EXHIBIT 10(iii)A(63)
ACUITY BRANDS, INC.
2002 SUPPLEMENTAL EXECUTIVE RETIREMENT
PLAN
(Effective As of January 1,
2003)
(As Amended and Restated
Effective As of January 1, 2005, except where otherwise
noted)
ACUITY BRANDS, INC.
2002 SUPPLEMENTAL EXECUTIVE RETIREMENT
PLAN
PREAMBLE
The Acuity Brands, Inc. 2002
Supplemental Executive Retirement Plan (“Plan”) is
designed to be a supplemental retirement plan covering a select
group of management and highly compensated employees of Acuity
Brands, Inc. (the “Company”) and its Subsidiaries. The
benefits under the Plan are unfunded and all amounts payable under
the Plan shall be paid from the general assets of the Employer
which employs the Participant. The effective date of the amended
and restated Plan as set forth herein is January 1, 2005
(“Effective Date”), except where otherwise
noted.
TABLE OF CONTENTS
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ARTICLE I
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DEFINITIONS AND
CONSTRUCTION
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1
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1.1
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Definitions
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1
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(a)
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Accrued
Benefit
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1
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(b)
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Act
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1
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(c)
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Actuarial (or
Actuarially) Equivalent
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1
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(d)
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Administrator
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1
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(e)
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Authorized
Leave of Absence
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1
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(f)
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Annual
Bonus
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2
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(g)
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Average Annual
Compensation
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2
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(h)
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Beneficiary
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2
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(i)
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Board
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2
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(j)
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Break in
Service
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2
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(k)
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Company
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2
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(l)
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Compensation
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2
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(m)
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Credited
Service
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3
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(n)
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Disability
Retirement Date
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3
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(o)
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Early
Retirement Date
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3
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(p)
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Effective
Date
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3
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(q)
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Executive
Officer
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3
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(r)
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Fiduciaries
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3
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(s)
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Late Retirement
Date
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3
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(t)
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Normal
Retirement Date
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3
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(u)
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NSI
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3
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(v)
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Participant
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3
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(w)
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Plan
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4
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(x)
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Plan
Year
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4
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(y)
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Prior
Plan
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4
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(z)
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Retirement
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4
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(aa)
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Surviving
Spouse
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4
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(bb)
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Termination
Date
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4
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(cc)
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Total and
Permanent Disability
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4
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(dd)
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Vested
Terminee
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4
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1.2
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Construction
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4
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ARTICLE II
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PARTICIPATION,
CREDITED SERVICE, AND BREAK IN SERVICE
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5
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2.1
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Eligibility for
Participation:
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5
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2.2
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Break in
Service
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5
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2.3
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Participants
Bound
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5
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2.4
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Transfers
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6
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(a)
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When Employee
Becomes Executive Officer
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6
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(b)
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Accrued Benefit
Upon Transfer To A Non-Eligible Status
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6
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i
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ARTICLE III
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RETIREMENT AND
TERMINATION DATES
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1
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3.1
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Normal
Retirement Benefit
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1
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3.2
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Late Retirement
Benefit
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1
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3.3
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Early
Retirement Benefit
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1
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3.4
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Disability
Retirement Benefit
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1
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3.5
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Vested Terminee
Benefit
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2
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3.6
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Termination
Prior to Completion of 5 Years of Credited Service
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2
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3.7
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Normal Form of
Payment of Accrued Benefit
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2
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ARTICLE IV
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PRE-RETIREMENT
DEATH BENEFITS
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1
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(a)
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Death Prior to
Eligibility for Early or Normal Retirement
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1
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(b)
