effect such licenses, certificates, permits, franchises and other governmental authorizations would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
Section 9.2. Insurance. The Company will, and will cause each of its Restricted
Subsidiaries and New Jersey Natural Gas to, maintain, with financially sound and reputable insurers, insurance with respect to their respective properties and businesses against such casualties and contingencies, of such types, on such terms and in
such amounts (including deductibles, co-insurance and self-insurance, if adequate reserves are maintained with respect thereto) as is customary in the case of entities of established reputations engaged in the same or a similar business and in the
same industry and similarly situated.
Section 9.3. Maintenance of Properties. The Company will, and will cause each of its
Restricted Subsidiaries and New Jersey Natural Gas to, maintain and keep, or cause to be maintained and kept, their respective properties in good repair, working order and condition (other than ordinary wear and tear), so that the business carried
on in connection therewith may be properly conducted at all times, provided that this Section shall not prevent the Company, any Restricted Subsidiary or New Jersey Natural Gas from discontinuing the operation and the maintenance of any of its
properties if such discontinuance is desirable in the conduct of its business and the Company has concluded that such discontinuance would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
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Section 9.4. Payment of Taxes and Claims. The Company will, and will cause each of
its Subsidiaries to, file all income tax or similar tax returns required to be filed in any jurisdiction and pay and discharge all taxes shown to be due and payable on such returns and all other taxes, assessments, governmental charges or levies
payable by any of them, to the extent the same have become due and payable and before they have become delinquent, provided that neither the Company nor any Subsidiary need pay any such tax, assessment, governmental charge or levy if (1) the
amount, applicability or validity thereof is contested by the Company or such Subsidiary on a timely basis in good faith and in appropriate proceedings, and the Company or a Subsidiary has established adequate reserves therefor in accordance with
GAAP on the books of the Company or such Subsidiary or (2) the nonpayment of all such taxes, assessments, governmental charges and levies would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
Section 9.5. Corporate Existence, Etc. Subject to Sections
10.6 through 10.8, inclusive, (a) the Company will at all times preserve and keep in full force and effect its corporate existence, and (b) the Company will at all times preserve and keep in full
force and effect the corporate existence of each of its Restricted Subsidiaries and New Jersey Natural Gas (unless merged into the Company or a Wholly‑Owned Restricted Subsidiary) and all rights and franchises of the Company, its Restricted
Subsidiaries and New Jersey Natural Gas unless, in the good faith judgment of the Company, the termination of or failure to preserve and keep in full force and effect such corporate existence, right or franchise would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.
Section 9.6. Ownership of Subsidiaries. The Company shall at all times own (a) 100%
of the issued and outstanding common stock of New Jersey Natural Gas and 51% or more of the issued and outstanding Voting Stock of New Jersey Natural Gas and (b) subject to Sections 10.6, 10.7 and 10.8, 51% or more of the issued and outstanding Voting Stock of each Guarantor.
Section 9.7. Guaranty Agreement. (a) The Company shall promptly, and in any event
within 15 Business Days after (1) the formation or acquisition of a new Restricted Subsidiary (other than a Regulated Entity), (2) the occurrence of any other event creating a new Restricted Subsidiary (other than a Regulated Entity), (3) the
designation of an Unrestricted Subsidiary (other than a Regulated Entity) as a Restricted Subsidiary or (4) an Unrestricted Subsidiary or a Regulated Entity becoming or being a guarantor or co‑obligor in respect of any Bank Credit Agreement, cause
such Subsidiary to execute and deliver a supplement to the Guaranty Agreement (a “Guaranty Supplement”) in the form of Exhibit A to the Guaranty Agreement.
(b) Within 15 days of the delivery by any Subsidiary of a Guaranty Supplement pursuant to Section
9.7(a), the Company shall cause such Subsidiary to deliver to each Purchaser and each holder of Notes:
(1) such documents and evidence with respect to such Subsidiary as any Purchaser or holder may reasonably request in order to
establish the existence and good standing of such Subsidiary and evidence that the Board of Directors of such Subsidiary has adopted resolutions authorizing the execution and delivery of such Guaranty Supplement and the guaranty of the Notes;
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(2) evidence of compliance with such Subsidiary’s outstanding Debt instruments in the form of (i) a compliance certificate from
such Subsidiary to the effect that such Subsidiary is in compliance with all terms and conditions of its outstanding Debt instruments, (ii) consents or approvals of the holder or holders of any evidence of Debt or security, and/or (iii) amendments
of agreements pursuant to which any evidence of Debt or security may have been issued, all as may be reasonably deemed necessary by the Purchasers or the holders of Notes to permit the execution and delivery of such Guaranty Supplement by such
Subsidiary;
(3) an opinion of counsel to the effect that (i) such Subsidiary is a corporation or other business entity, duly organized,
validly existing and in good standing under the laws of its jurisdiction of organization, has the corporate or other power and the authority to execute and deliver such Guaranty Supplement and to perform the Guaranty Agreement, (ii) the execution
and delivery of such Guaranty Supplement and performance of the Guaranty Agreement has been duly authorized by all necessary action on the part of such Subsidiary, such Guaranty Supplement has been duly executed and delivered by such Subsidiary and
the Guaranty Agreement constitutes the legal, valid and binding contract of such Subsidiary enforceable against such Subsidiary in accordance with its terms, subject to bankruptcy, insolvency, fraudulent conveyance or similar laws affecting
creditors’ rights generally, and general principles of equity (regardless of whether the application of such principles is considered in a proceeding in equity or at law), (iii) the execution and delivery of such Guaranty Supplement and the
performance by such Subsidiary of the Guaranty Agreement do not conflict with or result in any breach of any of the provisions of or constitute a default under or result in the creation of a Lien upon any of the property of such Subsidiary pursuant
to the provisions of any law, order, rule or regulation, its charter documents or any agreement or other instrument known to such counsel to which such Subsidiary is a party to or by which such Subsidiary may be bound, and (iv) no approval, consent
or withholding of objection on the part of, or filing, registration or qualification with, any Governmental Authority, Federal or state, is necessary in connection with the lawful execution and delivery of such Guaranty Supplement by such
Subsidiary or the performance of the Guaranty Agreement by such Subsidiary, which opinion may contain such assumptions and qualifications as are reasonably acceptable to the Required Holders; and
(4) all other documents and showings reasonably requested by the Purchasers or the holders of Notes in connection with the
execution and delivery of such Guaranty Supplement, which documents shall be reasonably satisfactory in form and substance to such Purchasers and holders and their special counsel, and each Purchaser and holder of Notes shall have received a copy
(executed or certified as may be appropriate) of all of the foregoing legal documents.
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(c) If at any time pursuant to the terms and conditions of each Bank Credit Agreement any Guarantor is discharged and released
from its Guaranty of Debt under such Bank Credit Agreement and if (i) such Guarantor is not a co-obligor under such Bank Credit Agreement or a co-obligor or guarantor under any other Bank Credit Agreement, (ii) immediately preceding the release of
such Guarantor from its Guaranty of the Debt under this Agreement and the Notes and after giving effect thereto, no Default or Event of Default will have existed or would exist, (iii) any fees or other consideration are given to the lenders under
each such Bank Credit Agreement to obtain such discharge and release, each holder of a Note shall have received such fees or other consideration on a pro rata basis in proportion to the respective outstanding principal amount of such Debt under
such Bank Credit Agreement and the outstanding principal amount of such holder’s Notes or, prior to the Closing, the principal amount of Notes to be purchased by such Purchaser pursuant to Schedule A hereto
(it being understood that any fees or other consideration paid to any lender under any Bank Credit Agreement (including, without limitation, any new Bank Credit Agreement) in order to obtain an extension to the term or an increase in the amount of
the commitments to lend under such Bank Credit Agreement, or as a part of establishing such new Bank Credit Agreement, shall not be included as part of any fees or other consideration covered by this sentence, notwithstanding that such extension,
increase or Bank Credit Agreement, including such new Bank Credit Agreement, may contain a discharge or release of a Guarantor), and (iv) the Company shall have delivered to each Purchaser and each holder of Notes an Officer’s Certificate
certifying that the conditions specified in clauses (i) and (ii) above have been satisfied, then, upon receipt by the Purchasers and holders of Notes of such Officer’s Certificate, such Guarantor will be discharged and released, automatically and
without the need for any further action, from its obligations under its Guaranty of the Debt under this Agreement and the Notes. Without limiting the foregoing, for purposes of further assurance, each of the Purchasers and each of the holders of
the Notes agrees to provide to the Company and such Guarantor, if reasonably requested by the Company or such Guarantor and at the Company’s expense, written evidence of such discharge and release signed by such Purchaser and holder.
Section 9.8. New Jersey Natural Gas Regulated Nature. The Company will at all times
cause New Jersey Natural Gas to be and remain a Person that is subject under law to regulation by a public utility commission or other governmental regulatory body with oversight responsibilities for utilities.
Section 9.9. Notes to Rank Pari Passu. The Company will ensure that its payment
obligations under this Agreement and the Notes will at all times rank at least pari passu in right of payment with all other unsecured Senior Debt (actual or contingent) of the Company.
Section 9.10. Rating on the Notes.
(a) The Company shall at all times maintain a Debt Rating for the Notes from an Acceptable Rating Agency; provided, that, if the applicable Acceptable Rating Agency (i) ceases providing a Debt Rating for the Notes without having provided the Company with at least 60 days
advance notice (other than as a result of the Company failing to pay applicable fees and expenses or failing to reasonably cooperate with the Acceptable Rating Agency) (the earlier of the date notice is provided to the Company or, if no notice is
provided, the date the Acceptable Rating Agency ceases providing the Debt Rating, a “Ratings Withdrawal Event”), or (ii) ceases to qualify as an Acceptable Rating Agency (the date of such event, a “Ratings Agency Event” and, together with a Ratings Withdrawal Event, a “Ratings Termination Event”), then the Company shall use its commercially reasonable efforts to
obtain a new Debt Rating for the Notes from an Acceptable Rating Agency as soon as practicable and, in any event, on or before the 60th day following the Ratings Termination Event or, if the Company diligently pursues a new Debt Rating but is
unable to do so by the 60th day following the Ratings Termination Event, such period shall be extended for an additional 30 days.
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(b) At any time that the Debt Rating maintained pursuant to clause (a) above is not a public rating, the Company will provide to
each holder of a Note (x) at least annually (on or before each anniversary of the date of the Closing) and (y) promptly upon any change in such Debt Rating, an updated Private Rating Letter evidencing such Debt Rating and an updated Private Rating
Rationale Report with respect to such Debt Rating. In addition to the foregoing information and any information specifically required to be included in any Private Rating Letter or Private Rating Rationale Report (as set forth in the respective
definitions thereof), if the SVO or any other Governmental Authority having jurisdiction over any holder of any Notes from time to time requires any additional information with respect to the Debt Rating of the Notes, the Company shall use
commercially reasonable efforts to procure such information from the Acceptable Rating Agency.
Section 10. Negative Covenants.
So long as any of the Notes are outstanding, the Company covenants that:
Section 10.1. Leverage Ratio. The Company will not permit, as of the end of any
fiscal quarter of the Company, the ratio of Consolidated Total Debt to Consolidated Total Capitalization to exceed 0.70 to 1.00; provided that, if the Company is not in compliance with the requirements of Section
9.10 at any time, the ratio of Consolidated Total Debt to Consolidated Total Capitalization shall be reduced to 0.65 to 1.00 until the date a new Debt Rating complying with the requirements of Section 9.10
is delivered to the holders of Notes.
Section 10.2. Limitation on Priority Debt. The Company will not permit, as of the end
of any fiscal quarter of the Company, Priority Debt to exceed an amount equal to 20% of Consolidated Total Capitalization.
Section 10.3. Liens. The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any property or asset (including, without limitation, any document or instrument in
respect of goods or accounts receivable) of the Company or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits,
except:
(a) Liens for taxes, assessments or other governmental charges which are not yet due and payable or the payment of which is not
at the time required by Section 9.4;
(b) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other similar Liens, in each
case, incurred in the ordinary course of business for sums not yet due and payable or the payment of which is not at the time required by Section 9.4;
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(c) Liens (other than any Lien imposed by Section 430 of the Code or Section 4068 of ERISA or any successor thereto) incurred or
deposits made in the ordinary course of business (1) in connection with workers’ compensation, unemployment insurance and other types of social security or retirement benefits, (2) to secure (or to obtain letters of credit that secure) the
performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capital Leases), performance bonds, purchase, construction or sales contracts, and other similar obligations, in each case not incurred or made in
connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property or (3) in connection with required margin collateral account deposits made in the ordinary course in connection
with Hedging Contracts permitted by this Agreement;
(d) subject to Section 11(j), any attachment or judgment Lien, unless the judgment it
secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay;
(e) leases or subleases granted to others, easements, rights-of-way, restrictions and other similar charges or encumbrances or
minor survey exceptions, in each case incidental to, and not interfering with, the ordinary conduct of the business of the Company or any of its Restricted Subsidiaries, provided that such Liens do not, in the aggregate, materially detract from the
value of such property;
(f) Liens on property or assets of any Restricted Subsidiary securing Debt owing to the Company or to a Wholly-Owned Restricted
Subsidiary;
(g) Liens existing on the Closing Date and described in Schedule 5.15;
(h) Liens on accounts receivable owned by Securitization Subsidiaries that are Restricted Subsidiaries and incurred pursuant to
Receivables Securitization Transactions;
(i) any Lien created to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any
part of the purchase price or cost of construction, of property (or any improvement thereon) acquired or constructed by the Company or a Restricted Subsidiary after the Closing Date, provided that:
(1) any such Lien shall extend solely to the item or items of such property (or improvement thereon) so acquired or constructed
and, if required by the terms of the instrument originally creating such Lien, other property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed property (or
improvement thereon) or which is real property being improved by such acquired or constructed property (or improvement thereon);
(2) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (i) the
cost to the Company or such Restricted Subsidiary of the property (or improvement thereon) so acquired or constructed and (ii) the Fair Market Value (as determined in good faith by one or more officers of the Company to whom authority to enter into
the subject transaction has been delegated by the board of directors of the Company) of such property (or improvement thereon) at the time of such acquisition or construction;
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(3) any such Lien shall be created contemporaneously with, or within 180 days after, the acquisition or construction of such
property; and
(4) the aggregate principal amount of all Debt secured by such Liens shall be permitted by the limitation set forth in Section 10.1 if tested on the date such Lien is created and not as of the end of the immediately preceding fiscal quarter of the Company;
(j) any Lien existing on property of a Person immediately prior to its being consolidated with or merged into the Company or a
Restricted Subsidiary or its becoming a Subsidiary, or any Lien existing on any property acquired by the Company or any Restricted Subsidiary at the time such property is so acquired (whether or not the Debt secured thereby shall have been
assumed), provided that (1) no such Lien shall have been created or assumed in contemplation of such consolidation or merger or such Person becoming a Subsidiary or such acquisition of property, (2) each such Lien shall extend solely to the item or
items of property so acquired and, if required by the terms of the instrument originally creating such Lien (i) other property which is an improvement to or is acquired for specific use in connection with such acquired property or (ii) other
property that does not constitute property or assets of the Company or any of its Restricted Subsidiaries and (3) the aggregate amount of all Debt secured by such Liens shall be permitted by the limitation set forth in Section 10.1 if tested on the date of such event and not as of the end of the immediately preceding fiscal quarter of the Company;
(k) any Lien renewing, extending or refunding any Lien permitted by paragraphs (g), (i) or (j) of this Section 10.3, provided that (1) the principal amount of Debt secured by such Lien immediately prior to such extension, renewal or refunding is not increased or the maturity thereof reduced, (2) such Lien is not extended to any other
property and (3) immediately after such extension, renewal or refunding no Default or Event of Default would exist (provided that, with respect to Sections 10.1 and 10.2,
calculation of compliance therewith shall be made as of the date of determination under this Section 10.3(k) and not as of the end of the immediately preceding fiscal quarter of the Company); and
(l) other Liens not otherwise permitted by paragraphs (a) through (k), inclusive, of this Section
10.3 securing Debt, provided that the Debt secured by such Liens shall be permitted by the limitations set forth in Sections 10.1 and 10.2 if tested on the
date such Lien is created and not as of the end of the immediately preceding fiscal quarter of the Company.
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Notwithstanding the foregoing, the Company will not, and will not permit any Subsidiary to, grant or incur (upon the happening of a contingency or otherwise) (i) any Lien securing any Debt incurred
by the Company or any Subsidiary under any Bank Credit Agreement (other than cash collateral for letter of credit obligations upon the termination of any Bank Credit Agreement with respect to letters of credit issued under any Bank Credit Agreement
that remain outstanding after such termination, and customary Liens and set-off rights and similar types of Liens incurred in the ordinary course of business pursuant to deposit or custody agreements and hedging transactions (whether as currency or
interest rate swaps, caps, floors, collars or other interest rate or currency exchange management devices, or otherwise)), in each case whether arising under any Bank Credit Agreement, by operation of law, or otherwise, but not any other Debt of
the Company, unless the Notes shall also be secured by such Lien on a pari passu basis pursuant to documentation, including an intercreditor agreement, in form and substance satisfactory to the Required
Holders, with all parties entitled to the benefit of such Liens, or with the agent for such parties if such agent is the secured party of record with regard to such granted or created Lien and (ii) any Lien on or with respect to the Voting Stock of
New Jersey Natural Gas owned by the Company or any Subsidiary.
Section 10.4. Restricted Payments. (a) The Company will not, and will not permit any
Restricted Subsidiary to, declare or make or incur any liability to declare or make any Restricted Payment unless immediately after giving effect to such action no Default or Event of Default would exist (provided that, with respect to Sections 10.1 and 10.2, calculation of compliance therewith shall be made as of the date of determination under this Section 10.4
and not as of the end of the immediately preceding fiscal quarter of the Company).
(b) The Company will not, and will not permit any Restricted Subsidiary to, declare a Restricted Payment that is not payable
within 60 days of such declaration.
Section 10.5. Restrictions on Dividends of Subsidiaries, Etc. The Company will not,
and will not permit any Restricted Subsidiary to, enter into any agreement which would restrict any Restricted Subsidiary’s ability or right to pay dividends to, or make advances to or investments in, the Company or, if such Restricted Subsidiary
is not directly owned by the Company, the “parent” Restricted Subsidiary of such Restricted Subsidiary; provided that the foregoing shall not apply to restrictions and conditions imposed by law, this Agreement, any Bank Credit Agreement or any
other document or instrument governing Debt not prohibited by this Agreement so long as such restrictions and conditions in such other document or instrument are no more restrictive with respect to such Restricted Subsidiary than the restrictions
in any Bank Credit Agreement as in effect on the date of this Agreement.
Section 10.6. Sale of Assets, Etc. (a) Except as permitted under Section 10.7 and Section 10.8, the Company will not, and will not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) in the good faith opinion of the Company, the Asset Disposition is in the best interest of the Company or such Restricted
Subsidiary;
(2) immediately after giving effect to the Asset Disposition, no Default or Event of Default would exist (provided that, with
respect to Sections 10.1 and 10.2, calculation of compliance therewith shall be made as of the date of determination under this Section
10.6 and not as of the end of the immediately preceding fiscal quarter of the Company); and
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(3) immediately after giving effect to the Asset Disposition the Disposition Value of all property that was the subject of any
Asset Disposition occurring in the immediately preceding 12 consecutive month period would not exceed 10% of Consolidated Tangible Assets as of the end of the then most recently ended fiscal year of the Company.
(b) If the Net Proceeds Amount for any Transfer is, within 365 days after such Transfer, (1) applied to a Debt Prepayment
Application, (2) applied to or would otherwise constitute a Property Reinvestment Application or (3) applied to any combination of the foregoing clauses (1) and (2), then such Transfer, only for the purpose of determining compliance with subsection
(3) of Section 10.6(a) as of a date on or after the Net Proceeds Amount is so applied, shall be deemed not to be an Asset Disposition.
Section 10.7. Merger, Consolidation, Etc. The Company will not, and will not permit any
Restricted Subsidiary to, consolidate with or merge with any other Person or convey, transfer or lease all or substantially all of its assets in a single transaction or series of transactions to any Person (except that a Restricted Subsidiary may
(x) consolidate with or merge with, or convey, transfer or lease all or substantially all of its assets in a single transaction or series of transactions to, the Company or another Restricted Subsidiary or any other Person so long as such
Restricted Subsidiary is the surviving Person and (y) convey, transfer or lease all of its assets in compliance with the provisions of Section 10.6 or Section 10.8),
provided that the foregoing restriction does not apply to the consolidation or merger of the Company with, or the conveyance, transfer or lease of all or substantially all of the assets of the Company in a single transaction or series of
transactions to, any Person so long as:
(a) the successor formed by such consolidation or the survivor of such merger or the Person that acquires by conveyance,
transfer or lease all or substantially all of the assets of the Company as an entirety, as the case may be (the “Successor Corporation”), shall be a solvent Person organized and existing under the laws of
the United States or any State thereof (including the District of Columbia);
(b) if the Company is not the Successor Corporation, (1) such Person shall have executed and delivered to each Purchaser and
holder of the Notes its assumption of the due and punctual performance and observance of each covenant and condition of this Agreement and the Notes (pursuant to such agreements or instruments as shall be reasonably satisfactory to the Required
Holders), (2) such Person shall have caused to be delivered to each Purchaser and each holder of the Notes an opinion of inside counsel to the Company, Troutman Pepper Hamilton Sanders LLP or another nationally recognized counsel, or other counsel
reasonably satisfactory to the Required Holders, to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their terms and comply with the terms hereof (subject to bankruptcy, insolvency,
fraudulent conveyance or similar laws affecting creditors’ rights generally, and general principles of equity (regardless of whether the application of such principles is considered in a proceeding in equity or at law) and subject to such other
customary qualifications and exceptions for legal opinions of this type or as may be reasonably acceptable to the Required Holders) and (3) each Guarantor shall have reaffirmed, in writing, its obligations under the Guaranty Agreement; and
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(c) immediately after giving effect to such transaction, no Default or Event of Default would exist (provided that, with respect
to Sections 10.1 and 10.2, calculation of compliance therewith shall be made as of the date of determination under this Section 10.7
and not as of the end of the immediately preceding fiscal quarter of the Company).
No such conveyance, transfer or lease of all or substantially all of the assets of the Company shall have the effect of releasing the Company or any Successor Corporation that shall theretofore have become such in
the manner prescribed in this Section 10.7 from its liability under this Agreement or the Notes.
For all purposes under this Agreement, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset,
right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person; provided that, if the original Person is a Restricted Subsidiary, the subsequent Person must also be a Restricted Subsidiary unless (i) the requirements of Section 10.6 or Section 10.8, as applicable, are satisfied in connection
with such Transfer, or (ii) such Person would be permitted to be an Unrestricted Subsidiary under Section 10.13 and the requirements of Section 10.13 are satisfied to designate such Person an Unrestricted Subsidiary, and (b) if any new Person comes
into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its equity interests at such time; provided that, if any Restricted Subsidiary
undergoes a division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws), any new Person which comes into existence as a result of such event shall be a Restricted Subsidiary unless (i) such
formation would constitute a Transfer and the requirements of Section 10.6 or Section 10.8, as applicable, are satisfied in connection with such Transfer, or (ii) such Person would be permitted to be an Unrestricted Subsidiary under Section 10.13
and the requirements of Section 10.13 are satisfied to designate such Person an Unrestricted Subsidiary.
Section 10.8. Disposal of Ownership of a Restricted Subsidiary. Subject to Section 10.7, the Company will not, and will not permit any Restricted Subsidiary to, sell or otherwise dispose of any shares of Restricted Subsidiary Stock, nor will the Company permit any such Restricted
Subsidiary to issue, sell or otherwise dispose of any shares of its own Restricted Subsidiary Stock, provided that the foregoing restrictions do not apply to:
(a) the issue of directors’ qualifying shares by any such Restricted Subsidiary;
(b) any such Transfer of Restricted Subsidiary Stock constituting a Transfer described in clause (a) of the definition of “Asset
Disposition”; and
(c) the Transfer of the Restricted Subsidiary Stock of a Restricted Subsidiary owned by the Company and its other Subsidiaries;
provided that such Transfer satisfies the requirements of Section 9.6 and Section 10.6.
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Section 10.9. Limitations on Subsidiaries, Partnerships and Joint Ventures. The Company
will not, and will not permit any of its Restricted Subsidiaries to, own or create directly or indirectly any Restricted Subsidiaries other than (a) any Restricted Subsidiary which is a Regulated Entity, (b) any Restricted Subsidiary which is a
Guarantor on the date of this Agreement and (c) any Restricted Subsidiary formed after the date of this Agreement that becomes a Guarantor under the Guaranty Agreement pursuant to Section 9.7. The Company
shall not, and shall not permit any Restricted Subsidiary to, become or agree to become (1) a general or limited partner in any general or limited partnership, except that the Company may be a general or limited partner in any Subsidiary and any
Restricted Subsidiary may be a general or limited partner in any other Subsidiary and except that the Company and its Restricted Subsidiaries may be a limited partner in a Permitted Related Business Opportunity, (2) a member or manager of, or hold
a limited liability company interest in, a limited liability company, except that the Company may be a member or manager of, or hold limited liability company interests in, its Subsidiaries and Restricted Subsidiaries may be members or managers of,
or hold limited liability company interests in, other Subsidiaries and except that the Company and its Restricted Subsidiaries may be members or managers of, or hold limited liability company interests in a Permitted Related Business Opportunity or
(3) a joint venturer or hold a joint venture interest in any joint venture, except that the Company and its Restricted Subsidiaries may become a joint venturer in or hold a joint venture interest in any joint venture that is a Permitted Related
Business Opportunity.
Section 10.10. [Reserved].
Section 10.11. Nature of Business. The Company will not, and will not permit any of its
Restricted Subsidiaries to, engage in any business if, as a result, the general nature of the business in which the Company and its Restricted Subsidiaries, taken as a whole, would then be engaged would be substantially and materially changed from
the general nature of the business in which the Company and its Restricted Subsidiaries are engaged on the date of this Agreement.
Section 10.12. Transactions with Affiliates. Except in the case of a Permitted Related
Business Opportunity, the Company will not, and will not permit any Restricted Subsidiary to, enter into, directly or indirectly, any Material transaction or group of related transactions (including, without limitation, the purchase, lease, sale or
exchange of properties of any kind or the rendering of any service) with any Affiliate (other than the Company, a Restricted Subsidiary or New Jersey Natural Gas), except in the ordinary course and pursuant to the reasonable requirements of the
Company’s or such Restricted Subsidiary’s business and upon fair and reasonable terms no less favorable to the Company or such Restricted Subsidiary than would be obtainable in a comparable arm’s-length transaction with a Person not an Affiliate.
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Section 10.13. Designation of Restricted and Unrestricted Subsidiaries. (a) Subject to Section 10.13(b), the Company may designate any Subsidiary to be a Restricted Subsidiary and may designate any Restricted Subsidiary to be an Unrestricted Subsidiary by giving written notice to each holder of
Notes that the Board of Directors of the Company has made such designation, provided, however, that no Subsidiary may be designated a Restricted Subsidiary and no Restricted Subsidiary may be designated an Unrestricted Subsidiary unless, at the
time of such action and after giving effect thereto, (1) solely in the case of a Restricted Subsidiary being designated an Unrestricted Subsidiary, such Restricted Subsidiary being designated an Unrestricted Subsidiary shall not have any continuing
Investment in the Company or any other Restricted Subsidiary and (2) no Default or Event of Default shall have occurred and be continuing (provided that, with respect to Sections 10.1 and 10.2, calculation of compliance therewith shall be made as of the date of determination under this Section 10.13 and not as of the end of the immediately preceding fiscal
quarter of the Company). Any Restricted Subsidiary which has been designated an Unrestricted Subsidiary and which has then been redesignated a Restricted Subsidiary, in each case in accordance with the provisions of the first sentence of this Section 10.13, shall not at any time thereafter be redesignated an Unrestricted Subsidiary without the prior written consent of the Required Holders. Any Unrestricted Subsidiary which has been designated a
Restricted Subsidiary and which has then been redesignated an Unrestricted Subsidiary, in each case in accordance with the provisions of the first sentence of this Section 10.13, shall not at any time
thereafter be redesignated a Restricted Subsidiary without the prior written consent of the Required Holders. If the Company enters into any credit facility or note purchase agreement (or any amendment thereof) after the date of this Agreement and
New Jersey Natural Gas shall be designated as a “restricted subsidiary” thereunder, then the Company shall, within 10 Business Days of its entering into such credit facility or note purchase agreement (or any amendment thereof), designate New
Jersey Natural Gas as a Restricted Subsidiary under this Agreement. If the Company enters into any credit facility or note purchase agreement (or any amendment thereof) after the date of this Agreement and New Jersey Natural Gas shall be subjected
to any negative covenants of the type included in this Section 10 of such credit facility or note purchase agreement, then and in any such event the Company shall give written notice thereof to each holder
not later than 30 days following the date of execution of any such agreement or amendment. Effective on the date of execution of any such agreement or amendment, such additional covenant that is included in such agreement or amendment and any
related definitions shall be deemed to have been incorporated herein. The Company further covenants to promptly execute and deliver at its expense (including, without limitation, the fees and expenses of counsel for the holders) an amendment to
this Agreement in form and substance satisfactory to the Required Holders evidencing the amendment of this Agreement to include such additional covenant.
(b) The Company will cause each Subsidiary that is designated as a Restricted Subsidiary in Schedule
5.4 on the date of this Agreement to at all times remain a Restricted Subsidiary.
Section 10.14. Economic Sanctions, Etc. The Company covenants that it will not, and
will not permit any Controlled Entity to, (a) become (including by virtue of being owned or controlled by a Blocked Person), own or control a Blocked Person or (b) directly or indirectly have any investment in or engage in any dealing or
transaction (including any investment, dealing or transaction involving the proceeds of the Notes) with any Person if such investment, dealing or transaction (i) would cause any holder or any affiliate of such holder to be in violation of, or
subject to sanctions under, any law or regulation applicable to such holder, or (ii) is prohibited by or subject to sanctions under any U.S. Economic Sanctions Laws.
Section 11. Events of Default.
An “Event of Default” shall exist if any of the following conditions or events shall occur and be continuing:
(a) the Company defaults in the payment of any principal or Make-Whole Amount on any Note when the same becomes due and payable,
whether at maturity or at a date fixed for prepayment or by declaration or otherwise; or
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(b) the Company defaults in the payment of any interest on any Note for more than five Business Days after the same becomes due
and payable; or
(c) the Company defaults in the performance of or compliance with any term contained in any of Section
9.6 through Section 9.8, inclusive, Section 10.1 through Section 10.9, inclusive, or Section 10.14; or
(d) the Company defaults in the performance of or compliance with any term contained herein (other than those referred to in
paragraphs (a), (b) and (c) of this Section 11 and other than Section 9.10) and such default is not remedied within 30 days after the earlier of (1) a Responsible
Officer obtaining actual knowledge of such default and (2) the Company receiving written notice of such default from any holder of a Note (any such written notice to be identified as a “notice of default” and to refer specifically to this paragraph
(d) of Section 11); or
(e) any representation or warranty made in writing by or on behalf of the Company or any Guarantor or by any officer of the
Company or any Guarantor in this Agreement, the Guaranty Agreement or in any writing furnished in connection with the transactions contemplated hereby proves to have been false or incorrect in any material respect on the date as of which made; or
(f) (1) the Company or any Significant Subsidiary is in default (as principal or as guarantor or other surety) in the payment
of any principal of or premium or make-whole amount or interest on any Debt that is outstanding in an aggregate principal amount of at least $30,000,000 (or its equivalent in the relevant currency of payment) beyond any period of grace provided
with respect thereto or (2) the Company or any Significant Subsidiary is in default in the performance of or compliance with any term of any evidence of any Debt in an aggregate outstanding principal amount of at least $30,000,000 (or its
equivalent in the relevant currency of payment) or of any mortgage, indenture or other agreement relating thereto or any other condition exists, and as a consequence of such default or condition such Debt has become, or has been declared (or one or
more Persons are entitled to declare such Debt to be), due and payable before its stated maturity or before its regularly scheduled dates of payment or (3) as a consequence of the occurrence or continuation of any event or condition (other than the
passage of time or the right of the holder of Debt to convert such Debt into equity interests), (i) the Company or any Significant Subsidiary has become obligated to purchase or repay Debt before its regular maturity or before its regularly
scheduled dates of payment in an aggregate outstanding principal amount of at least $30,000,000 (or its equivalent in the relevant currency of payment) or (ii) one or more Persons have the right to require the Company or any Significant Subsidiary
so to purchase or repay such Debt; or
(g) the Company or any Significant Subsidiary is in default under the terms of any agreement involving any off‑balance sheet
transaction (including any asset securitization, sale/leaseback transaction or Synthetic Lease) with obligations in the aggregate thereunder for which the Company or any Significant Subsidiary may be obligated in an amount in excess of $30,000,000
(or its equivalent in the relevant currency of payment), and such breach, default or event of default consists of the failure to pay (beyond any period of grace permitted with respect thereto) any obligation when due (whether at stated maturity, by
acceleration or otherwise) or if such breach or default permits or causes the acceleration of any obligation or the termination of such agreement; or
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(h) the Company or any Significant Subsidiary described in clauses (b) or (c) of the definition thereof (1) is generally not
paying, or admits in writing its inability to pay, its debts as they become due, (2) files, or consents by answer or otherwise to the filing against it of, a petition for relief or reorganization or arrangement or any other petition in bankruptcy,
for liquidation or to take advantage of any bankruptcy, insolvency, reorganization, moratorium or other similar law of any jurisdiction, (3) makes an assignment for the benefit of its creditors, (4) consents to the appointment of a custodian,
receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, (5) is adjudicated as insolvent or to be liquidated or (6) takes corporate action for the purpose of any of the
foregoing; or
(i) a court or other Governmental Authority of competent jurisdiction enters an order appointing, without consent by the
Company or any of its Significant Subsidiaries, a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, or constituting an order for relief or approving a
petition for relief or reorganization or any other petition in bankruptcy or for liquidation or to take advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution, winding-up or liquidation of the Company or any
of its Significant Subsidiaries, or any such petition shall be filed against the Company or any of its Significant Subsidiaries and such petition shall not be dismissed within 60 days; or
(j) a final judgment or judgments for the payment of money aggregating in excess of $30,000,000 (or its equivalent in the
relevant currency of payment) (exclusive of amounts fully covered by valid and collectible insurance in respect thereof subject to customary deductibles) are rendered against one or more of the Company and its Significant Subsidiaries and which
judgments are not, within 45 days after entry thereof (or such shorter period as judgment creditors are stayed pursuant to applicable law from executing on such judgment or judgments), bonded, discharged or stayed pending appeal, or are not
discharged within 45 days after the expiration of such stay (or such shorter period as judgment creditors are stayed pursuant to applicable law from executing on such judgment or judgments); or
(k) (1) default shall occur under the Guaranty Agreement to which a Significant Subsidiary described in clause (b) of the
definition thereof is a party, and such default shall continue beyond the period of grace, if any, allowed with respect thereto, or (2) the Guaranty Agreement shall cease to be in full force and effect for any reason whatsoever, including, without
limitation, a determination by any Governmental Authority or court that such agreement is invalid, void or unenforceable or any Guarantor shall contest or deny in writing the validity or enforceability of the Guaranty Agreement; or
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(l) if (1) any Plan shall fail to satisfy the minimum funding standards of ERISA or the Code for any plan year or a waiver of
such standards or extension of any amortization period is sought or granted under Section 412 of the Code, (2) a notice of intent to terminate any Plan on other than a standard basis shall have been filed with the PBGC by the Company or any ERISA
Affiliate or the PBGC shall have notified the Company or any ERISA Affiliate of the institution of proceedings under Section 4042 of ERISA to terminate or appoint a trustee to administer any Plan or that a Plan is the subject of any such
proceedings, (3) the present value of the aggregate “amount of unfunded benefit liabilities” within the meaning of Section 4001(a)(18) of ERISA under all Plans (determined in accordance with Title IV of ERISA, as of the end of the most recent Plan
year on the basis of the actuarial assumptions specified for funding purposes in the most recent actuarial valuation), shall exceed the aggregate actuarial value of their assets by more than $25,000,000, (4) the Company or any ERISA Affiliate shall
have incurred any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans with respect to any Plan, other than for claims for benefits and funding obligations in the
ordinary course, (5) the Company or any ERISA Affiliate incurs withdrawal liability with respect to any Multiemployer Plan or (6) the Company or any ERISA Affiliate establishes or amends any employee welfare benefit plan that provides
post-employment welfare benefits in a manner that would increase the liability of the Company or any ERISA Affiliate thereunder; and any such event or events described in clauses (1) through (6) above, either individually or together with any other
such event or events, would reasonably be expected to have a Material Adverse Effect.
As used in Section 11(l), the terms “employee benefit plan” and “employee welfare benefit plan” shall have the respective meanings assigned to such terms in Section 3 of
ERISA.
Section 12. Remedies on Default, Etc.
Section 12.1. Acceleration. (a) If an Event of Default with respect to the Company
described in paragraph (h) or (i) of Section 11 (other than an Event of Default described in clause (1) of paragraph (h) or described in clause (6) of paragraph (h) by virtue of the fact that such clause
encompasses clause (1) of paragraph (h)) has occurred, all the Notes then outstanding shall automatically become immediately due and payable.
(b) If any other Event of Default has occurred and is continuing, the Required Holders may at any time at its or their option,
by notice or notices to the Company, declare all the Notes then outstanding to be immediately due and payable.
(c) If any Event of Default described in paragraph (a) or (b) of Section 11 has
occurred and is continuing, any holder or holders of Notes at the time outstanding affected by such Event of Default may at any time, at its or their option, by notice or notices to the Company, declare all the Notes held by it or them to be
immediately due and payable.
Upon any Note becoming due and payable under this Section 12.1, whether automatically or by declaration, such Note will forthwith mature and the entire
unpaid principal amount of such Note, plus (1) all accrued and unpaid interest thereon (including, but not limited to, interest accrued thereon at the Default Rate) and (2) the Make-Whole Amount, if any, determined in respect of such principal
amount (to the full extent permitted by applicable law) shall all be immediately due and payable, in each and every case without presentment, demand, protest or further notice, all of which are hereby waived. The Company acknowledges, and the
parties hereto agree, that each holder of a Note has the right to maintain its investment in the Notes free from repayment by the Company (except as herein specifically provided for), and that the provision for payment of the Make-Whole Amount by
the Company in the event that the Notes are prepaid or are accelerated as a result of an Event of Default, is intended to provide compensation for the deprivation of such right under such circumstances.
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Section 12.2. Other Remedies. If any Default or Event of Default has occurred and is
continuing, and irrespective of whether any Notes have become or have been declared immediately due and payable under Section 12.1, the holder of any Note at the time outstanding may proceed to protect and
enforce the rights of such holder by an action at law, suit in equity or other appropriate proceeding, whether for the specific performance of any agreement contained herein, in any Note or in the Guaranty Agreement, or for an injunction against a
violation of any of the terms hereof or thereof, or in aid of the exercise of any power granted hereby or thereby or by law or otherwise.
Section 12.3. Rescission. At any time after any Notes have been declared due and
payable pursuant to clause (b) or (c) of Section 12.1, the Required Holders, by written notice to the Company, may rescind and annul any such declaration and its consequences if (a) the Company has paid all
overdue interest on the Notes, all principal of and Make-Whole Amount, if any, on any Notes that are due and payable and are unpaid other than by reason of such declaration, and all interest on such overdue principal and Make-Whole Amount, if any,
and (to the extent permitted by applicable law) any overdue interest in respect of the Notes, at the Default Rate, (b) neither the Company nor any other Person shall have paid any amounts which have become due solely by reason of such declaration,
(c) all Events of Default and Defaults, other than non-payment of amounts that have become due solely by reason of such declaration, have been cured or have been waived pursuant to Section 17 and (d) no
judgment or decree has been entered for the payment of any monies due pursuant hereto or to the Notes. No rescission and annulment under this Section 12.3 will extend to or affect any subsequent Event of
Default or Default or impair any right consequent thereon.
Section 12.4. No Waivers or Election of Remedies, Expenses, Etc. No course of dealing
and no delay on the part of any holder of any Note in exercising any right, power or remedy shall operate as a waiver thereof or otherwise prejudice such holder’s rights, powers or remedies. No right, power or remedy conferred by this Agreement,
the Guaranty Agreement or by any Note upon any holder thereof shall be exclusive of any other right, power or remedy referred to herein or therein or now or hereafter available at law, in equity, by statute or otherwise. Without limiting the
obligations of the Company under Section 15, the Company will pay to the holder of each Note on demand such further amount as shall be sufficient to cover all costs and expenses of such holder incurred in any
enforcement or collection under this Section 12, including, without limitation, reasonable attorneys’ fees, expenses and disbursements.
Section 13. Registration; Exchange; Substitution of Notes.
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Section 13.1. Registration of Notes. The Company shall keep at its principal executive
office a register for the registration and registration of transfers of Notes. The name and address of each holder of one or more Notes, each transfer thereof and the name and address of each transferee of one or more Notes shall be registered in
such register. If any holder of one or more Notes is a nominee, then (a) the name and address of the beneficial owner of such Note or Notes shall also be registered in such register as an owner and holder thereof and (b) at any such beneficial
owner’s option, either such beneficial owner or its nominee may execute any amendment, waiver or consent pursuant to this Agreement. Prior to due presentment for registration of transfer, the Person in whose name any Note shall be registered shall
be deemed and treated as the owner and holder thereof for all purposes hereof, and the Company shall not be affected by any notice or knowledge to the contrary. The Company shall give to any holder of a Note that is an Institutional Investor
promptly upon request therefor, a complete and correct copy of the names and addresses of all registered holders of Notes.
Section 13.2. Transfer and Exchange of Notes. Upon surrender of any Note at the
principal executive office of the Company for registration of transfer or exchange (and in the case of a surrender for registration of transfer, duly endorsed or accompanied by a written instrument of transfer duly executed by the registered holder
of such Note or its attorney duly authorized in writing and accompanied by the address for notices of each transferee of such Note or part thereof), within 10 Business Days thereafter, the Company shall execute and deliver, at the Company’s expense
(except as provided below), one or more new Notes (as requested by the holder thereof) in exchange therefor, in an aggregate principal amount equal to the unpaid principal amount of the surrendered Note. Each such new Note shall be payable to such
Person as such holder may request and shall be substantially in the form of Exhibit 1. Each such new Note shall be dated and bear interest from the date to which interest shall have been paid on the
surrendered Note or dated the date of the surrendered Note if no interest shall have been paid thereon. The Company may require payment of a sum sufficient to cover any stamp tax or governmental charge imposed in respect of any such transfer of
Notes. Notes shall not be transferred in denominations of less than $100,000, provided that if necessary to enable the registration of transfer by a holder of its entire holding of Notes, one Note may be in a denomination of less than $100,000.