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Death After
Attaining Eligibility for Early or Normal Retirement
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1
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ARTICLE V
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PLAN
FINANCING
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1
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5.1
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Payment of
Costs and Expenses
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1
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ARTICLE VI
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FIDUCIARY
RESPONSIBILITIES
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1
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6.1
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Allocation of
Responsibility Among Fiduciaries
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1
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6.2
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Fiduciary
Duties
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1
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6.3
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Company Filing
Responsibility
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1
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ARTICLE VII
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ADMINISTRATION
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1
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7.1
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General
Duties
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1
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7.2
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Application and
Forms For Benefit
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1
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7.3
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Facility of
Payment
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2
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7.4
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Rules and
Decisions
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2
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7.5
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Company to
Furnish Information
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2
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7.6
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Administrator
to Furnish Other Information
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2
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ARTICLE VIII
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SUCCESSOR
COMPANY
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1
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8.1
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Successor
Company
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1
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ARTICLE IX
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PLAN
TERMINATION
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1
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9.1
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Right to
Terminate
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1
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ARTICLE X
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TRUST
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1
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ARTICLE XI
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AMENDMENTS AND
ACTION BY COMPANY
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1
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ARTICLE XII
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MISCELLANEOUS
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1
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12.1
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Nonguarantee of
Employment
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1
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12.2
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Rights Under
Plan
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1
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ii
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12.3
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Nonalienation
of Benefits
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1
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12.4
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Headings for
Convenience Only
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1
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12.5
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Multiple
Copies
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1
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12.6
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Governing
Law
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1
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12.7
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Guarantee of
Performance
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1
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ARTICLE XIII
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CHANGE IN
CONTROL
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1
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13.1
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Cause
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1
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13.2
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Change in
Control
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1
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13.3
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Termination of
Employment
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2
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13.4
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Amendment or
Termination
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2
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[SCHEDULE 1]
[APPENDICES]
iii
ARTICLE I
DEFINITIONS AND
CONSTRUCTION
1.1 Definitions : Where the
following words and phrases appear in this Plan, they shall have
the meanings set forth below, unless the context clearly indicates
to the contrary:
(a) Accrued Benefit : With
respect to any Participant at any time a monthly benefit payable
for 180 months only, commencing on the Participant’s Normal
Retirement Date in an amount equal to the product of 1.6% of the
Participant’s Average Annual Compensation multiplied by the
Participant’s Years of Credited Service up to a maximum of
ten (10) years, divided by twelve (12). The maximum number of
Years of Credited Service a Participant can accrue under the Plan
is ten (10) years, provided that Compensation earned after a
Participant has completed ten (10) Years of Credited Service
shall be counted for purposes of determining the
Participant’s Accrued Benefit if counting such Compensation
would increase the Participant’s Accrued Benefit.
Notwithstanding the foregoing, if a
Participant who received a distribution or distributions following
his Termination Date or Retirement is re-employed and again becomes
an active Participant, such Participant’s Accrued Benefit, as
computed pursuant to this Section, shall be reduced by the monthly
Accrued Benefit amount that is the Actuarial Equivalent of the
distribution(s) made to the Participant.
Effective January 1, 2005, the
Participant’s Accrued Benefit shall, for certain purposes
under the Plan as indicated under the appropriate section, be
divided between his Pre-Section 409A Benefit and his
Section 409A Benefit. Except as indicated in such specific
sections, the Participant’s Accrued Benefit shall be treated
as a single benefit.
(b) Act : Public Law
No. 93-406, the Employee Retirement Income Security Act of
1974, as amended from time to time.
(c) Actuarial (or Actuarially)
Equivalent : A benefit of equivalent value determined using an
interest rate equal to 7% per annum and the mortality table
prescribed by the Commissioner of Internal Revenue pursuant to
Rev. Rul. 95-6 (as hereafter amended or
modified).
(d) Administrator : The
Company and any person or committee designated by the Company to
perform all or a portion of the duties and responsibilities of the
Administrator under the Plan.
(e) Authorized Leave of
Absence : Any absence authorized by the Company under the
Company’s standard personnel practices, provided that the
Participant returns within the period specified in the Authorized
Leave of Absence.
II-1
(f) Annual Bonus : The amount
awarded an Executive under the Company’s annual bonus
program, subject to the provisions and limitations contained in
Section 1.1(l) of the Plan.
(g) Average Annual
Compensation : The applicable annual amount shall be the
average of the Participant’s Compensation for the three
highest, consecutive calendar years during the ten years
immediately preceding the Participant’s date of Retirement,
death or other termination of employment. Compensation earned after
a Participant has completed ten (10) Years of Credited Service
shall be counted for purposes of determining the
Participant’s Average Annual Compensation and Accrued Benefit
if counting such Compensation would increase the
Participant’s Accrued Benefit.
(h) Beneficiary : The person
or persons last designated in writing by the Participant on a form
provided by the Administrator to receive benefits under
Section 3.7 or Article IV of the Plan in the event of the
Participant’s death. If no designation of Beneficiary shall
be in effect at the time of a Participant’s death or if all
designated Beneficiaries shall have predeceased the Participant,
then the Beneficiary shall be the Participant’s Surviving
Spouse or if there is no such Surviving Spouse, the
Participant’s estate or legal representative.
(i) Board : The Board of
Directors of Acuity Brands, Inc. or its Executive
Committee.
(j) Break in Service : An
event which results in the cancellation of a Participant’s
previous Credited Service as provided in
Section 2.2.