Any transferee, by its acceptance of a Note registered in its name (or the name of its nominee), shall be deemed to have made the representation set forth in Section 6.2.
Section 13.3. Replacement of Notes. Upon receipt by the Company of evidence reasonably
satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of any Note (which evidence shall be, in the case of an Institutional Investor, notice from such Institutional Investor of such ownership and such loss, theft,
destruction or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity reasonably satisfactory to it (provided that if the holder of such
Note is, or is a nominee for, an original Purchaser or another holder of a Note with a minimum net worth of at least $50,000,000, such Person’s own unsecured agreement of indemnity shall be deemed to be satisfactory), or
(b) in the case of mutilation, upon surrender and cancellation thereof,
within 10 Business Days thereafter, the Company at its own expense shall execute and deliver, in lieu thereof, a new Note, dated and bearing interest from the date to which interest shall have been paid on such lost,
stolen, destroyed or mutilated Note or dated the date of such lost, stolen, destroyed or mutilated Note if no interest shall have been paid thereon.
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Section 14. Payments on Notes.
Section 14.1. Place of Payment. Subject to Section
14.2, payments of principal, Make-Whole Amount, if any, and interest becoming due and payable on the Notes shall be made in New York, New York at the principal office of U.S. Bank Trust Company, National Association in such jurisdiction.
The Company may at any time, by notice to each holder of a Note, change the place of payment of the Notes so long as such place of payment shall be either the principal office of the Company in such jurisdiction or the principal office of a bank or
trust company in such jurisdiction.
Section 14.2. Home Office Payment. So long as any Purchaser of the Notes or its nominee
shall be the holder of any Note, and notwithstanding anything contained in Section 14.1 or in such Note to the contrary, the Company will pay all sums becoming due on such Note for principal, Make-Whole
Amount, if any, and interest by the method and at the address specified for such purpose below such Purchaser’s name in Schedule A with respect to the Notes, or by such other method or at such other address
as such Purchaser shall have from time to time specified to the Company in writing for such purpose, without the presentation or surrender of such Note or the making of any notation thereon, except that upon written request of the Company made
concurrently with or reasonably promptly after payment or prepayment in full of any Note, such Purchaser shall surrender such Note for cancellation, reasonably promptly after any such request, to the Company at its principal executive office or at
the place of payment most recently designated by the Company pursuant to Section 14.1. Prior to any sale or other disposition of any Note held by any Purchaser or its nominee such Purchaser will, at its
election, either endorse thereon the amount of principal paid thereon and the last date to which interest has been paid thereon or surrender such Note to the Company in exchange for a new Note or Notes pursuant to Section
13.2. The Company will afford the benefits of this Section 14.2 to any Institutional Investor that is the direct or indirect transferee of any Note purchased by any Purchaser under this Agreement
and that has made the same agreement relating to such Note as such Purchaser has made in this Section 14.2.
Section 14.3. FATCA Information. By acceptance of any Note, the holder of such Note
agrees that such holder will with reasonable promptness duly complete and deliver to the Company, or to such other Person as may be reasonably requested by the Company, from time to time (a) in the case of any such holder that is a United States
Person, such holder’s United States tax identification number or other forms reasonably requested by the Company necessary to establish such holder’s status as a United States Person under FATCA and as may otherwise be necessary for the Company to
comply with its obligations under FATCA and (b) in the case of any such holder that is not a United States Person, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional
documentation as may be necessary for the Company to comply with its obligations under FATCA and to determine that such holder has complied with such holder’s obligations under FATCA or to determine the amount (if any) to deduct and withhold from
any such payment made to such holder. Nothing in this Section 14.3 shall require any holder to provide information that is confidential or proprietary to such holder unless the Company is required to obtain
such information under FATCA and, in such event, the Company shall treat any such information it receives as confidential.
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Section 15. Expenses, Etc.
Section 15.1. Transaction Expenses. Whether or not the transactions contemplated hereby
are consummated, the Company will pay the reasonable out-of-pocket costs and expenses incurred in connection with the initial filing of this Agreement and all related documents and financial information, and all subsequent annual and interim
filings of documents and financial information related thereto, with the SVO, (which costs and expenses shall not exceed $5,000 without the prior written consent of the Company) and all out-of-pocket costs and expenses (including reasonable
attorneys’ fees of a special counsel and, if reasonably required, local or other counsel) incurred by the Purchasers or any other holder of a Note in connection with the transactions contemplated hereby and in connection with any amendments,
waivers or consents under or in respect of this Agreement, the Notes or the Guaranty Agreement (whether or not such amendment, waiver or consent becomes effective), including, without limitation: (a) the out-of-pocket costs and expenses incurred in
enforcing or defending (or determining whether or how to enforce or defend) any rights under this Agreement, the Notes or the Guaranty Agreement or in responding to any subpoena or other legal process or informal investigative demand issued in
connection with this Agreement, the Notes or the Guaranty Agreement, or by reason of being a holder of any Note and (b) the out-of-pocket costs and expenses, including financial advisors’ fees, incurred in connection with the insolvency or
bankruptcy of the Company or any Subsidiary or in connection with any work-out or restructuring of the transactions contemplated hereby, by the Notes and by the Guaranty Agreement. If required by the NAIC, the Company shall obtain and maintain at
its own cost and expense a Legal Entity Identifier (LEI).
The Company will pay, and will save the Purchasers and each other holder of a Note harmless from, (i) all claims in respect of any fees, costs or expenses, if any, of brokers and finders (other
than those retained by such Person), (ii) any and all wire transfer fees that any bank or other financial institution deducts from any payment under such Note to such holder or otherwise charges to a holder of a Note with respect to a payment under
such Note and (iii) any judgment, liability, claim, order, decree, fine, penalty, cost, fee, expense (including reasonable attorneys’ fees and expenses) or obligation resulting from the consummation of the transactions contemplated hereby,
including the use of the proceeds of the Notes by the Company.
Section 15.2. Certain Taxes. The Company agrees to pay all stamp, documentary or
similar taxes or fees which may be payable in respect of the execution and delivery or the enforcement of this Agreement or any Guaranty Agreement or the execution and delivery (but not the transfer) or the enforcement of any of the Notes in the
United States or any other jurisdiction where the Company or any Guarantor has assets or of any amendment of, or waiver or consent under or with respect to, this Agreement or of any of the Notes, and to pay any value added tax due and payable in
respect of reimbursement of costs and expenses by the Company pursuant to this Section 15, and will save each holder of a Note to the extent permitted by applicable law harmless against any loss or liability
resulting from nonpayment or delay in payment of any such tax or fee required to be paid by the Company hereunder.
Section 15.3. Survival. The obligations of the Company under this Section 15 will survive the payment or transfer of any Note, the enforcement, amendment or waiver of any provision of this Agreement, the Notes or the Guaranty Agreement, and the termination of this Agreement or
the Guaranty Agreement.
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Section 16. Survival of Representations and Warranties; Entire Agreement.
All representations and warranties contained herein shall survive the execution and delivery of this Agreement and the Notes, the purchase or transfer by any Purchaser of any Note or portion
thereof or interest therein and the payment of any Note, and may be relied upon by any subsequent holder of a Note, regardless of any investigation made at any time by or on behalf of any Purchaser or any other holder of a Note. All statements
contained in any certificate or other instrument delivered by or on behalf of the Company pursuant to this Agreement shall be deemed representations and warranties of the Company under this Agreement. Subject to the preceding sentence, this
Agreement, the Guaranty Agreement and the Notes embody the entire agreement and understanding between the Purchasers and the Company and supersede all prior agreements and understandings relating to the subject matter hereof.
Section 17. Amendment and Waiver.
Section 17.1. Requirements. This Agreement and the Notes may be amended, and the
observance of any term hereof or of the Notes may be waived (either retroactively or prospectively), with (and only with) the written consent of the Company and the Required Holders, except that (a) no amendment or waiver of any of the provisions
of Section 1, 2, 3, 4, 5, 6 or 21 hereof, or any defined term (as it is used therein), will be effective as to any Purchaser or holder of a Note unless consented to by such Purchaser or holder in
writing and (b) no such amendment or waiver may, without the written consent of each Purchaser and the holder of each Note at the time outstanding affected thereby, (1) subject to the provisions of Section 12
relating to acceleration or rescission, change the amount or time of any prepayment or payment of principal of, or reduce the rate or change the time of payment or method of computation of interest or of the Make-Whole Amount on, the Notes, (2)
change the percentage of the principal amount of the Notes the holders of which are required to consent to any such amendment or waiver or the principal amount of the Notes that the Purchasers are to purchase pursuant to Section 2 upon satisfaction of the conditions to Closing that appear in Section 4 or (3) amend any of Sections 8, 11(a),
11(b), 12, 17 or 20.
Section 17.2. Solicitation of Purchasers and Holders of Notes.
(a) Solicitation. The Company will provide each Purchaser and each holder of the
Notes (irrespective of the amount of Notes then owned by it) with sufficient information, sufficiently far in advance of the date a decision is required, to enable such Purchaser and such holder to make an informed and considered decision with
respect to any proposed amendment, waiver or consent in respect of any of the provisions hereof or of the Notes or the Guaranty Agreement. The Company will deliver executed or true and correct copies of each amendment, waiver or consent effected
pursuant to the provisions of this Section 17 or the Guaranty Agreement to each holder of outstanding Notes promptly following the date on which it is executed and delivered by, or receives the consent or
approval of, the requisite Purchasers or holders of Notes.
(b) Payment. The Company will not, directly or indirectly, pay or cause to be paid
any remuneration, whether by way of supplemental or additional interest, fee or otherwise, or grant any security or provide any other credit support, to any holder of Notes as consideration for or as an inducement to the entering into by such
holder of any waiver or amendment of any of the terms and provisions hereof or of the Guaranty Agreement unless such remuneration is concurrently paid, or security is concurrently granted or other credit support concurrently provided, on the same
terms, ratably to each holder of Notes then outstanding even if such holder did not consent to such waiver or amendment.
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(c) Consent in Contemplation of Transfer. Any consent made pursuant to this Section 17 or the Guaranty Agreement by a holder of a Note that has transferred a portion or has agreed to transfer all or a portion of its Notes to (i) the Company, (ii) any Subsidiary or any other Affiliate or
(iii) any other Person in connection with, or in anticipation of, such other Person acquiring, making a tender offer for or merging with the Company and/or any of its Affiliates and, in each case, has provided or has agreed to provide such written
consent as a condition to such transfer shall be void and of no force and effect except solely as to such holder, and any amendments effected or waivers granted or to be effected or granted that would not have been or be so effected or granted but
for such consent (and the consents of all other holders of Notes that were acquired under the same or similar conditions) shall be void and of no force or effect except solely as to such holder.
Section 17.3. Binding Effect, Etc. Any amendment or waiver consented to as provided in
this Section 17 or the Guaranty Agreement applies equally to all Purchasers and holders of Notes and is binding upon them and upon each future holder of any Note and upon the Company without regard to
whether such Note has been marked to indicate such amendment or waiver. No such amendment or waiver will extend to or affect any obligation, covenant, agreement, Default or Event of Default not expressly amended or waived or impair any right
consequent thereon. No course of dealing between the Company and any Purchaser or holder of any Note nor any delay in exercising any rights hereunder or under any Note or the Guaranty Agreement shall operate as a waiver of any rights of any
Purchaser or holder of such Note. As used herein, the term “this Agreement” and references thereto shall mean this Agreement as it may from time to time be amended or supplemented.
Section 17.4. Notes Held by Company, Etc. Solely for the purpose of determining whether
the holders of all or the requisite percentage of the aggregate principal amount of Notes then outstanding approved or consented to any amendment, waiver or consent to be given under this Agreement, the Guaranty Agreement or the Notes, or have
directed the taking of any action provided herein or in the Guaranty Agreement or the Notes to be taken upon the direction of the holders of a specified percentage of the aggregate principal amount of Notes then outstanding, Notes directly or
indirectly owned by the Company or any of its Affiliates shall be deemed not to be outstanding.
Section 18. Notices.
Except to the extent otherwise provided in Section 7 with respect to Electronic Delivery, all notices and communications provided for hereunder shall be in
writing and sent (a) by telefacsimile if the sender on the same day sends a confirming copy of such notice by a recognized overnight delivery service (charges prepaid), (b) by registered or certified mail with return receipt requested (postage
prepaid) or (c) by a recognized overnight delivery service (charges prepaid). Any such notice must be sent:
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(1) if to any Purchaser or its nominee, to such Purchaser or its nominee at the address specified for such communications in Schedule A, or at such other address as such Purchaser or its nominee shall have specified to the Company in writing,
(2) if to any other holder of any Note, to such holder at such address as such other holder shall have specified to the Company
in writing, or
(3) if to the Company, to the Company at its address set forth at the beginning hereof to the attention of the Chief Financial
Officer of the Company, or at such other address as the Company shall have specified to the holder of each Note in writing.
Notices under this Section 18 will be deemed given only when actually received.
Section 19. Reproduction of Documents.
This Agreement and all documents relating hereto, including, without limitation, (a) consents, waivers and modifications that may hereafter be executed, (b) documents received by the Purchasers on
the date of this Agreement or the holders of Notes at the Closing (except the Notes themselves) and (c) financial statements, certificates and other information previously or hereafter furnished to any Purchaser or holder of the Notes, may be
reproduced by such Purchaser or such holder by any photographic, photostatic, microfilm, microcard, miniature photographic or other similar process and such Purchaser or such holder may destroy any original document so reproduced. The Company
agrees and stipulates that, to the extent permitted by applicable law, any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and
whether or not such reproduction was made by any Purchaser or holder of the Notes in the regular course of business) and any enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in evidence. This Section 19 shall not prohibit the Company or any other Purchaser or holder of a Note from contesting any such reproduction to the same extent that it could contest the original, or from introducing evidence to
demonstrate the inaccuracy of any such reproduction.
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Section 20. Confidential Information.
For the purposes of this Section 20, “Confidential Information” shall mean information delivered to any Purchaser
by or on behalf of the Company or any Subsidiary in connection with the transactions contemplated by or otherwise pursuant to this Agreement that is proprietary in nature and that was clearly marked or labeled or otherwise adequately identified
when received by such Purchaser as being confidential information of the Company or such Subsidiary, provided that such term does not include information that (a) was publicly known or otherwise known to such Purchaser prior to the time of such
disclosure (provided, however, that to such Purchaser’s actual knowledge, the source of such information was not, at the time of disclosure to such Purchaser, bound by a confidentiality agreement with the Company or its Subsidiaries relating to
such information), (b) subsequently becomes publicly known through no act or omission by such Purchaser or any Person acting on such Purchaser’s behalf, (c) otherwise becomes known to such Purchaser other than through disclosure by the Company or
any Subsidiary (provided, however, that to such Purchaser’s actual knowledge, the source of such information was not, at the time of disclosure to such Purchaser, bound by a confidentiality agreement with the Company or its Subsidiaries relating to
such information) or (d) constitutes financial statements delivered to such Purchaser under Section 7.1 that are otherwise publicly available. Each Purchaser will maintain the confidentiality of such
Confidential Information in accordance with procedures adopted by such Purchaser in good faith to protect confidential information of third parties delivered to such Purchaser, provided that such Purchaser may deliver or disclose Confidential
Information to (1) its directors, officers, trustees, employees, agents, attorneys and affiliates (to the extent such disclosure reasonably relates to the administration of the investment represented by its Notes and such individuals are bound by
the terms of this Section 20 or agree to hold confidential the Confidential Information substantially in accordance with the terms of this Section 20), (2) its
auditors, financial advisors and other professional advisors who agree to hold confidential the Confidential Information substantially in accordance with the terms of this Section 20, (3) any other holder of
any Note, (4) any Institutional Investor to which such Purchaser sells or offers to sell such Note or any part thereof or any participation therein (if such Person has agreed in writing prior to its receipt of such Confidential Information to be
bound by the provisions of this Section 20), (5) any Person from which such Purchaser offers to purchase any security of the Company (if such Person has agreed in writing prior to its receipt of such
Confidential Information to be bound by the provisions of this Section 20), (6) any Federal or state regulatory authority having jurisdiction over such Purchaser, (7) the NAIC or the SVO or, in each case,
any similar organization, or any nationally recognized rating agency that requires access to information about such Purchaser’s investment portfolio or (8) any other Person to which such delivery or disclosure may be necessary or appropriate (i) to
effect compliance with any law, rule, regulation or order applicable to such Purchaser, (ii) in response to any subpoena or other legal process, (iii) in connection with any litigation to which such Purchaser is a party or (iv) if an Event of
Default has occurred and is continuing, to the extent such Purchaser may reasonably determine such delivery and disclosure to be necessary or appropriate in the enforcement or for the protection of the rights and remedies under such Purchaser’s
Notes, this Agreement or the Guaranty Agreement (provided with respect to subclauses (i) (except where required disclosure of the purchase of the Notes is to be made to any supervisory or regulatory body
during the normal course of its exercise of its regulatory or supervisory function over such Purchaser and consistent with such Purchaser’s usual practice), (ii) and (iii) that, to the extent not prohibited by applicable law, rule, regulation or
order, such Purchaser shall use commercially reasonable efforts to notify the Company of such pending disclosure so that the Company may seek a protective order or to pursue such further legal action as may be necessary to preserve the privileged
nature and confidentiality of the Confidential Information). Each holder of a Note, by its acceptance of a Note, will be deemed to have agreed to be bound by and to be entitled to the benefits of this Section 20
as though it were a party to this Agreement. On reasonable request by the Company in connection with the delivery to any holder of a Note of information required to be delivered to such holder under this Agreement or requested by such holder
(other than a holder that is a party to this Agreement or its nominee), such holder will enter into an agreement with the Company embodying the provisions of this Section 20.
In the event that as a condition to receiving access to information relating to the Company or its Subsidiaries in connection with the transactions contemplated by or otherwise pursuant to this
Agreement, any Purchaser or holder of a Note is required to agree to a confidentiality undertaking (whether through Intralinks, another secure website, a secure virtual workspace or otherwise) which is different from this Section 20, this Section 20 shall not be amended thereby and, as between such Purchaser or such holder and the Company, this Section 20 shall
supersede any such other confidentiality undertaking.
- 44 -
Section 21. Substitution of Purchaser.
Each Purchaser shall have the right to substitute any one of its Affiliates as the purchaser of the Notes that such Purchaser has agreed to purchase hereunder, by written notice to the Company,
which notice shall be signed by both such Purchaser and such Affiliate, shall contain such Affiliate’s agreement to be bound by this Agreement and shall contain a confirmation by such Affiliate of the accuracy with respect to it of the
representations set forth in Section 6. Upon receipt of such notice, wherever the word “Purchaser” is used in this Agreement (other than in this Section 21), such
word shall be deemed to refer to such Affiliate in lieu of such Purchaser with respect to the Notes so purchased by such Affiliate. In the event that such Affiliate is so substituted as a purchaser hereunder and such Affiliate thereafter transfers
to such Purchaser all of the Notes then held by such Affiliate, upon receipt by the Company of notice of such transfer, wherever the word “Purchaser” is used in this Agreement (other than in this Section 21), such word shall no longer be deemed to
refer to such Affiliate, but shall refer to such Purchaser, and such Purchaser shall have all the rights of an original holder of the Notes under this Agreement.
Section 22. Miscellaneous.
Section 22.1. Successors and Assigns. All covenants and other agreements contained in
this Agreement by or on behalf of any of the parties hereto bind and inure to the benefit of their respective successors and assigns (including, without limitation, any subsequent holder of a Note) whether so expressed or not, except that, subject
to Section 10.7, the Company may not assign or otherwise transfer any of its rights or obligations hereunder or under the Notes without the prior written consent of each holder. Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than the parties hereto and their respective successors and assigns permitted hereby) any legal or equitable right, remedy or claim under or by reason of this Agreement.
Section 22.2. Submission to Jurisdiction; Waiver of Jury Trial. (a) The Company hereby
irrevocably submits to the non-exclusive jurisdiction of any State of New York court or any Federal court located in New York County, New York, New York for the adjudication of any matter arising out of or relating to this Agreement, and consents
to the service of all writs, process and summonses by registered or certified priority or express mail out of any such court or by service of process on the Company at its address to which notices are to be given pursuant to Section 18 hereof and hereby waives any requirement to have an agent for service of process in the State of New York. Nothing contained herein shall affect the right of any holder of the Notes to serve legal
process in any other manner or to bring any proceeding hereunder in any jurisdiction where the Company may be amenable to suit. The Company hereby irrevocably waives any objection to any suit, action or proceeding in any New York court or Federal
court located in New York County, New York, New York on the grounds of venue and hereby further irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
- 45 -
(b) THE PARTIES HERETO HEREBY WAIVE TRIAL BY JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS AGREEMENT, THE NOTES OR ANY
OTHER DOCUMENT EXECUTED IN CONNECTION HEREWITH OR THEREWITH.
Section 22.3. Payments Due on Non-Business Days. Anything in this Agreement or the
Notes to the contrary notwithstanding (but without limiting the requirement in Section 8.4 that the notice of any prepayment specify a Business Day as the date fixed for such prepayment), any payment of
principal of or Make-Whole Amount, if any, or interest on any Note that is due on a date other than a Business Day shall be made on the next succeeding Business Day without including the additional days elapsed in the computation of the interest
payable on such next succeeding Business Day; provided that if the maturity date of any Note is a date other than a Business Day, the payment otherwise due on such maturity date shall be made on the next succeeding Business Day and shall include
the additional days elapsed in the computation of interest payable on such next succeeding Business Day.
Section 22.4. Accounting Terms. All accounting terms used herein which are not
expressly defined in this Agreement have the meanings respectively given to them in accordance with GAAP. Except as otherwise specifically provided herein, (i) all computations made pursuant to this Agreement shall be made in accordance with GAAP,
and (ii) all financial statements shall be prepared in accordance with GAAP. Notwithstanding the foregoing, (a) if at any time any change in GAAP or in the application of GAAP would affect the computation of any financial ratio or requirement set
forth in this Agreement, and either the Company or the Required Holders shall so request, the holders of Notes and the Company shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such
change in GAAP (subject to the approval of the Required Holders); provided that, until so amended, such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change in GAAP shall have become effective,
(b) each financial ratio or requirement set forth in this Agreement shall be computed (i) to exclude any change to lease accounting rules from those in effect pursuant to Accounting Standards Codification 840 (Leases) and other related lease
accounting guidance as in effect on February 16, 2018 and (ii) using the methodology for the recognition of investment tax credits for solar generation projects used by the Company in the fiscal year ending September 30, 2019 and (c) the Company
shall provide to the holders of Notes, concurrently with the delivery of the financial statements required under this Agreement and as reasonably requested by any holder of Notes hereunder, a reconciliation between the calculation of any such
financial ratio or requirement made before and after giving effect to such changes in GAAP or the application thereof described in the foregoing clauses (a) and (b). For purposes of determining compliance with this Agreement (including, without
limitation, Section 9, Section 10 and the definition of “Debt”), any election by the Company to measure any financial liability using fair value (as permitted by Financial Accounting Standards Board
Accounting Standards Codification Topic No. 825-10-25 – Fair Value Option, International Accounting Standard 39 – Financial Instruments: Recognition and Measurement or any similar accounting standard) shall be disregarded and such determination
shall be made as if such election had not been made.
Section 22.5. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or render unenforceable such provision in any other jurisdiction.
- 46 -
Section 22.6. Construction. Each covenant contained herein shall be construed (absent
express provision to the contrary) as being independent of each other covenant contained herein, so that compliance with any one covenant shall not (absent such an express contrary provision) be deemed to excuse compliance with any other covenant.
Where any provision herein refers to action to be taken by any Person, or which such Person is prohibited from taking, such provision shall be applicable whether such action is taken directly or indirectly by such Person.
For the avoidance of doubt, all Schedules and Exhibits attached to this Agreement shall be deemed to be a part hereof.
Section 22.7. Counterparts; Electronic Contracting. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together shall constitute one instrument. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties
hereto. The parties agree to electronic contracting and signatures with respect to this Agreement, the Guaranty Agreement and any other agreement and instrument hereunder (other than the Notes). Delivery of an electronic signature to, or a signed
copy of, this Agreement, the Guaranty Agreement and any other agreement or instrument delivered hereunder (other than the Notes) by facsimile, email or other electronic transmission shall be fully binding on the parties to the same extent as the
delivery of the signed originals and shall be admissible into evidence for all purposes. Notwithstanding the foregoing, if any Purchaser shall request manually signed counterpart signatures to any agreement or instrument hereunder, the Company
hereby agrees to use its reasonable endeavors to provide such manually signed signature pages as soon as reasonably practicable.
Section 22.8. Governing Law. This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such State that would require the application of the laws of a jurisdiction other than such
State.
(Remainder of Page Left Intentionally Blank)
- 47 -
The execution hereof by the Purchasers shall constitute a contract between the Company and the Purchasers for the uses and purposes and on the terms hereinabove set forth.
| Very truly yours, |
|||
| New Jersey Resources Corporation |
|||
| By: |
/s/ Daniel Sergott | ||
| Name: | Daniel Sergott | ||
| Title: | Treasurer | ||
[Signature Page to Note Purchase Agreement]
The foregoing is hereby agreed
to as of the date hereof.
|
Catastrophe Reinsurance Company
|
|||
|
By:
|
BlackRock Financial Management, Inc., as | ||
|
Investment Manager
|
|||
|
By:
|
/s/ Violet Osterberg | ||
|
Name: Violet Osterberg
|
|||
|
Title: Managing Director
|
|||
|
Garrison Property & Casualty Insurance Company
|
|||
|
By:
|
BlackRock Financial Management, Inc., as |
||
|
Investment Manager
|
|||
|
By:
|
/s/ Violet Osterberg | ||
|
Name: Violet Osterberg
|
|||
|
Title: Managing Director
|
|||
|
United Services Automobile Association
|
|||
|
By:
|
BlackRock Financial Management, Inc., as | ||
|
Investment Manager
|
|||
|
By:
|
/s/ Violet Osterberg | ||
|
Name: Violet Osterberg
|
|||
|
Title: Managing Director
|
|||
[Signature Page to Note Purchase Agreement]
|
USAA Casualty Insurance Company
|
|||
|
By:
|
BlackRock Financial Management, Inc., as | ||
|
Investment Manager
|
|||
|
By:
|
/s/ Violet Osterberg | ||
|
Name: Violet Osterberg
|
|||
|
Title: Managing Director
|
|||
|
USAA General Indemnity Company
|
|||
|
By:
|
BlackRock Financial Management, Inc., as | ||
|
Investment Manager
|
|||
|
By:
|
/s/ Violet Osterberg | ||
|
Name: Violet Osterberg
|
|||
|
Title: Managing Director
|
|||
[Signature Page to Note Purchase Agreement]
|
USAA Life Insurance Company of New York
|
|||
|
By:
|
BlackRock Financial Management, Inc., as | ||
|
Investment Manager
|
|||
|
By:
|
/s/ Violet Osterberg | ||
|
Name: Violet Osterberg
|
|||
|
Title: Managing Director
|
|||
|
USAA Life Insurance Company
|
|||
|
By:
|
BlackRock Financial Management, Inc., as | ||
|
Investment Manager
|
|||
|
By:
|
/s/ Violet Osterberg | ||
|
Name: Violet Osterberg
|
|||
|
Title: Managing Director
|
|||
|
The United States Life Insurance Company in the City of New York
|
|||
|
By:
|
BlackRock Financial Management, Inc., as | ||
|
Investment Manager
|
|||
|
By:
|
/s/ Violet Osterberg | ||
|
Name: Violet Osterberg
|
|||
|
Title: Managing Director
|
|||
[Signature Page to Note Purchase Agreement]
|
American International Group UK Limited
|
|||
|
By:
|
BlackRock Financial Management, UK
|
||
|
Limited., as Investment Manager
|
|||
|
By:
|
/s/ Violet Osterberg
|
||
|
Name: Violet Osterberg
|
|||
|
Title: Managing Director
|
|||
|
Lexington Insurance Company
|
|||
|
By:
|
BlackRock Financial Management, Inc., as
|
||
|
Investment Manager
|
|||
|
By:
|
/s/ Violet Osterberg
|
||
|
Name: Violet Osterberg
|
|||
|
Title: Managing Director
|
|||
[Signature Page to Note Purchase Agreement]
|
Commerce and Industry Insurance Company
|
|||
|
By:
|
BlackRock Financial Management, Inc., as
|
||
|
Investment Manager
|
|||
|
By:
|
/s/ Violet Osterberg
|
||
|
Name: Violet Osterberg
|
|||
|
Title: Managing Director
|
|||
|
National Union Fire Insurance Company of Pittsburgh Pa
|
|||
|
By:
|
BlackRock Financial Management, Inc., as
|
||
|
Investment Manager
|
|||
|
By:
|
/s/ Violet Osterberg
|
||
|
Name: Violet Osterberg
|
|||
|
Title: Managing Director
|
|||
|
American Home Assurance Company
|
|||
|
By:
|
BlackRock Financial Management, Inc., as
|
||
|
Investment Manager
|
|||
|
By:
|
/s/ Violet Osterberg
|
||
|
Name: Violet Osterberg
|
|||
|
Title: Managing Director
|
|||
[Signature Page to Note Purchase Agreement]
|
Union Fidelity Life Insurance Company
|
|||
|
By:
|
BlackRock Financial Management, Inc., as
|
||
|
Investment Manager
|
|||
|
By:
|
/s/ Violet Osterberg
|
||
|
Name: Violet Osterberg
|
|||
|
Title: Managing Director
|
|||
[Signature Page to Note Purchase Agreement]
The foregoing is hereby agreed
to as of the date hereof.
|
Pacific Life Insurance Company
|
|||
|
By:
|
/s/ Cathy Schwartz
|
||
|
Name: Cathy Schwartz
|
|||
|
Title: Assistant Vice President
|
|||
[Signature Page to Note Purchase Agreement]
The foregoing is hereby agreed
to as of the date hereof.
|
Teachers Insurance and Annuity Association of America, a New York domiciled
life insurance company
|
|||
|
By:
|
Nuveen Alternatives Advisors LLC, a Delaware limited liability company, its investment manager
|
||
|
By:
|
/s/ Greg Miller
|
||
|
Name: Greg Miller
|
|||
|
Title: Senior Director
|
|||
[Signature Page to Note Purchase Agreement]
The foregoing is hereby agreed
to as of the date hereof.
|
Voya Private Credit Trust Fund-Goldman Sachs
|
|||
|
By:
|
Voya Investment Trust Co., as Trustee
|
||
|
By:
|
/s/ Shannon Juhan
|
||
|
Name: Shannon Juhan
|
|||
|
Title: Senior Vice President
|
|||
|
AAA Life Insurance Company Auto Club Life Insurance Company Automobile Club of Southern California Life Insurance Company Pacific Beacon Life Reassurance Inc.
State Compensation Insurance Fund Health Options, Inc. Blue Cross and Blue Shield of Florida, Inc.
|
|||
|
By:
|
Voya Investment Management Co. LLC, as Agent
|
||
|
By:
|
/s/ Shannon Juhan
|
||
|
Name: Shannon Juhan
|
|||
|
Title: Senior Vice President
|
|||
[Signature Page to Note Purchase Agreement]
The foregoing is hereby agreed
to as of the date hereof.
|
Enact Mortgage Insurance Corporation
|
|||
|
By:
|
/s/ Wm. Stuart Shepetin
|
||
|
Name: Wm. Stuart Shepetin
|
|||
|
Title: Investment Officer
|
|||
|
Genworth Life Insurance Company
|
|||
|
By:
|
/s/ Wm. Stuart Shepetin
|
||
|
Name: Wm. Stuart Shepetin
|
|||
|
Title: Investment Officer
|
|||
[Signature Page to Note Purchase Agreement]
The foregoing is hereby agreed
to as of the date hereof.
|
CoBank, ACB
|
|||
|
By:
|
/s/ Jared A. Greene
|
||
|
Name: Jared A. Greene
|
|||
|
Title: Assistant Corporate Secretary
|
|||
[Signature Page to Note Purchase Agreement]
The foregoing is hereby agreed
to as of the date hereof.
|
Gerber Life Insurance Company
|
|||
|
By:
|
/s/ Kevin L. Howard
|
||
|
Name: Kevin L. Howard
|
|||
|
Title: Vice President
|
|||
|
By:
|
/s/ Jay V. Johnson
|
||
|
Name: Jay V. Johnson
|
|||
|
Title: Vice President
|
|||
[Signature Page to Note Purchase Agreement]
The foregoing is hereby agreed
to as of the date hereof.
|
Continental Casualty Company
|
|||
|
By:
|
/s/ Anthony Pelafas
|
||
|
Name: Anthony Pelafas
|
|||
|
Title: Vice President
|
|||
[Signature Page to Note Purchase Agreement]
The foregoing is hereby agreed
to as of the date hereof.
|
TransAmerica Life Insurance Company
|
|||
|
BY:
|
AEGON USA Investment Management LLC, its investment manager
|
||
|
By:
|
/s/ Christopher D. Pahlke
|
||
|
Name: Christopher D. Pahlke
|
|||
|
Title: Vice President
|
|||
[Signature Page to Note Purchase Agreement]
Information Relating to Purchasers
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
Catastrophe Reinsurance Company
c/o BlackRock Financial Management, Inc.
50 Hudson Yards
New York, NY 10001
|
$100,000 | |
|
(1)
|
All payments on account of the Note held by such purchaser shall be made by wire transfer of immediately available funds for credit to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for all notices and communications via email to:
|
|
|
(3)
|
Contact information for all operational communications:
Violet Osterberg
Email: [email protected]
Telephone: (212) 810-5854
Group Email
Email: [email protected]
Email: [email protected]
Telephone: (212) 810-8358
David Birnbaum
Email: [email protected]
Telephone: (646) 231-1640
Matteo Guarino
Email: [email protected]
Telephone: (609) 282-3168
|
|
|
(3)
|
Address for physical delivery of the Note:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(4)
|
Nominee: None
|
|
|
(5)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
Schedule A
(to Note Purchase Agreement)
(to Note Purchase Agreement)
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
Garrison Property & Casualty Insurance Company
c/o BlackRock Financial Management, Inc.
50 Hudson Yards
New York, NY 10001
|
$200,000
|
|
|
(1)
|
All payments on account of the Note held by such purchaser shall be made by wire transfer of immediately available funds for credit to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for all notices and communications via email to:
|
|
|
(3)
|
Contact information for all operational communications:
Violet Osterberg
Email: [email protected]
Telephone: (212) 810-5854
Group Email
Email: [email protected]
Email: [email protected]
Telephone: (212) 810-8358
David Birnbaum
Email: [email protected]
Telephone: (646) 231-1640
Matteo Guarino
Email: [email protected]
Telephone: (609) 282-3168
|
|
|
(3)
|
Address for physical delivery of the Note:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(4)
|
Nominee: None
|
|
|
(5)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
A-2
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
United Services Automobile Association
c/o BlackRock Financial Management, Inc.
50 Hudson Yards
New York, NY 10001
|
$1,000,000
|
|
|
(1)
|
All payments on account of the Note held by such purchaser shall be made by wire transfer of immediately available funds for credit to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for all notices and communications via email to:
|
|
|
(3)
|
Contact information for all operational communications:
Violet Osterberg
Email: [email protected]
Telephone: (212) 810-5854
Group Email
Email: [email protected]
Email: [email protected]
Telephone: (212) 810-8358
David Birnbaum
Email: [email protected]
Telephone: (646) 231-1640
Matteo Guarino
Email: [email protected]
Telephone: (609) 282-3168
|
|
|
(3)
|
Address for physical delivery of the Note:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(4)
|
Nominee: None
|
|
|
(5)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
A-3
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
USAA Casualty Insurance Company
c/o BlackRock Financial Management, Inc.
50 Hudson Yards
New York, NY 10001
|
$700,000
|
|
|
(1)
|
All payments on account of the Note held by such purchaser shall be made by wire transfer of immediately available funds for credit to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for all notices and communications via email to:
|
|
|
(3)
|
Contact information for all operational communications:
Violet Osterberg
Email: [email protected]
Telephone: (212) 810-5854
Group Email
Email: [email protected]
Email: [email protected]
Telephone: (212) 810-8358
David Birnbaum
Email: [email protected]
Telephone: (646) 231-1640
Matteo Guarino
Email: [email protected]
Telephone: (609) 282-3168
|
|
|
(3)
|
Address for physical delivery of the Note:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(4)
|
Nominee: None
|
|
|
(5)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
A-4
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
USAA General Indemnity Company
c/o BlackRock Financial Management, Inc.
50 Hudson Yards
New York, NY 10001
|
$300,000
|
|
|
(1)
|
All payments on account of the Note held by such purchaser shall be made by wire transfer of immediately available funds for credit to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for all notices and communications via email to:
|
|
|
(3)
|
Contact information for all operational communications:
Violet Osterberg
Email: [email protected]
Telephone: (212) 810-5854
Group Email
Email: [email protected]
Email: [email protected]
Telephone: (212) 810-8358
David Birnbaum
Email: [email protected]
Telephone: (646) 231-1640
Matteo Guarino
Email: [email protected]
Telephone: (609) 282-3168
|
|
|
(3)
|
Address for physical delivery of the Note:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(4)
|
Nominee: None
|
|
|
(5)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
A-5
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
USAA Life Insurance Company of New York
c/o BlackRock Financial Management, Inc.
50 Hudson Yards
New York, NY 10001
|
$100,000
|
|
|
(1)
|
All payments on account of the Note held by such purchaser shall be made by wire transfer of immediately available funds for credit to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for all notices and communications via email to:
|
|
|
(3)
|
Contact information for all operational communications:
Violet Osterberg
Email: [email protected]
Telephone: (212) 810-5854
Group Email
Email: [email protected]
Email: [email protected]
Telephone: (212) 810-8358
David Birnbaum
Email: [email protected]
Telephone: (646) 231-1640
Matteo Guarino
Email: [email protected]
Telephone: (609) 282-3168
|
|
|
(3)
|
Address for physical delivery of the Note:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(4)
|
Nominee: None
|
|
|
(5)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
A-6
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
USAA Life Insurance Company
c/o BlackRock Financial Management, Inc.
50 Hudson Yards
New York, NY 10001
|
$500,000
|
|
|
(1)
|
All payments on account of the Note held by such purchaser shall be made by wire transfer of immediately available funds for credit to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for all notices and communications via email to:
|
|
|
(3)
|
Contact information for all operational communications:
Violet Osterberg
Email: [email protected]
Telephone: (212) 810-5854
Group Email
Email: [email protected]
Email: [email protected]
Telephone: (212) 810-8358
David Birnbaum
Email: [email protected]
Telephone: (646) 231-1640
Matteo Guarino
Email: [email protected]
Telephone: (609) 282-3168
|
|
|
(3)
|
Address for physical delivery of the Note:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(4)
|
Nominee: None
|
|
|
(5)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
A-7
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
USAA Life Insurance Company
c/o BlackRock Financial Management, Inc.
50 Hudson Yards
New York, NY 10001
|
$500,000
|
|
|
(1)
|
All payments on account of the Note held by such purchaser shall be made by wire transfer of immediately available funds for credit to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for all notices and communications via email to:
|
|
|
(3)
|
Contact information for all operational communications:
Violet Osterberg
Email: [email protected]
Telephone: (212) 810-5854
Group Email
Email: [email protected]
Email: [email protected]
Telephone: (212) 810-8358
David Birnbaum
Email: [email protected]
Telephone: (646) 231-1640
Matteo Guarino
Email: [email protected]
Telephone: (609) 282-3168
|
|
|
(3)
|
Address for physical delivery of the Note:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(4)
|
Nominee: None
|
|
|
(5)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
A-8
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
USAA Life Insurance Company
c/o BlackRock Financial Management, Inc.
50 Hudson Yards
New York, NY 10001
|
$2,200,000
|
|
|
(1)
|
All payments on account of the Note held by such purchaser shall be made by wire transfer of immediately available funds for credit to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for all notices and communications via email to:
|
|
|
(3)
|
Contact information for all operational communications:
Violet Osterberg
Email: [email protected]
Telephone: (212) 810-5854
Group Email
Email: [email protected]
Email: [email protected]
Telephone: (212) 810-8358
David Birnbaum
Email: [email protected]
Telephone: (646) 231-1640
Matteo Guarino
Email: [email protected]
Telephone: (609) 282-3168
|
|
|
(3)
|
Address for physical delivery of the Note:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(4)
|
Nominee: None
|
|
|
(5)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
A-9
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
Union Fidelity Life Insurance Company
c/o BlackRock Financial Management, Inc.
50 Hudson Yards
New York, NY 10001
|
$2,000,000
|
|
|
(1)
|
All payments on account of the Note held by such purchaser shall be made by wire transfer of immediately available funds for credit to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for all notices and communications via email to:
|
|
|
(3)
|
Contact information for all operational communications:
Violet Osterberg
Email: [email protected]
Telephone: (212) 810-5854
Group Email
Email: [email protected]
Email: [email protected]
Telephone: (212) 810-8358
David Birnbaum
Email: [email protected]
Telephone: (646) 231-1640
Matteo Guarino
Email: [email protected]
Telephone: (609) 282-3168
|
|
|
(3)
|
Address for physical delivery of the Note:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(4)
|
Nominee: None
|
|
|
(5)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
A-10
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
American Home Assurance Company
c/o BlackRock Financial Management, Inc.
50 Hudson Yards
New York, NY 10001
|
$1,200,000
|
|
|
(1)
|
All payments on account of the Note held by such purchaser shall be made by wire transfer of immediately available funds for credit to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for all notices and communications via email to:
|
|
|
(3)
|
Contact information for all operational communications:
Violet Osterberg
Email: [email protected]
Telephone: (212) 810-5854
Group Email
Email: [email protected]
Email: [email protected]
Telephone: (212) 810-8358
David Birnbaum
Email: [email protected]
Telephone: (646) 231-1640
|
|
|
(3)
|
Address for physical delivery of the Note:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(4)
|
Nominee: None
|
|
|
(5)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
A-11
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
National Union Fire Insurance Company of Pittsburgh PA
c/o BlackRock Financial Management, Inc.
50 Hudson Yards
New York, NY 10001
|
$1,100,000
|
|
|
(1)
|
All payments on account of the Note held by such purchaser shall be made by wire transfer of immediately available funds for credit to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for all notices and communications via email to:
|
|
|
(3)
|
Contact information for all operational communications:
Violet Osterberg
Email: [email protected]
Telephone: (212) 810-5854
Group Email
Email: [email protected]
Email: [email protected]
Telephone: (212) 810-8358
David Birnbaum
Email: [email protected]
Telephone: (646) 231-1640
Matteo Guarino
Email: [email protected]
Telephone: (609) 282-3168
|
|
|
(3)
|
Address for physical delivery of the Note:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(4)
|
Nominee: None
|
|
|
(5)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
A-12
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
Commerce and Industry Insurance Company
c/o BlackRock Financial Management, Inc.
50 Hudson Yards
New York, NY 10001
|
$100,000
|
|
|
(1)
|
All payments on account of the Note held by such purchaser shall be made by wire transfer of immediately available funds for credit to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for all notices and communications via email to:
|
|
|
(3)
|
Contact information for all operational communications:
Violet Osterberg
Email: [email protected]
Telephone: (212) 810-5854
Group Email
Email: [email protected]
Email: [email protected]
Telephone: (212) 810-8358
David Birnbaum
Email: [email protected]
Telephone: (646) 231-1640
Matteo Guarino
Email: [email protected]
Telephone: (609) 282-3168
|
|
|
(3)
|
Address for physical delivery of the Note:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(4)
|
Nominee: None
|
|
|
(5)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
A-13
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
Lexington Insurance Company
c/o BlackRock Financial Management, Inc.
50 Hudson Yards
New York, NY 10001
|
$1,100,000
|
|
|
(1)
|
All payments on account of the Note held by such purchaser shall be made by wire transfer of immediately available funds for credit to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for all notices and communications via email to:
|
|
|
(3)
|
Contact information for all operational communications:
Violet Osterberg
Email: [email protected]
Telephone: (212) 810-5854
Group Email
Email: [email protected]
Email: [email protected]
Telephone: (212) 810-8358
David Birnbaum
Email: [email protected]
Telephone: (646) 231-1640
Matteo Guarino
Email: [email protected]
Telephone: (609) 282-3168
|
|
|
(3)
|
Address for physical delivery of the Note:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(4)
|
Nominee: None
|
|
|
(5)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
A-14
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
American International Group UK Limited
c/o BlackRock Financial Management, Inc.
50 Hudson Yards
New York, NY 10001
|
$700,000
|
|
|
(1)
|
All payments on account of the Note held by such purchaser shall be made by wire transfer of immediately available funds for credit to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for all notices and communications via email to:
|
|
|
(3)
|
Contact information for all operational communications:
Violet Osterberg
Email: [email protected]
Telephone: (212) 810-5854
Group Email
Email: [email protected]
Email: [email protected]
Telephone: (212) 810-8358
David Birnbaum
Email: [email protected]
Telephone: (646) 231-1640
Matteo Guarino
Email: [email protected]
Telephone: (609) 282-3168
|
|
|
(3)
|
Address for physical delivery of the Note:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(4)
|
Nominee: None
|
|
|
(5)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
A-15
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
The United States Life Insurance Company in the City of New York
c/o BlackRock Financial Management, Inc.
50 Hudson Yards
New York, NY 10001
|
$4,200,000
|
|
|
(1)
|
All payments on account of the Note held by such purchaser shall be made by wire transfer of immediately available funds for credit to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for all notices and communications via email to:
|
|
|
(3)
|
Contact information for all operational communications:
Email: [email protected]
Telephone: (212) 810-8358
David Birnbaum
Email: [email protected]
Telephone: (646) 231-1640
Matteo Guarino
Email: [email protected]
Telephone: (609) 282-3168
|
|
|
(3)
|
Address for physical delivery of the Note:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(4)
|
Nominee: None
|
|
|
(5)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
A-16
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
Pacific Life Insurance Company
700 Newport Center Drive, 3rd Floor
Newport Beach, CA 92660
|
$15,000,000
|
|
|
(1)
|
All payments of principal and interest shall be made by wire transfer of immediately available funds to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for all notices of payments and written confirmations of such wire transfers:
The Bank of New York Mellon
Attn: Pacific Life Accounting Team
One Mellon Bank Center – Room 1130
Pittsburgh, PA 15258-0001
and
Pacific Life Insurance Company
Attn: IM – Cash Team
700 Newport Center Drive
Newport Beach, CA 92660
Fax: 949-718-5845
|
|
|
(3)
|
Address for all other communications:
Pacific Life Insurance Company
Attn: IM – Credit Analysis
700 Newport Center Drive
Newport Beach, CA 92660-6397
Email: [email protected]
|
|
|
(4)
|
Address for physical delivery of the Notes:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(5)
|
Nominee: Mac & Co., as nominee for Pacific Life Insurance Company
|
|
|
(6)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
A-17
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
Teachers Insurance and Annuity Association of America
730 Third Avenue
New York, NY 10017
|
$15,000,000
|
|
|
(1)
|
All payments on or in respect of the Note held by Teachers Insurance and Annuity Association of America shall be made in immediately available funds on the due date by electronic funds
transfer, through the Automated Clearing House System, to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for notices with respect to payments and prepayments of the Note shall be sent to:
[email protected], and
copy to:
JPMorgan Chase Bank, N.A.
P.O. Box 35308
Newark, New Jersey 07101
Contemporaneous written confirmation of any electronic funds transfer shall be sent to the above addresses setting forth (1) the full name, private placement number, interest rate and
maturity date of the Notes, (2) allocation of payment between principal, interest, Make-Whole Amount, other premium or any special payment and (3) the name and address of the bank from which such electronic funds transfer was sent.
|
|
|
(3)
|
Address for all notices and communications, including notices with respect to payments and prepayments:
Teachers Insurance and Annuity Association of America
c/o Nuveen Alternatives Advisors LLC
8500 Andrew Carnegie Blvd.
Charlotte, NC 28262
Attn: Private Placements
Email: [email protected]
Telephone: (704) 988-4349 (Name: Ho-Young Lee)
(212) 916-4000 (General Number)
Facsimile: (704) 988-4916
copy to:
Nuveen Alternatives Advisors LLC
8500 Andrew Carnegie Blvd.
Charlotte, NC 28262-8500
Attn: Legal Department
Attn: Trevor Sanford, Associate General Counsel
E-mail: [email protected]
Telephone: (704) 988-4092
(212) 916-4000 (General Number)
|
|
|
(4)
|
Address for Servicer Reports (or the equivalent) shall be delivered electronically to:
Email: [email protected] and
|
|
|
(5)
|
Address for physical delivery of the Note:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(6)
|
Nominee: None.
|
|
|
(7)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
A-18
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
Voya Investment Trust Co., as trustee for the Voya Private Credit Trust Fund - Goldman Sachs
5780 Powers Ferry Road NW, Suite 300
Atlanta, GA 30327
|
$2,000,000
|
|
|
(1)
|
All payments on account of the Note held by such purchaser shall be made by wire transfer of immediately available funds for credit to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for all notices relating to payments and audit confirmations:
BNYM Mellon Asset Servicing
11486 Corporate Blvd., Suite 200
Orlando, FL 32817-8371
Attn: Operations/Settlements
Email: [email protected]
|
|
|
(3)
|
Address for all other communications and notices:
Voya Investment Trust Co.
5780 Powers Ferry Road NW, Suite 300
Atlanta, GA 30327-4347
Attn: Private Placements
Fax: (770) 690-5342
Email: [email protected] and [email protected]
|
|
|
(4)
|
Address for physical delivery of the Note:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(5)
|
Nominee: None
|
|
|
(6)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
A-19
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
AAA Life Insurance Company
5780 Powers Ferry Road NW, Suite 300
Atlanta, GA 30327
|
$1,000,000
|
|
|
(1)
|
All payments on account of the Note held by such purchaser shall be made by wire transfer of immediately available funds for credit to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for all notices relating to payments and audit confirmations:
BNYM Mellon Asset Servicing
11486 Corporate Blvd., Suite 200
Orlando, FL 32817-8371
Attn: Operations/Settlements
Email: [email protected]
|
|
|
(3)
|
Address for all other communications and notices:
Voya Investment Management Co. LLC
5780 Powers Ferry Road NW, Suite 300
Atlanta, GA 30327-4347
Attn: Private Placements
Fax: (770) 690-5342
Email: [email protected] and [email protected]
|
|
|
(4)
|
Address for physical delivery of the Note:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(5)
|
Nominee: None
|
|
|
(6)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
A-20
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
Auto Club Life Insurance Company
5780 Powers Ferry Road NW, Suite 300
Atlanta, GA 30327
|
$1,000,000
|
|
|
(1)
|
All payments on account of the Note held by such purchaser shall be made by wire transfer of immediately available funds for credit to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for all notices relating to payments and audit confirmations:
BNYM Mellon Asset Servicing
11486 Corporate Blvd., Suite 200
Orlando, FL 32817-8371
Attn: Operations/Settlements
Email: [email protected]
|
|
|
(3)
|
Address for all other communications and notices:
Voya Investment Management Co. LLC
5780 Powers Ferry Road NW, Suite 300
Atlanta, GA 30327-4347
Attn: Private Placements
Fax: (770) 690-5342
Email: [email protected] and [email protected]
|
|
|
(4)
|
Address for physical delivery of the Note:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(5)
|
Nominee: None
|
|
|
(6)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
A-21
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
Automobile Club of Southern California Life Insurance Company
5780 Powers Ferry Road NW, Suite 300
Atlanta, GA 30327
|
$2,000,000
|
|
|
(1)
|
All payments on account of the Note held by such purchaser shall be made by wire transfer of immediately available funds for credit to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for all notices relating to payments and audit confirmations:
BNYM Mellon Asset Servicing
11486 Corporate Blvd., Suite 200
Orlando, FL 32817-8371
Attn: Operations/Settlements
Email: [email protected]
|
|
|
(3)
|
Address for all other communications and notices:
Voya Investment Management Co. LLC
5780 Powers Ferry Road NW, Suite 300
Atlanta, GA 30327-4347
Attn: Private Placements
Fax: (770) 690-5342
Email: [email protected] and [email protected]
|
|
|
(4)
|
Address for physical delivery of the Note:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(5)
|
Nominee: None
|
|
|
(6)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
A-22
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
Pacific Beacon Life Reassurance Inc.
5780 Powers Ferry Road NW, Suite 300
Atlanta, GA 30327
|
$1,000,000
|
|
|
(1)
|
All payments on account of the Note held by such purchaser shall be made by wire transfer of immediately available funds for credit to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for all notices relating to payments and audit confirmations:
BNYM Mellon Asset Servicing
11486 Corporate Blvd., Suite 200
Orlando, FL 32817-8371
Attn: Operations/Settlements
Email: [email protected]
|
|
|
(3)
|
Address for all other communications and notices:
Voya Investment Management Co. LLC
5780 Powers Ferry Road NW, Suite 300
Atlanta, GA 30327-4347
Attn: Private Placements
Fax: (770) 690-5342
Email: [email protected] and [email protected]
|
|
|
(4)
|
Address for physical delivery of the Note:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(5)
|
Nominee: None
|
|
|
(6)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
A-23
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
State Compensation Insurance Fund
5780 Powers Ferry Road NW, Suite 300
Atlanta, GA 30327
|
$1,000,000
|
|
|
(1)
|
All payments on account of the Note held by such purchaser shall be made by wire transfer of immediately available funds for credit to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for all notices relating to payments and audit confirmations:
BNYM Mellon Asset Servicing
11486 Corporate Blvd., Suite 200
Orlando, FL 32817-8371
Attn: Operations/Settlements
Email: [email protected]
|
|
|
(3)
|
Address for all other communications and notices:
Voya Investment Management Co. LLC
5780 Powers Ferry Road NW, Suite 300
Atlanta, GA 30327-4347
Attn: Private Placements
Fax: (770) 690-5342
Email: [email protected] and [email protected]
|
|
|
(4)
|
Address for physical delivery of the Note:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(5)
|
Nominee: BAND & CO.
|
|
|
(6)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
A-24
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
Health Options, Inc.
5780 Powers Ferry Road NW, Suite 300
Atlanta, GA 30327
|
$1,000,000
|
|
|
(1)
|
All payments on account of the Note held by such purchaser shall be made by wire transfer of immediately available funds for credit to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for all notices relating to payments and audit confirmations:
BNYM Mellon Asset Servicing
11486 Corporate Blvd., Suite 200
Orlando, FL 32817-8371
Attn: Operations/Settlements
Email: [email protected]
|
|
|
(3)
|
Address for all other communications and notices:
Voya Investment Management Co. LLC
5780 Powers Ferry Road NW, Suite 300
Atlanta, GA 30327-4347
Attn: Private Placements
Fax: (770) 690-5342
Email: [email protected] and [email protected]
|
|
|
(4)
|
Address for physical delivery of the Note:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(5)
|
Nominee: None
|
|
|
(6)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
A-25
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
Blue Cross and Blue Shield of Florida, Inc.
5780 Powers Ferry Road NW, Suite 300
Atlanta, GA 30327
|
$1,000,000
|
|
|
(1)
|
All payments on account of the Note held by such purchaser shall be made by wire transfer of immediately available funds for credit to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for all notices relating to payments and audit confirmations:
BNYM Mellon Asset Servicing
11486 Corporate Blvd., Suite 200
Orlando, FL 32817-8371
Attn: Operations/Settlements
Email: [email protected]
|
|
|
(3)
|
Address for all other communications and notices:
Voya Investment Management Co. LLC
5780 Powers Ferry Road NW, Suite 300
Atlanta, GA 30327-4347
Attn: Private Placements
Fax: (770) 690-5342
Email: [email protected] and [email protected]
|
|
|
(4)
|
Address for physical delivery of the Note:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(5)
|
Nominee: None
|
|
|
(6)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
A-26
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
Enact Mortgage Insurance Corporation
3001 Summer Street, 4th Floor
Stamford, CT 06905
|
$4,000,000
|
|
|
(1)
|
All payments on or in respect of the Note shall be made by wire transfer of immediately available funds to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for notices with respect to corporate actions, including payments and prepayments and written confirmation of each such payment or prepayment, including interest payment and prepayment, redemptions,
premiums, make wholes, and fees:
The Bank of New York
Income Collection Department
P.O. Box 392002
Pittsburgh, PA 15251
Attn: Income Collection Department
Ref: Genworth, 142675
P&I Contact: [email protected]
Copy via email to: [email protected] and [email protected]
Additional copy to:
Genworth Financial, Inc.
3001 Summer Street
Stamford, CT 06905
Attn: Private Placements
Telephone: (203) 708-3300
Fax: (203) 708-3308
|
|
|
(3)
|
Address for all other notices and communications:
Genworth Financial, Inc.
3001 Summer Street, 4th Floor
Stamford, CT 06905
Attn: Private Placements/Trade Operations
Telephone: (203) 708-3300
Fax: (203) 708-3308
Email: [email protected]
|
|
|
(4)
|
Address for physical delivery of the Note:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(5)
|
Nominee: HARE & CO., LLC (as nominee for Enact Mortgage Insurance Corporation)
|
|
|
(6)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
A-27
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
Genworth Life Insurance Company
3001 Summer Street, 4th Floor
Stamford, CT 06905
|
$2,000,000
$2,000,000
$2,000,000
|
|
|
(1)
|
All payments on or in respect of the Notes shall be made by wire transfer of immediately available funds to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for notices with respect to corporate actions, including payments and prepayments and written confirmation of each such payment or prepayment, including interest payment and prepayment, redemptions,
premiums, make wholes, and fees:
The Bank of New York
Income Collection Department
P.O. Box 392002
Pittsburgh, PA 15251
Attn: Income Collection Department
Ref: Genworth, 364781
P&I Contact: [email protected]
Copy via email to: [email protected] and [email protected]
Additional copy to:
Genworth Financial, Inc.
3001 Summer Street
Stamford, CT 06905
Attn: Private Placements
Telephone: (203) 708-3300
Fax: (203) 708-3308
|
|
|
(3)
|
Address for all other notices and communications:
Genworth Financial, Inc.
3001 Summer Street, 4th Floor
Stamford, CT 06905
Attn: Private Placements
Telephone: (203) 708-3300
Fax: (203) 708-3308
Email: [email protected]
|
|
|
(4)
|
Address for physical delivery of the Notes:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(5)
|
Nominee: HARE & CO., LLC (as nominee for Genworth Life Insurance Company)
|
|
|
(6)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
A-28
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
CoBank, ACB
6340 S. Fiddlers Green Circle
Greenwood Village, CO 80111
|
$10,000,000
|
|
|
(1)
|
All payments shall be made by wire transfer of immediately available funds to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for notices and communications related to operational matters (including repayments and funding):
Primary Contact:
Scott Kendall
6340 S. Fiddlers Green Circle
Greenwood Village, CO 80111
Telephone: (303) 740-4017
Secondary Contact:
Rick Kruger
6340 S. Fiddlers Green Circle
Greenwood Village, CO 80111
Telephone: (303) 740-4101
via email to: [email protected]
|
|
|
(3)
|
Address for notices and communications relating to compliance matters and financial statements:
Valerie Webster
6340 S. Fiddlers Green Circle
Greenwood Village, CO 80111
Telephone: (303) 740-4366
Email: [email protected]
|
|
|
(4)
|
Address for all other notices and communications:
Primary Contact:
Dave Willis
6340 S. Fiddlers Green Circle
Greenwood Village, CO 80111
Telephone: (303) 793-2172
Email: [email protected]
Secondary Contact:
Valerie Webster
6340 S. Fiddlers Green Circle
Greenwood Village, CO 80111
Telephone: (303) 740-4366
Email: [email protected]
|
|
|
(5)
|
Address for physical delivery of the Note:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(6)
|
Nominee: None
|
|
|
(7)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
A-29
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
Gerber Life Insurance Company
400 East Fourth Street, MS 80
Cincinnati, OH 45202
|
$10,000,000
|
|
|
(1)
|
All payments shall be made by wire transfer of immediately available funds to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for notices of payments, wire transfers and audit confirmations:
Gerber Life Insurance Company
400 East Fourth Street, MS 80
Cincinnati, OH 45202-3302
Email: [email protected]
|
|
|
(3)
|
Address for all other communications:
Fort Washington Investment Advisors
Suite 1200 - Private Placements
303 Broadway
Cincinnati, OH 45202
Email: [email protected]
|
|
|
(4)
|
Address for physical delivery of the Note:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(5)
|
Nominee: Hare & Co LLC, on behalf of Gerber Life Insurance Company
|
|
|
(6)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
A-30
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
Continental Casualty Company
151 N. Franklin Street, 15th Floor
Chicago, IL 60606
|
$7,000,000
|
|
|
(1)
|
All payments by wire transfer of immediately available funds to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for all notices of fundings, payments and written confirmation of wire transfers:
Continental Casualty Company
151 N. Franklin Street, 15th Floor
Attn: Private Placements – Anthony Pelafas
Chicago, IL 60606
and via email to:
|
|
|
(3)
|
Address for all other notices and communications (send via email only unless electronic copy of such notice or communication is not available, then send via fax):
Continental Casualty Company
151 N. Franklin Street
Chicago, IL 60606
Attn: Anthony Pelafas, 15th Floor
Telephone: (312) 822-2479
copy to:
Loews Corporation
9 West 57th Street
New York, NY 10019
Attn: Matthew Meyer, 19th Floor
Email: [email protected]
Phone: (212) 521-2454
Loews Corporation
9 West 57th Street
New York, NY 10019
Attn: Diana Jin, 19th Floor
Email: [email protected]
Phone: (212) 521-2325
Loews Corporation
9 West 57th Street
New York, NY 10019
Attn: Eduardo Rea, 19th Floor
E-mail: [email protected]
Phone: (212) 521- 2221
|
|
|
(4)
|
Address for physical delivery of the Note:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(5)
|
Nominee: None
|
|
|
(6)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
A-31
|
Name and Address of Purchaser
|
Principal
Amount of Notes to be Purchased
|
|
|
Transamerica Life Insurance Company
6300 C Street SW
Cedar Rapids, IA 52499
|
$7,000,000
|
|
|
(1)
|
All payments shall be made by wire transfer to:
Wire instructions redacted and provided to the Company under separate cover.
|
|
|
(2)
|
Address for all notices and confirmation of payment:
AEGON USA Investment Management, LLC
Attn: AAM GA Portfolio Accounting MS 3G-CR
6300 C Street SW
Cedar Rapids, IA 52499
Email: [email protected]
Ref: PPN: 646025 F@0
and to:
AEGON USA Investment Management, LLC
Attn: Private Placements MS 3C-CR
6300 C Street SW
Cedar Rapids, IA 52499
Email: [email protected] and [email protected]
Ref: PPN: 646025 F@0
|
|
|
(3)
|
Address for all other notices and communications:
AEGON USA Investment Management, LLC
Attn: Director of Private Placements MS 3C-CR
6300 C Street SW
Cedar Rapids, IA 52499
Telephone: (319) 355-2429
Email: [email protected] and [email protected]
|
|
|
(4)
|
Address for physical delivery of the Note:
Delivery instructions redacted and provided to Company under separate cover.
|
|
|
(5)
|
Nominee: None
|
|
|
(6)
|
U.S. Tax Identification Number: Redacted and provided to Company under separate cover.
|
|
A-32
Defined Terms
As used herein, the following terms have the respective meanings set forth below or set forth in the Section hereof following such term:
“Acceptable Rating Agency” shall mean (a) Fitch, Moody’s, S&P, DBRS/Morningstar or
Kroll, or (b) any other credit rating agency that is recognized as a nationally recognized statistical rating organization by the SEC and approved by the Required Holders, so long as, in each case, any such credit rating agency described in
clause (a) or (b) above continues to be a nationally recognized statistical rating organization recognized by the SEC and is approved as a “Credit Rating Provider” (or other similar designation) by the NAIC.
“Affiliate” shall mean, (a) at any time, and with respect to any Person, any other Person
that at such time directly or indirectly through one or more intermediaries Controls, or is Controlled by, or is under common Control with, such first Person and (b) any Person beneficially owning or holding, directly or indirectly, 10% or more
of any class of equity or Voting Stock of the Company or any Subsidiary or any Person of which the Company and its Subsidiaries beneficially own or hold, in the aggregate, directly or indirectly, 10% or more of any class of equity or Voting
Stock. As used in this definition, “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of Voting Stock, by contract or
otherwise. Unless the context otherwise clearly requires, any reference to an “Affiliate” is a reference to an Affiliate of the Company.
“Agreement” shall mean this Note Purchase Agreement, including all Schedules and Exhibits
attached to this Agreement, as it may be amended, restated, supplemented or otherwise modified from time to time.
“Anti-Corruption Laws” shall mean any law or regulation in a U.S. or any non-U.S.
jurisdiction regarding bribery or any other corrupt activity, including, but not limited to the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act 2010.
“Anti-Money Laundering Laws” shall mean any law or regulation in a U.S. or any non-U.S.
jurisdiction regarding money laundering, drug trafficking, terrorist-related activities or other money laundering predicate crimes, including but not limited to the Currency and Foreign Transactions Reporting Act of 1970 (otherwise known as the
Bank Secrecy Act) and the USA PATRIOT Act.
“Asset Disposition” shall mean any Transfer except:
(a) any
(1) Transfer from a Restricted Subsidiary to the Company or a Wholly-Owned Restricted Subsidiary; and
(2) Transfer from the Company to a Wholly-Owned Restricted Subsidiary;
Schedule B
(to Note Purchase Agreement)
(to Note Purchase Agreement)
so long as immediately before and immediately after the consummation of any such Transfer and after giving effect thereto, no Default or Event of Default shall exist (provided that, with respect to Sections 10.1 and 10.2, calculation of compliance therewith shall be made as of any date of determination hereof and not as of the end of the immediately preceding fiscal
quarter of the Company); and
(b) any Transfer made in the ordinary course of business and involving only property that is either (1) inventory held for sale or
(2) equipment, fixtures, supplies or materials no longer required in the operation of the business of the Company or any of its Restricted Subsidiaries or that is obsolete.
“Bank Credit Agreement” shall mean (i) that certain Second Amended and Restated Credit
Agreement by and among New Jersey Resources Corporation, each of the guarantors party thereto, with the several lenders party thereto, and PNC Bank, National Association, as Administrative Agent, , dated as of September 2, 2021 and as amended by
the First Amendment, dated as of August 30, 2022, and the Second Amendment, dated as of August 7, 2024, or (ii) any other primary credit facility for the Company, in each case as the same may be amended, restated, increased, refinanced, replaced
or otherwise modified or any successor thereto.
“Blocked Person” shall mean (i) a Person whose name appears on the list of Specially
Designated Nationals and Blocked Persons published by OFAC, (ii) a Person, entity, organization, country or regime that is blocked or a target of sanctions that have been imposed under U.S. Economic Sanctions Laws or (iii) a Person that is an
agent, department or instrumentality of, or is otherwise beneficially owned by, controlled by or acting on behalf of, directly or indirectly, any Person, entity, organization, country or regime described in clause (i) or (ii).
“Business Day” shall mean (a) for purposes of Section 8.6
only, any day other than a Saturday, a Sunday or a day on which commercial banks in New York, New York are required or authorized to be closed and (b) for the purposes of any other provision of this Agreement, any day other than a Saturday, a
Sunday or a day on which commercial banks in Wall, New Jersey or New York, New York are required or authorized to be closed.
“Capital Lease” shall mean, at any time, a lease with respect to which the lessee is
required concurrently to recognize the acquisition of an asset and the incurrence of a liability in accordance with GAAP.
“Closing” is defined in Section 3.
“Closing Date” is defined in Section 3.
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, and the
rules and regulations promulgated thereunder from time to time.
“Company” shall mean New Jersey Resources Corporation, a New Jersey corporation, or any
Successor Corporation.
“Confidential Information” is defined in Section 20.
B-2
“Consolidated Shareholders’ Equity” shall mean, as of any date of determination, the sum of
the amounts under the headings “Common Shareholders’ Equity” and “Preferred Shareholders’ Equity” on the balance sheet, prepared in accordance with GAAP, for the Company, its Restricted Subsidiaries and New Jersey Natural Gas on a consolidated
basis.
“Consolidated Tangible Assets” shall mean, as of any date of determination, the total
assets of the Company, its Restricted Subsidiaries and New Jersey Natural Gas that would be shown as assets on a consolidated balance sheet of the Company, its Restricted Subsidiaries and New Jersey Natural Gas as of such time determined on a
consolidated basis in accordance with GAAP after subtracting therefrom the aggregate amount of all intangible assets of the Company, its Restricted Subsidiaries and New Jersey Natural Gas, including, without limitation, all goodwill, franchises,
licenses, patents, trademarks, trade name, copyrights, service marks and brand names.
“Consolidated Total Capitalization” shall mean, as of any date of determination, the sum of
(a) Consolidated Total Debt and (b) Consolidated Shareholders’ Equity.
“Consolidated Total Debt” shall mean, as of any date of determination, without duplication,
the total of all Debt of the Company, its Restricted Subsidiaries and New Jersey Natural Gas determined on a consolidated basis in accordance with GAAP.
For purposes of determining “Consolidated Total Debt,” there shall be excluded from any such determination Debt of Securitization Subsidiaries that are Restricted Subsidiaries (but not Debt of the
Company, any other Restricted Subsidiary or New Jersey Natural Gas) incurred pursuant to Receivables Securitization Transactions in an amount for principal and accrued and unpaid interest not to exceed $100,000,000 in the aggregate.
“Control” is defined in the definition of “Affiliate”, “Controlling”
and “Controlled” shall have the meanings correlative thereto.
“Controlled Entity” shall mean (i) any of the Subsidiaries of the Company and any of their
or the Company’s respective Controlled Affiliates and (ii) if the Company has a parent company, such parent company and its Controlled Affiliates.
“DBRS/Morningstar” shall mean DBRS, Inc., or, if applicable, its successor.
“Debt” as to any Person at any time, shall mean, without duplication, any and all
indebtedness, obligations or liabilities (whether matured or unmatured, liquidated or unliquidated, direct or indirect, absolute or contingent, or joint or several) of such Person for or in respect of: (a) borrowed money, (b) amounts raised under
or liabilities in respect of any note purchase or acceptance credit facility, (c) reimbursement obligations (contingent or otherwise) under any letter of credit, currency swap agreement, interest rate swap, cap, collar or floor agreement or other
interest rate or currency exchange rate management device, (d) any other transaction (including forward sale or purchase agreements, Capital Leases, Synthetic Leases and conditional sales agreements) having the commercial effect of a borrowing of
money entered into by such Person to finance its operations or capital requirements (but not including trade payables and accrued expenses incurred in the ordinary course of business which are not represented by a promissory note or other
evidence of indebtedness and which are not more than 30 days past due), (e) the net indebtedness, obligations and liabilities of such Person under any Hedging Contract to the extent constituting “indebtedness,” as determined in accordance with
GAAP, adjusted downward dollar for dollar for any related margin collateral account balances maintained by such Person, (f) any Guaranty of any Hedging Contract described in the immediately preceding clause (e), (g) any Guaranty of Debt for
borrowed money, (h) any Hybrid Security described in clause (a) of the definition of Hybrid Security or (i) the mandatory repayment obligation of the issuer of any Hybrid Security described in clause (b) of the definition of Hybrid Security.
B-3
“Debt Prepayment Application” shall mean, with respect to any Transfer of property, the
application by the Company of cash in an amount equal to the Net Proceeds Amount with respect to such Transfer to pay Senior Debt of the Company (other than Senior Debt owing to any Subsidiary or Affiliate and Senior Debt in respect of any
revolving credit or similar credit facility providing the Company with the right to obtain loans or other extensions of credit from time to time, except to the extent that in connection with such payment of Senior Debt the availability of credit
under such credit facility is permanently reduced by an amount not less than the amount of such proceeds applied to the payment of such Senior Debt); provided that in the course of making such application the Company shall offer to prepay each
outstanding Note in accordance with Section 8.7 in a principal amount that equals the Ratable Portion for such Note.
“Debt Rating” shall mean the debt rating of the Notes as determined from time to time by
any Acceptable Rating Agency.
“Default” shall mean an event or condition the occurrence or existence of which would, with
the lapse of time or the giving of notice or both, become an Event of Default.
“Default Rate” as of any date shall mean, with respect to the Notes, that rate of interest
that is the greater of (a) 2.00% per annum over the rate of interest specified in the first paragraph of such Note, or (b) 2.00% per annum over the rate of interest publicly announced by U.S. Bank National Association in New York, New York as its
“base” or “prime” rate.
“Disclosure Documents” is defined in Section 5.3.
“Disposition Value” shall mean, at any time, with respect to any property:
(a) in the case of property that does not constitute Subsidiary Stock, the book value thereof, valued at the time of such
disposition in good faith by the Company, and
(b) in the case of property that constitutes Subsidiary Stock, an amount equal to that percentage of book value of the assets of
the Subsidiary that issued such stock as is equal to the percentage that the book value of such Subsidiary Stock represents of the book value of all of the outstanding capital stock of such Subsidiary (assuming, in making such calculations, that
all securities convertible into such capital stock are so converted and giving full effect to all transactions that would occur or be required in connection with such conversion) determined at the time of the disposition thereof, in good faith by
the Company.
“Distribution” shall mean, in respect of any corporation, association or other business
entity: (a) dividends or other distributions or payments on capital stock or other equity interests of such corporation, association or other business entity (except distributions in such stock or other equity interests); and (b) the redemption
or acquisition of such stock or other equity interests (except when solely in exchange for such stock or other equity interests) unless made, contemporaneously, from the net proceeds of a sale of such stock or other equity interests.
B-4
“Electronic Delivery” is defined in Section 7.1(a).
“Environmental Laws” shall mean any and all Federal, state, local, and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any
materials into the environment, including but not limited to those related to Hazardous Materials.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from
time to time, and the rules and regulations promulgated thereunder from time to time in effect.
“ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that is
treated as a single employer together with the Company under Section 414 of the Code.
“Event of Default” is defined in Section 11.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
“Fair Market Value” shall mean, at any time and with respect to any property, the sale
value of such property that would be realized in an arm’s-length sale at such time between an informed and willing buyer and an informed and willing seller (neither being under a compulsion to buy or sell).
“FATCA” shall mean (i) Sections 1471 through 1474 of the Code, as of the date of this
Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), together with any current or future regulations or official interpretations thereof, (ii) any treaty, law or
regulation of any other jurisdiction, or relating to an intergovernmental agreement between the United States of America and any other jurisdiction, which (in either case) facilitates the implementation of the foregoing clause (i), and (iii) any
agreements entered into pursuant to Section 1471(b)(1) of the Code.
“Fitch” shall mean Fitch, Inc. or, if applicable, its successor.
“GAAP” shall mean generally accepted accounting principles as in effect from time to time
in the United States of America.
“Governmental Authority” shall mean
(a) the government of
(1) the United States of America or any State or other political subdivision thereof, or
B-5
(2) any jurisdiction in which the Company or any Subsidiary conducts all or any part of its business, or which asserts
jurisdiction over any properties of the Company or any Subsidiary, or
(b) any entity exercising executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, any
such government.
“Governmental Official” shall mean any governmental official or employee, employee of any
government-owned or government-controlled entity, political party, any official of a political party, candidate for political office, official of any public international organization or anyone else acting in an official capacity.
“Guarantor” is defined in Section 2.2.
“Guaranty” shall mean, with respect to any Person, any obligation (except the endorsement
in the ordinary course of business of negotiable instruments for deposit or collection) of such Person guaranteeing or in effect guaranteeing any Debt, dividend or other obligation of any other Person in any manner, whether directly or
indirectly, including, without limitation, obligations incurred through an agreement, contingent or otherwise, by such Person:
(a) to purchase such Debt or obligation or any property constituting security therefor;
(b) to advance or supply funds (1) for the purchase or payment of such Debt or obligation or (2) to maintain any working capital
or other balance sheet condition or any income statement condition of any other Person or otherwise to advance or make available funds for the purchase or payment of such Debt or obligation;
(c) to lease properties or to purchase properties or services primarily for the purpose of assuring the owner of such Debt or
obligation of the ability of any other Person to make payment of the Debt or obligation; or
(d) otherwise to assure the owner of such Debt or obligation against loss in respect thereof.
In any computation of the Debt or other liabilities of the obligor under any Guaranty, the Debt or other obligations that are the subject of such Guaranty shall be assumed to be direct obligations of such obligor.
“Guaranty Agreement” is defined in Section 2.2.
“Guaranty Supplement” is defined in Section 9.7(a).
“Hazardous Materials” shall mean any and all pollutants, toxic or hazardous wastes or any
other substances that might pose a hazard to health or safety, the removal of which may be required or the generation, manufacture, refining, production, processing, treatment, storage, handling, transportation, transfer, use, disposal, release,
discharge, spillage, seepage or filtration of which is or shall be restricted, prohibited or penalized by any applicable law (including, without limitation, asbestos, urea formaldehyde foam insulation and polychlorinated biphenyls, petroleum,
petroleum products, lead based paint, radon gas or similar restricted, prohibited or penalized substances).
B-6
“Hedging Contract” shall mean any transaction entered into by the Company, any of its
Restricted Subsidiaries or New Jersey Natural Gas with respect to hedging or trading of gas contracts or other commodity, hedging contracts of any kind, or any derivatives or other similar financial instruments of the Company, its Restricted
Subsidiaries and New Jersey Natural Gas.
“holder” shall mean, with respect to any Note, the Person in whose name such Note is
registered in the register maintained by the Company pursuant to Section 13.1, provided, however, that if such Person is a nominee, then for the purposes of Sections 7, 12, 17.2 and 18 and any related definitions in this Schedule B, “holder” shall mean the beneficial owner of such Note whose name and address appears in such register.
“Hybrid Security” shall mean any of the following: (a) beneficial interests issued by a
trust which constitutes a Subsidiary of the Company or any Guarantor substantially all of the assets of which trust are unsecured Debt of the Company or any Guarantor or any Subsidiary of the Company or any Guarantor or proceeds thereof, and all
payments of such Debt are required to be, and are, distributed to the holders of beneficial interests in such trust promptly after receipt by such trust or (b) any shares of capital stock or other equity interests that, other than solely at the
option of the issuer thereof, by their terms (or by the terms of any security into which they are convertible or exchangeable) are, or upon the happening of an event or the passage of time would be, required to be redeemed or repurchased, in
whole or in part, or have, or upon the happening of an event or the passage of time would have, a redemption or similar payment.
“Inactive Subsidiary” shall mean, at any time, any Subsidiary of any Person, which
Subsidiary (a) does not conduct any business or have operations and (b) does not have total assets with a net book value, as of any date of determination, in excess of $100,000.
“INHAM Exemption” is defined in Section 6.2(e).
“Institutional Investor” shall mean (a) any original purchaser of a Note, (b) any holder of
a Note holding (together with one or more of its affiliates) more than $2,000,000 of the aggregate principal amount of the Notes then outstanding, (c) any bank, trust company, savings and loan association or other financial institution, any
pension plan, any investment company, any insurance company, any broker or dealer, or any other similar financial institution or entity, regardless of legal form and (d) any Related Fund of any holder of any Note.
“Investment” shall mean any investment, made in cash or by delivery of property, by any
Person (a) in any other Person, whether by acquisition of stock, Debt or other obligation or security, or by loan, Guaranty, advance, capital contribution or otherwise or (b) in any property.
“Investor Presentation” is defined in Section 5.3.
“Kroll” shall mean Kroll Bond Rating Agency, LLC or, if applicable, its successor.
B-7
“Lien” shall mean, with respect to any Person, any mortgage, lien, pledge, charge, security
interest or other encumbrance, or any interest or title of any vendor, lessor, lender or other secured party to or of such Person under any conditional sale or other title retention agreement or Capital Lease or Synthetic Lease, upon or with
respect to any property or asset of such Person (including in the case of stock, stockholder agreements, voting trust agreements and all similar arrangements).
“Make-Whole Amount” is defined in Section 8.6.
“Material” shall mean material in relation to the business, operations, affairs, financial
condition, assets or properties of the Company, its Restricted Subsidiaries and New Jersey Natural Gas, taken as a whole.
“Material Adverse Effect” shall mean a material adverse effect on (a) the business,
operations, affairs, financial condition, assets or properties of the Company, its Restricted Subsidiaries and New Jersey Natural Gas, taken as a whole, or (b) the ability of the Company to perform its obligations under this Agreement and the
Notes, or (c) the ability of any Guarantor which is a Significant Subsidiary described in clause (b) of the definition thereof to perform its obligations under the Guaranty Agreement or (d) the validity or enforceability of this Agreement, the
Notes or the Guaranty Agreement.
“Moody’s” shall mean Moody’s Investor Service, Inc. or, if applicable, its successor.
“Multiemployer Plan” shall mean any Plan that is a “multiemployer plan” (as such term is
defined in Section 4001(a)(3) of ERISA) with respect to which the Company or any ERISA Affiliate has any liability.
“NAIC” shall mean the National Association of Insurance Commissioners or any successor
thereto.
“NAIC Annual Statement” is defined in Section 6.2(a).
“Net Proceeds Amount” shall mean, with respect to any Transfer of any property by any
Person, an amount equal to the difference of
(a) the aggregate amount of the consideration (valued at the Fair Market Value of such consideration at the time of the
consummation of such Transfer) received by such Person in respect of such Transfer, minus
(b) all ordinary and reasonable out-of-pocket costs and expenses actually incurred by such Person in connection with such
Transfer.
“New Jersey Natural Gas” shall mean New Jersey Natural Gas Company, a corporation organized
and existing under the laws of the State of New Jersey, which corporation is a wholly‑owned Subsidiary of the Company.
“Notes” is defined in Section 1.1.
B-8
“OFAC” shall mean the Office of
Foreign Assets Control of the United States Department of the Treasury.
“OFAC Sanctions Program” shall mean any economic or trade sanction that OFAC is responsible
for administering and enforcing. A list of OFAC Sanctions Programs may be found at http://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx.
“Officer’s Certificate” shall mean a certificate of a Senior Financial Officer or of any
other officer of the Company or Guarantor, as applicable, whose responsibilities extend to the subject matter of such certificate.
“PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA
or any successor thereto.
“Permitted Related Business Opportunity” shall mean any transaction with another Person
(other than any Inactive Subsidiary of the Company) involving business activities or assets reasonably related or complementary to the business of the Company, its Restricted Subsidiaries and New Jersey Natural Gas as conducted on the Closing
Date or as may be conducted pursuant to Section 10.11, including, without limitation, the management and marketing of storage, capacity and transportation of gas and other forms of energy, the generation,
transmission or storage of gas and other forms of energy, or the access to gas and energy transmission lines, and business initiatives for the conservation and efficiency of gas and energy.
“Person” shall mean an individual, partnership, corporation, limited liability company,
association, trust, unincorporated organization or a government or agency or political subdivision thereof.
“Plan” shall mean an “employee benefit plan” (as defined in Section 3(3) of ERISA), other
than a Multiemployer Plan, subject to Title I of ERISA that is maintained, or to which contributions are required to be made, by the Company or any ERISA Affiliate, or any prior “employee benefit plan” as to which the Company or any ERISA
Affiliate has any liability.
“Priority Debt” shall mean (without duplication) the sum of (a) unsecured Debt of
Restricted Subsidiaries and indebtedness, obligations and liabilities of Restricted Subsidiaries constituting Debt pursuant to clause (e) of the definition of Debt in this Agreement other than (1) Debt owed to the Company or a Wholly-Owned
Restricted Subsidiary, (2) Debt outstanding at the time such Person became a Subsidiary provided that such Debt shall not have been incurred in contemplation of such Person becoming a Subsidiary and (3) unsecured Debt of a Guarantor under (i) the
Guaranty Agreement and (ii) other Guaranties of Debt of the Company permitted to exist pursuant to Section 10.1 and (b) Debt of the Company secured by a Lien and Debt of any of its Restricted Subsidiaries
secured by a Lien, in each case, other than Liens permitted by paragraphs (a) through (k) of Section 10.3.
B-9
“Private Rating Letter” shall mean a letter issued by an Acceptable Rating Agency in
connection with any private debt rating for the Notes, which (a) sets forth the Debt Rating for the Notes, (b) refers to the Private Placement Number issued by Standard & Poor’s CUSIP Global Service in respect of the Notes, (c) addresses the
likelihood of payment of both principal and interest on the Notes (which requirement shall be deemed satisfied if either (x) such letter includes confirmation that the rating reflects the Acceptable Rating Agency’s assessment of the Company’s
ability to make timely payment of principal and interest on the Notes or a similar statement or (y) such letter is silent as to the Acceptable Rating Agency’s assessment of the likelihood of payment of both principal and interest and does not
include any indication to the contrary), (d) includes such other information describing the relevant terms of the Notes as may be required from time to time by the SVO or any other Governmental Authority having jurisdiction over any holder of any
Notes and (e) shall not be subject to confidentiality provisions or other restrictions which would prevent or limit the letter from being shared with the SVO or any other Governmental Authority having jurisdiction over any holder of any Notes.