(k) Company : Company shall
mean Acuity Brands, Inc. (or its successor or successors).
Affiliated or related employers are permitted to adopt the Plan
with the consent of the Company and shall be known as
“Adopting Employers.” To the extent required by certain
provisions (e.g., determining Average Annual Compensation and
Credited Service), references to the Company shall include the
Adopting Employer of the Participant. Adopting Employers are listed
on Schedule 1.
(l) Compensation : Subject to
adjustment as provided in the next sentence,
“Compensation” shall be the Participant’s salary
and wages for each calendar year during which he is employed as an
Executive Officer of the Company, and any Annual Bonuses awarded
during such year. In either case, Compensation and Annual Bonuses
shall include any amounts which shall be voluntarily deferred by
the Participant under any salary or bonus deferral or reduction
program (whether qualified or non-qualified) which may be
instituted by the Company, but shall not include any earnings or
Company match on these deferred amounts, or payments from such
programs or payments from any similar salary deferral or bonus
deferral programs, or any income from stock options, restricted
stock or similar grants. A Participant’s Compensation and
Annual Bonuses for calendar years prior to the Effective Date
during which he was employed as an Executive Officer shall be
credited under this Plan.
II-2
(m) Credited Service : A
Participant shall accrue one (1) Year of Credited Service for
each Plan Year during which he is actively employed as an Executive
Officer of the Company for the full Plan Year. During the
Participant’s initial and final Plan Year as an Executive
Officer, the Participant will be credited with a decimal equivalent
expressed to two places of a fraction having a numerator equal to
the number of full months the Participant worked as an Executive
Officer during such Plan Year and a denominator of twelve (12). A
Participant’s Credited Service as an Executive Officer prior
to the Effective Date shall be credited under this Plan. The
maximum number of Years of Credited Service a Participant can
accrue under the Plan is ten (10).
(n) Disability Retirement
Date : The Date of Retirement due to Disability as specified in
Section 3.4.
(o) Early Retirement Date :
The first day of the month following the Participant’s
attainment of age 55 and completion of three (3)Years of Credited
Service.
(p) Effective Date : The
effective date of the amended and restated plan is January 1, 2005,
except where otherwise noted. The Plan was initially effective as
of January 1, 2003.
(q) Executive Officer : Any
person who, on or after the Effective Date, is classified by the
Company as an executive officer of the Company and who is receiving
remuneration for personal services rendered to the Company (or
would be receiving such remuneration except for an Authorized Leave
of Absence), and any other officer of the Company (or an Adopting
Employer) designated by the Board as eligible to participate in the
Plan and who is listed on an Appendix attached hereto.
(r) Fiduciaries : The Company
and the Administrator, but only with respect to the specific
responsibilities of each for Plan administration, all as described
in Article VI.
(s) Late Retirement Date :
The date of Retirement subsequent to a Participant’s Normal
Retirement Date as specified in Section 3.2.
(t) Normal Retirement Date :
The first day of the month following the Participant’s
attainment of age 60.
(u) NSI : National Service
Industries, Inc., a Delaware corporation, and the corporation from
which the Company was spun-off on November 30,
2001.
(v) Participant : An
Executive Officer participating in the Plan in accordance with the
provisions of Section 2.1.
II-3
(w) Plan : The Acuity Brands,
Inc. 2002 Supplemental Executive Retirement Plan, the Plan set
forth herein, as amended from time to time.
(x) Plan Year : A twelve
(12) month period beginning on January 1 and ending on
December 31.
(y) Prior Plan : The Acuity
Brands, Inc. Supplemental Retirement Plan for Executives in which
certain participants in this Plan previously
participated.
(z) Retirement : Termination
of employment for reason other than death after a Participant has
fulfilled all requirements for Normal Retirement, Late Retirement,
Early Retirement, or Disability Retirement. Retirement shall be
considered as commencing on the day immediately following a
Participant’s last day of employment (or Authorized Leave of
Absence, if later).
(aa) Surviving Spouse . The
individual to whom a Participant is legally married on the date of
death.
(bb) Termination Date : The
date of termination of an Executive’s employment with the
Company for reasons other than death or Retirement.
(cc) Total and Permanent
Disability : A physical or mental incapacity which impairs the
Participant’s ability to substantially perform his usual
duties and services for the Company for a period of six
(6) months. The determination of Total and Permanent
Disability shall be made by the Administrator in its discretion
based upon the information provided to it and, with respect to a
Participant’s Section 409A Benefit, shall be made in a
manner consistent with the requirements of
Section 409A.