“Private Rating Rationale Report” shall mean, with respect to any Private Rating Letter, a
report issued by the Acceptable Rating Agency in connection with such Private Rating Letter setting forth an analytical review of the Notes explaining the transaction structure, methodology relied upon, and, as appropriate, analysis of the
credit, legal, and operational risks and mitigants supporting the assigned Private Rating for the Notes, in each case, on the letterhead of the Acceptable Rating Agency or its controlled website and generally consistent with the work product that
an Acceptable Rating Agency would produce for a similar publicly rated security and otherwise in form and substance generally required by the SVO or any other Governmental Authority having jurisdiction over any holder of any Notes from time to
time. Such report shall not be subject to confidentiality provisions or other restrictions which would prevent or limit the report from being shared with the SVO or any other Governmental Authority having jurisdiction over any holder of any
Notes.
“property” or “properties” shall mean, unless
otherwise specifically limited, real or personal property of any kind, tangible or intangible, choate or inchoate.
“Property Reinvestment Application” shall mean, with respect to any Transfer of property,
the application of an amount equal to the Net Proceeds Amount with respect to such Transfer to the acquisition by the Company or any Restricted Subsidiary of operating assets of the Company or any Restricted Subsidiary to be used in the principal
business of the Company or such Restricted Subsidiary.
“Purchaser” or “Purchasers” shall mean each of
the purchasers whose signatures appear at the end of this Agreement and such Purchaser’s successors and assigns (so long as any such assignment complies with Section 13.2); provided, however, that any Purchaser of a Note that ceases to be the registered holder or a beneficial owner (through a nominee) of such Note as the result of a transfer thereof pursuant to Section
13.2 shall cease to be included within the meaning of “Purchaser” of such Note for the purposes of this Agreement upon such transfer.
“PTE” is defined in Section 6.2(a).
“QPAM Exemption” is defined in Section 6.2(d).
“Ratable Portion” for any Note shall mean an amount equal to the product of (a) the Net
Proceeds Amount from a Transfer being applied to a Debt Prepayment Application pursuant to Section 10.6(b) multiplied by (b) a fraction, the numerator of which is
the aggregate outstanding principal amount of such Note and the denominator of which is the aggregate outstanding principal amount of all Senior Debt of the Company (other than Senior Debt owing to any Affiliate).
B-10
“Receivables Securitization Transaction” shall mean any transaction pursuant to which the
Company or any Restricted Subsidiary Transfers accounts receivable to a Securitization Subsidiary and such Securitization Subsidiary incurs Debt in connection with the purchase of such accounts receivable and grants a security interest in such
accounts receivable as collateral security for such Debt; provided that such Debt is non-recourse to the Company and the other Restricted Subsidiaries other than with respect to representations, warranties and indemnities entered into by the
Company or the applicable Restricted Subsidiary in connection with such transaction that are customary in non-recourse securitization of receivables transactions.
“Regulated Entity” shall mean any Person that is subject under law to any of the laws,
rules or regulations respecting the financial, organizational or rate regulation of electric companies, public utilities or public utility holding companies.
“Related Fund” shall mean, with respect to any holder of any Note, any fund or entity that
(a) invests in securities or bank loans and (b) is advised or managed by such holder, the same investment advisor as such holder or by an Affiliate of such holder or such investment advisor.
“Required Holders” shall mean, at any time, the holders of more than 50% in principal
amount of the Notes at the time outstanding (exclusive of Notes then owned by the Company or any of its Affiliates).
“Responsible Officer” shall mean any Senior Financial Officer and any other officer of the
Company with responsibility for the administration of the relevant portion of this Agreement.
“Restricted Payment” shall mean any Distribution in respect of the Company or any
Restricted Subsidiary (other than on account of capital stock or other equity interests of a Restricted Subsidiary owned legally and beneficially by the Company or another Restricted Subsidiary), including, without limitation, any Distribution
resulting in the acquisition by the Company or any Restricted Subsidiary of securities that would constitute treasury stock. For purposes of this Agreement, the amount of any Restricted Payment made in property shall be the greater of (a) the
Fair Market Value of such property (determined in good faith by the Board of Directors (or equivalent governing body) of the Person making such Restricted Payment) and (b) the net book value thereof on the books of such Person, in each case
determined as of the date on which such Restricted Payment is made.
“Restricted Subsidiary” shall mean each Subsidiary that is either (a) designated as a
Restricted Subsidiary in Schedule 5.4 or (b) designated as a Restricted Subsidiary by the Board of Directors of the Company in accordance with Section 10.13.
“Restricted Subsidiary Stock” shall mean Subsidiary Stock of any Restricted Subsidiary.
“Securities Act” shall mean the Securities Act of 1933, as amended from time to time and
the rules and regulations promulgated thereunder from time to time in effect.
B-11
“Securitization Subsidiary” shall mean any Restricted Subsidiary that (a) has been created
for the sole purpose and business of purchasing and owning the accounts receivable of the Company or any other Restricted Subsidiary, (b) has no Debt outstanding other than Debt incurred in connection with the purchase of such accounts receivable
and (c) does not, and by the terms of its organizational documents or contractual obligations to which it or its property is then bound cannot, own or hold any other assets or participate in any other business or incur any other Debt.
“Senior Debt” shall mean any Debt of the Company other than Debt that is in any manner
subordinated in right of payment or security in any respect to the Debt evidenced by the Notes.
“Senior Financial Officer” shall mean the chief financial officer, principal accounting
officer, treasurer or comptroller of the Company.
“Significant Subsidiary” shall mean at any time, without duplication, (a) each Guarantor,
(b) each Restricted Subsidiary (including any Guarantor) that would at such time constitute a “significant subsidiary” (as such term is defined in Regulation S-X of the U.S. Securities and Exchange Commission as in effect on the Closing Date) of
the Company and (c) New Jersey Natural Gas.
“Source” is defined in Section 6.2.
“S&P” shall mean S&P Global Ratings or, if applicable, its successor.
“State Sanctions List” shall mean a list that is adopted by any state Governmental
Authority within the United States of America pertaining to Persons that engage in investment or other commercial activities in Iran or any other country that is a target of economic sanctions imposed under U.S. Economic Sanctions Laws.
“Subsidiary” shall mean, as to any Person, any corporation, association or other business
entity in which such Person or one or more of its Subsidiaries or such Person and one or more of its Subsidiaries owns sufficient Voting Stock to enable it or them (as a group) ordinarily, in the absence of contingencies, to elect a majority of
the directors (or Persons performing similar functions) of such entity, and any partnership or joint venture if more than a 50% interest in the profits or capital thereof is owned by such Person or one or more of its Subsidiaries or such Person
and one or more of its Subsidiaries (unless such partnership or joint venture can and does ordinarily take major business actions without the prior approval of such Person or one or more of its Subsidiaries). Unless the context otherwise clearly
requires, any reference to a “Subsidiary” is a reference to a Subsidiary of the Company.
“Subsidiary Stock” shall mean, with respect to any Person, the stock (or any options or
warrants to purchase stock or other securities exchangeable for or convertible into stock) of any Subsidiary of such Person.
“Successor Corporation” is defined in Section 10.7(a).
“SVO” shall mean the Securities Valuation Office of the NAIC or any successor to such
Office.
B-12
“Synthetic Lease” shall mean any lease transaction under which the parties intend that (a)
the lease will be treated as an “operating lease” by the lessee pursuant to Statement of Financial Accounting Standards No. 13, as amended, or appropriate successor thereto, and (b) the lessee will be entitled to various tax benefits ordinarily
available to owners (as opposed to lessees) of like property.
“Transfer” shall mean, with respect to any Person, any transaction in which such Person
sells, conveys, transfers or leases (as lessor) any of its property, including, without limitation, Subsidiary Stock.
“Unrestricted Subsidiary” shall mean each Subsidiary that is either (a) designated as an
Unrestricted Subsidiary in Schedule 5.4 or (b) designated an Unrestricted Subsidiary by the Board of Directors of the Company in accordance with Section 10.13. For
the avoidance of doubt, any Subsidiary which has not been designated as either a Restricted Subsidiary or Unrestricted Subsidiary shall be deemed to be an Unrestricted Subsidiary.
“USA PATRIOT Act” shall mean United States Public Law 107-56, Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.
“U.S. Economic Sanctions Laws” shall mean those laws, executive orders, enabling
legislation or regulations administered and enforced by the United States pursuant to which economic sanctions have been imposed on any Person, entity, organization, country or regime, including the Trading with the Enemy Act, the International
Emergency Economic Powers Act, the Iran Sanctions Act, the Sudan Accountability and Divestment Act and any other OFAC Sanctions Program.
“Voting Stock” shall mean any securities of any class of a Person whose holders are
entitled under ordinary circumstances to vote for the election of directors of such Person (or Persons performing similar functions) irrespective of whether at the time securities of any other class shall have or might have voting power by reason
of the happening of any contingency.
“Wholly-Owned Restricted Subsidiary” shall mean, at any time, any Restricted Subsidiary
100% of all of the equity interests (except directors’ qualifying shares) and voting interests of which are owned by any one or more of the Company and the Company’s other Wholly-Owned Restricted Subsidiaries at such time.
B-13
Disclosure Materials
Annual Report on Form 10-K of New Jersey Resources Corporation for the year ended September 30, 2023.
Quarterly Reports on Form 10-Q of New Jersey Resources Corporation for the fiscal quarters ended December 31, 2023, March 31, 2024 and June 30, 2024.
Current Reports on Form 8-K of New Jersey Resources Corporation filed with the SEC on October 2, 2023, October 31, 2023, November 21, 2023, January 29, 2024, July 1, 2024, July 15, 2024 and August 9, 2024.
Schedule 5.3
(to Note Purchase Agreement)
(to Note Purchase Agreement)
Subsidiaries of the Company and Ownership of Subsidiary Stock
|
Subsidiary
|
Jurisdiction of
Incorporation/
Formation
|
Percentage Ownership
%
|
Shareholder
|
Status
|
Regulated
|
||||
|
Adelphia Gateway, LLC
|
Delaware
|
100
|
NJR Midstream Company
|
Unrestricted
|
No
|
||||
|
AR Solar LLC
|
New York
|
100
|
NJR Clean Energy Ventures III Corporation
|
Unrestricted
|
No
|
||||
|
Bernards Solar, LLC
|
New Jersey
|
100
|
NJR Clean Energy Ventures II Corporation
|
Restricted
|
No
|
||||
|
Canal Road Solar Partners, LLC
|
Delaware
|
100
|
NJR Clean Energy Ventures III Corporation
|
Unrestricted
|
No
|
||||
|
Canoe Brook Solar Partners LLC
|
Delaware
|
100
|
NJR Clean Energy Ventures III Corporation
|
Unrestricted
|
No
|
||||
|
Cleanlight Energy, LLC
|
Delaware
|
100
|
NJR Clean Energy Ventures III Corporation
|
Unrestricted
|
No
|
||||
|
Commercial Realty and Resources Corp.
|
New Jersey
|
100
|
NJR Retail Holdings Corporation
|
Restricted
|
No
|
||||
|
Conserve to Preserve Foundation, Inc.
|
New Jersey
|
100
|
New Jersey Resources Corporation
|
Unrestricted
|
No
|
||||
|
CP East Hampton Solar I, LLC
|
Connecticut
|
100
|
NJR Clean Energy Ventures III Corporation
|
Unrestricted
|
No
|
||||
|
CP East Hampton Solar II, LLC
|
Connecticut
|
100
|
NJR Clean Energy Ventures III Corporation
|
Unrestricted
|
No
|
||||
|
Greenville Road Solar, LLC
|
Rhode Island
|
100
|
NJR Clean Energy Ventures III Corporation
|
Unrestricted
|
No
|
||||
|
Howard Lane Solar, LLC
|
Rhode Island
|
100
|
NJR Clean Energy Ventures III Corporation
|
Unrestricted
|
No
|
||||
|
Kokomo Solar 1, LLC
|
Delaware
|
100
|
NJR Clean Energy Ventures III Corporation
|
Unrestricted
|
No
|
||||
|
Leaf River Energy Center LLC
|
Delaware
|
100
|
NJR Midstream Company
|
Unrestricted
|
No
|
||||
|
LR Finance, LLC
|
Delaware
|
100
|
Leaf River Energy Center LLC
|
Unrestricted
|
No
|
Schedule 5.4
(to Note Purchase Agreement)
(to Note Purchase Agreement)
|
Subsidiary
|
Jurisdiction of
Incorporation/
Formation
|
Percentage
Ownership
%
|
Shareholder
|
Status
|
Regulated
|
||||
|
LSE Hercules LLC
|
Connecticut
|
100
|
NJR Clean Energy Ventures III Corporation
|
Unrestricted
|
No
|
||||
|
LSE Pyxis LLC
|
Connecticut
|
100
|
NJR Clean Energy Ventures III Corporation
|
Unrestricted
|
No
|
||||
|
Maybrook Solar LLC
|
New York
|
100
|
NJR Clean Energy Ventures III Corporation
|
Unrestricted
|
No
|
||||
|
New Jersey Natural Gas Company
|
New Jersey
|
100
|
New Jersey Resources Corporation
|
Unrestricted
|
Yes
|
||||
|
New Jersey Natural Gas Company Charity, Inc.
|
New Jersey
|
100
|
New Jersey Resources Corporation
|
Unrestricted
|
No
|
||||
|
NHV Solar LLC
|
New Jersey
|
100
|
NJR Clean Energy Ventures III Corporation
|
Unrestricted
|
No
|
||||
|
NJ Oak Solar, LLC
|
Delaware
|
100
|
NJR Clean Energy Ventures III Corporation
|
Unrestricted
|
No
|
||||
|
NJR Clean Energy Ventures Corporation
|
New Jersey
|
100
|
New Jersey Resources Corporation
|
Restricted
|
No
|
||||
|
NJR Clean Energy Ventures II Corporation
|
New Jersey
|
100
|
NJR Clean Energy Ventures Corporation
|
Restricted
|
No
|
||||
|
NJR Clean Energy Ventures III Corporation
|
New Jersey
|
100
|
NJR Clean Energy Ventures II Corporation
|
Restricted
|
No
|
||||
|
NJR Energy Investments Corporation
|
New Jersey
|
100
|
New Jersey Resources Corporation
|
Restricted
|
No
|
||||
|
NJR Energy Services Company, LLC
|
New Jersey
|
100
|
NJR Clean Energy Ventures Corporation
|
Restricted
|
No
|
||||
|
NJR Home Services Company
|
New Jersey
|
100
|
NJR Retail Holdings Corporation
|
Restricted
|
No
|
||||
|
NJR Midstream Company
|
New Jersey
|
100
|
NJR Midstream Holdings Corporation
|
Inactive
Unrestricted
|
No
|
||||
|
NJR Midstream Holdings Corporation
|
New Jersey
|
100
|
NJR Energy Investments Corporation
|
Restricted
|
No
|
S-5.4-2
|
Subsidiary
|
Jurisdiction of Incorporation/
Formation |
Percentage
Ownership
%
|
Shareholder
|
Status
|
Regulated
|
||||
|
NJR Plumbing Services, Inc.
|
New Jersey
|
90
|
NJR Home Services Company
|
Restricted
|
No
|
||||
|
NJR Retail Company
|
New Jersey
|
100
|
NJR Retail Holdings Corporation
|
Restricted
|
No
|
||||
|
NJR Retail Holdings Corporation
|
New Jersey
|
100
|
New Jersey Resources Corporation
|
Restricted
|
No
|
||||
|
NJR Service Corporation
|
New Jersey
|
100
|
New Jersey Resources Corporation
|
Inactive Restricted
|
No
|
||||
|
NJR Steckman Ridge Storage Company
|
Delaware
|
100
|
NJR Storage Holdings Company
|
Unrestricted
|
No
|
||||
|
NJR Storage Holdings Company
|
Delaware
|
100
|
NJR Midstream Holdings Corporation
|
Restricted
|
No
|
||||
|
Phoenix Fuel Management Company
|
New Jersey
|
100
|
NJR Retail Holdings Corporation
|
Restricted
|
No
|
||||
|
Spartan PV 1, LLC
|
Delaware
|
100
|
NJR Clean Energy Ventures III Corporation
|
Unrestricted
|
No
|
S-5.4-3
Directors and Officers of the Company
|
Board of Directors
|
Officers
|
||||
|
Donald L. Correll (Chairman)
|
Stephen D. Westhoven
|
President and Chief Executive Officer
|
|||
|
Gregory E. Aliff
|
Roberto F. Bel
|
Senior Vice President and Chief Financial Officer
|
|||
|
James H. DeGraffenreidt, Jr.
|
Amy Cradic
|
Senior Vice President and Chief Operating Officer, Non-Utility Businesses, Strategy and External Affairs
|
|||
|
M. Susan Hardwick
|
Richard Reich
|
Senior Vice President and General Counsel
|
|||
|
Peter C. Harvey
|
Lori DelGiudice
|
Senior Vice President, Human Resources
|
|||
|
Jane M. Kenny
|
Jacqueline K. Shea
|
Senior Vice President and Chief Information Officer
|
|||
|
Thomas C. O’Connor
|
David Johnson
|
Vice President, Corporate Business Development
|
|||
|
Michael A. O’Sullivan
|
James W. Kent
|
Vice President, Corporate Risk Management
|
|||
|
Sharon C. Taylor
|
Robert Pohlman
|
Vice President, Corporate Strategy, Clean Energy Ventures and Energy Services
|
|||
|
Stephen D. Westhoven
|
Stephen Skrocki
|
Corporate Controller and Principal Accounting Officer
|
|||
|
Tejal Mehta
|
Corporate Secretary and Assistant General Counsel
|
||||
|
Daniel Sergott
|
Treasurer
|
S-5.4-4
Financials
Consolidated financial statements contained in the Annual Report on Form 10-K of New Jersey Resources Corporation for the fiscal year ended September 30, 2023.
Consolidated financial statements contained in the Company’s Quarterly Report on Form 10-Q for the fiscal quarters ended December 31, 2023, March 31, 2024 and June 30, 2024.
Schedule 5.5
(to Note Purchase Agreement)
(to Note Purchase Agreement)
Certain Litigation
None.
Schedule 5.8
(to Note Purchase Agreement)
(to Note Purchase Agreement)
Patents, Etc.
None.
Schedule 5.11
(to Note Purchase Agreement)
Existing Debt
The following is a list of all outstanding Indebtedness of the Company, its Restricted Subsidiaries and New Jersey Natural Gas Company as of June 30, 2024 (unless otherwise indicated).
| A. |
THE COMPANY
|
|
1. Senior Notes
|
Rate
|
Maturity Date
|
Principal Amount
|
|||||
|
Unsecured Senior Notes
|
3.48%
|
11/7/24
|
$
|
100,000,000
|
||||
|
Unsecured Senior Notes
|
3.54%
|
8/18/26
|
$
|
100,000,000
|
||||
|
Unsecured Senior Notes
|
4.38%
|
6/23/27
|
$
|
110,000,000
|
||||
|
Unsecured Senior Notes
|
3.96%
|
6/8/28
|
$
|
100,000,000
|
||||
|
Unsecured Senior Notes
|
3.29%
|
7/17/29
|
$
|
150,000,000
|
||||
|
Unsecured Senior Notes
|
3.50%
|
7/23/30
|
$
|
130,000,000
|
||||
|
Unsecured Senior Notes
|
3.13%
|
9/1/31
|
$
|
120,000,000
|
||||
|
Unsecured Senior Notes
|
3.60%
|
7/23/32
|
$
|
130,000,000
|
||||
|
Unsecured Senior Notes
|
6.14%
|
12/15/32
|
$
|
50,000,000
|
||||
|
Unsecured Senior Notes
|
3.25%
|
9/1/33
|
$
|
80,000,000
|
||||
|
Unsecured Senior Notes
|
3.64%
|
9/19/34
|
$
|
50,000,000
|
||||
|
Less: Debt Issuance Cost
|
$
|
(3,165,000
|
)
|
|||||
|
$
|
1,116,835,000
|
|||||||
| 2. |
Bank Credit Agreement: As of June 30, 2024, the Company had $254,8000,000 of Notes Payable to Banks under the credit agreement described in clause (i) of “Bank Credit Agreements”.
|
| 3. |
Letters of Credit: The Company has outstanding letters of credit issued pursuant to the Bank Credit Agreement in an aggregate amount of $9,331,483.
|
Schedule 5.15
(to Note Purchase Agreement)
(to Note Purchase Agreement)
| B. |
New Jersey Natural Gas Company1
|
|
First Mortgage Bonds
|
Rate
|
Maturity date
|
Principal Amount
|
|||||
|
Series OO
|
3.00%
|
8/1/2041
|
$
|
46,500,000
|
||||
|
Series PP
|
3.15%
|
4/15/2028
|
$
|
50,000,000
|
||||
|
Series RR
|
4.61%
|
3/13/2044
|
$
|
55,000,000
|
||||
|
Series SS
|
2.82%
|
4/15/2025
|
$
|
50,000,000
|
||||
|
Series TT
|
3.66%
|
4/15/2045
|
$
|
100,000,000
|
||||
|
Series UU
|
3.63%
|
6/21/2046
|
$
|
125,000,000
|
||||
|
Series VV
|
4.01%
|
5/11/2048
|
$
|
125,000,000
|
||||
|
Series WW
|
3.50%
|
4/1/2042
|
$
|
10,300,000
|
||||
|
Series XX
|
3.38%
|
4/1/2038
|
$
|
10,500,000
|
||||
|
Series YY
|
2.45%
|
4/1/2059
|
$
|
15,000,000
|
||||
|
Series ZZ
|
3.76%
|
7/17/2049
|
$
|
100,000,000
|
||||
|
Series AAA
|
3.86%
|
7/17/2059
|
$
|
85,000,000
|
||||
|
Series BBB
|
2.75%
|
8/1/2039
|
$
|
9,545,000
|
||||
|
Series CCC
|
3.00%
|
8/1/2043
|
$
|
41,000,000
|
||||
|
Series DDD
|
3.13%
|
6/30/2050
|
$
|
50,000,000
|
||||
|
Series EEE
|
3.13%
|
7/23/2050
|
$
|
50,000,000
|
||||
|
Series FFF
|
3.33%
|
7/23/2060
|
$
|
25,000,000
|
||||
|
Series GGG
|
2.87%
|
9/1/2050
|
$
|
25,000,000
|
||||
|
Series HHH
|
2.97%
|
9/1/2060
|
$
|
50,000,000
|
||||
|
Series III
|
2.97%
|
10/30/2051
|
$
|
50,000,000
|
||||
|
Series JJJ
|
3.07%
|
10/28/2061
|
$
|
50,000,000
|
||||
|
Series LLL
|
4.37%
|
5/27/2037
|
$
|
50,000,000
|
||||
|
Series MMM
|
4.71%
|
5/27/2052
|
$
|
50,000,000
|
||||
|
Series NNN
|
5.47%
|
10/24/2052
|
$
|
125,000,000
|
||||
|
Series OOO
|
5.56%
|
09/28/2033
|
$
|
50,000,000
|
||||
|
Series PPP
|
5.85%
|
10/30/2053
|
$
|
50,000,000
|
||||
|
Series QQQ
|
5.82%
|
06/26/2054
|
$
|
125,000,000
|
||||
|
Sub-Total First Mortgage Bonds
|
$
|
1,572,845,000
|
||||||
|
Capital lease obligation-Meters
|
Various dates
|
$
|
33,816,000
|
|||||
|
Commercial Paper
|
$
|
-
|
||||||
|
Less: Debt Issuance Costs
|
$
|
(10,591,000
|
)
|
|||||
|
Total New Jersey Natural Gas Debt
|
$
|
1,596,070,000
|
||||||
1 Pursuant to that certain Note Purchase Agreement, dated as of June 26, 2024 by and among New Jersey Natural Gas Company (“NJNG”)
and the Purchasers party thereto, NJNG will issue, on or about September 30, 2024, an aggregate principal amount of $75,000,000 of its Series RRR First Mortgage Bonds at a rate of 5.49% and maturing on September 30, 2034.
S-5.15-2
| C. |
Clean Energy Ventures
|
|
Solar Asset Financing Obligation
|
$
|
278,304,000
|
||
|
Total Clean Energy Ventures Long-term Debt
|
$
|
278,304,000
|
| D. |
Derivative Instruments
|
The Company is subject primarily to commodity price risk due to fluctuations in the market price of natural gas, Solar Renewable Energy Credits (“SRECs”) and electricity. To manage this risk, the Company enters into
a variety of derivative instruments including, but not limited to, futures contracts, physical forward contracts, financial options and swaps to economically hedge the commodity price risk associated with its existing and anticipated commitments to
purchase and sell natural gas, SRECs and electricity. In addition, the Company is exposed to foreign currency and interest rate risk and may utilize foreign currency derivatives to hedge Canadian dollar denominated natural gas purchases and/or
sales and interest rate derivatives to reduce exposure to fluctuations in interest rates. All of these types of contracts are accounted for as derivatives, unless the Company elects NPNS, which is done on a contract-by-contract election.
Accordingly, all of the financial and certain of the Company's physical derivative instruments are recorded at fair value on the Unaudited Condensed Consolidated Balance Sheets.
NJR Energy Services Company (“NJRES”) chooses not to designate its financial commodity and physical forward commodity derivatives as accounting hedges or to elect Normal Purchase/Normal Sale (“NPNS”). The changes in
the fair value of these derivatives are recorded as a component of natural gas purchases or operating revenues, as appropriate for NJRES, on the Unaudited Condensed Consolidated Statements of Operations as unrealized gains or losses. For NJRES at
settlement, realized gains and losses on all financial derivative instruments are recognized as a component of natural gas purchases and realized gains and losses on all physical derivatives follow the presentation of the related unrealized gains
and losses as a component of either natural gas purchases or operating revenues.
NJRES also enters into natural gas transactions in Canada and, consequently, is exposed to fluctuations in the value of Canadian currency relative to the U.S. dollar. NJRES may utilize foreign currency derivatives to
lock in the exchange rates associated with natural gas transactions denominated in Canadian currency. The derivatives may include currency forwards, futures, or swaps and are accounted for as derivatives. These derivatives are typically used to
hedge demand fee payments on pipeline capacity, storage and natural gas purchase agreements.
As a result of NJRES entering into transactions to borrow natural gas, commonly referred to as “park and loans,” an embedded derivative is recognized relating to differences between the fair value of the amount
borrowed and the fair value of the amount that will ultimately be repaid, based on changes in the forward price for natural gas prices at the borrowed location over the contract term. This embedded derivative is accounted for as a forward sale in
the month in which the repayment of the borrowed natural gas is expected to occur, and is considered a derivative transaction that is recorded at fair value on the Unaudited Condensed Consolidated Balance Sheets, with changes in value recognized in
current period earnings.
S-5.15-3
Expected production of SRECs is hedged through the use of forward and futures contracts. All contracts require the Company to physically deliver SRECs through the transfer of certificates as per contractual
settlement schedules. NJRES recognizes changes in the fair value of these derivatives as a component of operating revenues. Upon settlement of the contract, the related revenue is recognized when the SREC is transferred to the counterparty.
Changes in fair value of New Jersey Natural Gas’ (“NJNG”) financial commodity derivatives are recorded as a component of regulatory assets or liabilities on the Unaudited Condensed Consolidated Balance Sheets. The
Company elects NPNS accounting treatment on all physical commodity contracts that NJNG entered into on or before December 31, 2015, and accounts for these contracts on an accrual basis. Accordingly, physical natural gas purchases are recognized in
regulatory assets or liabilities on the Unaudited Condensed Consolidated Balance Sheets when the contract settles and the natural gas is delivered. The average cost of natural gas is charged to expense in the current period earnings based on the
basic gas supply service (“BGSS”) factor times the therm sales. NJNG no longer elects NPNS accounting treatment on a portfolio basis. However, since NPNS is a contract-by-contract election, where it makes sense to do so, NJNG can and may elect to
treat certain contracts as normal. Because NJNG recovers these amounts through future BGSS rates as increases or decreases to the cost of natural gas in NJNG’s tariff for natural gas service, the changes in fair value of these contracts are
deferred as a component of regulatory assets or liabilities on the Unaudited Condensed Consolidated Balance Sheets.
The Company elects NPNS accounting treatment on Power Purchase Agreement (“PPA”) contracts executed by Clean Energy Ventures that meet the definition of a derivative and accounts for the contract on an accrual basis.
Accordingly, electricity sales are recognized in revenues throughout the term of the PPA as electricity is delivered. NPNS is a contract-by-contract election and where it makes sense to do so, the Company can and may elect to treat certain
contracts as normal.
The following table presents the fair value of the Company's derivative assets and liabilities recognized on the Unaudited Condensed Consolidated Balance Sheets as of June 30, 2024:
|
Derivatives at Fair Value
|
|||||||||||||||||
|
June 30, 2024
|
September 30, 2023
|
||||||||||||||||
|
(Thousands)
|
Balance Sheet Location
|
Assets
|
Liabilities
|
Assets
|
Liabilities
|
||||||||||||
|
Derivatives not designated as hedging instruments:
|
|||||||||||||||||
|
NJNG:
|
|||||||||||||||||
|
Physical commodity contracts
|
Derivatives - current
|
$
|
81
|
$
|
1
|
$
|
43
|
$
|
488
|
||||||||
|
Financial commodity contracts
|
Derivatives - current
|
--
|
60
|
6,110
|
20
|
||||||||||||
|
NJRES:
|
|||||||||||||||||
|
Physical commodity contracts
|
Derivatives - current
|
1,636
|
6,197
|
6,209
|
12,757
|
||||||||||||
|
Derivatives - noncurrent
|
816
|
11,422
|
802
|
7,870
|
|||||||||||||
|
Financial commodity contracts
|
Derivatives - current
|
3,054
|
1,374
|
18,393
|
2,880
|
||||||||||||
|
Derivatives - noncurrent
|
163
|
540
|
762
|
97
|
|||||||||||||
|
Total fair value of derivatives
|
$
|
5,750
|
$
|
19,594
|
$
|
32,319
|
$
|
24,112
|
|||||||||
S-5.15-4
Form of Note
New Jersey Resources Corporation
5.55% Senior Note, Series 2024A, due November 7, 2034
| No. R2024A-[__] | [__________ __], 20[__] |
| $[____________] | PPN: 646025 F@0 |
For Value Received, the undersigned, New
Jersey Resources Corporation (herein called the “Company”), a corporation organized and existing under the laws of the State of New Jersey, hereby promises to pay to [________________], or
registered assigns, the principal sum of [________________] Dollars (or so much thereof as shall not have been prepaid) on November 7, 2034 (the “Maturity Date”),
with interest (computed on the basis of a 360-day year of twelve 30‑day months) (a) on the unpaid balance hereof at the rate of 5.55% per annum from the date hereof, payable semi-annually, on the seventh day of May and November in each year,
commencing with the May 7th or November 7th next succeeding the date hereof, and on the Maturity Date, until the principal hereof shall have become due and payable, and (b) to the extent permitted by law, (x) on any overdue payment of interest
and (y) during the continuance of an Event of Default, on such unpaid balance and on any overdue payment of any Make-Whole Amount, at a rate per annum from time to time equal to the greater of (i) 7.55% or (ii) 2.00% over the rate of interest
publicly announced by U.S. Bank National Association from time to time in New York, New York as its “base” or “prime” rate, payable semi-annually as aforesaid (or, at the option of the registered holder hereof, on demand).
Payments of principal of, interest on and any Make-Whole Amount with respect to this Note are to be made in lawful money of the United States of America at the principal offices of U.S. Bank Trust
Company, National Association in New York, New York or at such other place as the Company shall have designated by written notice to the holder of this Note as provided in the Note Purchase Agreement referred to below.
This Note is one of a series of Senior Notes (herein called the “Notes”) issued pursuant to the Note Purchase Agreement dated as of November 7, 2024 (as
from time to time amended, the “Note Purchase Agreement”), between the Company and the respective Purchasers named therein and is entitled to the benefits thereof. Each holder of this Note will be deemed,
by its acceptance hereof, (1) to have agreed to the confidentiality provisions set forth in Section 20 of the Note Purchase Agreement and (2) to have made the representation set forth in Section 6.2 of the Note Purchase Agreement. Unless otherwise indicated, capitalized terms used in this Note shall have the respective meanings ascribed to such terms in the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase Agreement, upon surrender of this Note for registration of transfer, duly endorsed, or accompanied by a written instrument of
transfer duly executed, by the registered holder hereof or such holder’s attorney duly authorized in writing, a new Note for a like principal amount will be issued to, and registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, and the Company will not be affected by any notice to the
contrary.
Exhibit 1
(to Note Purchase Agreement)
(to Note Purchase Agreement)
This Note is subject to optional prepayment, in whole or from time to time in part, at the times and on the terms specified in the Note Purchase Agreement, but not otherwise.
If an Event of Default occurs and is continuing, the principal of this Note may be declared or otherwise become due and payable in the manner, at the price (including any applicable Make-Whole
Amount) and with the effect provided in the Note Purchase Agreement.
This Note shall be construed and enforced in accordance with, and the rights of the Company and the holder of this Note shall be governed by, the laws of the State of New York excluding the choice
of law principles of the law of such State that would require the application of the laws of a jurisdiction other than such State.
| New Jersey Resources Corporation |
||
| By | ||
| Name: | ||
| Title: | ||
E-1-2
Form of Subsidiary Guaranty Agreement
Subsidiary Guaranty Agreement
Re: Senior Notes
of
New Jersey Resources Corporation
This Subsidiary Guaranty Agreement dated as of November 7, 2024 (this “Guaranty”) is entered into on a joint and several basis by each of the undersigned,
together with any entity which may become a party hereto by execution and delivery of a Subsidiary Guaranty Supplement in substantially the form set forth as Exhibit A hereto (a “Guaranty Supplement”)
(which parties are hereinafter referred to individually as a “Guarantor” and collectively as the “Guarantors”).
Recitals
A. Each Guarantor is a direct or indirect subsidiary of New Jersey Resources Corporation, a corporation organized under the laws of the State of
New Jersey (the “Company”).
B. The Company is concurrently herewith entering into that certain Note Purchase Agreement dated as of November 7, 2024 (as the same may be
amended, supplemented, restated or otherwise modified from time to time, the “Note Purchase Agreement”) between the Company and the respective Purchasers named therein, providing for, among other things,
the issue and sale by the Company to the Purchasers (as defined therein) of $100,000,000 aggregate principal amount of its 5.55% Senior Notes, Series 2024A, due November 7, 2034 (the “Notes”). The Purchasers together with their respective successors and assigns are collectively referred to herein as the “Holders.”
C. The Purchasers have required as a condition of their purchase of the Notes that the Company cause each of the undersigned to enter into this
Guaranty and, upon (1) the formation or acquisition of a new Restricted Subsidiary (other than a Regulated Entity), (2) the occurrence of any other event creating a new Restricted Subsidiary (other than a Regulated Entity), (3) the designation of
an Unrestricted Subsidiary (other than a Regulated Entity) as a Restricted Subsidiary or (4) an Unrestricted Subsidiary or a Regulated Entity becoming or being a guarantor or co‑obligor in respect of the Bank Credit Agreement, to cause each such
Subsidiary to execute a Guaranty Supplement, in each case in order to induce the Purchasers to purchase the Notes and thereby benefit the Company and its Subsidiaries by providing funds to the Company for the repayment of existing debt and for its
general corporate purposes.
Now, therefore, as required by Section 4.4 of the Note Purchase Agreement and in consideration of the premises and other good and valuable consideration,
the receipt and sufficiency whereof are hereby acknowledged, each Guarantor does hereby covenant and agree, jointly and severally, as follows:
|
Section 1.
|
Definitions.
|
Exhibit 2
(to Note Purchase Agreement)
Capitalized terms used herein shall have the meanings set forth in the Note Purchase Agreement unless otherwise defined herein.
|
Section 2.
|
Guaranty of Notes and Note Purchase Agreement.
|
(a) Each Guarantor jointly and severally does hereby irrevocably, absolutely and unconditionally guarantee unto the Holders: (1) the full and
prompt payment of the principal of, Make-Whole Amount, if any, and interest on the Notes from time to time outstanding, as and when such payments shall become due and payable whether by lapse of time, upon redemption or prepayment, by extension or
by acceleration or declaration or otherwise (including, to the extent permitted by applicable law, interest due on overdue payments of principal, Make-Whole Amount, if any, or interest at the rate set forth in the Notes) in Federal or other
immediately available funds of the United States of America which at the time of payment or demand therefor shall be legal tender for the payment of public and private debts, (2) the full and prompt performance and observance by the Company of each
and all of the obligations, covenants and agreements required to be performed or owed by the Company under the terms of the Notes and the Note Purchase Agreement and (3) the full and prompt payment, upon demand by any Holder of all costs and
expenses, legal or otherwise (including reasonable attorneys’ fees), if any, as shall have been expended or incurred in the protection or enforcement of any rights, privileges or liabilities in favor of the Holders under or in respect of the Notes
and the Note Purchase Agreement, or under this Guaranty or in any consultation or action in connection therewith or herewith.
(b) To the extent that any Guarantor shall make a payment hereunder (a “Payment”) which, taking into
account all other Payments previously or concurrently made by any of the other Guarantors, exceeds the amount which such Guarantor would otherwise have paid if each Guarantor had paid the aggregate obligations satisfied by such Payment in the same
proportion as such Guarantor’s “Allocable Amount” (as hereinafter defined) in effect immediately prior to such Payment bore to the Aggregate Allocable Amount (as hereinafter defined) of all of the Guarantors in effect immediately prior to the
making of such Payment, then such Guarantor shall be entitled to contribution and indemnification from, and be reimbursed by, each of the other Guarantors for the amount of such excess, pro rata based upon their respective Allocable Amounts in
effect immediately prior to such Payment.
As of any date of determination, (1) the “Allocable Amount” of any Guarantor shall be equal to the maximum amount which could then be claimed by the Holders under this Guaranty without rendering
such claim voidable or avoidable under Section 548 of Chapter 11 of the United States Bankruptcy Code (11 U.S.C. Sec. 101 et. seq.) or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute
or common law; and (2) the “Aggregate Allocable Amount” shall be equal to the sum of each Guarantor’s Allocable Amount.
This clause (b) is intended only to define the relative rights of the Guarantors, and nothing set forth in this clause (b) is intended to or shall impair the obligations of the Guarantors, jointly
and severally, to pay any amounts to the Holders as and when the same shall become due and payable in accordance herewith.
E-2-2
Each Guarantor acknowledges that the rights of contribution and indemnification hereunder shall constitute an asset in favor of any Guarantor to which such contribution and indemnification is
owing.
|
Section 3.
|
Guaranty of Payment and Performance.
|
This is an irrevocable, absolute and unconditional guarantee of payment and performance and each Guarantor hereby waives, to the fullest extent permitted by law, any right to require that any
action on or in respect of any Note or the Note Purchase Agreement be brought against the Company or any other Person or that resort be had to any direct or indirect security for the Notes or for this Guaranty or any other remedy. Any Holder may,
at its option, proceed hereunder against any Guarantor in the first instance to collect monies when due, the payment of which is guaranteed hereby, without first proceeding against the Company or any other Person and without first resorting to any
direct or indirect security for the Notes or for this Guaranty or any other remedy. The liability of each Guarantor hereunder shall in no way be affected or impaired by any acceptance by any Holder of any direct or indirect security for, or other
guaranties of, any Debt, liability or obligation of the Company or any other Person to any Holder or by any failure, delay, neglect or omission by any Holder to realize upon or protect any such guarantees, Debt, liability or obligation or any notes
or other instruments evidencing the same or any direct or indirect security therefor or by any approval, consent, waiver, or other action taken, or omitted to be taken by any such Holder.
The covenants and agreements on the part of the Guarantors herein contained shall take effect as joint and several covenants and agreements, and references to the Guarantors shall take effect as
references to each of them and none of them shall be released from liability hereunder by reason of this Guaranty ceasing to be binding as a continuing security on any other of them.
|
Section 4.
|
General Provisions Relating to this Guaranty.
|
(a) Each Guarantor hereby consents and agrees that any Holder or Holders from time to time, with or without any further notice to or assent from
any other Guarantor may, without in any manner affecting the liability of any Guarantor under this Guaranty, and upon such terms and conditions as any such Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify, change, compromise, release or extend the duration of the time
for the performance or payment of any Debt, liability or obligation of the Company or of any other Person (including, without limitation, any other Guarantor) secondarily or otherwise liable for any Debt, liability or obligation of the Company on
the Notes, or waive any Default or Event of Default with respect thereto, or waive, modify, amend or change any provision of the Note Purchase Agreement or any other agreement or waive this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute any and all property, of any nature and from whomsoever
received, held by, or for the benefit of, any such Holder as direct or indirect security for the payment or performance of any Debt, liability or obligation of the Company or of any other Person (including, without limitation, any other Guarantor)
secondarily or otherwise liable for any Debt, liability or obligation of the Company on the Notes; or
E-2-3
(3) settle, adjust or compromise any claim of the Company against any other Person (including, without limitation, any other
Guarantor) secondarily or otherwise liable for any Debt, liability or obligation of the Company on the Notes.
Each Guarantor hereby ratifies and confirms any such extension, renewal, change, sale, release, waiver, surrender, exchange, modification, amendment, impairment, substitution, settlement,
adjustment or compromise and that the same shall be binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it might or could have by reason thereof, it being understood that
such Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the creation, renewal or accrual of any liability of the Company,
present or future, or of the reliance of such Holders upon this Guaranty (it being understood that every Debt, liability and obligation described in Section 2 hereof shall conclusively be presumed to have
been created, contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other Person (including, without limitation, any other Guarantor)
indebted in any manner on or for any of the Debt, liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of the Notes or any other instrument, protest thereof and
notice of its dishonor to any party thereto and to such Guarantor.
The obligations of each Guarantor under this Guaranty and the rights of any Holder to enforce such obligations by any proceedings, whether by action at law, suit in equity or otherwise, shall not
be subject to any reduction, limitation, impairment or termination, whether by reason of any claim of any character whatsoever or otherwise and shall not be subject to any defense, set-off, counterclaim (other than any compulsory counterclaim),
recoupment or termination whatsoever.
(c) The obligations of the Guarantors hereunder shall be binding upon the Guarantors and their successors and assigns, and shall remain in full
force and effect irrespective of:
(1) the genuineness, validity, regularity or enforceability of the Notes and the Note Purchase Agreement or any other agreement
or any of the terms of any thereof, the continuance of any obligation on the part of the Company or any other Person on or in respect of the Notes or under the Note Purchase Agreement or any other agreement or the power or authority or the lack of
power or authority of the Company to issue the Notes or the Company to execute and deliver the Note Purchase Agreement or any other agreement or of any Guarantor to execute and deliver this Guaranty or to perform any of its obligations hereunder or
the existence or continuance of the Company or any other Person as a legal entity; or
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(2) any default, failure or delay, willful or otherwise, in the performance by the Company, any Guarantor or any other Person of
any obligations of any kind or character whatsoever under the Notes, the Note Purchase Agreement, this Guaranty or any other agreement; or
(3) any creditors’ rights, bankruptcy, receivership or other insolvency proceeding of the Company, any Guarantor or any other
Person or in respect of the property of the Company, any Guarantor or any other Person or any merger, consolidation, reorganization, dissolution, liquidation, the sale of all or substantially all of the assets of or winding up of the Company, any
Guarantor or any other Person; or
(4) impossibility or illegality of performance on the part of the Company, any Guarantor or any other Person of its obligations
under the Notes, the Note Purchase Agreement, this Guaranty or any other agreements; or
(5) in respect of the Company or any other Person, any change of circumstances, whether or not foreseen or foreseeable, whether
or not imputable to the Company or any other Person, or other impossibility of performance through fire, explosion, accident, labor disturbance, floods, droughts, embargoes, wars (whether or not declared), civil commotion, acts of God or the public
enemy, delays or failure of suppliers or carriers, inability to obtain materials, action of any Federal or state regulatory body or agency, change of law or any other causes affecting performance, or any other force majeure, whether or not beyond
the control of the Company or any other Person and whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order, process, encumbrance or any other happening or event or reason, similar or
dissimilar to the foregoing, or any withholding or diminution at the source, by reason of any taxes, assessments, expenses, Debt, obligations or liabilities of any character, foreseen or unforeseen, and whether or not valid, incurred by or against
the Company, any Guarantor or any other Person or any claims, demands, charges or Liens of any nature, foreseen or unforeseen, incurred by the Company, any Guarantor or any other Person, or against any sums payable in respect of the Notes or under
the Note Purchase Agreement or this Guaranty, so that such sums would be rendered inadequate or would be unavailable to make the payments herein provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not valid) of any court of any nation or of any political
subdivision thereof or any body, agency, department, official or administrative or regulatory agency of any thereof or any other action, happening, event or reason whatsoever which shall delay, interfere with, hinder or prevent, or in any way
adversely affect, the performance by the Company, any Guarantor or any other Person of its respective obligations under or in respect of the Notes, the Note Purchase Agreement, this Guaranty or any other agreement; or
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(8) the failure of any Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this
Guaranty; or
(9) any failure or lack of diligence in collection or protection, failure in presentment or demand for payment, protest, notice
of protest, notice of default and of nonpayment, any failure to give notice to any Guarantor of failure of the Company, any Guarantor or any other Person to keep and perform any obligation, covenant or agreement under the terms of the Notes, the
Note Purchase Agreement, this Guaranty or any other agreement or failure to resort for payment to the Company, any Guarantor or to any other Person or to any other guaranty or to any property, security, Liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the advance of additional money to the Company or any other
Person, the renewal or extension of the Notes or amendments, modifications, consents or waivers with respect to the Notes, the Note Purchase Agreement, or any other agreement, or the sale, release, substitution or exchange of any security for the
Notes; or
(11) any merger or consolidation of the Company, any Guarantor or any other Person into or with any other Person or any sale,
lease, transfer or other disposition of any of the assets of the Company, any Guarantor or any other Person to any other Person, or any change in the ownership of any shares or other equity interests of the Company, any Guarantor or any other
Person; or
(12) any defense whatsoever that: (i) the Company or any other Person might have to the payment of the Notes (including,
principal, Make-Whole Amount, if any, or interest), other than payment thereof in Federal or other immediately available funds or (ii) the Company or any other Person might have to the performance or observance of any of the provisions of the
Notes, the Note Purchase Agreement, or any other agreement, whether through the satisfaction or purported satisfaction by the Company or any other Person of its debts due to any cause such as bankruptcy, insolvency, receivership, merger,
consolidation, reorganization, dissolution, liquidation, winding-up or otherwise; or
(13) any act or failure to act with regard to the Notes, the Note Purchase Agreement, this Guaranty or any other agreement or
anything which might vary the risk of any Guarantor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Guarantor or any other
Person in respect of the obligations of any Guarantor or other Person under this Guaranty or any other agreement;
provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the
purpose and intent of this Guaranty and the parties hereto that the obligations of each Guarantor shall be absolute and unconditional and shall not be discharged, impaired or varied except by the payment of the principal of, Make-Whole Amount, if
any, and interest on the Notes in accordance with their respective terms whenever the same shall become due and payable as in the Notes provided, at the place specified in and all in the manner and with the effect provided in the Notes and the Note
Purchase Agreement, as each may be amended or modified from time to time. Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the
Company shall default under or in respect of the terms of the Notes or the Note Purchase Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Company under the Notes or the Note Purchase
Agreement, this Guaranty shall remain in full force and effect and shall apply to each and every subsequent default.
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(d) All rights of any Holder under this Guaranty shall be considered to be transferred or assigned at any time or from time to time upon the
transfer of any Note held by such Holder whether with or without the consent of or notice to the Guarantors under this Guaranty or to the Company.
(e) To the extent of any payments made under this Guaranty, the Guarantors shall be subrogated to the rights of the Holder or Holders upon whose
Notes such payment was made, but each Guarantor covenants and agrees that such right of subrogation and any and all claims of such Guarantor against the Company, any endorser or other Guarantor or against any of their respective properties shall be
junior and subordinate in right of payment to the prior indefeasible final payment in cash in full of all of the Notes and satisfaction by the Company of its obligations under the Note Purchase Agreement and by the Guarantors of their obligations
under this Guaranty, and the Guarantors shall not take any action to enforce such right of subrogation, and the Guarantors shall not accept any payment in respect of such right of subrogation, until all of the Notes and all amounts payable by the
Guarantors hereunder have indefeasibly been finally paid in cash in full and all of the obligations of the Company under the Note Purchase Agreement and of the Guarantors under this Guaranty have been satisfied. Notwithstanding any right of any
Guarantor to ask, demand, sue for, take or receive any payment from the Company, all rights, Liens and security interests of each Guarantor, whether now or hereafter arising and howsoever existing, in any assets of the Company shall be and hereby
are subordinated to the rights, if any, of the Holders in those assets. No Guarantor shall have any right to possession of any such asset or to foreclose upon any such asset, whether by judicial action or otherwise, unless and until all of the
Notes and the obligations of the Company under the Note Purchase Agreement shall have been paid in cash in full and satisfied.
(f) Each Guarantor agrees that to the extent the Company or any other Person makes any payment on any Note, which payment or any part thereof is
subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, recovered, rescinded or is required to be retained by or repaid to a trustee, receiver, or any other Person under any bankruptcy code, common law, or equitable
cause, then and to the extent of such payment, the obligation or the part thereof intended to be satisfied shall be revived and continued in full force and effect with respect to the Guarantors’ obligations hereunder, as if said payment had not
been made. The liability of the Guarantors hereunder shall not be reduced or discharged, in whole or in part, by any payment to any Holder from any source that is thereafter paid, returned or refunded in whole or in part by reason of the assertion
of a claim of any kind relating thereto, including, but not limited to, any claim for breach of contract, breach of warranty, preference, illegality, invalidity or fraud asserted by any account debtor or by any other Person.
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(g) No Holder shall be under any obligation: (1) to marshall any assets in favor of the Guarantors or in payment of any or all of the liabilities
of the Company under or in respect of the Notes, the Note Purchase Agreement or the obligations of the Guarantors hereunder or (2) to pursue any other remedy that the Guarantors may or may not be able to pursue themselves and that may lighten the
Guarantors’ burden, any right to which each Guarantor hereby expressly waives.
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Section 5.
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Representations and Warranties of the Guarantors.
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Each Guarantor represents and warrants to each Holder that:
(a) Such Guarantor is a corporation or other legal entity duly organized, validly existing and in good standing under the laws of its jurisdiction
of organization, and is duly qualified as a foreign corporation or other legal entity and is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so
qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(b) Each subsidiary of such Guarantor is a corporation or other legal entity duly organized, validly existing and in good standing under the laws
of its jurisdiction of organization, and is duly qualified as a foreign corporation or other legal entity and is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the
failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Each subsidiary of such Guarantor has the power and authority to own or lease the properties it
purports to own or lease and to transact the business it transacts and proposes to transact.
(c) This Guaranty has been duly authorized by all necessary action on the part of such Guarantor, and this Guaranty constitutes a legal, valid and
binding obligation of such Guarantor enforceable against such Guarantor in accordance with its terms, except as such enforceability may be limited by (1) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other
similar laws affecting the enforcement of creditors’ rights generally and (2) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(d) The execution, delivery and performance by such Guarantor of this Guaranty will not (1) contravene, result in any breach of, or constitute a
default under, or result in the creation of any Lien in respect of any property of such Guarantor or any of its subsidiaries which are Restricted Subsidiaries under any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease,
organizational document or any other agreement or instrument to which such Guarantor or any of its subsidiaries which are Restricted Subsidiaries is bound or by which such Guarantor or any of its subsidiaries or any of their respective properties
may be bound or affected, (2) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree, or ruling of any court, arbitrator or Governmental Authority applicable to such Guarantor or any of its
subsidiaries which are Restricted Subsidiaries or (3) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to such Guarantor or any of its subsidiaries which are Restricted Subsidiaries.
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(e) No consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required in connection
with the execution, delivery or performance by such Guarantor of this Guaranty other than such consents, approvals, authorizations, registrations, filings or declarations that have been obtained or made prior to the date such Guarantor enters into
this Guaranty.
(f) (1) Except as disclosed in Schedule 5.8 to the Note Purchase Agreement or otherwise disclosed in
writing to the Holders, there are no actions, suits or proceedings pending or, to the knowledge of such Guarantor, threatened against or affecting such Guarantor or any of its subsidiaries which are Restricted Subsidiaries or any property of such
Guarantor or any of its subsidiaries which are Restricted Subsidiaries in any court or before any arbitrator of any kind or before or by any Governmental Authority that, individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect.
(2) Neither such Guarantor nor any of its subsidiaries which are Restricted Subsidiaries is in default under any term of any
agreement or instrument to which it is a party or by which it is bound, or any order, judgment, decree or ruling of any court, arbitrator or Governmental Authority or is in violation of any applicable law, ordinance, rule or regulation (including,
without limitation, ERISA (with respect to any Plan), Environmental Laws or the USA PATRIOT Act) of any Governmental Authority, which default or violation, individually or in the aggregate, would reasonably be expected to have a Material Adverse
Effect.
(g) Such Guarantor and its subsidiaries have filed all income tax returns that are required to have been filed in any jurisdiction, and have paid
all taxes shown to be due and payable on such returns and all other taxes and assessments payable by them, to the extent such taxes and assessments have become due and payable and before they have become delinquent, except for any taxes and
assessments (1) the amount of which is not, individually or in the aggregate, material to the business, operations, affairs, financial condition, assets or properties of such Guarantor and its subsidiaries taken as a whole (herein in this Section 5, “Material”) or (2) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which such Guarantor or one of its
subsidiaries, as the case may be, has established adequate reserves in accordance with GAAP. The charges, accruals and reserves on the books of such Guarantor and its subsidiaries in respect of Federal, state or other taxes for all fiscal periods
are adequate in accordance with GAAP. The Federal income tax liabilities of such Guarantor and its subsidiaries have been determined by the Internal Revenue Service and paid for all fiscal years up to and
including the fiscal year ended September 30, 2020.
(h) Such Guarantor and its subsidiaries which are Restricted Subsidiaries have good and sufficient title related to the ownership of their
respective Material properties, including all such properties reflected in the most recent audited consolidated balance sheet furnished to the Holders pursuant to the Note Purchase Agreement or purported to have been acquired by such Guarantor
after said date (except as sold or otherwise disposed of in the ordinary course of business), in each case free and clear of Liens prohibited by the Note Purchase Agreement, except for those defects in title and Liens that, individually or in the
aggregate, would not have a Material Adverse Effect. All Material leases to which such Guarantor is a party are valid and subsisting and are in full force and effect in all material respects.
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(i) Except as disclosed in Schedule 5.11 to the Note Purchase Agreement or otherwise disclosed in writing
to the Holders, such Guarantor and those of its subsidiaries which are Restricted Subsidiaries own or possess all licenses, permits, franchises, authorizations, patents, copyrights, proprietary software, service marks, trademarks, trade names and
domain names or rights thereto, that are Material, without known conflict with the rights of others, except for those conflicts that, individually or in the aggregate, would not have a Material Adverse Effect.
(j) (1) Such Guarantor and each ERISA Affiliate have operated and administered each Plan in compliance with all applicable laws except
for such instances of noncompliance as have not resulted in and would not reasonably be expected to result in a Material Adverse Effect. Neither such Guarantor nor any ERISA Affiliate has incurred any liability pursuant to Title I or IV of ERISA
or the penalty or excise tax provisions of the Code relating to employee benefit plans (as defined in Section 3 of ERISA) with respect to any Plan, other than for claims for benefits and funding obligations in the ordinary course, and no event,
transaction or condition has occurred or exists with respect to any Plan that would reasonably be expected to result in the incurrence of any such liability under Title I or IV of ERISA or the penalty or excise tax provisions of the Code by such
Guarantor or any ERISA Affiliate, or in the imposition of any Lien under Section 430 of the Code or Section 4068 of ERISA on any of the rights, properties or assets of such Guarantor or any ERISA Affiliate, other than any such liabilities or Liens
as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect.
(2) The present value of the aggregate benefit liabilities under each of the Plans which are subject to Title IV of ERISA (other
than Multiemployer Plans), determined as of the end of such Plan’s most recently ended plan year on the basis of the actuarial assumptions specified for funding purposes in such Plan’s most recent actuarial valuation report, did not exceed the
aggregate current value of the assets of such Plans allocable to such benefit liabilities by more than $25,000,000. The term “benefit liabilities” has the meaning specified in Section 4001 of ERISA and the terms “current value” and “present value”
have the meanings specified in Section 3 of ERISA.
(3) Such Guarantor and its ERISA Affiliates have not incurred withdrawal liabilities under Section 4201 or 4204 of ERISA (and
are not subject to contingent withdrawal liabilities under Section 4204) in respect of Multiemployer Plans that, individually or in the aggregate, are reasonably expected to result in a Material Adverse Effect.
(4) The accumulated post-retirement benefit obligation (determined as of the last day of the Company’s most recently ended
fiscal year in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 715-60, without regard to liabilities attributable to continuation coverage mandated by Section 4980B of the Code) of such Guarantor, the
Restricted Subsidiaries and New Jersey Natural Gas is not reasonably expected to result in a Material Adverse Effect.
(5) The execution and delivery of this Guaranty will not involve any transaction that is subject to the prohibitions of Section
406(a)(1)(A)-(D) of ERISA or in connection with which a tax could be imposed pursuant to Section 4975(c)(1)(A)-(D) of the Code. The representation by such Guarantor in the first sentence of this Section 5(j)(5)
is made in reliance upon and subject to the accuracy of each Holder’s representation in Section 6.2 of the Note Purchase Agreement as to the source of the funds to be used to pay the purchase price of the
Notes to be purchased by such Holder.
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(k) Neither such Guarantor nor any of its subsidiaries is an “investment company” registered or required to be registered under the Investment
Company Act of 1940 or an “affiliated person” of an “investment company” or an “affiliated person” of such “affiliated person” or under the “control” of an “investment company” as such terms are defined in the Investment Company Act of 1940, as
amended, and shall not become such an “investment company” or such an “affiliated person” or under such “control.” Neither such Guarantor nor any of its subsidiaries is a “holding company” or a “subsidiary company” of a “holding company,” or an
“affiliate” of a “holding company” or of a “subsidiary company” of a “holding company” within the meaning of the Public Utility Holding Company Act of 2005, as amended. Based upon the immediately preceding sentence, such Guarantor is not subject
to regulation under the Public Utility Holding Company Act of 2005, as amended. Neither such Guarantor nor any of its subsidiaries is subject to the ICC Termination Act of 1995, as amended, or the Federal Power Act, as amended. Neither such
Guarantor nor any of its subsidiaries is subject to any Federal or state statute or regulation limiting its ability to incur Debt.
(l) Except as otherwise disclosed in Schedule 5.8 to the Note Purchase Agreement or otherwise disclosed in
writing to the Holders, neither such Guarantor nor any of its subsidiaries which are Restricted Subsidiaries has actual knowledge of any claim or has received any written notice of any claim, and no proceeding has been instituted raising any claim
against such Guarantor or any of its subsidiaries which are Restricted Subsidiaries or any of their respective real properties now or formerly owned, leased or operated by any of them or other assets, alleging any damage to the environment or
violation of any Environmental Laws, except, in each case, such as would not reasonably be expected to result in a Material Adverse Effect. Except as otherwise disclosed in Schedule 5.8 to the Note Purchase
Agreement or otherwise disclosed in writing to the Holders:
(1) neither such Guarantor nor any of its subsidiaries which are Restricted Subsidiaries has knowledge of any facts which would
give rise to any claim, public or private, of violation of Environmental Laws or damage to the environment emanating from, occurring on or in any way related to real properties now or formerly owned, leased or operated by any of them or to other
assets or their use, except, in each case, such as would not reasonably be expected to result in a Material Adverse Effect;
(2) neither such Guarantor nor any of its subsidiaries which are Restricted Subsidiaries has stored any Hazardous Materials on
real properties now or formerly owned, leased or operated by any of them or has disposed of any Hazardous Materials in a manner contrary to any Environmental Laws in each case in any manner that would reasonably be expected to result in a Material
Adverse Effect; and
(3) all buildings on all real properties now owned or operated by the Guarantor or any of its subsidiaries are in compliance
with applicable Environmental Laws, except where failure to comply would not reasonably be expected to result in a Material Adverse Effect.
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(m) Such Guarantor is solvent, has capital not unreasonably small in relation to its business or any contemplated or undertaken transaction and has
assets having a value both at fair valuation and at present fair salable value greater than the amount required to pay its debts as they become due and greater than the amount that will be required to pay its probable liability on its existing
debts as they become absolute and matured. Such Guarantor does not intend to incur, or believe or should have believed that it will incur, debts beyond its ability to pay such debts as they become due. Such Guarantor will not be rendered
insolvent by the execution and delivery of, and performance of its obligations under, this Guaranty. Such Guarantor does not intend to hinder, delay or defraud its creditors by or through the execution and delivery of, or performance of its
obligations under, this Guaranty.
(n) The obligations of such Guarantor under this Guaranty rank at least pari passu in right of payment with all other unsecured Senior Debt of such
Guarantor, including without limitation, all unsecured Senior Debt of such Guarantor described in Schedule 5.15 to the Note Purchase Agreement.
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Section 6.
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Amendments, Waivers and Consents.
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(a) This Guaranty may be amended, and the observance of any term hereof may be waived (either retroactively or prospectively), with (and only with)
the written consent of each Guarantor and the Required Holders, except that (1) no amendment or waiver of any of the provisions of Sections 3, 4 or 5, or any defined term (as it is used therein), will be effective as to any Holder unless consented to by such Holder in writing, and (2) no such amendment or waiver may, without the written consent of each
Holder, (i) change the percentage of the principal amount of the Notes the Holders of which are required to consent to any such amendment or waiver or (ii) amend Section 2 or this Section 6.
(b) The Guarantors will provide each Holder (irrespective of the amount of Notes then owned by it) with sufficient information, sufficiently far in
advance of the date a decision is required, to enable such Holder to make an informed and considered decision with respect to any proposed amendment, waiver or consent in respect of any of the provisions hereof. The Guarantors will deliver
executed or true and correct copies of each amendment, waiver or consent effected pursuant to the provisions of this Section 6 to each Holder promptly following the date on which it is executed and delivered
by, or receives the consent or approval of, the requisite Holders.
(c) No Guarantor will directly or indirectly pay or cause to be paid any remuneration, whether by way of fee or otherwise, or grant any security,
to any Holder as consideration for or as an inducement to the entering into by such Holder of any waiver or amendment of any of the terms and provisions hereof unless such remuneration is concurrently paid, or security is concurrently granted, on
the same terms, ratably to each Holder even if such Holder did not consent to such waiver or amendment.
(d) Any consent made pursuant to this Section 6 by a Holder that has transferred a portion or has agreed to
transfer all or a portion of its Notes to such Guarantor, any subsidiary or any affiliate of such Guarantor and has provided or has agreed to provide such written consent as a condition to such transfer shall be void and of no force and effect
except solely as to such Holder, and any amendment effected or waivers granted or to be effected or granted that would not have been or be so effected or granted but for such consent (and the consents of all other Holders that were acquired under
the same or similar conditions) shall be void and of no force and effect except solely as to such Holder.
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(e) Any amendment or waiver consented to as provided in this Section 6 applies equally to all Holders of
Notes affected thereby and is binding upon them and upon each future holder and upon the Guarantors. No such amendment or waiver will extend to or affect any obligation, covenant or agreement not expressly amended or waived or impair any right
consequent thereon. No course of dealing between the Guarantors and any Holder nor any delay in exercising any rights hereunder shall operate as a waiver of any rights of any Holder. As used herein, the term “this Guaranty” and references thereto
shall mean this Guaranty as it may from time to time be amended or supplemented.
(f) Solely for the purpose of determining whether the Holders of all or the requisite percentage of the aggregate principal amount of Notes then
outstanding approved or consented to any amendment, waiver or consent to be given under this Guaranty, Notes directly or indirectly owned by any Guarantor or any subsidiaries or Affiliates of any Guarantor shall be deemed not to be outstanding.
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Section 7.
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Notices.
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All notices and communications provided for hereunder shall be in writing and sent (a) by telefacsimile if the sender on the same day sends a confirming copy of such notice by a recognized
overnight delivery service (charges prepaid), (b) by registered or certified mail with return receipt requested (postage prepaid) or (c) by a recognized overnight delivery service (charges prepaid). Any such notice must be sent:
(1) if to a Purchaser or its nominee, to such Purchaser or its nominee at the address specified for such communications in Schedule A to the Note Purchase Agreement to which such Purchaser is a party, or at such other address as such Purchaser or its nominee shall have specified to any Guarantor in writing,
(2) if to any other Holder, to such Holder at such address as such Holder shall have specified to any Guarantor in writing, or
(3) if to any Guarantor, to such Guarantor c/o the Company at its address set forth at the beginning of the Note Purchase
Agreement to the attention of the Chief Financial Officer of the Company, or at such other address as such Guarantor shall have specified to the Holders in writing.
Notices under this Section 7 will be deemed given only when actually received.
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Section 8.
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Miscellaneous.
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(a) No remedy herein conferred upon or reserved to any Holder is intended to be exclusive of any other available remedy or remedies, but each and
every such remedy shall be cumulative and shall be in addition to every other remedy given under this Guaranty now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any default, omission
or failure of performance hereunder shall impair any such right or power or shall be construed to be a waiver thereof but any such right or power may be exercised from time to time and as often as may be deemed expedient. In order to entitle any
Holder to exercise any remedy reserved to it under this Guaranty, it shall not be necessary for such Holder to physically produce its Note in any proceedings instituted by it or to give any notice, other than such notice as may be herein expressly
required.
(b) The Guarantors will pay all sums becoming due under this Guaranty by the method and at the address specified for such purpose for such Holder,
in the case of a Holder that is a Purchaser, on Schedule A to the Note Purchase Agreement to which such Purchaser is a party or by such other method or at such other address as any Holder shall have from
time to time specified to the Guarantors or the Company on behalf of the Guarantors in writing for such purpose, without the presentation or surrender of this Guaranty or any Note.
(c) Any provision of this Guaranty that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law) not invalidate or render unenforceable
such provision in any other jurisdiction.
(d) If the whole or any part of this Guaranty shall be now or hereafter become unenforceable against any one or more of the Guarantors for any
reason whatsoever or if it is not executed by any one or more of the Guarantors, this Guaranty shall nevertheless be and remain fully binding upon and enforceable against each other Guarantor as if it had been made and delivered only by such other
Guarantors.
(e) This Guaranty shall be binding upon each Guarantor and its successors and assigns and shall inure to the benefit of each Holder and its
successors and assigns so long as its Notes remain outstanding and unpaid.
(f) This Guaranty may be executed in any number of counterparts, each of which shall be an original but all of which together shall constitute one
instrument. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties hereto. The parties agree to electronic contracting and signatures with respect to this Guaranty and
any other agreement and instrument hereunder. Delivery of an electronic signature to, or a signed copy of, this Guaranty and any other agreement and instrument hereunder by facsimile, email or other electronic transmission shall be fully binding
on the parties to the same extent as the delivery of the signed originals and shall be admissible into evidence for all purposes. Notwithstanding the foregoing, if any Purchaser shall request manually signed counterpart signatures this Guaranty
and any other agreement and instrument hereunder, the Guarantors hereby agree to use their reasonable endeavors to provide such manually signed signature pages as soon as reasonably practicable.
(g) This Guaranty shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the State of
New York excluding choice-of-law principles of the law of such State that would require the application of the laws of a jurisdiction other than such State.
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(h) Each Guarantor hereby irrevocably submits to the non-exclusive jurisdiction of any State of New York court or any Federal court located in New
York County, New York, New York for the adjudication of any matter arising out of or relating to this Guaranty, and consents to the service of all writs, process and summonses by registered or certified mail out of any such court or by service of
process on such Guarantor at its address to which notices are to be given pursuant to Section 7 hereof and hereby waives any requirement to have an agent for service of process in the State of New York.
Nothing contained herein shall affect the right of any Holder to serve legal process in any other manner or to bring any proceeding hereunder in any jurisdiction where such Guarantor may be amenable to suit. Each Guarantor hereby irrevocably
waives any objection to any suit, action or proceeding in any New York court or Federal court located in New York County, New York, New York on the grounds of venue and hereby further irrevocably waives any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
(i) Each Guarantor hereby waives trial by jury in any action brought on or with respect to this Guaranty or any other document executed in connection
herewith.
[Remainder of Page Left Intentionally Blank]
E-2-15
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be duly executed by an authorized representative as of the date first written above.
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Bernards Solar, LLC
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||
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By:
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NJR Clean Energy Ventures II Corporation,
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its Sole Member
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By:
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Name:
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Roberto F. Bel
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Title:
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Senior Vice President and
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Chief Financial Officer
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Commercial Realty and Resources Corp.
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By:
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Name:
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Roberto F. Bel
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Title:
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President, Chief Financial Officer,
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Treasurer and Secretary
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NJR Clean Energy Ventures Corporation
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By:
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||
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Name:
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Roberto F. Bel
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Title:
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Senior Vice President and Chief Financial Officer
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NJR Clean Energy Ventures II Corporation
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By:
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Name:
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Roberto F. Bel
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Title:
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Senior Vice President and
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Chief Financial Officer
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E-2-16
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NJR Clean Energy Ventures III Corporation
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By:
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Name:
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Roberto F. Bel
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Title:
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Senior Vice President and
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Chief Financial Officer
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NJR Energy Investments Corporation
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By:
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Name:
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Roberto F. Bel
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Title:
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Senior Vice President and Chief Financial Officer
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NJR Energy Services Company, LLC
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By:
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Name:
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Roberto F. Bel
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Title:
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Senior Vice President and
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Chief Financial Officer
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NJR Home Services Company
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By:
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Name:
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Roberto F. Bel
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Title:
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Senior Vice President, Chief Financial
Officer, Treasurer and Secretary
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NJR Midstream Holdings Corporation
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By:
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Name:
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Roberto F. Bel
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Title:
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Senior Vice President and
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Chief Financial Officer
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E-2-17
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NJR Plumbing Services, Inc.
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By:
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Name:
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Roberto F. Bel
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Title:
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Senior Vice President, Chief Financial
Officer, Treasurer and Secretary
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NJR Retail Company
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By:
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Name:
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Roberto F. Bel
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Title:
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Senior Vice President, Chief Financial
Officer, Treasurer and Secretary
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NJR Retail Holdings Corporation
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By:
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Name:
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Roberto F. Bel
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Title:
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Senior Vice President, Chief Financial
Officer, Treasurer and Secretary
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NJR Service Corporation
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By:
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Name:
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Roberto F. Bel
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Title:
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Senior Vice President
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and Chief Financial Officer
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By:
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Name:
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Roberto F. Bel
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Title:
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Senior Vice President and
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Chief Financial Officer
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E-2-18
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Phoenix Fuel Management Company
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||
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By:
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||
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Name:
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Roberto F. Bel
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Title:
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Senior Vice President, Chief Financial
Officer, Treasurer and Secretary
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E-2-19
Guaranty Supplement
To the Holders (as defined in the hereinafter
defined Guaranty Agreement)
Ladies and Gentlemen:
Whereas, New Jersey Resources Corporation, a corporation organized under the laws of the State of New Jersey (the “Company”), in order to refinance
existing indebtedness and provide funding for general corporate purposes, has issued to the Purchasers $100,000,000 aggregate principal amount of its 5.55% Senior Notes, Series 2024A, due November 7, 2034 (the “Notes”),
pursuant to a Note Purchase Agreement dated as of November 7, 2024 (“Note Purchase Agreement”) between the Company and the respective Purchasers named therein. Capitalized terms used herein shall have the
meanings set forth in the hereinafter defined Guaranty Agreement unless herein defined or the context shall otherwise require.
Whereas, as a condition precedent to their purchase of the Notes, the Purchasers required that from time to time certain Subsidiaries of the Company enter into that certain Subsidiary Guaranty
Agreement dated as of November 7, 2024 attached hereto as Exhibit 1 (as amended, supplemented, restated or otherwise modified from time to time, the “Guaranty Agreement”) as security for the Notes.
Pursuant to Section 9.7(a) of the Note Purchase Agreement, the Company has agreed to cause the undersigned, [____________], a [corporation] organized under
the laws of [______________] (the “Additional Guarantor”), to join in the Guaranty Agreement. In accordance with the requirements of the Guaranty Agreement, the Additional Guarantor desires to amend the
definition of Guarantor (as the same may have been heretofore amended) set forth in the Guaranty Agreement attached hereto so that at all times from and after the date hereof, the Additional Guarantor shall be jointly and severally liable as set
forth in the Guaranty Agreement for the obligations of the Company under the Notes and the Note Purchase Agreement to the extent and in the manner set forth in the Guaranty Agreement.
The undersigned is the duly elected [____________] of the Additional Guarantor, a Subsidiary of the Company, and is duly authorized to execute and deliver this Guaranty Supplement to each of you.
The execution by the undersigned of this Guaranty Supplement shall evidence such Additional Guarantor’s consent to and acknowledgment and approval of the terms set forth herein and in the Guaranty Agreement and its agreement to be bound by the
covenants, terms and provisions of the Guaranty Agreement as a Guarantor thereunder and by such execution the Additional Guarantor shall be deemed to have made in favor of the Holders the representations and warranties set forth in Section 5 of the Guaranty Agreement.
E-2-20
Upon execution of this Guaranty Supplement, the Guaranty Agreement shall be deemed to be amended as set forth above. Except as amended herein, the terms and provisions of the Guaranty Agreement
are hereby ratified, confirmed and approved in all respects.
Any and all notices, requests, certificates and other instruments (including the Notes) may refer to the Guaranty Agreement without making specific reference to this Guaranty Supplement, but
nevertheless all such references shall be deemed to include this Guaranty Supplement unless the context shall otherwise require.
|
Dated: _________________, 20__.
|
||
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[Name of Additional Guarantor]
|
||
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By:
|
||
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Its:
|
||
E-2-21
Exhibit 1 to Guaranty Supplement
Guaranty Agreement
[See attached]
E-2-22
Form of Opinion of Special Counsel
to the Company and the Guarantors
The closing opinions of Melissa Abraham, Esq., and Troutman Pepper Hamilton Sanders LLP, special counsels for the Company and the Guarantors, which are called for by Section 4.5(a) of the
Agreement, shall be dated the Closing Date and addressed to each Purchaser (subject to customary qualifications and exceptions reasonably acceptable to the Purchasers), and shall be reasonably satisfactory in scope and form to each Purchaser and
shall be to the effect that:
1. Each of the Company and the Guarantors being duly incorporated, validly existing and in good standing and having requisite corporate power and
authority to issue and sell the Notes and to execute, deliver and perform the Agreement, the Notes and the Guaranty Agreement.
2. New Jersey Natural Gas is a corporation or other business entity duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization. All of the issued and outstanding shares of capital stock or other equity interests of each such Guarantor and New Jersey Natural Gas have been duly issued, are fully paid and non-assessable, other than as shown in
Schedule 5.4 to the Agreement, and are owned by the Company, by one or more Restricted Subsidiaries, or by the Company and one or more Restricted Subsidiaries.
3. Due authorization, execution and delivery of the Agreement, the Notes and the Guaranty Agreement and such documents being legal, valid, binding
and enforceable in accordance with their terms.
4. No conflicts with charter documents, laws, judgments, orders, decrees or other agreements; no creation of Liens.
5. All consents, approvals, authorizations or filings required to be obtained by the Company or any Guarantor to issue and sell the Notes and to
execute, deliver and perform the Agreement, the Notes and the Guaranty Agreement having been obtained.
6. No litigation questioning validity of documents.
7. The Notes not requiring registration under the Securities Act of 1933, as amended; no need to qualify an indenture under the Trust Indenture
Act of 1939, as amended.
8. No violation of Regulations T, U or X of the Federal Reserve Board.
9. Company not an “investment company”, or a company “controlled” by an “investment company”, under the Investment Company Act of 1940, as
amended.
The opinions of Melissa Abraham, Esq., and Troutman Pepper Hamilton Sanders LLP shall cover such other matters relating to the sale of the Notes as any Purchaser may reasonably request. With
respect to matters of fact on which such opinion is based, such counsel shall be entitled to rely on appropriate certificates of public officials, Mizuho Securities USA LLC, Huntington Securities, Inc., officers of the Company and of the Guarantors
and upon representations of the Company, the Guarantors and the Purchasers delivered in connection with the issuance and sale of the Notes and the execution and delivery of the Guaranty Agreement and such opinion and shall provide that (i)
subsequent holders of the Notes may rely upon such opinion as though delivered to such subsequent holders on the Closing Date and (ii) such opinion may be provided to Governmental Authorities, including, without limitation, the NAIC, provided that
such opinion may indicate that any such Governmental Authority may not rely on such opinion.
Exhibit 4.5(a)
(to Note Purchase Agreement)
(to Note Purchase Agreement)
Form of Opinion of Special Counsel
to the Purchasers
The closing opinion of ArentFox Schiff LLP, special counsel to the Purchasers, called for by Section 4.5(b) of the Agreement, shall be dated the Closing Date and addressed to the Purchasers, shall
be satisfactory in form and substance to the Purchasers and shall be to the effect that:
1. The Company is a corporation validly existing and in good standing under the laws of the State of New Jersey.
2. The Agreement and the Notes being delivered on the date hereof constitute the legal, valid and binding contracts of the Company, enforceable
against the Company in accordance with their respective terms.
3. The issuance, sale and delivery of the Notes being delivered on the date hereof under the circumstances contemplated by this Agreement do not,
under existing law, require the registration of such Notes under the Securities Act or the qualification of an indenture under the Trust Indenture Act of 1939, as amended.
The opinion of ArentFox Schiff LLP shall also state that the opinions of Melissa Abraham, Esq., and of Troutman Pepper Hamilton Sanders LLP are satisfactory in scope and form to ArentFox Schiff LLP
and that, in their opinion, the Purchasers are justified in relying thereon.
In rendering the opinion set forth in paragraph 1 above, ArentFox Schiff LLP may rely, as to matters referred to in paragraph 1, solely upon an examination of the Certificate of Incorporation
certified by, and a certificate of good standing of the Company from, the Secretary of State of the State of New Jersey. The opinion of ArentFox Schiff LLP is limited to the laws of the State of New York and the Federal laws of the United States.
With respect to matters of fact upon which such opinion is based, ArentFox Schiff LLP may rely on appropriate certificates of public officials and officers of the Company and upon representations
of the Company and the Purchasers delivered in connection with the issuance and sale of the Notes.
Exhibit 4.5(b)
(to Note Purchase Agreement)
(to Note Purchase Agreement)
Exhibit 10.1
NEW JERSEY RESOURCES CORPORATION
2017 Stock Award and Incentive Plan
Performance Share Units Agreement – (TSR)
This Performance Share Units Agreement (the “Agreement”), which includes the attached “Terms and Conditions of Performance Share Units” (the “Terms
and Conditions”) and the attached Exhibit A captioned “Performance Goal and Earning of Performance Share Units”, confirms the grant on November __, 2024 (the “Grant Date”) by NEW JERSEY RESOURCES CORPORATION, a New Jersey corporation (the “Company”),
to _____________ (“Employee”), under Sections 6(e), 6(i) and 7 of the 2017 Stock Award and Incentive Plan (the “Plan”), of Performance Share Units (the
“Performance Share Units”), including rights to Dividend Equivalents as specified herein, as follows:
Target Number Granted: _______ Performance Share Units (“Target Number”)
How Performance Share Units
are Earned and Vest: The Performance Share Units, if not previously forfeited, (i) will be earned, if and to the extent that the Performance Goal defined on Exhibit A to this Agreement is achieved, with the corresponding number of
Performance Share Units earned (ranging from 0% to 150% of the Target Number) as specified on Exhibit A, on the date set forth on Exhibit A (the “Earning Date”) and (ii) will vest as to the number of Performance Share Units earned if Employee remains
employed by the Company or a Subsidiary from the Grant Date through the Earning Date (the “Stated Vesting Date”). To the extent vested, all earned Performance Share Units shall be settled within 60 days after the Stated Vesting Date. In addition,
if not previously forfeited or payable, upon a Change in Control prior to the Stated Vesting Date, the Performance Share Units (i) will be earned in an amount equal to (A) the Target Number of the Performance Share Units if the Change in Control
occurs within the first 12 months of the 36-month earning period specified on Exhibit A or (B) the number of Performance Share Units that would have been earned based upon the actual level of achievement if the performance period had ended at the
date of the Change in Control if the Change in Control occurs within the last 24 months of the 36-month earning period specified on Exhibit A and (ii) will (A) immediately vest on the Change in Control with respect to such earned Performance Share
Units and will be settled within 60 days thereafter, if Employee remains employed by the Company or a Subsidiary from the Grant Date through the Change in Control and no provision is made for the continuance, assumption or substitution of the
Performance Share Units by the Company or its successor in connection with the Change in Control, or (B) vest on the Stated Vesting Date with respect to such earned Performance Share Units and will be settled within 60 days thereafter, if Employee
remains employed by the Company or a Subsidiary from the Grant Date through the Stated Vesting Date and provision is made for the continuance, assumption or substitution of the Performance Share Units by the Company or its successor in connection
with the Change in Control. In addition, if not previously forfeited or payable, the Performance Share Units will become vested upon the occurrence of certain events relating to Employee’s Termination of Employment to the extent provided in Section
4 of the attached Terms and Conditions, and such vested Performance Share Units will continue to be subject to the Performance Goal and will be eligible to be earned if and to the extent that the Performance Goal is achieved or there is a Change in
Control prior to the Stated Vesting Date and settled in accordance with Section 6(a) hereof. The terms “vest” and “vesting” mean that the Performance Share Units have become non-forfeitable in relation to Employee’s employment but may continue to be
subject to a substantial risk of forfeiture based on the Performance Goal to the extent provided in Section 4 of the attached Terms and Conditions. If the Performance Goal is not met (or not fully met), and no Change in Control occurs within the
first 12 months of the 36-month earning period specified on Exhibit A, the Performance Share Units (or the unearned portion of the Performance Share Units) will be immediately forfeited (whether vested or not). If Employee has a Termination of
Employment prior to the Stated Vesting Date and the Performance Share Units are not otherwise vested by that date, the Performance Share Units will be immediately forfeited except as otherwise provided in Section 4 of the attached Terms and
Conditions. Forfeited Performance Share Units cease to be outstanding and in no event will thereafter result in any delivery of shares of Stock to Employee.
Performance Goal and
Earning Date: The Performance Goal and Earning Date, and the number of Performance Share Units earned for specified levels of performance at the Earning Date, shall be as specified in Exhibit A hereto.
Settlement:
Performance Share Units that are to be settled hereunder, including Performance Share Units credited as a result of Dividend Equivalents, will be settled by delivery of one share of Stock, for each Performance Share Unit being settled. Settlement
shall occur at the time specified above and in Section 6(a) of the attached Terms and Conditions.
Further Conditions to
Settlement: Notwithstanding any other provision of this Agreement, except as otherwise set forth below, the Company’s obligation to settle the Performance Share Units and Employee’s right to distribution of the Performance Share Units will
be forfeited immediately upon the occurrence of any one or more of the following events (defined terms are attached hereto as Exhibit B):
(a) Competitive Employment. In the event that Employee, prior to full settlement of the Performance Share Units and within the Restricted Territory,
directly or indirectly, whether on Employee’s own behalf or on behalf of any other person or entity, performs services of the type which are the same as or similar to those conducted, authorized, offered or provided by Employee to the Company
within the last 24 months, and which support business activities which compete with the Business of the Company.
(b) Recruitment of Company Employees and Contractors. In the event that Employee, prior to full settlement of the Performance Share Units, directly or
indirectly, whether on Employee’s own behalf or on behalf of any other person or entity, solicits or induces any employee or independent contractor of the Company with whom Employee had Material Contact to terminate or lessen such employment or
contract with the Company.
(c) Solicitation of Company Customers. In the event that Employee, prior to full settlement of the Performance Share Units, directly or indirectly, whether
on Employee’s own behalf or on behalf of any other person or entity, solicits any actual or prospective customers of the Company with whom Employee had Material Contact for the purpose of selling any products or services which compete with the
Business of the Company.
2
(d) Solicitation of Company Vendors. In the event that Employee, prior to full settlement of the Performance Share Units, directly or indirectly, whether on
Employee’s own behalf or on behalf of any other person or entity, solicits any actual or prospective vendor of the Company with whom Employee had Material Contact for the purpose of purchasing products or services to support business activities
which compete with the Business of the Company.