(dd) Vested Terminee : A
Participant whose Termination Date occurs after the completion of
at least three (3) Years of Credited Service, but prior to
achieving eligibility for Retirement.
(ee) Pre-Section 409A
Benefit : The vested accrued benefit of the Participant
determined as of December 31, 2004 in accordance with rules
established by the Administrator consistent with the requirements
of Section 409A.
(ff) Section 409A :
Section 409A of the Internal Revenue Code of 1986, as amended,
and the regulations and rulings thereunder.
(gg) Section 409A
Benefit : The Participant’s total Accrued Benefit under
the Plan minus the Participant’s Pre-Section 409A
Benefit.
1.2 Construction : The
masculine gender, where appearing in the Plan, shall be deemed to
include the feminine gender, and the singular may include the
plural, unless the context
II-4
clearly indicates to the contrary. The words
“hereof,” “herein,” “hereunder”
and other similar compounds of the word “here” shall
mean and refer to the entire Plan, not to any particular provision
or Section.
ARTICLE II
PARTICIPATION, CREDITED
SERVICE,
AND BREAK IN
SERVICE
2.1 Eligibility for
Participation :
(a) In General - An Executive
Officer shall become a Participant in this Plan on the later of the
Effective Date or the date he became an Executive Officer, subject
to the conditions and limitations provided for herein, provided
that James Balloun shall not be eligible to participate in this
Plan. Unless otherwise approved by the Board or unless the
Executive Officer has waived all benefits under such plan, an
Executive Officer who is a participant in the Acuity Brands, Inc.
Supplemental Retirement Plan for Executives shall not be eligible
to become a Participant in this Plan.
A former Participant who is rehired
may again become a Participant upon again fulfilling the above
requirements.
(b) Special Eligibility - Any
Executive Officer designated on an Appendix attached hereto shall
be eligible to participate in Plan on the date specified in the
Appendix and in accordance with the conditions and limitations
provided in such Appendix.
2.2 Break in Service : A
Participant shall incur a Break in Service as the result of the
occurrence of a Termination Date or Retirement. Upon incurring a
Break in Service, a Participant’s rights and benefits under
the Plan shall be determined in accordance with his Credited
Service and Average Annual Compensation, and other applicable Plan
provisions at the time of the Break in Service. If a Participant
who has incurred a Break in Service is later rehired by the Company
and becomes eligible to participate in the Plan, his prior Years of
Credited Service shall only be counted for purposes of determining
his Accrued Benefit subsequent to rehire, if (i) at the time
of his Break in Service he had at least three (3) Years of
Credited Service or was at least age 60, or (ii) the period of
his Break in Service is less than his prior Years of Credited
Service. If the Participant received payments from the Plan during
his Break in Service period, his Accrued Benefit shall be adjusted
in the manner provided in Section 1.1(a).
2.3 Participants Bound : Each
Executive Officer becoming a Participant hereunder shall be
conclusively presumed for all purposes to have consented to this
Plan and any amendments, modifications or revisions hereto, and to
all the terms and conditions thereof, and shall be bound thereby
with the same force and effect as if he had entered into a contract
to such effect and any amendments, modifications or revisions
hereto.
II-5
2.4 Transfers : The following rules shall
apply when an Executive Officer transfers to or from an Executive
Officer position in the Company:
(a) When Employee Becomes
Executive Officer : An employee of the Company who becomes an
Executive Officer of the Company, will become a Participant under
this Plan in accordance with Section 2.1. The Executive
Officer’s Compensation for periods prior to the date he
becomes a Participant in the Plan shall count for purposes of this
Plan, but his service with the Company or any affiliated employer
shall not be credited as Years of Credited Service unless otherwise
provided in an Appendix applicable to such Participant.
(b) Accrued Benefit Upon Transfer
To A Non-Eligible Status : If a Participant is transferred to a
non-eligible status of employment within the Company, his Accrued
Benefit under this Plan will be determined as though his transfer
were a termination of employment, and the date of such termination
of employment will be deemed to be the date of his transfer. A
Participant shall not be eligible to receive benefits from this
Plan until the Participant terminates employment with the Company
and all affiliated employers. A former Participant’s
Compensation and service after the date of transfer shall not be
counted for any purposes under this Plan unless otherwise provided
in an Appendix applicable to such former Participant.
II-6
ARTICLE III
RETIREMENT AND TERMINATION
DATES
3.1 Normal Retirement Benefit
: A Participant may retire on his Normal Retirement Date, on which
date he shall be fully vested, and his Accrued Benefit shall
commence as of his Normal Retirement Date. The Participant’s
monthly benefit shall be his Accrued Benefit and shall