(e) Breach of Confidentiality. In the event that Employee, at any time prior to full settlement of the Performance Share Units, directly or indirectly,
divulges or makes use of any Confidential Information or Trade Secrets of the Company other than in the performance of Employee’s duties for the Company. This provision does not limit the remedies available to the Company under common or statutory
law as to trade secrets or other forms of confidential information, which may impose longer duties of non-disclosure and provide for injunctive relief and damages. Notwithstanding anything herein to the contrary, nothing herein is intended to or
will be used in any way to prevent Employee from providing truthful testimony under oath in a judicial or administrative proceeding or to limit Employee’s right to communicate with a government agency, as provided for, protected under or warranted
by applicable law. The Employee further understands nothing herein limits the Employee’s ability to file a charge or complaint with the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safety and Health
Administration, the Securities and Exchange Commission, or any other federal, state or local government agency or commission (‘Government Agencies”). Nothing herein limits the Employee’s ability to communicate with any Government Agencies or
otherwise participate in any investigation or proceeding that may be conducted by the Government Agency, including providing documents or information without notice to the Company. This Agreement does not limit the Employee’s right to receive an
award for information provided to any Government Agency. Notwithstanding anything herein to the contrary, the Employee shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a Trade Secret
that (i) is made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney and solely for the purpose of reporting or investigating a suspected violation of law or (ii) is made in a complaint
or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, if the Employee files a lawsuit for retaliation for reporting a suspected violation of law, the Employee may disclose the Trade Secret to his
or her attorney and use the Trade Secret information in the court proceeding, as long as the Employee files any document containing the Trade Secret under seal and does not disclose the Trade Secret, except pursuant to court order.
(f) Return of Property and Information. In the event that prior to full settlement of the Performance Share Units Employee fails to return all of the
Company’s property and information (whether confidential or not) within Employee’s possession or control within seven (7) calendar days following the termination or resignation of Employee from employment with the Company. Such property and
information includes, but is not limited to, the original and any copy (regardless of the manner in which it is recorded) of all information provided by the Company to Employee or which Employee has developed or collected in the scope of Employee’s
employment with the Company, as well as all Company-issued equipment, supplies, accessories, vehicles, keys, instruments, tools, devices, computers, cell phones, pagers, materials, documents, plans, records, notebooks, drawings, or papers. Upon
request by the Company, Employee shall certify in writing that Employee has complied with this provision, and has permanently deleted all Company information from any computers or other electronic storage devices or media owned by Employee.
Employee may only retain information relating to the Employee’s benefit plans and compensation to the extent needed to prepare Employee’s tax returns.
3
(g) Disparagement. In the event that prior to full settlement of the Performance Share Units Employee makes any statements, either verbally or in writing,
that are disparaging with regard to the Company or any of its subsidiaries or their respective executives and Board members.
(h) Failure to Provide Information. In the event that prior to full settlement of the Performance Share Units Employee fails to promptly and fully respond
to requests for information from the Company regarding Employee’s compliance with any of the foregoing conditions.
If it is determined by the Leadership Development and Compensation Committee of the Company’s Board of Directors, in its sole discretion,
that any of the foregoing events have occurred prior to full settlement of the Performance Share Units, any unpaid portion of the Performance Share Units will be forfeited without any compensation therefor, provided, however, that none of the
foregoing conditions shall restrict any Employee who is a lawyer from practicing law. To the extent any such condition would restrict any Employee who is a lawyer from practicing law or would penalize the Employee for practicing law, such condition
shall not be effective, and the Leadership Development and Compensation Committee may not forfeit any of the Performance Share Units on account therefor.
The Performance Share Units are subject to the terms and conditions of the Plan and this Agreement, including the Terms and Conditions of Performance
Share Units attached hereto and deemed a part hereof. The number of Performance Share Units and the kind of shares deliverable in settlement and other terms and conditions of the Performance Share Units are subject to adjustment in accordance with
Section 5 of the attached Terms and Conditions and Section 11(c) of the Plan.
Employee acknowledges and agrees that (i) the Performance Share Units are nontransferable, except as provided in Section 3 of the attached Terms and
Conditions and Section 11(b) of the Plan, (ii) the Performance Share Units are subject to forfeiture in the event of Employee’s Termination of Employment in certain circumstances prior to vesting, as specified in Section 4 of the attached Terms and
Conditions, (iii) the foregoing conditions shall apply to the Performance Share Units prior to settlement and (iv) sales of shares of Stock delivered upon settlement of the Performance Share Units will be subject to any Company policy regulating
trading by employees.
Capitalized terms used in this Agreement but not defined herein shall have the same meanings as in the Plan.
4
IN WITNESS WHEREOF, NEW JERSEY RESOURCES CORPORATION has caused this Agreement to be executed by its officer thereunto duly authorized.
|
NEW JERSEY RESOURCES CORPORATION
|
||
|
By:
|
||
|
[NAME]
|
||
|
[Title]
|
||
|
EMPLOYEE
|
||
|
[NAME]
|
||
|
[Title]
|
||
5
TERMS AND CONDITIONS OF PERFORMANCE SHARE UNITS
The following Terms and Conditions apply to the Performance Share Units granted to Employee by NEW JERSEY RESOURCES CORPORATION (the “Company”) and
Performance Share Units resulting from Dividend Equivalents (as defined below), if any, as specified in the Performance Share Units Agreement (of which these Terms and Conditions form a part). Certain terms of the Performance Share Units, including
the number of Performance Share Units granted, vesting date(s) and settlement date, are set forth on the cover page hereto and Exhibit A, which are an integral part of this Agreement.
1. General. The Performance Share Units are granted to Employee under the Company’s 2017 Stock Award and Incentive Plan (the “Plan”), 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. By accepting the grant of the Performance Share Stock Units, 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 relating to the Plan and grants
thereunder of the Leadership Development and Compensation Committee of the Company’s Board of Directors (the “Committee”) made from time to time.
2. Account for Employee. The Company shall maintain a bookkeeping account for Employee (the “Account”)
reflecting the number of Performance Share Units then credited to Employee hereunder as a result of such grant of Performance Share Units and any crediting of additional Performance Share Units to Employee pursuant to dividends paid on shares of
Stock under Section 5 hereof (“Dividend Equivalents”).
3. Nontransferability. Until Performance Share Units are settled by delivery of shares of Stock in accordance with the terms of this Agreement, Employee may not transfer Performance Share
Units or any rights hereunder to any third party other than by will or the laws of descent and distribution, except for transfers to a Beneficiary or as otherwise permitted and subject to the conditions under Section 11(b) of the Plan. This
restriction on transfer precludes any sale, assignment, pledge or other encumbrance or disposition of the Performance Share Units (except for forfeitures to the Company).
4. Termination of Employment. The following provisions will govern the earning, vesting and forfeiture of the Performance Share Units that are outstanding at the time of Employee’s
Termination of Employment (as defined below) (i) by the Company without Cause (as defined below) or by the Employee for Good Reason (as defined below), in either case during the CIC Protection Period (as defined below), or (ii) due to death,
Disability (as defined below) or Retirement (as defined below), unless otherwise determined by the Committee (subject to Section 8(e) hereof):
(a) Termination by the Company or by the Employee in Certain Events. In the event of Employee’s Termination of Employment, prior to the Stated Vesting Date, by the Company without Cause within the CIC Protection
Period and other than for Disability or Retirement, or by Employee for Good Reason within the CIC Protection Period, the outstanding Performance Share Units will be vested with respect to no less than a Pro Rata Portion (as defined below) of the
Performance Share Units, to the extent earned previously (upon a Change in Control where provision is made for the continuance, assumption or substitution of the Performance Share Units by the Company or its successor in connection with the Change
in Control or otherwise), to the extent not vested previously, and such earned and vested Performance Share Units will be settled in accordance with Section 6(a) hereof. In the event of Employee’s Termination of Employment, prior to the Stated Vesting Date, (i) by the Company for Cause and other than for Disability or Retirement, (ii) by the Company for any reason other than Disability or
Retirement prior to or after the CIC Protection Period, (iii) by Employee (other than for Good Reason within the CIC Protection Period or upon Retirement), or (iv) by Employee (other than upon Retirement) before or after the CIC Protection Period,
the portion of the then-outstanding Performance Share Units not earned and vested at the date of Employee’s Termination of Employment will be forfeited.
6
(b) Death, Disability or Retirement. In the event of Employee’s Termination of Employment, prior to the Stated Vesting Date and before a Change in Control, due to Employee’s death, Disability or Retirement, the
outstanding Performance Share Units will be vested with respect to no less than a Pro Rata Portion (as defined below) of the Performance Share Units, to the extent not earned previously, that may become earned on the Earning Date, to the extent not
previously vested, and such vested Performance Share Units will continue to be subject to the Performance Goal and will be eligible to be earned if and to the extent that the Performance Goal is achieved or there is a Change in Control prior to the
Stated Vesting Date and settled in accordance with Section 6(a) hereof. In the event of Employee’s Termination of Employment, prior to the Stated Vesting Date and on or after a Change in Control, due to Employee’s death, Disability or Retirement,
the outstanding Performance Share Units will be vested with respect to no less than a Pro Rata Portion of the Performance Share Units, to the extent earned previously (upon a Change in Control where provision is made for the continuance, assumption
or substitution of the Performance Share Units by the Company or its successor in connection with the Change in Control or otherwise), to the extent not vested previously, and such earned and vested Performance Share Units will be settled in
accordance with Section 6(a) hereof. Any portion of the then-outstanding Performance Share Units not vested at or before the date of Employee's Termination of Employment will be forfeited.
(c) Certain Definitions. The following definitions apply for purposes of this Agreement:
(i) “Cause” has the same definition as under any
employment or similar agreement between the Company and Employee or, if no such agreement exists or if such agreement does not contain any such definition, Cause means (i) Employee’s conviction of a felony or the entering by Employee of a plea of nolo contendere to a felony charge, (ii) Employee’s gross neglect, willful malfeasance or willful
gross misconduct in connection with his or her employment which has had a significant adverse effect on the business of the Company and its subsidiaries, unless Employee reasonably believed in good faith that such act or non-act was in or not
opposed to the best interest of the Company, or (iii) repeated material violations by Employee of the duties and obligations of Employee’s position with the Company which have continued after written notice thereof from the Company, which
violations are demonstrably willful and deliberate on Employee’s part and which result in material damage to the Company’s business or reputation.
(ii) “CIC Protection Period” means the two-year period
beginning on the date of a Change in Control and ending on the day before the second annual anniversary of the date of the Change in Control.
(iii) “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. Only the Company can
initiate a Termination of Employment due to Disability.
7
(iv) “Good Reason” has the same definition as under any
employment or similar agreement between the Company and Employee; but, if no such agreement exists or if any such agreement does not contain or reference any such definition, Good Reason shall not apply to the Employee for purposes of this
Agreement.
(v) “Pro Rata Portion” means a fraction, the numerator
of which is the number of days from the first day of the 36-month earning period specified on Exhibit A to the date of Employee’s Termination of Employment due to Employee’s death, Disability or Retirement, or by the Company without Cause within
the CIC Protection Period and other than for Disability or Retirement or by Employee for Good Reason within the CIC Protection Period, and the denominator of which is the number of days from the first day of such 36-month earning period to the
Earning Date.
(vi) “Retirement” means Employee’s voluntary Termination
of Employment on or after (i) the Employee has attained age 55 or greater, (ii) the sum of the Employee’s age plus Years of Service equals or exceeds 65, and (iii) six months following Employee’s notice to the Company’s Human Resources Department
of the Employee’s intent to retire.
(vii) “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 50% equity participant.
(viii) “Termination of Employment” and “Termination” means
the earliest time at which Employee is not employed by the Company or a Subsidiary of the Company.
(ix) “Years of Service” means the cumulative consecutive
years of active and continuous employment with the Company or a Subsidiary of the Company (including approved leaves of absence of six (6) months or less or legally protected leaves of absence), beginning on the date of the Employee’s most recent
date of hire with the Company or a Subsidiary of the Company and counting each anniversary thereof. A partial year of employment shall not be treated as a Year of Service.
(d) Termination by the Company for Cause. In the event of Employee’s Termination of Employment by the Company for Cause, the portion of the then-outstanding Performance Share Units not earned and vested prior to
such time will be forfeited immediately upon notice to Employee that the Company is terminating the Employee’s employment for Cause (notwithstanding whether Employee is eligible to terminate employment due to Good Reason, Disability or Retirement
at that time).
5. Dividend Equivalents and Adjustments.
(a) Dividend Equivalents. Dividend Equivalents will be credited on Performance Share Units (other than Performance Share Units that, at the relevant record date, previously have been settled or forfeited) and
deemed converted into additional Performance Share Units. Dividend Equivalents will be credited as follows, except that the Company may vary the manner of crediting (for example, by crediting cash dividend equivalents rather than additional
Performance Share Units) for administrative convenience:
(i) Cash Dividends. If the Company declares and pays a dividend or distribution on shares of Stock in the form of cash, then additional Performance Share Units shall be credited to Employee’s Account as of the
payment date of such cash dividend or distribution (or settled as of the payment date of such cash dividend or distribution if the Performance Share Units are to be settled before the payment date) equal to the number of Performance Share Units
credited to the Account as of the relevant record date multiplied by the amount of cash paid per share of Stock in such dividend or distribution divided by the Fair Market Value of a share of Stock at the payment date for such dividend or
distribution.
8
(ii) Non-Share Dividends. If the Company declares and pays a dividend or distribution on shares of Stock in the form of property other than shares of Stock, then a number of additional Performance Share Units
shall be credited to Employee’s Account as of the payment date of such cash dividend or distribution (or settled as of the payment date of such cash dividend or distribution if the Performance Share Units are to be settled before the payment date)
equal to the number of Performance Share Units credited to the Account as of the record date for such dividend or distribution multiplied by the fair market value of such property actually paid as a dividend or distribution on each outstanding
share of Stock at such payment date, divided by the Fair Market Value of a share of Stock at such payment date for such dividend or distribution.
(iii) Share Dividends and Splits. If the Company declares and pays a dividend or distribution on shares of Stock in the form of additional shares of Stock, or there occurs a forward split of shares of Stock, then
a number of additional Performance Share Units shall be credited to Employee’s Account as of the payment date for such dividend or distribution or forward split (or settled as of the payment date for such dividend or distribution or forward split
if the Performance Share Units are to be settled before the payment date) equal to the number of Performance Share Units credited to the Account as of the record date for such dividend or distribution or split multiplied by the number of additional
shares of Stock actually paid as a dividend or distribution or issued in such split in respect of each outstanding share of Stock.
(b) Adjustments. The number of Performance Share Units credited to Employee’s Account shall be appropriately adjusted in order to prevent dilution or enlargement of Employee’s rights with respect to Performance
Share Units or 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 Performance Share Units credited to Employee in connection with such event
under Section 5(a) hereof. In furtherance of the foregoing, in the event of an equity restructuring, as defined in ASC Topic 718, which affects the shares of Stock, Employee shall have a legal right to an adjustment to Employee’s Performance Share
Units which shall preserve without enlarging the value of the Performance Share Units, with the manner of such adjustment to be determined by the Committee in its discretion. All adjustments will be made in a manner as to maintain the Performance
Share Unit’s exemption from Code Section 409A or, to the extent Code Section 409A applies, to comply with Code Section 409A. Any adjustments shall be subject to the requirements and restrictions set forth in Section 11(c) of the Plan.
(c) Risk of Forfeiture and Settlement of Performance Share Units Resulting from Dividend Equivalents and Adjustments. Performance Share Units which directly or indirectly result from Dividend Equivalents on or
adjustments to Performance Share Units granted hereunder shall be subject to the same risk of forfeiture and other conditions as apply to the granted Performance Share Units with respect to which the Dividend Equivalents or adjustments related and
will be settled at the same time as such related Performance Share Units (unless the Performance Share Units are to be settled prior to the payment date of the Dividend Equivalents or the date of such adjustments, in which case the Dividend
Equivalents or adjustments will be settled at the payment date of the dividends or the date of such adjustments (and in no event later than 60 days after the Performance Share Units otherwise are to be settled)).
9
6. Settlement and Deferral.
(a) Settlement Date. Except as otherwise set forth above under “Further Conditions to Settlement,” Performance Share Units granted hereunder that have become earned and vested, together with Performance Share
Units credited as a result of Dividend Equivalents with respect thereto, to the extent earned and vested, shall be settled by delivery of one share of Stock for each Performance Share Unit being settled at the time specified herein. Settlement of
earned and vested Performance Share Units granted hereunder shall occur at the Earning Date (with shares to be delivered within 60 days after the Earning Date); provided, however, that settlement of earned and vested Performance Share Units shall
occur within 60 days after a Change in Control if no provision is made for the continuance, assumption or substitution of the Performance Share Units by the Company or its successor in connection with the Change in Control; and provided further,
that settlement shall be deferred if so elected by Employee in accordance with Section 6(b) hereof subject to Section 6(c) hereof. Settlement of Performance Share Units which directly or indirectly result from Dividend Equivalents on Performance
Share Units granted hereunder generally shall occur at the time of settlement of the related Performance Share Units except as otherwise described above.
(b) Elective Deferral. The Committee may determine to permit Employee to elect to defer settlement (or re-defer) if such election would be permissible under Section 11(k) of the Plan and Code Section 409A. In
addition to any applicable requirements under Code Section 409A, any such deferral election shall be made only while Employee remains employed and at a time permitted under Code Section 409A. The form under which an election is made shall set
forth the time and form of payment of such amount deferred. Any amount deferred shall be subject to a 6 month delay upon payment if required under Section 11(k)(i)(F) of the Plan. Any elective deferral will be subject to such additional terms and
conditions as the Senior Vice President, Human Resources, or the officer designated by the Company as responsible for administration of the Agreement, may reasonably impose.
(c) Compliance with Code Section 409A. Other provisions of this Agreement notwithstanding, because the Performance Share Units will constitute a "deferral of compensation" under Section 409A of the Code (“Code
Section 409A”) as presently in effect or hereafter amended (i.e., the Performance Share Units are not excluded or exempted under Code Section 409A or a regulation or other official governmental guidance thereunder; Note: an elective deferral under
Section 6(b) would cause the Performance Share Units, if not already, to be a deferral of compensation subject to Code Section 409A after the deferral), such Performance Share Units will be considered a 409A Award under the Plan and, shall be
subject to the additional requirements set forth in Section 11(k) of the Plan including without limitation that (i) Termination of Employment shall be construed consistent with the meaning of a Separation from Service and (ii) a Change in Control
under the Agreement shall be construed consistent with the meaning of a 409A Ownership/Control Change.
7. Employee Representations and Warranties Upon Settlement. As a condition to the settlement of the Performance Share Units, 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 the release, in such form as may be specified by the Company, and not revoke such release prior the expiration of any applicable
revocation period, all within 60 days after Termination of Employment.
8. 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 Performance Share Units, and supersedes any prior agreements or documents with respect to the Performance Share Units. 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 Performance Share Units shall be valid unless expressed in a written instrument executed by Employee.
10
(b) No Promise of Employment. The Performance Share Units 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) Fractional Performance Share Units and Shares. The number of Performance Share Units credited to Employee’s Account shall include fractional Performance Share Units calculated to at least three decimal places,
unless otherwise determined by the Committee. Unless settlement is effected through a third-party broker or agent that can accommodate fractional shares (without requiring issuance of a fractional Share by the Company), upon settlement of the
Performance Share Units, the Committee, in its sole discretion, may either (i) round the fractional share to be delivered up to a whole Share or (ii) provide that Employee shall be paid, in cash, an amount equal to the value of any fractional Share
that would have otherwise been deliverable in settlement of such Performance Share Units.
(e) Mandatory Tax Withholding. Unless otherwise determined by the Committee, or Employee has elected at least 90 days prior to payout to satisfy the tax obligations in cash by other means, at the time of vesting
and/or settlement the Company will withhold first from any cash payable and then from any shares of Stock deliverable in settlement of the Performance Share Units, in accordance with Section 11(d)(i) of the Plan, the number of whole shares of Stock
having a value nearest to, but not exceeding, the minimum amount of income and employment taxes required to be withheld under applicable laws and regulations (only with respect to the minimum number of Shares necessary to satisfy statutory
withholding requirements, unless withholding of any additional number of Shares will not result in additional accounting expense to the Company and is permitted by the Committee), 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 minimum withholding taxes that may be due upon vesting or settlement of
Performance Share Units.
(f) Statements. An individual statement of each Employee’s Account will be issued to Employee at such times as may be determined by the Company. Such a statement shall reflect the number of Performance Share Units
credited to Employee’s Account, transactions therein during the period covered by the statement, and other information deemed relevant by the Company. Such a statement may be combined with or include information regarding other plans and
compensatory arrangements. Employee’s statements shall be deemed a part of this Agreement, and shall evidence the Company’s obligations in respect of Performance Share Units, including the number of Performance Share Units credited as a result of
Dividend Equivalents (if any). Any statement containing an error shall not, however, represent a binding obligation to the extent of such error, notwithstanding the inclusion of such statement as part of this Agreement.
(g) Unfunded Obligations. The grant of the Performance Share Units and any provision for distribution in settlement of Employee’s Account hereunder shall be by means of bookkeeping entries on the books of the
Company and shall not create in Employee any right to, or claim against any, specific assets of the Company, nor result in the creation of any trust or escrow account for Employee. With respect to Employee’s entitlement to any distribution
hereunder, Employee shall be a general creditor of the Company.
(h) 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 Senior Vice President, Human Resources, or the officer
designated by the Company as responsible for administration of the Agreement, and any notice to Employee shall be addressed to Employee at Employee’s address as then appearing in the records of the Company.
11
(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 except as otherwise specified herein. Specifically, Performance Share Units represent a contractual right to receive shares of Stock in the future, subject to the terms and conditions of this Agreement and the Plan, and do not
represent ownership of shares of Stock at any time before the settlement of this Award and actual issuance of the shares of Stock.
12
Exhibit A
NEW JERSEY RESOURCES CORPORATION
2017 Stock Award and Incentive Plan
Performance Goal and Earning of Performance Share Units
The number of Performance Share Units earned by Participant shall be determined as of September 30, 2027 (the “Earning Date”), based on the Company’s
“Total Shareholder Return Performance” in the 36-month period ending at the Earning Date as compared against an established group of comparable companies (the “Comparison Group”) selected by the Committee and shown below. The number of Performance
Share Units earned will be determined based on the following grid:
|
Relative Total Shareholder Return
|
|
|
Company Relative Total
Shareholder Return Performance
— Percentile Achieved
|
Performance Share Units Earned as
Percentage of
Target Performance Share Units
|
|
Less than 25th
|
0%
|
|
25th (threshold)
|
40%
|
|
55th (target)
|
100%
|
|
80th and above (maximum)
|
150%
|
Total Shareholder Return (or “TSR”), expressed as a percentage, shall be computed as follows:
TSR = (Priceend − Pricebegin + Dividends) / Pricebegin
Pricebegin = the
average of the closing share price of the Stock over the 20 trading days beginning October 1, 2024.
Priceend = the
average of the closing share price of the Stock over the 20 trading days ending September 30, 2027.
Dividends = dividends or other distributions paid to shareholders with respect to the Stock with ex-dividend dates falling within the 36-month period
between October 1, 2024 and September 30, 2027 (with such dividends and other distributions deemed reinvested in shares of Stock as of the ex-dividend date based on the Price of the Stock on the ex-dividend date where not paid in shares of Stock).
Price = the closing price of the Stock as of the applicable
date.
Upon achievement of Total Shareholder Return at a percentile between any two specified percentiles, the Performance Share Units earned will be
mathematically interpolated on a straight-line basis.
Determinations of the Committee regarding Total Shareholder Return performance, such performance as a percentile within the Comparison Group, the
resulting Performance Share Units earned and vested and related matters will be final and binding on Participant.
Companies shall be removed from the Comparison Group if they undergo a Specified Corporate Change. A company that is removed from the Comparison Group
before the Earning Date will not be included at all in the computation of Total Shareholder Return. A company in the Comparison Group will be deemed to have undergone a “Specified Corporate Change” if it:
13
| 1. |
ceases to be a domestically domiciled publicly traded company on a national stock exchange or market system, unless such cessation of such listing is due to a low stock price or low
trading volume; or
|
|
2.
|
has gone private; or
|
| 3. |
has reincorporated in a foreign (e.g., non-U.S.) jurisdiction, regardless of whether it is a reporting company in that or another jurisdiction; or
|
| 4. |
has been acquired by another company (whether by a peer company or otherwise, but not including internal reorganizations), or has sold all or substantially all of its assets.
|
The Company shall rely on press releases, public filings, website postings, and other reasonably reliable information available regarding a peer
company in making a determination that a Specified Corporate Change has occurred.
The Committee shall determine a reasonable methodology for dealing with companies in the Comparison Group that cease to be engaged in a business
comparable to that of the Company. Additionally, TSR will be -100% if a company: (i) files for bankruptcy, reorganization, or liquidation under any chapter of the U.S. Bankruptcy Code; (ii) is the subject of an involuntary bankruptcy proceeding that
is not dismissed within 30 days; (iii) is the subject of a stockholder approved plan of liquidation or dissolution; or (iv) ceases to conduct substantial business operations. Total Shareholder Return shall be calculated in a manner that reflects the
economic return to shareholders, such that any equity restructuring of the Company or any company in the Comparison Group shall not have the effect of enlarging or reducing the rights of Employee except to the extent of its effects on the real
economic return of a shareholder.
Determinations of the Committee regarding Total Shareholder Return performance, in the case of a Change in Control or Employee’s Termination due to
death prior to the Earning Date, shall be made as if the performance period had ended at the date of the Change in Control or Termination of Employment due to death, as applicable.
14
The Comparison Group
Atmos Energy Corporation
Black Hills Corporation
Chesapeake Utilities Corporation
National Fuel Gas Company
NiSource Inc.
Northwest Natural Gas Company
ONE Gas, Inc.
Southwest Gas Corporation
Spire Inc.
UGI Corporation
15
Exhibit B
NEW JERSEY RESOURCES CORPORATION
2017 Stock Award and Incentive Plan
Definitions Under Further Conditions to Settlement
| a. |
“Business of the Company” means the following areas of its business which are selected below, which Employee acknowledges are areas of the Company’s business in which Employee has
responsibilities:
|
[[BRANCH]]
[[SECTION]]
Natural Gas Distribution: Consists of New Jersey
Natural Gas Company (“NJNG”), a natural gas utility company that provides regulated retail natural gas service to residential and commercial customers in central and northern New Jersey engages
in or supervises in the off-system sales and capacity release markets and is developing a broad range of strategies to decarbonize its operations, including clean fuels and behind the meter solutions.
Energy Services: Maintains and transacts around a
portfolio of physical assets consisting of natural gas storage and transportation contracts and also provides wholesale energy management services to other energy companies and natural gas producers in market areas including states from the Gulf
Coast and Mid-continent regions to the Appalachian and Northeast regions, the West Coast and Canada.
Clean Energy Ventures: Investor, owner, and operator in
the renewable energy sector, including, but not limited to, investments in residential and commercial rooftop and ground mount solar systems.
Storage and Transportation: Includes
investments in natural gas transportation and storage assets and is comprised of the following: Steckman Ridge, which is a partnership that owns and operates a 17.7 Bcf natural gas storage facility, with up to 12 Bcf working capacity, in western
Pennsylvania that is 50 percent owned by a Company Subsidiary; Leaf River Energy Center, a natural gas storage facility located in southeastern Mississippi with a combined working natural gas storage capacity of 32.2 million dekatherms; and Adelphia
Gateway, an 84-mile pipeline in southeastern Pennsylvania and Delaware.
Home Services: Consists of NJR Home Services Company,
which provides Heating, Ventilating, and Air Conditioning (“HVAC”) service, sales and installation of appliances, as well as installation of solar equipment, generators and plumbing services.
16
| b. |
“Confidential Information” means all valuable and/or proprietary information (in oral, written, electronic or other forms) belonging to or pertaining to the Company, its customers
and vendors, that is not generally known or publicly available, and which would be useful to competitors of the Company or otherwise damaging to the Company if disclosed. Confidential Information may include, but is not necessarily limited
to: (i) the identity of the Company’s customers or potential customers, their purchasing histories, and the terms or proposed terms upon which the Company offers or may offer its products and services to such customers, (ii) the identity of
the Company’s vendors or potential vendors, and the terms or proposed terms upon which the Company may purchase products and services from such vendors, (iii) technology used by the Company to provide its services, (iv) the terms and
conditions upon which the Company employs its employees and independent contractors, (v) marketing and/or business plans and strategies, (vi) financial reports and analyses regarding the revenues, expenses, profitability and operations of the
Company, and (vii) information provided to the Company by customers and other third parties under a duty to maintain the confidentiality of such information. Notwithstanding the foregoing, Confidential Information does not include
information that: (i) has been voluntarily disclosed to the public by Company or any Employer, except where such public disclosure has been made by Employee without authorization from Company or Employer; (ii) has been independently
developed and disclosed by others, or (iii) which has otherwise entered the public domain through lawful means. Confidential Information also does not include information related to any claim of sexual harassment or sexual assault and nothing
herein restricts the disclosure of such information. Nothing herein shall prohibit, prevent or restrict the Employee from reporting any allegations of unlawful conduct to federal, state or local officials or to an attorney retained by the
Employee.
|
| c. |
“Material Contact” means contact in person, by telephone, or by paper or electronic correspondence, or the supervision of those who have such conduct, and which is done in
furtherance of the business interests of the company and within the last 36 months.
|
| d. |
“Restricted Territory” consists of the following areas, to the extent such areas have been identified as applicable to the definition of the “Business of the company” above:
|
Natural Gas Distribution: The Continental United
States.
Energy Services: The Continental United States.
Clean Energy Ventures: The States of New Jersey,
Connecticut, Rhode Island, New York, Michigan, Indiana, Pennsylvania and Maryland.
Storage and Transportation: The States of New Jersey, New
York, Connecticut, Pennsylvania, Delaware, Virginia, West Virginia, Mississippi, Alabama, Louisiana and Texas.
Home Services: The State of New Jersey.
| e. |
“Trade Secrets” means a trade secret of the Company as defined by applicable law
|
17
Exhibit 10.2
NEW JERSEY RESOURCES CORPORATION
2017 Stock Award and Incentive Plan
Performance Share Units Agreement (NFE)
This Performance Share Units Agreement (the “Agreement”), which includes the attached “Terms and Conditions of Performance Share Units” (the “Terms
and Conditions”) and the attached Exhibit A captioned “Performance Goal and Earning of Performance Share Units”, confirms the grant on November __, 2024 (the “Grant Date”) by NEW JERSEY RESOURCES CORPORATION, a New Jersey corporation (the “Company”),
to _____________________ (“Employee”), under Sections 6(e), 6(i) and 7 of the 2017 Stock Award and Incentive Plan (the “Plan”), of Performance Share Units (the “Performance Share Units”), including rights to Dividend Equivalents as specified herein,
as follows:
Target Number Granted:
____ Performance Share Units (“Target Number”)
How Performance Share Units
are Earned and Vest: The Performance Share Units, if not previously forfeited, (i) will be earned, if and to the extent that the Performance Goal defined on Exhibit A to this Agreement is achieved, with the corresponding number of
Performance Share Units earned (ranging from 0% to 150% of the Target Number) as specified on Exhibit A, on the date set forth on Exhibit A (the “Earning Date”) and (ii) will vest as to the number of Performance Share Units earned if Employee remains
employed by the Company or a Subsidiary from the Grant Date through the Earning Date (the “Stated Vesting Date”). To the extent vested, all earned Performance Share Units shall be settled within 60 days after the Stated Vesting Date. In addition,
if not previously forfeited or payable, upon a Change in Control prior to the Stated Vesting Date, the Performance Share Units (i) will be earned in an amount equal to the Target Number of the Performance Share Units and (ii) will (A) immediately
vest on the Change in Control with respect to such earned Performance Share Units and will be settled within 60 days thereafter, if Employee remains employed by the Company or a Subsidiary from the Grant Date through the Change in Control and no
provision is made for the continuance, assumption or substitution of the Performance Share Units by the Company or its successor in connection with the Change in Control, or (B) vest on the Stated Vesting Date with respect to such earned Performance
Share Units and will be settled within 60 days thereafter, if Employee remains employed by the Company or a Subsidiary from the Grant Date through the Stated Vesting Date and provision is made for the continuance, assumption or substitution of the
Performance Share Units by the Company or its successor in connection with the Change in Control. In addition, if not previously forfeited or payable, the Performance Share Units will become vested upon the occurrence of certain events relating to
Employee's Termination of Employment to the extent provided in Section 4 of the attached Terms and Conditions, and such vested Performance Share Units will continue to be subject to the Performance Goal and will be eligible to be earned if and to the
extent that the Performance Goal is achieved or there is a Change in Control prior to the Stated Vesting Date and settled in accordance with Section 6(a) hereof. The terms “vest” and “vesting” mean that the Performance Share Units have become
non-forfeitable in relation to Employee’s employment but may continue to be subject to a substantial risk of forfeiture based on the Performance Goal to the extent provided in Section 4 of the attached Terms and Conditions. If the Performance Goal
is not met (or not fully met), and no Change in Control occurs prior to the Earning Date, the Performance Share Units (or the unearned portion of the Performance Share Units) will be immediately forfeited (whether vested or not). If Employee has a
Termination of Employment prior to the Stated Vesting Date and the Performance Share Units are not otherwise vested by that date, the Performance Share Units will be immediately forfeited except as otherwise provided in Section 4 of the attached
Terms and Conditions. Forfeited Performance Share Units cease to be outstanding and in no event will thereafter result in any delivery of shares of Stock to Employee.
1
Performance Goal and
Earning Date: The Performance Goal and Earning Date, and the number of Performance Share Units earned for specified levels of performance at the Earning Date, shall be as specified in Exhibit A hereto.
Settlement:
Performance Share Units that are to be settled hereunder, including Performance Share Units credited as a result of Dividend Equivalents, will be settled by delivery of one share of Stock, for each Performance Share Unit being settled. Settlement
shall occur at the time specified above and in Section 6(a) of the attached Terms and Conditions.
Further Conditions to
Settlement: Notwithstanding any other provision of this Agreement, except as otherwise set forth below, the Company’s obligation to settle the Performance Share Units and Employee’s right to distribution of the Performance Share Units will
be forfeited immediately upon the occurrence of any one or more of the following events (defined terms are attached hereto as Exhibit B):
(a) Competitive Employment. In the event that Employee, prior to full settlement of the Performance Share Units and within the Restricted Territory,
directly or indirectly, whether on Employee’s own behalf or on behalf of any other person or entity, performs services of the type which are the same as or similar to those conducted, authorized, offered or provided by Employee to the Company
within the last 24 months, and which support business activities which compete with the Business of the Company.
(b) Recruitment of Company Employees and Contractors. In the event that Employee, prior to full settlement of the Performance Share Units, directly or
indirectly, whether on Employee’s own behalf or on behalf of any other person or entity, solicits or induces any employee or independent contractor of the Company with whom Employee had Material Contact to terminate or lessen such employment or
contract with the Company.
(c) Solicitation of Company Customers. In the event that Employee, prior to full settlement of the Performance Share Units, directly or indirectly, whether
on Employee’s own behalf or on behalf of any other person or entity, solicits any actual or prospective customers of the Company with whom Employee had Material Contact for the purpose of selling any products or services which compete with the
Business of the Company.
(d) Solicitation of Company Vendors. In the event that Employee, prior to full settlement of the Performance Share Units, directly or indirectly, whether on
Employee’s own behalf or on behalf of any other person or entity, solicits any actual or prospective vendor of the Company with whom Employee had Material Contact for the purpose of purchasing products or services to support business activities
which compete with the Business of the Company.
2
(e) Breach of Confidentiality. In the event that Employee, at any time prior to full settlement of the Performance Share Units, directly or indirectly,
divulges or makes use of any Confidential Information or Trade Secrets of the Company other than in the performance of Employee’s duties for the Company. This provision does not limit the remedies available to the Company under common or statutory
law as to trade secrets or other forms of confidential information, which may impose longer duties of non-disclosure and provide for injunctive relief and damages. Notwithstanding anything herein to the contrary, nothing herein is intended to or
will be used in any way to prevent Employee from providing truthful testimony under oath in a judicial or administrative proceeding or to limit Employee’s right to communicate with a government agency, as provided for, protected under or warranted
by applicable law. The Employee further understands nothing herein limits the Employee’s ability to file a charge or complaint with the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safety and Health
Administration, the Securities and Exchange Commission, or any other federal, state or local government agency or commission (‘Government Agencies”). Nothing herein limits the Employee’s ability to communicate with any Government Agencies or
otherwise participate in any investigation or proceeding that may be conducted by the Government Agency, including providing documents or information without notice to the Company. This Agreement does not limit the Employee’s right to receive an
award for information provided to any Government Agency. Notwithstanding anything herein to the contrary, the Employee shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a Trade Secret
that (i) is made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney and solely for the purpose of reporting or investigating a suspected violation of law or (ii) is made in a complaint
or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, if the Employee files a lawsuit for retaliation for reporting a suspected violation of law, the Employee may disclose the Trade Secret to his
or her attorney and use the Trade Secret information in the court proceeding, as long as the Employee files any document containing the Trade Secret under seal and does not disclose the Trade Secret, except pursuant to court order.
(f) Return of Property and Information. In the event that prior to full settlement of the Performance Share Units Employee fails to return all of the
Company’s property and information (whether confidential or not) within Employee’s possession or control within seven (7) calendar days following the termination or resignation of Employee from employment with the Company. Such property and
information includes, but is not limited to, the original and any copy (regardless of the manner in which it is recorded) of all information provided by the Company to Employee or which Employee has developed or collected in the scope of Employee’s
employment with the Company, as well as all Company-issued equipment, supplies, accessories, vehicles, keys, instruments, tools, devices, computers, cell phones, pagers, materials, documents, plans, records, notebooks, drawings, or papers. Upon
request by the Company, Employee shall certify in writing that Employee has complied with this, provision and has permanently deleted all Company information from any computers or other electronic storage devices or media owned by Employee.
Employee may only retain information relating to the Employee’s benefit plans and compensation to the extent needed to prepare Employee’s tax returns.
(g) Disparagement. In the event that prior to full settlement of the Performance Share Units Employee makes any statements, either verbally or in
writing, that are disparaging with regard to the Company or any of its subsidiaries or their respective executives and Board members.
3
(h) Failure to Provide Information. In the event that prior to full settlement of the Performance Share Units Employee fails to promptly and fully
respond to requests for information from the Company regarding Employee’s compliance with any of the foregoing conditions.
If it is determined by the Leadership Development and Compensation Committee of the Company’s Board of Directors, in its sole discretion,
that any of the foregoing events have occurred prior to full settlement of the Performance Share Units, any unpaid portion of the Performance Share Units will be forfeited without any compensation therefor, provided, however, that none of the
foregoing conditions shall restrict any Employee who is a lawyer from practicing law. To the extent any such condition would restrict any Employee who is a lawyer from practicing law or would penalize the Employee for practicing law, such
condition shall not be effective and the Leadership Development and Compensation Committee may not forfeit any of the Performance Share Units on account therefor.
The Performance Share Units are subject to the terms and conditions of the Plan and this Agreement, including the Terms and Conditions of
Performance Share Units attached hereto and deemed a part hereof. The number of Performance Share Units and the kind of shares deliverable in settlement and other terms and conditions of the Performance Share Units are subject to adjustment in
accordance with Section 5 of the attached Terms and Conditions and Section 11(c) of the Plan.
Employee acknowledges and agrees that (i) the Performance Share Units are nontransferable, except as provided in Section 3 of the attached Terms and
Conditions and Section 11(b) of the Plan, (ii) the Performance Share Units are subject to forfeiture in the event of Employee’s Termination of Employment in certain circumstances prior to vesting, as specified in Section 4 of the attached Terms and
Conditions, (iii) the foregoing conditions shall apply to the Performance Share Units prior to settlement and (iv) sales of shares of Stock delivered upon settlement of the Performance Share Units will be subject to any Company policy regulating
trading by employees.
Capitalized terms used in this Agreement but not defined herein shall have the same meanings as in the Plan.
4
IN WITNESS WHEREOF, NEW JERSEY RESOURCES CORPORATION has caused this Agreement to be executed by its officer thereunto duly authorized.
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NEW JERSEY RESOURCES CORPORATION
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By:
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[NAME]
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[Title]
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Officer’s Name
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[NAME]
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[Title]
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5
TERMS AND CONDITIONS OF PERFORMANCE SHARE UNITS
The following Terms and Conditions apply to the Performance Share Units granted to Employee by NEW JERSEY RESOURCES CORPORATION (the “Company”) and
Performance Share Units resulting from Dividend Equivalents (as defined below), if any, as specified in the Performance Share Units Agreement (of which these Terms and Conditions form a part). Certain terms of the Performance Share Units, including
the number of Performance Share Units granted, vesting date(s) and settlement date, are set forth on the cover page hereto and Exhibit A, which are an integral part of this Agreement.
1. General. The Performance Share Units are granted to Employee under the Company’s 2017 Stock Award and Incentive Plan (the “Plan”), which has been previously delivered to Employee
and/or is available upon request to the Human Resources 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. By accepting the grant of the Performance Share Units, 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 relating to the Plan and grants
thereunder of the Leadership Development and Compensation Committee of the Company’s Board of Directors (the “Committee”) made from time to time.
2. Account for Employee. The Company shall maintain a bookkeeping account for Employee (the “Account”)
reflecting the number of Performance Share Units then credited to Employee hereunder as a result of such grant of Performance Share Units and any crediting of additional Performance Share Units to Employee pursuant to dividends paid on shares of
Stock under Section 5 hereof (“Dividend Equivalents”).
3. Nontransferability. Until Performance Share Units are settled by delivery of shares of Stock in accordance with the terms of this Agreement, Employee may not transfer Performance Share
Units or any rights hereunder to any third party other than by will or the laws of descent and distribution, except for transfers to a Beneficiary or as otherwise permitted and subject to the conditions under Section 11(b) of the Plan. This
restriction on transfer precludes any sale, assignment, pledge or other encumbrance or disposition of the Performance Share Units (except for forfeitures to the Company).
4. Termination of Employment. The following provisions will govern the earning, vesting and forfeiture of the Performance Share Units that are outstanding at the time of Employee’s
Termination of Employment (as defined below) (i) by the Company without Cause (as defined below) or by the Employee for Good Reason (as defined below), in either case during the CIC Protection Period (as defined below), or (ii) due to death,
Disability (as defined below) or Retirement (as defined below), unless otherwise determined by the Committee (subject to Section 8(e) hereof):
(a) Termination by the Company or by the Employee in Certain Events. In the event of Employee’s Termination of Employment, prior to the Stated Vesting Date, by the Company without Cause within the CIC
Protection Period and other than for Disability or Retirement, or by Employee for Good Reason within the CIC Protection Period, the outstanding Performance Share Units will be vested with respect to no less than a Pro Rata Portion (as defined
below) of the Performance Share Units, to the extent earned previously (upon a Change in Control where provision is made for the continuance, assumption or substitution of the Performance Share Units by the Company or its successor in connection
with the Change in Control or otherwise), to the extent not vested previously, and such earned and vested Performance Share Units will be settled in accordance with Section 6(a) hereof. In the event of Employee’s Termination of Employment, prior to the Stated Vesting Date, (i) by the Company for Cause and other than for Disability or Retirement, (ii) by the Company for any reason other than
Disability or Retirement prior to or after the CIC Protection Period, (iii) by Employee (other than for Good Reason within the CIC Protection Period or upon Retirement), or (iv) by Employee (other than upon Retirement) before or after the CIC
Protection Period, the portion of the then-outstanding Performance Share Units not earned and vested at the date of Employee’s Termination of Employment will be forfeited.
6
(b) Death, Disability or Retirement. In the event of Employee’s Termination of Employment, prior to the Stated Vesting Date and before a Change in Control, due to Employee’s death, Disability or Retirement,
the outstanding Performance Share Units will be vested with respect to no less than a Pro Rata Portion (as defined below) of the Performance Share Units, to the extent not earned previously, that may become earned on the Earning Date, to the
extent not previously vested, and such vested Performance Share Units will continue to be subject to the Performance Goal and will be eligible to be earned if and to the extent that the Performance Goal is achieved or there is a Change in Control
prior to the Stated Vesting Date and settled in accordance with Section 6(a) hereof. In the event of Employee’s Termination of Employment, prior to the Stated Vesting Date but on or after a Change in Control, due to Employee’s death, Disability
or Retirement, the outstanding Performance Share Units will be vested with respect to no less than a Pro Rata Portion of the Performance Share Units, to the extent earned previously (upon a Change in Control where provision is made for the
continuance, assumption or substitution of the Performance Share Units by the Company or its successor in connection with the Change in Control or otherwise), to the extent not vested previously, and such earned and vested Performance Share Units
will be settled in accordance with Section 6(a) hereof. Any portion of the then-outstanding Performance Share Units not vested at or before the date of Employee’s Termination of Employment will be forfeited.
(c) Certain Definitions. The following definitions apply for purposes of this Agreement:
(i) “Cause” has the same definition as under any
employment or similar agreement between the Company and Employee or, if no such agreement exists or if such agreement does not contain any such definition, Cause means (i) Employee’s conviction of a felony or the entering by Employee of a plea of
nolo contendere to a felony charge, (ii) Employee’s gross neglect, willful malfeasance or
willful gross misconduct in connection with his or her employment which has had a significant adverse effect on the business of the Company and its subsidiaries, unless Employee reasonably believed in good faith that such act or non-act was in or
not opposed to the best interest of the Company, or (iii) repeated material violations by Employee of the duties and obligations of Employee’s position with the Company which have continued after written notice thereof from the Company, which
violations are demonstrably willful and deliberate on Employee’s part and which result in material damage to the Company’s business or reputation.
(ii) “CIC Protection Period” means the two-year period
beginning on the date of a Change in Control and ending on the day before the second annual anniversary of the date of the Change in Control.
(iii) “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. Only the Company can
initiate a Termination of Employment due to Disability.
7
(iv) “Good Reason” has the same definition as under any
employment or similar agreement between the Company and Employee; but, if no such agreement exists or if any such agreement does not contain or reference any such definition, Good Reason shall not apply to the Employee for purposes of this
Agreement.
(v) “Pro Rata Portion” means a fraction, the numerator
of which is the number of days from the first day of the 36-month earning period specified on Exhibit A to the date of Employee’s Termination of Employment due to Employee’s death, Disability or Retirement, or by the Company without Cause within
the CIC Protection Period and other than for Disability or Retirement or by Employee for Good Reason within the CIC Protection Period, and the denominator of which is the number of days from the first day of such 36-month earning period to the
Earning Date.
“Retirement” means Employee’s voluntary Termination of Employment on or after (i) the Employee has attained age 55 or greater,(ii) the sum of the Employee’s age plus
Years of Service equals or exceeds 65, and (iii) six months following Employee’s notice to the Company’s Human Resources Department of the Employee’s intent to retire.
(vii) “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 50% equity
participant.
(vii) “Termination of Employment” and “Termination” means
the earliest time at which Employee is not employed by the Company or a Subsidiary of the Company.
(viii) “Years of Service” means the cumulative consecutive
years of active and continuous employment with the Company or a Subsidiary of the Company (including approved leaves of absence of six (6) months or less or legally protected leaves of absence), beginning on the date of the Employee’s most recent
date of hire with the Company or a Subsidiary of the Company and counting each anniversary thereof. A partial year of employment shall not be treated as a Year of Service.
(d) Termination by the Company for Cause. In the event of Employee’s Termination of Employment by the Company for Cause, the portion of the then-outstanding Performance Share Units not earned and vested
prior to such time will be forfeited immediately upon notice to Employee that the Company is terminating the Employee’s employment for Cause (notwithstanding whether Employee is eligible to terminate employment due to Good Reason, Disability or
Retirement at that time).
5. Dividend Equivalents and Adjustments.
(a) Dividend Equivalents. Dividend Equivalents will be credited on Performance Share Units (other than Performance Share Units that, at the relevant record date, previously have been settled or forfeited) and
deemed converted into additional Performance Share Units. Dividend Equivalents will be credited as follows, except that the Company may vary the manner of crediting (for example, by crediting cash dividend equivalents rather than additional
Performance Share Units) for administrative convenience:
(i) Cash Dividends. If the Company declares and pays a dividend or distribution on shares of Stock in the form of cash, then additional Performance Share Units shall be credited to Employee’s Account as of
the payment date of such cash dividend or distribution (or settled as of the payment date of such cash dividend or distribution if the Performance Share Units are to be settled before the payment date) equal to the number of Performance Share
Units credited to the Account as of the relevant record date multiplied by the amount of cash paid per share of Stock in such dividend or distribution divided by the Fair Market Value of a share of Stock at the payment date for such dividend or
distribution.
8
(ii) Non-Share Dividends. If the Company declares
and pays a dividend or distribution on shares of Stock in the form of property other than shares of Stock, then a number of additional Performance Share Units shall be credited to Employee’s Account as of the payment date of such cash dividend or
distribution (or settled as of the payment date of such cash dividend or distribution if the Performance Share Units are to be settled before the payment date) equal to the number of Performance Share Units credited to the Account as of the record
date for such dividend or distribution multiplied by the fair market value of such property actually paid as a dividend or distribution on each outstanding share of Stock at such payment date, divided by the Fair Market Value of a share of Stock at
such payment date for such dividend or distribution.
(iii) Share Dividends and Splits. If the Company declares and pays a dividend or distribution on shares of Stock in the form of additional shares of Stock, or there occurs a forward split of shares of Stock,
then a number of additional Performance Share Units shall be credited to Employee’s Account as of the payment date for such dividend or distribution or forward split (or settled as of the payment date for such dividend or distribution or forward
split if the Performance Share Units are to be settled before the payment date) equal to the number of Performance Share Units credited to the Account as of the record date for such dividend or distribution or split multiplied by the number of
additional shares of Stock actually paid as a dividend or distribution or issued in such split in respect of each outstanding share of Stock.
(b) Adjustments. The number of Performance Share Units credited to Employee’s Account shall be appropriately adjusted in order to prevent dilution or enlargement of Employee’s rights with respect to
Performance Share Units or 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 Performance Share Units credited to Employee in connection
with such event under Section 5(a) hereof. In furtherance of the foregoing, in the event of an equity restructuring, as defined in ASC Topic 718, which affects the shares of Stock, Employee shall have a legal right to an adjustment to Employee’s
Performance Share Units which shall preserve without enlarging the value of the Performance Share Units, with the manner of such adjustment to be determined by the Committee in its discretion. All adjustments will be made in a manner as to
maintain the Performance Share Unit’s exemption from Code Section 409A or, to the extent Code Section 409A applies, to comply with Code Section 409A. Any adjustments shall be subject to the requirements and restrictions set forth in Section
11(c) of the Plan.
(c) Risk of Forfeiture and Settlement of Performance Share Units Resulting from Dividend Equivalents and Adjustments. Performance Share Units which directly or indirectly result from Dividend Equivalents on
or adjustments to Performance Share Units granted hereunder shall be subject to the same risk of forfeiture and other conditions as apply to the granted Performance Share Units with respect to which the Dividend Equivalents or adjustments related
and will be settled at the same time as such related Performance Share Units (unless the Performance Share Units are to be settled prior to the payment date of the Dividend Equivalents or the date of such adjustments, in which case the Dividend
Equivalents or adjustments will be settled at the payment date of the dividends or the date of such adjustments (and in no event later than 60 days after the Performance Share Units otherwise are to be settled)).
9
6. Settlement and Deferral.
(a) Settlement Date. Except as otherwise set forth above under “Further Conditions to Settlement,” Performance Share Units granted hereunder that have become earned and vested, together with Performance
Share Units credited as a result of Dividend Equivalents with respect thereto, to the extent earned and vested, shall be settled by delivery of one share of Stock for each Performance Share Unit being settled at the time specified herein.
Settlement of earned and vested Performance Share Units granted hereunder shall occur at the Earning Date (with shares to be delivered within 60 days after the Earning Date); provided, however, that settlement of earned and vested Performance
Share Units shall occur within 60 days after a Change in Control if no provision is made for the continuance, assumption or substitution of the Performance Share Units by the Company or its successor in connection with the Change in Control; and
provided further, that settlement shall be deferred if so elected by Employee in accordance with Section 6(b) hereof subject to Section 6(c) hereof. Settlement of Performance Share Units which directly or indirectly result from Dividend
Equivalents on Performance Share Units granted hereunder generally shall occur at the time of settlement of the related Performance Share Units except as otherwise described above.
(b) Elective Deferral. The Committee may determine to permit Employee to elect to defer settlement (or re-defer) if such election would be permissible under Section 11(k) of the Plan and Code Section 409A.
In addition to any applicable requirements under Code Section 409A, any such deferral election shall be made only while Employee remains employed and at a time permitted under Code Section 409A. The form under which an election is made shall set
forth the time and form of payment of such amount deferred. Any amount deferred shall be subject to a six-month delay upon payment if required under Section 11(k)(i)(F) of the Plan. Any elective deferral will be subject to such additional terms
and conditions as the Senior Vice President, Human Resources, or the officer designated by the Company as responsible for administration of the Agreement, may reasonably impose.
(c) Compliance with Code Section 409A. Other provisions of this Agreement notwithstanding, because the Performance Share Units will constitute a "deferral of compensation" under Section 409A of the Code
(“Code Section 409A”) as presently in effect or hereafter amended (i.e., the Performance Share Units are not excluded or exempted under Code Section 409A or a regulation or other official governmental guidance thereunder; Note: an elective
deferral under Section 6(b) would cause the Performance Share Units, if not already, to be a deferral of compensation subject to Code Section 409A after the deferral), such Performance Share Units will be considered a 409A Award under the Plan
and shall be subject to the additional requirements set forth in Section 11(k) of the Plan including without limitation that (i) Termination of Employment shall be construed consistent with the meaning of a Separation from Service and (ii) a
Change in Control under the Agreement shall be construed consistent with the meaning of a 409A Ownership/Control Change.
7. Employee Representations and Warranties Upon Settlement. As a condition to the settlement of
the Performance Share Units, 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 the release, in such form as may be specified by the Company, and not revoke such release prior the expiration of any applicable revocation period, all within 60 days after Termination of Employment.
8. 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 Performance Share Units, and supersedes any prior agreements or documents with respect to the Performance Share Units. 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 Performance Share Units shall be valid unless expressed in a written instrument executed by Employee.
10
(b) No Promise of Employment. The Performance Share Units 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) Fractional Performance Share Units and Shares. The number of Performance Share Units credited to Employee’s Account shall include fractional Performance Share Units calculated to at least three decimal
places, unless otherwise determined by the Committee. Unless settlement is effected through a third-party broker or agent that can accommodate fractional shares (without requiring issuance of a fractional Share by the Company), upon settlement of
the Performance Share Units, the Committee, in its sole discretion, may either (i) round the fractional share to be delivered up to a whole Share or (ii) provide that Employee shall be paid, in cash, an amount equal to the value of any fractional
Share that would have otherwise been deliverable in settlement of such Performance Share Units.
(e) Mandatory Tax Withholding. Unless otherwise determined by the Committee, or Employee has elected at least 90 days prior to payout to satisfy the tax obligations in cash by other means, at the time of
vesting and/or settlement the Company will withhold first from any cash payable and then from any shares of Stock deliverable in settlement of the Performance Share Units, in accordance with Section 11(d)(i) of the Plan, the number of whole
shares of Stock having a value nearest to, but not exceeding, the minimum amount of income and employment taxes required to be withheld under applicable laws and regulations (only with respect to the minimum number of Shares necessary to satisfy
statutory withholding requirements, unless withholding of any additional number of Shares will not result in additional accounting expense to the Company and is permitted by the Committee), 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 minimum withholding taxes that may be due upon vesting or
settlement of Performance Share Units.
(f) Statements. An individual statement of each Employee’s Account will be issued to Employee at such times as may be determined by the Company. Such a statement shall reflect the number of Performance Share
Units credited to Employee’s Account, transactions therein during the period covered by the statement, and other information deemed relevant by the Company. Such a statement may be combined with or include information regarding other plans and
compensatory arrangements. Employee’s statements shall be deemed a part of this Agreement, and shall evidence the Company’s obligations in respect of Performance Share Units, including the number of Performance Share Units credited as a result of
Dividend Equivalents (if any). Any statement containing an error shall not, however, represent a binding obligation to the extent of such error, notwithstanding the inclusion of such statement as part of this Agreement.
(g) Unfunded Obligations. The grant of the Performance Share Units and any provision for distribution in settlement of Employee’s Account hereunder shall be by means of bookkeeping entries on the books of the
Company and shall not create in Employee any right to, or claim against any, specific assets of the Company, nor result in the creation of any trust or escrow account for Employee. With respect to Employee’s entitlement to any distribution
hereunder, Employee shall be a general creditor of the Company.
(h) 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 Senior Vice President, Human Resources, or the officer
designated by the Company as responsible for administration of the Agreement, and any notice to Employee shall be addressed to Employee at Employee’s address as then appearing in the records of the Company.
11
(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 except as otherwise specified herein. Specifically, Performance Share Units represent a contractual right to receive shares of Stock in the future, subject to the terms and conditions of this Agreement and the Plan, and do
not represent ownership of shares of Stock at any time before the settlement of this Award and actual issuance of the shares of Stock.
12
Exhibit A
NEW JERSEY RESOURCES CORPORATION
2017 Stock Award and Incentive Plan
Performance Goal and Earning of Performance Share Units
The number of Performance Share Units earned by Participant shall be determined as of September 30, 2027 (the “Earning Date”), based on the Company’s “Cumulative
NFEPS” (defined below) over the 36-month period ending at the Earning Date. The number of Performance Share Units earned will be determined based on the following table:
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Cumulative NFEPS
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Performance Share Units Earned as a
Percentage of Target
Performance Share Units
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Less than $
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0%
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$
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50%
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$
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100%
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$ or Greater
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150%
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“Net Financial Earnings” or “NFE” is a financial measure not calculated in accordance with generally accepted accounting principles that the Company reports on a
quarterly and annual basis to the public and in its quarterly reports on Form 10-Q and annual reports on Form 10-K that are filed with the Securities and Exchange Commission (“SEC”).
“NFEPS” shall be the NFE per basic share of Common Stock that the Company reports on a quarterly and annual basis to the public and in its quarterly reports on Form
10-Q and annual report on Form 10-K that are filed with the SEC.
“Cumulative NFEPS” shall be the sum of the annual NFEPS for the three fiscal years (“FY”) ended September 30, 2025, 2026 and 2027 calculated as follows:
Cumulative NFEPS = NFEPSFY2025 + NFEPSFY2026 + NFEPSFY2027
Upon achievement of Cumulative NFEPS at a point between any two specified Cumulative NFEPS levels, the Performance Share Units earned will be mathematically
interpolated on a straight-line basis.
Determinations of the Committee regarding the NFEPS and Cumulative NFEPS, the calculations related thereto, the resulting Performance Share Units and related matters
will be final and binding on the Participant.
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Exhibit B
NEW JERSEY RESOURCES CORPORATION
2017 Stock Award and Incentive Plan
Definitions Under Further Conditions to Settlement
| a. |
“Business of the Company” means the following areas of its business which are selected below, which Employee acknowledges are areas of the Company’s business in which Employee has
responsibilities:
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[[BRANCH]]
[[SECTION]]
Natural Gas Distribution: Consists of New Jersey
Natural Gas Company (“NJNG”), a natural gas utility company that provides regulated retail natural gas service to residential and commercial customers in central and northern New Jersey and engages in or supervises the off-system sales and capacity release markets, and is developing a broad range of strategies to decarbonize its operations, including clean fuels and behind the meter solutions.
Energy Services: Maintains and transacts around a
portfolio of physical assets consisting of natural gas storage and transportation contracts and also provides wholesale energy management services to other energy companies and natural gas producers in market areas including states from the Gulf
Coast and Mid-continent regions to the Appalachian and Northeast regions, the West Coast and Canada.
Clean Energy Ventures: Investor, owner, and operator
in the renewable energy sector, including, but not limited to, investments in residential and commercial rooftop and ground mount solar systems.
Storage and Transportation: Includes
investments in natural gas transportation and storage assets and is comprised of the following: Steckman Ridge, which is a partnership that owns and operates a 17.7 Bcf natural gas storage facility, with up to 12 Bcf working capacity, in western
Pennsylvania that is 50 percent owned by a Company Subsidiary; Leaf River Energy Center, a natural gas storage facility located in southeastern Mississippi with a combined working natural gas storage capacity of 32.2 million dekatherms; and
Adelphia Gateway, an 84-mile pipeline in southeastern Pennsylvania and Delaware.
Home Services: Consists of NJR Home Services
Company, which provides Heating, Ventilating, and Air Conditioning (“HVAC”) service, sales and installation of appliances, as well as installation of solar equipment, generators and plumbing services.
14
| b. |
“Confidential Information” means all valuable and/or proprietary information (in oral, written, electronic or other forms) belonging to or pertaining to the Company, its customers
and vendors, that is not generally known or publicly available, and which would be useful to competitors of the Company or otherwise damaging to the Company if disclosed. Confidential Information may include, but is not necessarily limited
to: (i) the identity of the Company’s customers or potential customers, their purchasing histories, and the terms or proposed terms upon which the Company offers or may offer its products and services to such customers, (ii) the identity
of the Company’s vendors or potential vendors, and the terms or proposed terms upon which the Company may purchase products and services from such vendors, (iii) technology used by the Company to provide its services, (iv) the terms and
conditions upon which the Company employs its employees and independent contractors, (v) marketing and/or business plans and strategies, (vi) financial reports and analyses regarding the revenues, expenses, profitability and operations of
the Company, and (vii) information provided to the Company by customers and other third parties under a duty to maintain the confidentiality of such information. Notwithstanding the foregoing, Confidential Information does not include
information that: (i) has been voluntarily disclosed to the public by Company or any Employer, except where such public disclosure has been made by Employee without authorization from Company or Employer; (ii) has been independently
developed and disclosed by others, or (iii) which has otherwise entered the public domain through lawful means. Confidential Information also does not include information related to any claim of sexual harassment or sexual assault and
nothing herein restricts the disclosure of such information. Nothing herein shall prohibit, prevent or restrict the Employee from reporting any allegations of unlawful conduct to federal, state or local officials or to an attorney retained
by the Employee.
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| c. |
“Material Contact” means contact in person, by telephone, or by paper or electronic correspondence, or the supervision of those who have such conduct, and which is done in
furtherance of the business interests of the company and within the last 36 months.
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| d. |
“Restricted Territory” consists of the following areas, to the extent such areas have been identified as applicable to the definition of the “Business of the company” above:
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Natural Gas Distribution: The Continental United States,.
Energy Services: The Continental United States.
Clean Energy Ventures: The States of New Jersey, Connecticut, Rhode
Island, New York, Michigan, Indiana,Pennsylvania and Maryland.
Storage and Transportation: The States of New Jersey, New York,
Connecticut, Pennsylvania, Delaware, Virginia, West Virginia, Mississippi, Alabama, Louisiana and Texas.
Home Services: The State of New Jersey.
| e. |
“Trade Secrets” means a trade secret of the Company as defined by applicable law.
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15
Exhibit 10.3
NEW JERSEY RESOURCES CORPORATION
2017 Stock Award and Incentive Plan
Restricted Stock Units Agreement
This Restricted Stock Units Agreement (the "Agreement"), which includes the attached “Terms and Conditions of Restricted Stock Units” (the “Terms and Conditions”), confirms the grant on November ___, 2024 (the “Grant
Date”) by NEW JERSEY RESOURCES CORPORATION, a New Jersey corporation (the "Company"), to ("Employee"), under Section 6(e) of the 2017 Stock Award and Incentive Plan (the "Plan"), of Restricted Stock Units,
including rights to Dividend Equivalents as specified herein, as follows:
Number of Restricted Stock Units granted: _________
How Restricted Stock Units Vest: The Restricted Stock Units, if not previously forfeited, will vest on the dates and as to the number of Restricted Stock
Units in the following table provided Employee remains employed by the Company or a Subsidiary from the Grant Date through the Stated Vesting Date:
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Stated Vesting Date
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Number of Restricted Stock Units
that Vest at that Date
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October 15, 2025
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________
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October 15, 2026
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________
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October 15, 2027
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________
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In addition, if not previously vested or forfeited, the Restricted Stock Units (i) will become immediately vested in full upon a Change in Control prior to the Stated Vesting Date, if (A) Employee
remains employed by the Company or a Subsidiary from the Grant Date through the Change in Control and (B) no provision is made for the continuance, assumption or substitution of the Restricted Stock Units by the Company or its successor in
connection with the Change in Control; and (ii) will become vested upon the Employee’s Termination of Employment, prior to the Stated Vesting Date, to the extent provided in Section 3 of the attached Terms and Conditions. The terms "vest" and
"vesting" mean that the Restricted Stock Units have become earned and payable. If Employee has a Termination of Employment prior to a Stated Vesting Date, and the Restricted Stock Units are not otherwise deemed vested by or as of that date as set
forth above, such unvested Restricted Stock Units will be immediately forfeited. Forfeited Restricted Stock Units cease to be outstanding and in no event will thereafter result in any delivery of shares of Stock to Employee.
Settlement: The Restricted Stock Units, to the extent
vested, including Restricted Stock Units credited as the result of Dividend Equivalents, to the extent vested, will be settled by delivery of one share of Stock for each Restricted Stock Unit to be settled, as soon as administratively practicable
(and no later than 60 days) after the earlier of (i) the Stated Vesting Date that corresponds to the applicable tranche of vested Restricted Stock Units or (ii) a Change in Control if no provision is made for the continuance, assumption or
substitution of the Restricted Stock Units by the Company or its successor in connection with the Change in Control. Notwithstanding the foregoing, the Committee may determine to permit Employee to elect to defer settlement (or re-defer) if such
election would be permissible under Section 11(k) of the Plan and Code Section 409A. In addition to any applicable requirements under Code Section 409A, any such deferral election shall be made only while Employee remains employed and at a time
permitted under Code Section 409A. The form under which an election is made shall set forth the time and form of payment of such amount deferred. Any amount deferred shall be subject to a six (6)-month delay upon payment if required under
Section 11(k)(i)(F) of the Plan. Any elective deferral will be subject to such additional terms and conditions as the Senior Vice President, Human Resources, or the officer designated by the Company as responsible for administration of the
Agreement, may reasonably impose.
Further Conditions to Settlement: Notwithstanding any
other provision of this Agreement, except as otherwise set forth below, the Company’s obligation to settle the Restricted Stock Units and Employee’s right to distribution of the Restricted Stock Units will be forfeited immediately upon the
occurrence of any one or more of the following events (defined terms are attached hereto as Exhibit B):
| (a) |
Competitive Employment. In the event that Employee, prior to full settlement of the Restricted Stock Units and within the Restricted Territory, directly or indirectly, whether on Employee’s own
behalf or on behalf of any other person or entity, performs services of the type which are the same as or similar to those conducted, authorized, offered or provided by Employee to the Company within the last 24 months, and which support
business activities which compete with the Business of the Company.
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| (b) |
Recruitment of Company Employees and Contractors. In the event that Employee, prior to full settlement of the Restricted Stock Units, directly or indirectly, whether on Employee’s own behalf or
on behalf of any other person or entity, solicits or induces any employee or independent contractor of the Company with whom Employee had Material Contact to terminate or lessen such employment or contract with the Company.
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| (c) |
Solicitation of Company Customers. In the event that Employee, prior to full settlement of the Restricted Stock Units, directly or indirectly, whether on Employee’s own behalf or on behalf of any
other person or entity, solicits any actual or prospective customers of the Company with whom Employee had Material Contact for the purpose of selling any products or services which compete with the Business of the Company.
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| (d) |
Solicitation of Company Vendors. In the event that Employee, prior to full settlement of the Restricted Stock Units, directly or indirectly, whether on Employee’s own behalf or on behalf of any
other person or entity, solicits any actual or prospective vendor of the Company with whom Employee had Material Contact for the purpose of purchasing products or services to support business activities which compete with the Business of
the Company.
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| (e) |
Breach of Confidentiality. In the event that Employee, at any time prior to full settlement of the Restricted Stock Units, directly or indirectly, divulges or makes use of any Confidential
Information or Trade Secrets of the Company other than in the performance of Employee’s duties for the Company. This provision does not limit the remedies available to the Company under common or statutory law as to trade secrets or other
forms of confidential information, which may impose longer duties of non-disclosure and provide for injunctive relief and damages. Notwithstanding anything herein to the contrary, nothing herein is intended to or will be used in any way to
prevent Employee from providing truthful testimony under oath in a judicial or administrative proceeding or to limit Employee’s right to communicate with a government agency, as provided for, protected under or warranted by applicable law.
The Employee further understands nothing herein limits the Employee’s ability to file a charge or complaint with the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safety and Health
Administration, the Securities and Exchange Commission, or any other federal, state or local government agency or commission (‘Government Agencies”). Nothing herein limits the Employee’s ability to communicate with any Government Agencies
or otherwise participate in any investigation or proceeding that may be conducted by the Government Agency, including providing documents or information without notice to the Company. This Agreement does not limit the Employee’s right to
receive an award for information provided to any Government Agency. Notwithstanding anything herein to the contrary, the Employee shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure
of a Trade Secret that (i) is made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney and solely for the purpose of reporting or investigating a suspected violation of law or
(ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, if the Employee files a lawsuit for retaliation for reporting a suspected violation of law, the Employee
may disclose the Trade Secret to his or her attorney and use the Trade Secret information in the court proceeding, as long as the Employee files any document containing the Trade Secret under seal and does not disclose the Trade Secret,
except pursuant to court order.
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2
| (f) |
Return of Property and Information. In the event that prior to full settlement of the Restricted Stock Units Employee fails to return all of the Company’s property and information (whether
confidential or not) within Employee’s possession or control within seven (7) calendar days following the termination or resignation of Employee from employment with the Company. Such property and information includes, but is not limited
to, the original and any copy (regardless of the manner in which it is recorded) of all information provided by the Company to Employee or which Employee has developed or collected in the scope of Employee’s employment with the Company, as
well as all Company-issued equipment, supplies, accessories, vehicles, keys, instruments, tools, devices, computers, cell phones, pagers, materials, documents, plans, records, notebooks, drawings, or papers. Upon request by the Company,
Employee shall certify in writing that Employee has complied with this provision and has permanently deleted all Company information from any computers or other electronic storage devices or media owned by Employee. Employee may only
retain information relating to the Employee’s benefit plans and compensation to the extent needed to prepare Employee’s tax returns.
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| (g) |
Disparagement. In the event that prior to full settlement of the Restricted Stock Units Employee makes any statements, either verbally or in writing, that are disparaging with regard to the
Company or any of its subsidiaries or their respective executives and Board members.
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| (h) |
Failure to Provide Information. In the event that prior to full settlement of the Restricted Stock Units Employee fails to promptly and fully respond to requests for information from the Company
regarding Employee’s compliance with any of the foregoing conditions.
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If it is determined by the Leadership Development and Compensation Committee of the Company’s Board of Directors, in its sole discretion, that any of the foregoing events have occurred prior to full settlement of the
Restricted Stock Units, any unpaid portion of the Restricted Stock Units will be forfeited without any compensation therefor, provided, however, that none of the foregoing conditions shall restrict any Employee who is a lawyer from practicing law.
To the extent any such condition would restrict any Employee who is a lawyer from practicing law or would penalize the Employee for practicing law, such condition shall not be effective and the Leadership Development and Compensation Committee may
not forfeit any of the Restricted Stock Units on account therefor.
The Restricted Stock Units are subject to the terms and conditions of the Plan and this Agreement, including the attached Terms and Conditions deemed a part hereof. The number of Restricted Stock Units and the kind of
shares deliverable in settlement and other terms and conditions of the Restricted Stock Units 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.
3
Employee acknowledges and agrees that (i) Restricted Stock Units are nontransferable, except as provided in Section 2 of the attached Terms and Conditions and Section 11(b) of the Plan, (ii) the Restricted Stock Units
are 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 and
settlement of the Restricted Stock Units 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.
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EMPLOYEE
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NEW JERSEY RESOURCES CORPORATION
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By:
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[Employee Name]
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[Name]
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[Title]
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4
TERMS AND CONDITIONS OF RESTRICTED STOCK UNITS
The following Terms and Conditions apply to the Restricted Stock Units granted to Employee by NEW JERSEY RESOURCES CORPORATION (the "Company"), and Restricted Stock Units resulting from Dividend Equivalents (as defined
below), if any, as specified in the Restricted Stock Units Agreement (of which these Terms and Conditions form a part). Certain terms of the Restricted Stock Units, including the number granted, vesting date(s) and settlement times, are set forth
on the preceding pages, which is an integral part of this Agreement.
1. General.
(a) The Restricted Stock Units are granted to Employee under the Company's 2017 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 Human Resources 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. By accepting the grant of Restricted Stock Units, 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 relating to the Plan and grants thereunder of
the Leadership Development and Compensation Committee of the Company's Board of Directors (the "Committee") made from time to time.
(b) Account for Employee. The Company shall maintain a bookkeeping account for Employee (the “Account”) reflecting the number of Restricted Stock
Units then credited to Employee hereunder as the result of such grant of Restricted Stock Units and any crediting of additional Restricted Stock Units to Employee pursuant to dividends paid on shares of Stock under Section 4 hereof (“Dividend
Equivalents”).
2. Nontransferability. Until such time as the Restricted Stock Units are settled by delivery of Stock in accordance with this Agreement, Employee
may not transfer Restricted Stock Units or any rights hereunder to any third party other than by will or the laws of descent and distribution, except for transfers to a Beneficiary or as otherwise permitted and subject to the conditions under
Section 11(b) of the Plan. This restriction on transfer precludes any sale, assignment, pledge, or other encumbrance or disposition of the Restricted Stock Units (except for forfeitures to the Company).
3. Termination of Employment. The following provisions will govern the vesting or forfeiture, and the settlement, of the Restricted Stock Units
that are outstanding at the time of Employee's Termination of Employment (i) due to Employee’s death, Disability or Retirement, (ii) by the Company without Cause or by the Employee for Good Reason, in either case during the CIC Protection Period,
or (iii) under circumstances other than those set forth in the immediately preceding clauses (i) and (ii), in each case prior to the Stated Vesting Date that corresponds to the applicable tranche of Restricted Stock Units, unless otherwise
determined by the Committee (subject to Section 7(e) hereof):
(a) Death, Disability or Retirement. In the event of Employee's Termination of Employment, prior to the Stated Vesting Date that applies to the
applicable tranche of Restricted Stock Units, due to death, Disability or Retirement, the outstanding Restricted Stock Units will be vested with respect to no less than a Pro Rata Portion of the outstanding Restricted Stock Units, to the extent not
vested previously, and all Restricted Stock Units, to the extent vested, including Restricted Stock Units credited as the result of Dividend Equivalents, to the extent vested, shall be settled, as soon as administratively practicable (and no later
than 60 days) after the earlier of (i) the Stated Vesting Date that corresponds to the applicable tranche of vested Restricted Stock Units or (ii) a Change in Control if no provision is made for the continuance, assumption or substitution of the
Restricted Stock Units by the Company or its successor in connection with the Change in Control. Restricted Stock Units that are not vested by or as of the date of Employee's Termination of Employment due to death, Disability or Retirement will be
immediately forfeited.
5
(b) Termination by the Company or by Employee in Certain Events. In the event of Employee’s Termination of Employment, prior to the Stated Vesting
Date that applies to the applicable tranche of Restricted Stock Units, by the Company without Cause within the CIC Protection Period and other than for Disability or Retirement, or by Employee for Good Reason within the CIC Protection Period, all
such outstanding Restricted Stock Units will be vested, to the extent not previously vested, and all Restricted Stock Units, to the extent vested, including Restricted Stock Units credited as the result of Dividend Equivalents, to the extent
vested, shall be settled, as soon as administratively practicable (and no later than 60 days) after (i) the Stated Vesting Date that corresponds to the applicable tranche of vested Restricted Stock Units or (ii) a Change in Control if no provision
is made for the continuance, assumption or substitution of the Restricted Stock Units by the Company or its successor in connection with the Change in Control.
(c) Other Termination of Employment. In the event of Employee's Termination of Employment, prior to the Stated Vesting Date that applies to the
applicable tranche of Restricted Stock Units, (i) other than due to death, Disability or Retirement and (ii) other than by the Company without Cause within the CIC Protection Period and other than for Disability or Retirement, or by Employee for
Good Reason within the CIC Protection Period, all Restricted Stock Units, to the extent vested, including Restricted Stock Units credited as the result of Dividend Equivalents, to the extent vested, shall be settled, as soon as administratively
practicable (and no later than 60 days) after the earlier of (i) the Stated Vesting Date that corresponds to the applicable tranche of vested Restricted Stock Units or (ii) a Change in Control if no provision is made for the continuance, assumption
or substitution of the Restricted Stock Units by the Company or its successor in connection with the Change in Control. Restricted Stock Units that are not vested by or as of the date of Employee's Termination of Employment as described herein
will be immediately forfeited.
(d) Certain Definitions. The following definitions apply for purposes of this Agreement:
(i) “Cause” has the same definition as under any employment or similar agreement between the Company and Employee or, if no such agreement exists or if such agreement does not contain any
such definition, Cause means (i) Employee’s conviction of a felony or the entering by Employee of a plea of nolo contendere to a felony charge, (ii) Employee’s gross neglect, willful malfeasance or willful gross misconduct in
connection with his or her employment which has had a significant adverse effect on the business of the Company and its subsidiaries, unless Employee reasonably believed in good faith that such act or non-act was in or not opposed to the best
interest of the Company, or (iii) repeated material violations by Employee of the duties and obligations of Employee’s position with the Company which have continued after written notice thereof from the Company, which violations are demonstrably
willful and deliberate on Employee’s part and which result in material damage to the Company’s business or reputation.
(ii) “CIC Protection Period” means the two-year period beginning on the date of a Change in Control and ending on the day before the second annual anniversary of the date of the Change in
Control.
(iii) "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. Only the Company can initiate a Termination of Employment due to Disability.
6
(iv) “Good Reason” has the same definition as under any employment or similar agreement between the Company and Employee; but, if no such agreement exists or if any such agreement does not
contain or reference any such definition, Good Reason shall not apply to the Employee for purposes of this Agreement.
(v) “Pro Rata Portion" means, for each tranche of Restricted Stock Units, a fraction the numerator of which is the number of days that have elapsed from the first day of the Company’s fiscal
year which includes the Grant Date to the date of Employee's Termination of Employment and the denominator of which is the number of days from the first day of the Company’s fiscal year which includes the Grant Date to the Stated Vesting Date for
that tranche. A "tranche" is each portion of the Restricted Stock Units that has a unique Stated Vesting Date.
(vii) “ Retirement” means Employee’s voluntary Termination of Employment on or after (i) the Employee has attained age 55 or greater (ii) the sum of the Employee’s age plus Years of Service
equals or exceeds 65, and (iii) six months following Employee’s notice to the Company’s Human Resources Department of the Employee’s intent to retire.
(viii) “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 50% equity participant.
(ix) "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, subject to Section 7(f) below.
(x) “Years of Service” means the cumulative consecutive years of active and continuous employment with the Company or a Subsidiary of the Company (including approved leaves of absence of six
(6) months or less or legally protected leaves of absence), beginning on the date of the Employee’s most recent date of hire with the Company or a Subsidiary of the Company and counting each anniversary thereof. A partial year of employment shall
not be treated as a Year of Service.
(e) Termination by the Company for Cause. In the event of Employee’s Termination of Employment by the Company for Cause, the portion of the then-outstanding Restricted
Stock Units not vested previously will be forfeited immediately upon notice to Employee that the Company is terminating the Employee’s employment for Cause (notwithstanding whether Employee is eligible to terminate employment due to Good Reason,
Disability or Retirement at that time).
4. Dividend Equivalents and Adjustments.
(a) Dividend Equivalents. Dividend Equivalents will be credited on Restricted Stock Units (other than Restricted Stock Units that, at the relevant
record date, previously have been settled or forfeited) and deemed converted into additional Restricted Stock Units. Dividend Equivalents will be credited as follows, except that the Company may vary the manner of crediting (for example, by
crediting cash Dividend Equivalents rather than additional Restricted Stock Units) for administrative convenience:
7
(i) Cash Dividends. If the Company declares and pays a dividend or distribution on shares of Stock in the form of cash, then additional Restricted
Stock Units shall be credited to Employee’s Account as of the payment date of such cash dividend or distribution (or settled as of the payment date of such cash dividend or distribution if the Restricted Stock Units are to be settled before the
payment date) equal to the number of Restricted Stock Units credited to the Account as of the record date of such dividend or distribution multiplied by the amount of cash paid per share of Stock in such dividend or distribution divided by the Fair
Market Value of a share of Stock at the payment date for such dividend or distribution.
(ii) Non-Share Dividends. If the Company declares and pays a dividend or distribution on shares of Stock in the form of property other than shares
of Stock, then a number of additional Restricted Stock Units shall be credited to Employee’s Account as of the payment date for such dividend or distribution (or settled as of the payment date for such dividend or distribution if the Restricted
Stock Units are to be settled before the payment date) equal to the number of Restricted Stock Units credited to the Account as of the record date for such dividend or distribution multiplied by the fair market value of such property actually paid
as a dividend or distribution on each outstanding share of Stock at such payment date, divided by the Fair Market Value of a share of Stock at such payment date for such dividend or distribution.
(iii) Share Dividends and Splits. If the Company declares and pays a dividend or distribution on shares of Stock in the form of additional shares of
Stock, or there occurs a forward split of shares of Stock, then a number of additional Restricted Stock Units shall be credited to Employee’s Account as of the payment date for such dividend or distribution
or forward split (or settled as of the payment date for such dividend or distribution or forward split if the Restricted Stock Units are to be settled before the payment date) equal to the number of Restricted Stock Units credited to the Account as
of the record date for such dividend or distribution or split multiplied by the number of additional shares of Stock actually paid as a dividend or distribution or issued in such split in respect of each outstanding share of Stock.
(b) Adjustments. The number of Restricted Stock Units credited to Employee’s Account shall be appropriately adjusted in order to prevent dilution or
enlargement of Employee’s rights with respect to Restricted Stock Units or 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 Units credited to Employee in connection with such event under Section 4(a) hereof. In furtherance of the foregoing, in the event of an equity restructuring, as defined in ASC Topic 718, which affects the shares of Stock, Employee shall have
a legal right to an adjustment to Employee’s Restricted Stock Units which shall preserve without enlarging the value of the Restricted Stock Units, with the manner of such adjustment to be determined by the Committee in its discretion. All
adjustments will be made in a manner as to maintain the Restricted Stock Units' exemption from Code Section 409A or, to the extent Code Section 409A applies, to comply with Code Section 409A. Any adjustments shall be subject to the requirements
and restrictions set forth in Section 11(c) of the Plan.
(c) Risk of Forfeiture and Settlement of Restricted Stock Units Resulting from Dividend Equivalents and
Adjustments. Restricted Stock Units which directly or indirectly result from Dividend Equivalents on or adjustments to Restricted Stock Units granted hereunder shall be subject to the same risk of forfeiture and other conditions as apply
to the granted Restricted Stock Units with respect to which the Dividend Equivalents or adjustments related and will be settled at the same time as such related Restricted Stock Units (unless the Restricted Stock Units are to be settled prior to
the payment date of the Dividend Equivalents or the date of the adjustments, in which case the Dividend Equivalents or adjustments will be settled at the payment date of the dividend or the date of the adjustments (and in no event later than sixty
(60) days after the Restricted Stock Units otherwise are to be settled)).
8
5. Other Terms of Restricted Stock Units.
(a) Voting and Other Shareholder Rights. Employee shall not be entitled to vote Restricted Stock Units on any matter submitted to a vote of holders
of Common Stock and shall not have any other rights of a shareholder of the Company, unless and until the Restricted Stock Units are settled as described in the Agreement.
(b) Consideration for Grant of Restricted Stock Units. Employee shall not be required to pay cash consideration for the grant of the Restricted
Stock Units and Dividend Equivalents, but Employee's performance of services to the Company prior to the settlement of the Restricted Stock Units shall be deemed to be consideration for this grant of Restricted Stock Units and Dividend Equivalents.
(c) Insider Trading Policy Applicable. Employee acknowledges that sales of shares resulting from Restricted Stock Units that have been settled will
be subject to the Company's policies governing the purchase and sale of Company securities.
(d) Certificates Evidencing Restricted Stock Units. On the date any Restricted Stock Units subject to this Agreement are to be settled (the “Payment Date”), such Restricted Stock Units shall be settled by the Company delivering to the Employee, a number of shares of Stock equal to the number of shares of Restricted Stock Units that are to be settled upon that Payment Date, subject to any applicable withholding requirements described below. The Company
shall issue the shares either (i) in certificate form or (ii) in book entry form, registered in the name of the Employee. Delivery of any certificates will be made to the Employee’s last address reflected on the books of the Company unless the
Company is otherwise instructed in writing. The Company shall pay fractional Restricted Stock Units in cash, subject to any applicable withholding requirements described below. Neither the Employee nor any of the Employee’s successors, heirs,
assigns or personal representatives shall have any further rights or interests in any Restricted Stock Units and Dividend Equivalents that are so paid.
6. Employee Representations and Warranties and Release. As a
condition to settlement of the Restricted Stock Units to Employee that vest 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, and not revoke such release prior to the expiration of any applicable
revocation period, all within sixty (60) days after Termination of Employment.
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 Units and supersedes any prior agreements (either verbal or written) or documents with respect to the Restricted Stock Units. 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 Units shall be valid unless expressed in a written instrument executed by Employee.
(b) No Promise of Employment. The Restricted Stock Units 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.
9
(d) Fractional Restricted Stock Units and Shares. The number of Restricted Stock Units credited to Employee’s Account shall include fractional
Restricted Stock Units calculated to at least three decimal places, unless otherwise determined by the Committee. Unless settlement is effected through a third-party broker or agent that can accommodate fractional shares (without requiring
issuance of a fractional Share by the Company), upon settlement of the Restricted Stock Units, the Committee, in its sole discretion, may either (i) round the fractional Share to be delivered up to a whole Share or (ii) provide that Employee shall
be paid, in cash, an amount equal to the value of any fractional Share that would have otherwise been deliverable in settlement of such Restricted Stock Units.
(e) Mandatory Tax Withholding. Unless otherwise determined by the Committee, or unless Employee has elected at least 90 days prior to payout to
satisfy the tax obligations in cash by other means, at the time of settlement of the Restricted Stock Units to Employee, the Company will withhold first from any cash payable and then from any Shares deliverable, in accordance with Section 11(d)(i)
of the Plan, the number of whole Shares having a value nearest to, but not exceeding, the amount of income and employment taxes to be withheld (after withholding of any cash payable hereunder) (only with respect to the minimum number of Shares
necessary to satisfy statutory withholding requirements, unless withholding of any additional number of Shares will not result in additional accounting expense to the Company and is permitted by the Committee), 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
settlement of the Restricted Stock Units.
(f) 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 Senior Vice President, Human Resources, and any notice to Employee shall be addressed to Employee at Employee’s address as then appearing in the records of the Company.
(g) Compliance with Code Section 409A. Other provisions of this Agreement notwithstanding, because the Restricted Stock Units described herein will
constitute a "deferral of compensation" under Section 409A of the Code (“Code Section 409A”) as presently in effect (i.e., the Restricted Stock Units are not excluded or exempted under Code Section 409A or a regulation or other official
governmental guidance thereunder; Note: an elective deferral would cause the Restricted Stock Units, if not already, to be a deferral of compensation subject to Code Section 409A after the deferral), such Restricted Stock Units are considered a
409A Award under the Plan and shall be subject to the additional requirements set forth in Section 11(k) of the Plan, including without limitation that (i) Termination of Employment shall be construed consistent with the meaning of a Separation
from Service under Section 409A of the Code and (ii) a Change in Control under this Agreement shall be construed consistent with the meaning of a 409A Ownership/Control Change.
10
Exhibit B
NEW JERSEY RESOURCES CORPORATION
2017 Stock Award and Incentive Plan
Definitions Under Further Conditions to Settlement
| a. |
“Business of the Company” means the following areas of its business which are selected below, which Employee acknowledges are areas of the Company’s business in which Employee has responsibilities:
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[[BRANCH]]
[[SECTION]]
Natural Gas Distribution: Consists of New Jersey Natural Gas Company (“NJNG”), a natural gas utility company that provides regulated retail natural gas service to
residential and commercial customers in central and northern New Jersey and engages in or supervises the off-system sales and capacity release markets, and is developing a broad range of strategies to decarbonize its operations, including clean
fuels and behind the meter solutions.
Energy Services: Maintains and transacts around a portfolio of physical assets consisting of natural gas storage and transportation contracts and also provides wholesale
energy management services to other energy companies and natural gas producers in market areas including states from the Gulf Coast and Mid-continent regions to the Appalachian and Northeast regions, the West Coast and Canada.
Clean Energy Ventures: Investor, owner, and operator in the renewable energy sector, including, but not limited to, investments in residential and commercial rooftop and
ground mount solar systems.
Storage and Transportation: Includes investments in natural gas transportation and storage assets and is comprised of the following: Steckman Ridge, which
is a partnership that owns and operates a 17.7 Bcf natural gas storage facility, with up to 12 Bcf working capacity, in western Pennsylvania that is 50 percent owned by a Company Subsidiary; Leaf River Energy Center, a natural gas storage facility
located in southeastern Mississippi with a combined working natural gas storage capacity of 32.2 million dekatherms; and Adelphia Gateway, an 84-mile pipeline in southeastern Pennsylvania and Delaware.
Home Services: Consists of NJR Home Services Company, which provides Heating, Ventilating, and Air Conditioning (HVAC) service, sales and installation of appliances, as
well as installation of solar equipment, generators and plumbing services.
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“Confidential Information” means all valuable and/or proprietary information (in oral, written, electronic or other forms) belonging to or pertaining to the Company, its customers and vendors, that is not generally known or publicly
available, and which would be useful to competitors of the Company or otherwise damaging to the Company if disclosed. Confidential Information may include, but is not necessarily limited to: (i) the identity of the Company’s customers or
potential customers, their purchasing histories, and the terms or proposed terms upon which the Company offers or may offer its products and services to such customers, (ii) the identity of the Company’s vendors or potential vendors, and
the terms or proposed terms upon which the Company may purchase products and services from such vendors, (iii) technology used by the Company to provide its services, (iv) the terms and conditions upon which the Company employs its
employees and independent contractors, (v) marketing and/or business plans and strategies, (vi) financial reports and analyses regarding the revenues, expenses, profitability and operations of the Company, and (vii) information provided to
the Company by customers and other third parties under a duty to maintain the confidentiality of such information. Notwithstanding the foregoing, Confidential Information does not include information that: (i) has been voluntarily
disclosed to the public by Company or any Employer, except where such public disclosure has been made by Employee without authorization from Company or Employer; (ii) has been independently developed and disclosed by others, or (iii) which
has otherwise entered the public domain through lawful means. Confidential Information also does not include information related to any claim of sexual harassment or sexual assault and nothing herein restricts the disclosure of such
information. Nothing herein shall prohibit, prevent or restrict the Employee from reporting any allegations of unlawful conduct to federal, state or local officials or to an attorney retained by the Employee.
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| c. |
“Material Contact” means contact in person, by telephone, or by paper or electronic correspondence, or the supervision of those who have such conduct, and which is done in furtherance of the business interests of the company and within
the last 36 months.
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| d. |
“Restricted Territory” consists of the following areas, to the extent such areas have been identified as applicable to the definition of the “Business of the company” above:
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Natural Gas Distribution: The Continental United States.
Energy Services: The Continental United States.
Clean Energy Ventures: The States of New Jersey, Rhode Island, Connecticut, New York, Michigan, Indiana, Pennsylvania, and Maryland.
Storage and Transportation: The States of New Jersey, New York, Connecticut, Pennsylvania, Delaware, Virginia West Virginia, Mississippi, Alabama, Louisiana and Texas.
Home Services: The State of New Jersey.
| e. |
“Trade Secrets” means a trade secret of the Company as defined by applicable law.
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Exhibit 10.4
NEW JERSEY RESOURCES CORPORATION
2017 Stock Award and Incentive Plan
Performance-Based Restricted Stock Units Agreement
This Performance-Based Restricted Stock Units Agreement (the “Agreement”), which includes the attached “Terms and Conditions of Performance-Based Restricted Stock Units” (the “Terms and Conditions”) and the attached
Exhibit A captioned “Performance Goals and Vesting of Performance-Based Restricted Stock Units”, confirms the grant on November __, 2024 (the “Grant Date”) by NEW JERSEY RESOURCES CORPORATION, a New Jersey corporation (the “Company”), to
____________________________________ (“Employee”), under Sections 6(e), 6(i) and 7 of the 2017 Stock Award and Incentive Plan (the “Plan”), of Performance-Based Restricted Stock Units (the “Performance-Based Restricted Stock Units”), including
rights to dividends paid on the Performance-Based Restricted Stock Units as specified herein, as follows:
Number of Performance-Based Restricted Stock Units Granted: ________________
Performance-Based Restricted Stock Units are Forfeitable: The Performance-Based Restricted Stock Units are forfeitable until they vest and become
non-forfeitable as specified herein.
How Performance-Based Restricted Stock Units Vest: The Performance-Based Restricted Stock Units, if not previously forfeited, (i) will be earned if and to
the extent that the Performance Goal defined on Exhibit A to this Agreement for the Company’s fiscal year ended September 30, 2025 is achieved, and (ii) will vest and become non-forfeitable as to one-third (1/3) of the Performance-Based Restricted
Stock Units earned (rounded down to the nearest whole share) on the last day of each of the Company’s fiscal years ended September 30, 2025 and September 30, 2026 and as to the remaining Performance-Based Restricted Stock Units earned on the last
day of the Company’s fiscal year ended September 30, 2027 (each a “Stated Vesting Date”), provided in each case the Employee continues to be employed by the Company or a Subsidiary from the Grant Date through the Stated Vesting Date that applies to
the applicable tranche of Performance-Based Restricted Stock Units, and the Committee certifies achievement of the Performance Goal for the 2025 fiscal year within 60 days after the end of the 2025 fiscal year. In that event, all earned and vested
Performance-Based Restricted Stock Units will be settled within 60 days after the Stated Vesting Date that applies to the applicable tranche of Performance-Based Restricted Stock Units. In addition, if not previously forfeited, upon a Change in
Control prior to the Stated Vesting Date that applies to the applicable tranche of Performance-Based Restricted Stock Units, the earned Performance-Based Restricted Stock Units (or the number of Performance-Based Restricted Stock Units set forth
above if the Change in Control occurs in the Company’s fiscal year ended September 30, 2025) will vest and become non-forfeitable in full and will be settled within 60 days thereafter, provided the Employee continues to be employed by the Company
or a Subsidiary from the Grant Date until the Change in Control, if no provision is made for the continuance, assumption or substitution of the Performance-Based Restricted Stock Units by the Company or its successor in connection with the Change
in Control. If provision is made for the continuance, assumption or substitution of the Performance-Based Restricted Stock Units by the Company or its successor in connection with such a Change in Control, the earned Performance-Based Restricted
Stock Units (or the number of the Performance-Based Restricted Stock Units set forth above if the Change in Control occurs in the Company’s fiscal year ended September 30, 2025) will remain outstanding after the Change in Control occurs and will
become vested as of the Stated Vesting Date that applies to the applicable tranche of Performance-Based Restricted Stock Units and be settled within 60 days thereafter, provided in each case the Employee continues to be employed by the Company or a
Subsidiary from the Grant Date through such Stated Vesting Date. If the Performance Goal for the Company’s 2025 fiscal year is not met (and there is no Change in Control during such 2025 fiscal year), the unearned Performance-Based Restricted
Stock Units will be immediately forfeited. In addition, if not previously forfeited, the earned Performance-Based Restricted Stock Units (or the number of Performance-Based Restricted Stock Units set forth above if the Change in Control occurs in
the Company’s fiscal year ended September 30, 2025) will vest and become non-forfeitable in connection with Employee’s Termination of Employment prior to the Stated Vesting Date that applies to the applicable tranche of Performance-Based Restricted
Stock Units to the extent provided in Section 4 of the attached Terms and Conditions and settled in accordance with Section 6(a) hereof. If Employee has a Termination of Employment prior to the Stated Vesting Date that applies to the applicable
tranche of Performance-Based Restricted Stock Units and the earned Performance-Based Restricted Stock Units (or the number of Performance-Based Restricted Stock Units set forth above if the Change in Control occurs in the fiscal year ended
September 30, 2025) do not vest to the extent provided in Section 4 of the attached Terms and Conditions, the unvested Performance-Based Restricted Stock Units will be immediately forfeited. If Employee has a Termination of Employment prior to the
Stated Vesting Date that applies to the applicable tranche of Performance-Based Restricted Stock Units and the Performance-Based Restricted Stock Units are not yet earned at that time, the Performance-Based Restricted Stock Units that have not yet
been earned will vest and become non-forfeitable in connection with Employee’s Termination of Employment to the extent provided in Section 4 of the attached Terms and Conditions and will be earned if and to the extent that the Performance Goal
defined in Exhibit A to this Agreement for the Company’s fiscal year ended September 30, 2025 is achieved or there is a Change in Control in the Company’s fiscal year ended September 30, 2025, and settled in accordance with Section 6(a) hereof, and
any such Performance-Based Restricted Stock Units not vested as of the date of Employee’s Termination of Employment will be immediately forfeited. Forfeited Performance-Based Restricted Stock Units cease to be outstanding and shall be forfeited
and reacquired by the Company.
Performance Goals: The Performance Goals upon which the Performance-Based Restricted Stock Units may become earned and eligible to become vested and
non-forfeitable, subject to Employee’s continued employment with the Company or a Subsidiary or as otherwise set forth herein, shall be as specified in Exhibit A hereto.
Further Conditions to Settlement: Notwithstanding any other provision of this Agreement, except as otherwise set forth below, the Company’s obligation to
settle the Performance-Based Restricted Stock Units and Employee’s right to distribution of the Performance-Based Restricted Stock Units will be forfeited immediately upon the occurrence of any one or more of the following events (defined terms are
attached hereto as Exhibit B):
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(a) Competitive Employment. In the event that Employee, prior to full settlement of the Performance-Based Restricted Stock Units and within the
Restricted Territory, directly or indirectly, whether on Employee’s own behalf or on behalf of any other person or entity, performs services of the type which are the same as or similar to those conducted, authorized, offered or provided by
Employee to the Company within the last 24 months, and which support business activities which compete with the Business of the Company.
(b) Recruitment of Company Employees and Contractors. In the event that Employee, prior to full settlement of the Performance-Based Restricted Stock
Units, directly or indirectly, whether on Employee’s own behalf or on behalf of any other person or entity, solicits or induces any employee or independent contractor of the Company with whom Employee had Material Contact to terminate or lessen
such employment or contract with the Company.
(c) Solicitation of Company Customers. In the event that Employee, prior to full settlement of the Performance-Based Restricted Stock Units, directly
or indirectly, whether on Employee’s own behalf or on behalf of any other person or entity, solicits any actual or prospective customers of the Company with whom Employee had Material Contact for the purpose of selling any products or services
which compete with the Business of the Company.
(d) Solicitation of Company Vendors. In the event that Employee, prior to full settlement of the Performance-Based Restricted Stock Units, directly
or indirectly, whether on Employee’s own behalf or on behalf of any other person or entity, solicits any actual or prospective vendor of the Company with whom Employee had Material Contact for the purpose of purchasing products or services to
support business activities which compete with the Business of the Company.
(e) Breach of Confidentiality. In the event that Employee, at any time prior to full settlement of the Performance-Based Restricted Stock Units,
directly or indirectly, divulges or makes use of any Confidential Information or Trade Secrets of the Company other than in the performance of Employee’s duties for the Company. This provision does not limit the remedies available to the Company
under common or statutory law as to trade secrets or other forms of confidential information, which may impose longer duties of non-disclosure and provide for injunctive relief and damages. Notwithstanding anything herein to the contrary, nothing
herein is intended to or will be used in any way to prevent Employee from providing truthful testimony under oath in a judicial or administrative proceeding or to limit Employee’s right to communicate with a government agency, as provided for,
protected under or warranted by applicable law. The Employee further understands nothing herein limits the Employee’s ability to file a charge or complaint with the Equal Employment Opportunity Commission, the National Labor Relations Board, the
Occupational Safety and Health Administration, the Securities and Exchange Commission, or any other federal, state or local government agency or commission (‘Government Agencies”). Nothing herein limits the Employee’s ability to communicate with
any Government Agencies or otherwise participate in any investigation or proceeding that may be conducted by the Government Agency, including providing documents or information without notice to the Company. This Agreement does not limit the
Employee’s right to receive an award for information provided to any Government Agency. Notwithstanding anything herein to the contrary, the Employee shall not be held criminally or civilly liable under any federal or state trade secret law for the
disclosure of a Trade Secret that (i) is made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney and solely for the purpose of reporting or investigating a suspected violation of law or
(ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, if the Employee files a lawsuit for retaliation for reporting a suspected violation of law, the Employee may
disclose the Trade Secret to his or her attorney and use the Trade Secret information in the court proceeding, as long as the Employee files any document containing the Trade Secret under seal and does not disclose the Trade Secret, except pursuant
to court order.
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(f) Return of Property and Information. In the event that prior to full settlement of the Performance-Based Restricted Stock Units Employee fails to
return all of the Company’s property and information (whether confidential or not) within Employee’s possession or control within seven (7) calendar days following the termination or resignation of Employee from employment with the Company. Such
property and information includes, but is not limited to, the original and any copy (regardless of the manner in which it is recorded) of all information provided by the Company to Employee or which Employee has developed or collected in the scope
of Employee’s employment with the Company, as well as all Company-issued equipment, supplies, accessories, vehicles, keys, instruments, tools, devices, computers, cell phones, pagers, materials, documents, plans, records, notebooks, drawings, or
papers. Upon request by the Company, Employee shall certify in writing that Employee has complied with this provision and has permanently deleted all Company information from any computers or other electronic storage devices or media owned by
Employee. Employee may only retain information relating to the Employee’s benefit plans and compensation to the extent needed to prepare Employee’s tax returns.
(g) Disparagement. In the event that prior to full settlement of the Performance-Based Restricted Stock Units Employee makes any statements, either
verbally or in writing, that are disparaging with regard to the Company or any of its subsidiaries or their respective executives and Board members.
(h) Failure to Provide Information. In the event that prior to full settlement of the Performance-Based Restricted Stock Units Employee fails to
promptly and fully respond to requests for information from the Company regarding Employee’s compliance with any of the foregoing conditions.
If it is determined by the Leadership Development and Compensation Committee of the Company’s Board of Directors, in its sole discretion, that any of the foregoing events have occurred prior to full settlement of the
Performance-Based Restricted Stock Units, any unpaid portion of the Performance-Based Restricted Stock Units will be forfeited without any compensation therefor, provided, however, that none of the foregoing conditions shall restrict any Employee
who is a lawyer from practicing law. To the extent any such condition would restrict any Employee who is a lawyer from practicing law or would penalize the Employee for practicing law, such condition shall not be effective and the Leadership
Development and Compensation Committee may not forfeit any of the Performance-Based Restricted Stock Units on account therefor.
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Dividend Rights: Dividends paid on shares of stock covered under the Performance-Based Restricted Stock Units shall be automatically reinvested in
additional Performance-Based Restricted Stock Units which shall be subject to the same terms as the Performance-Based Restricted Stock Units to which the dividends relate, as specified in Section 5 of the Terms and Conditions of Performance-Based
Restricted Stock Units.
The Performance-Based Restricted Stock Units are subject to the terms and conditions of the Plan and this Agreement, including the Terms and Conditions of Performance-Based Restricted Stock Units attached hereto and
deemed a part hereof. The number of Performance-Based Restricted Stock Units and the kind of shares of Stock and the other terms and conditions of the Performance-Based Restricted Stock Units are subject to adjustment in accordance with Section 5
of the attached Terms and Conditions and Section 11(c) of the Plan.
Employee acknowledges and agrees that (i) the Performance-Based Restricted Stock Units are nontransferable, except as provided in Section 3 of the attached Terms and Conditions and Section 11(b) of the Plan, (ii) the
Performance-Based Restricted Stock Units are subject to forfeiture in the event (A) of the Company’s failure to achieve the applicable Performance Goal or undergo a Change in Control or (B) of Employee’s Termination of Employment in certain
circumstances prior to a Stated Vesting Date, as specified in Section 4 of the attached Terms and Conditions, (iii) the foregoing conditions shall apply to the Performance-Based Restricted Stock Units prior to settlement and (iv) sales and other
transfers of shares of Stock will be subject to any Company policy regulating trading by employees and the transfer restrictions set forth in Section 3 of the attached Terms and Conditions.
Capitalized terms used in this Agreement but not defined herein shall have the same meanings as in the Plan.
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IN WITNESS WHEREOF, NEW JERSEY RESOURCES CORPORATION has caused this Agreement to be executed by its officer thereunto duly authorized.
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NEW JERSEY RESOURCES CORPORATION
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By:
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[NAME]
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[Title]
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[NAME]
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[Title]
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6
TERMS AND CONDITIONS OF PERFORMANCE-BASED RESTRICTED STOCK UNITS
The following Terms and Conditions apply to the Performance-Based Restricted Stock Units granted to Employee by NEW JERSEY RESOURCES CORPORATION (the “Company”) and to any additional Performance-Based Restricted Stock
Units resulting from dividends paid on shares of Stock underlying the Performance-Based Restricted Stock Units (as defined below), if any, as specified in the Performance-Based Restricted Stock Units Agreement (of which these Terms and Conditions
form a part). Certain terms of the Performance-Based Restricted Stock Units, including the number of Performance-Based Restricted Stock Units granted and vesting terms and date(s), are set forth on the cover page hereto and Exhibit A, which are an
integral part of this Agreement.
1. General. The Performance-Based Restricted Stock Units are granted to Employee under the Company’s 2017 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 Human Resources 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. By accepting
the grant of Performance-Based Restricted Stock Units, 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 with respect to the Plan or this Agreement.
2. Account for Employee.
The Company shall maintain a bookkeeping account for Employee (the “Account”) reflecting the number of Performance-Based Restricted Stock Units then credited to Employee hereunder as a result of such grant of Performance-Based Restricted
Stock Units and any crediting of additional Performance-Based Restricted Stock Units to Employee pursuant to dividends paid on shares of Stock under Section 5 hereof (“Dividend Equivalents”).
3. Nontransferability.
(a) Until the Performance-Based Restricted Stock Units become vested in accordance with the terms of this Agreement, Employee may not transfer Performance-Based Restricted Stock Units or any rights hereunder to any
third party other than by will or the laws of descent and distribution, except for transfers to a Beneficiary or as otherwise permitted and subject to the conditions under Section 11(b) of the Plan. This restriction on transfer precludes any sale,
assignment, pledge or other encumbrance or disposition of the Performance Share Units (except for forfeitures to the Company).
(b) Any transfer in violation of this Section 3 will be void and of no effect.
4. Termination of Employment. The following provisions will govern the earning, vesting and forfeiture of the Performance-Based Restricted Stock Units that
are outstanding at the time of Employee’s Termination of Employment (as defined below) (i) by the Company without Cause (as defined below) or by the Employee for Good Reason (as defined below), in either case during the CIC Protection Period (as
defined below), or (ii) due to death, Disability (as defined below) or Retirement (as defined below), unless otherwise determined by the Committee (subject to Section 8(e) hereof):
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(a) Termination by the Company or by Employee in Certain Events. In the event of Employee’s Termination of Employment, prior to the Stated Vesting Date that applies to the
applicable tranche of Performance-Based Restricted Stock Units, by the Company without Cause within the CIC Protection Period and other than for Disability or Retirement, or by Employee for Good Reason within the CIC Protection Period, the
outstanding Performance-Based Restricted Stock Units will be vested with respect to no less than a Pro Rata Portion (as defined below) of the Performance-Based Restricted Stock Units, to the extent earned previously (upon a Change in Control where
provision is made for the continuance, assumption or substitution of the Performance-Based Restricted Stock Units by the Company or its successor upon the Change in Control or otherwise), to the extent not vested previously, and such earned and
vested Performance-Based Restricted Stock Units will be settled in accordance with Section 6(a) hereof. In the event of Employee’s Termination of Employment, prior to the Stated Vesting Date that applies to the applicable tranche of
Performance-Based Restricted Stock Units, (i) by the Company for any reason other than Disability or Retirement prior to or after the CIC Protection Period, (ii) by Employee (other than for Good Reason within the CIC Protection Period or upon
Retirement) or (iii) by Employee (other than on Retirement) prior to or after the CIC Protection Period, the then-outstanding Performance-Based Restricted Stock Units not earned and vested at the date of Employee’s Termination of Employment will be
immediately forfeited.
(b) Death, Disability or Retirement. In the event of Employee’s Termination of Employment, prior to September 30, 2025 and prior to a
Change in Control, due to Employee’s death, Disability or Retirement, the outstanding Performance-Based Restricted Stock Units will be vested with respect to no less than a Pro Rata Portion of the Performance-Based Restricted Stock Units that has
not become earned previously, to the extent not previously vested, and such vested Performance-Based Restricted Stock Units will continue to be subject to the Performance Goal and will be eligible to be earned if and to the extent that the
Performance Goal is achieved or there is a Change in Control prior to September 30, 2025 and settled in accordance with Section 6(a) hereof. In the event of Employee’s Termination of Employment, after September 30, 2025 or after a Change in
Control that occurs in the Company’s fiscal year ended September 30, 2025, due to Employee’s death, Disability or Retirement, the outstanding Performance Share Units will be vested with respect to no less than a Pro Rata Portion of the
Performance-Based Restricted Stock Units, to the extent earned previously, to the extent not vested previously, and such earned and vested Performance-Based Restricted Stock Units will be settled in accordance with Section 6(a) hereof. Any portion
of the then-outstanding Performance-Based Restricted Stock Units not vested at or before the date of Employee’s Termination of Employment will be forfeited.
(c) Certain Definitions. The following definitions apply for purposes of this Agreement:
(i) “Cause” has the same definition as under any employment or similar agreement between the Company and Employee or, if no such agreement exists or if such agreement does not contain any such definition, Cause means
(i) Employee’s conviction of a felony or the entering by Employee of a plea of nolo contendere to a felony charge, (ii) Employee’s gross neglect, willful malfeasance or willful gross misconduct in connection with his or her
employment which has had a significant adverse effect on the business of the Company and its subsidiaries, unless Employee reasonably believed in good faith that such act or non-act was in or not opposed to the best interest of the Company, or
(iii) repeated material violations by Employee of the duties and obligations of Employee’s position with the Company which have continued after written notice thereof from the Company, which violations are demonstrably willful and deliberate on
Employee’s part and which result in material damage to the Company’s business or reputation.
(ii) “CIC Protection Period” means the two-year period beginning on the date of a Change in Control and ending on the day before the second annual anniversary of the date of the Change in Control.
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(iii) “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. Only the Company can initiate a Termination of Employment due to Disability.
(iv) “Good Reason” has the same definition as under any employment or similar agreement between the Company and Employee; but, if no such agreement exists or if any such agreement does not contain or reference any such
term, Good Reason shall not apply to the Employee for purposes of this Agreement.
(v) "Pro Rata Portion" means, for each tranche of Performance-Based Restricted Stock Units, a fraction, the numerator of which is the number of days that have elapsed from the first day of the Company’s fiscal year
which includes the Grant Date to the date of Employee's Termination of Employment and the denominator of which is the number of days from the first day of the Company’s fiscal year which includes the Grant Date to the Stated Vesting Date for that
tranche. A "tranche" is that portion of the Performance-Based Restricted Stock Units that have a unique Stated Vesting Date.
(vii) “Retirement” means Employee’s voluntary Termination of Employment on or after (i) the Employee has attained age 55 or greater, (ii) the sum of the Employee’s age plus Years of Service equals or exceeds 65, and
(iii) six months following Employee’s notice to the Company’s Human Resources Department of the Employee’s intent to retire.
(viii) “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 a Section 424(f) Corporation is at least a fifty percent (50%) equity participant.
(ix) “Termination of Employment” and “Termination” means the earliest time at which Employee is not employed by the Company or a Subsidiary and is not serving as a non-employee director of the Company or a Subsidiary.
(x) “Years of Service” means the cumulative consecutive years of active and continuous employment with the Company or a Subsidiary of the Company (including approved leaves of absence of six (6) months or less or
legally protected leaves of absence), beginning on the date of the Employee’s most recent date of hire with the Company or a Subsidiary of the Company and counting each anniversary thereof. A partial year of employment shall not be treated as a
Year of Service.
(d) Termination by the Company for Cause. In the event of Employee’s Termination of Employment by the Company for Cause, the portion of the then-outstanding Performance-Based
Restricted Stock Units not earned and vested prior to such time will be forfeited immediately upon notice to Employee that the Company will terminate the Employee’s employment for Cause “(notwithstanding whether Employee is eligible to terminate
employment due to Good Reason, Disability or Retirement at that time).
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5. Dividend Equivalents and Adjustments.
(a) Dividend Equivalents. Dividend Equivalents will be credited on Performance-Based Restricted Stock Units (other than Performance-Based Restricted Stock Units that, at the
relevant record date, previously has vested or been forfeited) and deemed reinvested in additional shares of Performance-Based Restricted Stock Units. Dividend Equivalents will be credited as follows, except that the Company may vary the manner of
crediting (for example, by crediting cash dividend equivalents rather than additional Performance-Based Restricted Stock Units) for administrative convenience:
(i) Cash Dividends. If the Company declares and pays a dividend or distribution on shares of Stock in the form of cash, then additional Performance-Based Restricted Stock Units
shall be credited to Employee as of the payment date of such cash dividend or distribution (or settled as of the payment date of such cash dividend or distribution if the Performance-Based Restricted Stock Units are to be settled before the payment
date) equal to the number of outstanding Performance-Based Restricted Stock Units as of the relevant record date multiplied by the amount of cash paid per share of Stock in such dividend or distribution divided by the Fair Market Value of a share
of Stock at the payment date for such dividend or distribution (rounded down to the nearest whole share).
(ii) Non-Share Dividends. If the Company declares and pays a dividend or distribution on shares of Stock in the form of property other than shares of Stock, then a number of
additional shares of Performance-Based Restricted Stock Units shall be credited to Employee as of the payment date of such cash dividend or distribution (or settled as of the payment date of such cash dividend or distribution if the
Performance-Based Restricted Stock Units are to be settled before the payment date) equal to the number of shares of Performance-Based Restricted Stock Units credited to the Employee as of the record date for such dividend or distribution
multiplied by the fair market value of such property actually paid as a dividend or distribution on each outstanding share of Stock at such payment date, divided by the Fair Market Value of a share of Stock at such payment date for such dividend or
distribution (rounded down to the nearest whole share).
(iii) Share Dividends and Splits. If the Company declares and pays a dividend or distribution on shares of Stock in the form of additional shares of Stock, or there occurs a
forward split of shares of Stock, then a number of additional shares of Performance-Based Restricted Stock Units shall be credited to Employee as of the payment date for such dividend or distribution or forward split (or settled as of the payment
date of such cash dividend or distribution if the Performance-Based Restricted Stock Units are to be settled before the payment date) equal to the number of shares of Performance-Based Restricted Stock Units credited to the Employee as of the
record date for such dividend or distribution or split multiplied by the number of additional shares of Stock actually paid as a dividend or distribution or issued in such split in respect of each outstanding share of Stock (rounded down to the
nearest whole share)
(b) Adjustments. The number of shares of Performance-Based Restricted Stock Units credited to Employee shall be appropriately adjusted in order to prevent dilution or
enlargement of Employee’s rights with respect to Performance-Based Restricted Stock Units or 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 Performance-Based Restricted Stock Units credited to Employee in connection with such event under Section 5 hereof. In furtherance of the foregoing, in the event of an equity restructuring, as defined in ASC Topic 718, which affects the shares
of Stock, Employee shall have a legal right to an adjustment to Employee’s Performance-Based Restricted Stock Units which shall preserve without enlarging the value of the Performance-Based Restricted Stock Units, with the manner of such adjustment
to be determined by the Committee in its discretion.
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(c) Risk of Forfeiture and Delivery of Performance-Based Restricted Stock Units Resulting from Dividend Equivalents and Adjustments. Performance-Based Restricted Stock Units
which directly or indirectly result from Dividend Equivalents on or adjustments to Performance-Based Restricted Stock Units granted hereunder shall be subject to the same risk of forfeiture and other conditions as apply to the granted
Performance-Based Restricted Stock Units to which the Dividend Equivalents or adjustments relate and will be subject to the same terms as such granted Performance-Based Restricted Stock Units (unless the Performance-Based Restricted Stock Units are
to be settled prior to the payment date of the Dividend Equivalents or adjustments, in which case the Dividend Equivalents or the date of such adjustments will be settled at the payment date of the dividends or the date of such adjustments (and in
no event later than 60 days after the Performance-Based Restricted Stock Units otherwise are to be settled)).
6. Settlement and Deferral.
(a) Settlement Date. Except as otherwise set forth above under “Further Conditions to Settlement,” Performance-Based Restricted Stock Units granted hereunder that have become
earned and vested, together with Performance-Based Restricted Stock Units credited as a result of Dividend Equivalents with respect thereto, to the extent earned and vested, shall be settled by delivery of one share of Stock for each
Performance-Based Restricted Stock Unit being settled at the time specified herein. Settlement of earned and vested Performance-Based Restricted Stock Units granted hereunder shall occur at the Stated Vesting Date (with shares to be delivered
within 60 days after the Stated Vesting Date); provided, however, that settlement of earned and vested Performance-Based Restricted Stock Units shall occur within 60 days after a Change in Control if no provision is made for the continuance,
assumption or substitution of the Performance-Based Restricted Stock Units by the Company or its successor in connection with the Change in Control; and provided further, that settlement shall be deferred if so elected by Employee in accordance
with Section 6(b) hereof subject to Section 6(c) hereof. Settlement of Performance-Based Restricted Stock Units which directly or indirectly result from Dividend Equivalents on Performance-Based Restricted Stock Units granted hereunder generally
shall occur at the time of settlement of the related Performance-Based Restricted Stock Units except as otherwise described above.
(b) Elective Deferral. The Committee may determine to permit Employee to elect to defer settlement (or re-defer) if such election would be permissible under Section 11(k) of
the Plan and Code Section 409A. In addition to any applicable requirements under Code Section 409A, any such deferral election shall be made only while Employee remains employed and at a time permitted under Code Section 409A. The form under
which an election is made shall set forth the time and form of payment of such amount deferred. Any amount deferred shall be subject to a six-month delay upon payment if required under Section 11(k)(i)(F) of the Plan. Any elective deferral will
be subject to such additional terms and conditions as the Senior Vice President, Human Resources, or the officer designated by the Company as responsible for administration of the Agreement, may reasonably impose.
(c) Compliance with Code Section 409A. Other provisions of this Agreement notwithstanding, because the Performance-Based Restricted Stock Units will constitute a "deferral of
compensation" under Section 409A of the Code (“Code Section 409A”) as presently in effect or hereafter amended (i.e., the Performance-Based Restricted Stock Units are not excluded or exempted under Code Section 409A or a regulation or other
official governmental guidance thereunder; Note: an elective deferral under Section 6(b) would cause the Performance-Based Restricted Stock Units, if not already, to be a deferral of compensation subject to Code Section 409A after the deferral),
such Performance-Based Restricted Stock Units will be considered a 409A Award under the Plan and shall be subject to the additional requirements set forth in Section 11(k) of the Plan including without limitation that (i) Termination of Employment
shall be construed consistent with the meaning of a Separation from Service and (ii) a Change in Control under the Agreement shall be construed consistent with the meaning of a 409A Ownership/Control Change.
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7. Employee Representations and Warranties Upon Settlement. As a condition
to the grant, vesting or settlement of Performance-Based Restricted Stock Units, 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 the release, in such form as may be specified by the Company, and not revoke such release prior the expiration of any applicable revocation period, all within 60
days after Termination of Employment.
8. 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 Performance-Based Restricted Stock Units and supersedes any prior agreements or documents with respect to the Performance-Based Restricted Stock Units. 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 Performance-Based Restricted Stock Units shall be valid unless expressed in a written instrument executed by Employee.
(b) No Promise of Employment. The Performance-Based Restricted Stock Units 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 or any Subsidiary 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) Fractional Performance-Based Restricted Stock Units and Shares. The number of Performance-Based Restricted Stock Units credited to Employee shall not include any fractional
shares. The Committee, in its sole discretion, may either (i) round the fractional shares to be credited up to the nearest whole Share or (ii) provide that fractional shares shall be paid in cash to Employee at the time the shares of Stock
otherwise would have been delivered.
(e) Tax Withholding. Unless otherwise determined by the Committee, or Employee has elected at least 90 days prior to payout to satisfy the tax obligations in cash by other
means, at the time of vesting and/or settlement, the Company may withhold from any payment relating to the Performance-Based Restricted Stock Units, including from a vesting or distribution of Stock thereunder, or any payroll or other payment to
the Employee, amounts of withholding and other taxes due or potentially payable in connection with any transaction involving the Performance-Based Restricted Stock Units, and to take such other action as the Committee may deem advisable to enable
the Company and Employee to satisfy obligations for the payment of withholding taxes and other tax obligations relating to the Performance-Based Restricted Stock Units. The Company shall first withhold any cash payable upon settlement and then may
withhold or receive whole shares of Stock or other property and to make cash payments in respect thereof in satisfaction of the Employee's withholding obligations, either on a mandatory or elective basis in the discretion of the Committee, or in
satisfaction of other tax obligations. Other provisions of the Plan notwithstanding, only the minimum number of shares of Stock deliverable in connection with the Performance-Based Restricted Stock Units necessary to satisfy statutory withholding
requirements will be withheld unless withholding of any additional number of Shares will not result in additional accounting expense to the Company and is permitted by the Committee.
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(f) Unfunded Obligations. The grant of Performance-Based Restricted Stock Units and any provision hereof shall not create in Employee any right to, or claim against any,
specific assets of the Company, nor result in the creation of any trust or escrow account for Employee.
(g) 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 Senior Vice President,
Human Resources, or the officer designated by the Company as responsible for administration of the Agreement, and any notice to Employee shall be addressed to Employee at Employee’s address as then appearing in the records of the Company.
(h) Shareholder Rights. Employee and any Beneficiary shall have no rights of a shareholder with respect to outstanding shares of Stock relating to Performance-Based Restricted
Stock Units (including the right to vote the Stock, except for the right to receive dividends thereon, subject to mandatory reinvestment of the dividends in additional Performance-Based Restricted Stock Units as specified herein) covered by this
Agreement prior to vesting or forfeiture of the shares of Performance-Based Restricted Stock Units except as otherwise specified herein.
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Exhibit A
NEW JERSEY RESOURCES CORPORATION
2017 Stock Award and Incentive Plan
Performance Goals and Vesting of Performance-Based Restricted Stock Units
The number of shares of Performance-Based Restricted Stock Units set forth in the Agreement may become earned and eligible to become vested and non-forfeitable as of the applicable Stated Vesting
Date, subject to the other terms of the Agreement, if the Company’s “Net Financial Earnings per Share” (“NFEPS”) for the fiscal year ending on September 30, 2025, equals or exceeds $ .
“NFEPS” shall be the NFE per basic share of Common Stock that the Company reports on a quarterly and annual basis to the public and in its quarterly reports on Form 10-Q and annual report on Form 10-K that are filed
with the SEC.
Determinations of the Committee regarding NFEPS will be final and binding on Employee. “Net Financial Earnings” or “NFE” is a financial measure not calculated in accordance with generally accepted accounting
principles that the Company reports on a quarterly and annual basis to the public and in its quarterly reports on Form 10-Q and annual reports on Form 10-K that are filed with the Securities and Exchange Commission (“SEC”).
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Exhibit B
NEW JERSEY RESOURCES CORPORATION
2017 Stock Award and Incentive Plan
Definitions Under Further Conditions to Settlement
| a. |
“Business of the Company” means the following areas of its business which are selected below, which Employee acknowledges are areas of the Company’s business in which Employee has responsibilities:
|
[[BRANCH]]
[[SECTION]]
Natural Gas Distribution: Consists of New Jersey Natural Gas Company (“NJNG”), a natural gas utility company that provides regulated retail natural gas service to
residential and commercial customers in central and northern New Jersey and engages in or supervises the off-system sales and capacity release markets and is developing a broad range of strategies to decarbonize its operations, including clean
fuels and behind the meter solutions.
Energy Services: Maintains and transacts around a portfolio of physical assets consisting of natural gas storage and transportation contracts and also provides wholesale
energy management services to other energy companies and natural gas producers in market areas including states from the Gulf Coast and Mid-continent regions to the Appalachian and Northeast regions, the West Coast and Canada.
Clean Energy Ventures: Investor, owner, and operator in the renewable energy sector, including, but not limited to, investments in residential and commercial rooftop and
ground mount solar systems.
Storage and Transportation: Includes investments in natural gas transportation and storage assets and is comprised of the following: Steckman Ridge, which
is a partnership that owns and operates a 17.7 Bcf natural gas storage facility, with up to 12 Bcf working capacity, in western Pennsylvania that is 50 percent owned by a Company Subsidiary; Leaf River Energy Center, a natural gas storage facility
located in southeastern Mississippi with a combined working natural gas storage capacity of 32.2 million dekatherms; and Adelphia Gateway, an 84-mile pipeline in southeastern Pennsylvania and Delaware.
Home Services: Consists of NJR Home Services Company, which provides Heating, Ventilating, and Air Conditioning (“HVAC”) service, sales and installation of appliances, as
well as installation of solar equipment, generators and plumbing services.
| b. |
“Confidential Information” means all valuable and/or proprietary information (in oral, written, electronic or other forms) belonging to or pertaining to the Company, its customers and vendors, that is not generally known or publicly
available, and which would be useful to competitors of the Company or otherwise damaging to the Company if disclosed. Confidential Information may include, but is not necessarily limited to: (i) the identity of the Company’s customers or
potential customers, their purchasing histories, and the terms or proposed terms upon which the Company offers or may offer its products and services to such customers, (ii) the identity of the Company’s vendors or potential vendors, and
the terms or proposed terms upon which the Company may purchase products and services from such vendors, (iii) technology used by the Company to provide its services, (iv) the terms and conditions upon which the Company employs its
employees and independent contractors, (v) marketing and/or business plans and strategies, (vi) financial reports and analyses regarding the revenues, expenses, profitability and operations of the Company, and (vii) information provided to
the Company by customers and other third parties under a duty to maintain the confidentiality of such information. Notwithstanding the foregoing, Confidential Information does not include information that: (i) has been voluntarily
disclosed to the public by Company or any Employer, except where such public disclosure has been made by Employee without authorization from Company or Employer; (ii) has been independently developed and disclosed by others, or (iii) which
has otherwise entered the public domain through lawful means. Confidential Information also does not include information related to any claim of sexual harassment or sexual assault and nothing herein restricts the disclosure of such
information. Nothing herein shall prohibit, prevent or restrict the Employee from reporting any allegations of unlawful conduct to federal, state or local officials or to an attorney retained by the Employee.
|
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| c. |
“Material Contact” means contact in person, by telephone, or by paper or electronic correspondence, or the supervision of those who have such conduct, and which is done in furtherance of the business interests of the company and within
the last 36 months.
|
| d. |
“Restricted Territory” consists of the following areas, to the extent such areas have been identified as applicable to the definition of the “Business of the company” above:
|
Natural Gas Distribution: The Continental United States.
Energy Services: The Continental United States.
Clean Energy Ventures: The States of New Jersey, Rhode Island, Connecticut, New York, Michigan, Indiana, Pennsylvania and Maryland.
Storage and Transportation: The States of New Jersey, New York, Connecticut, Pennsylvania, Delaware, Virginia, West Virginia, Mississippi, Louisiana, Alabama and Texas.
Home Services: The State of New Jersey.
| e. |
“Trade Secrets” means a trade secret of the Company as defined by applicable law.
|
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