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ACUITY BRANDS, INC. EXECUTIVES? DEFERRED COMPENSATION PLAN

Employee Benefits Plan Agreement

ACUITY BRANDS, INC. 

EXECUTIVES? DEFERRED COMPENSATION PLAN 
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This Employee Benefits Plan Agreement involves

ACUITY BRANDS INC

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Title: ACUITY BRANDS, INC. EXECUTIVES? DEFERRED COMPENSATION PLAN
Governing Law: Georgia     Date: 11/2/2006
Industry: Electronic Instr. and Controls    

ACUITY BRANDS, INC. 

EXECUTIVES? DEFERRED COMPENSATION PLAN 
, Parties: acuity brands inc
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EXHIBIT 10(iii)A(61)

ACUITY BRANDS, INC.

EXECUTIVES’ DEFERRED COMPENSATION PLAN

(EFFECTIVE AS OF NOVEMBER 30, 2001)

(As Amended on of December 30, 2002 and as Amended and Restated January 1, 2005,

except where otherwise noted)


PURPOSE

Acuity Brands, Inc. (the “Company”) has established the Acuity Brands, Inc. Executives’ Deferred Compensation Plan (the “Plan”) to assist certain key employees in accumulating capital or supplementing any retirement income they may otherwise receive by permitting them to defer a portion of their compensation. To encourage these individuals to participate in the Plan and to continue their employment with the Company, the Company will match a portion of these deferred amounts.

The Plan is designed to be a nonqualified, deferred compensation plan maintained primarily for a select group of management and highly compensated employees of 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 Adopting Employer which employs the Participant.

The Plan was initially effective as of November 30, 2001, and was established in connection with the spin-off of the Company by National Service Industries, Inc. (“NSI”), as a successor plan to the National Service Industries, Inc. Executives’ Deferred Compensation Plan (“Prior Plan”) for certain employees and former employees of NSI and its subsidiaries who were participants in the Prior Plan immediately prior to November 30, 2001, and who became or remained employees of the Company or its Subsidiaries as of November 30, 2001 or who were formerly employed by the businesses transferred to the Company by NSI (including former employees of the corporate office of NSI). The effective date of the amended and restated plan as set forth herein is January 1, 2005, except where otherwise noted

 

1


ARTICLE I

Definitions

1.1 “Average Prime Rate” means the average of the rates of interest publicly announced by Wachovia Bank, N.A. (or any successor thereto) as its prime rate on the first business day of each of the calendar quarters commencing between Valuation Dates.

1.2 “Class Year” means the Fiscal Year for which a deferral is elected.

1.3 “Class Year Account” means the sub-accounts set up for the Primary Account and Company Contribution Account for each Class Year.

1.4 “Code” means the Internal Revenue Code of 1986, as amended from time to time.

1.5 “Company” means Acuity Brands, Inc., a Delaware corporation (or its successor or successors). Affiliated or related employers are permitted to adopt the Plan and shall be known as “Adopting Employers.” To the extent required by certain provisions (e.g., Compensation and Continuous Service), references to the Company shall include the Adopting Employer of the Participant. Adopting Employers are listed on Appendix A.

1.6 “Committee” means the Committee appointed to administer the Plan as and to the extent provided in Article VIII.

1.7 “Company Contribution Account” means the sum of all amounts credited to a Participant pursuant to Section 3.1, including amounts previously credited to a Participant’s Company Contribution Account in the Prior Plan and transferred to this Plan as provided in Article X, together with interest allowances thereon credited pursuant to Section 4.1 herein.

1.8 “Compensation” means the aggregate salary from the Company (and/or, with respect to periods prior to the Effective Date, from NSI or one of NSI’s affiliates) received by a Participant during a Fiscal Year together with any performance or discretionary bonus awarded by the Company (and/or, with respect to periods prior to the Effective Date, by NSI or one of NSI’s affiliates) for that same Fiscal Year. Compensation does not include expense reimbursement, car allowance, imputed value of group life insurance, aspiration award payments, income from stock options, restricted stock, and other stock awards, Company contributions to any benefit plan, or any gift or awards not treated as pay by the Company.

1.9 “Continuous Service” means the period of uninterrupted employment of an Eligible Executive with the Company since the individual’s most recent date of employment or appointment to the class of Eligible Executives, whichever is applicable. For individuals who are Eligible Executives on the Effective Date and who were participating in the Prior Plan immediately prior to the Effective Date, Continuous Service shall include the Eligible Executive’s period of Continuous Service under the Prior Plan.

1.10 “Deferral Election” means a written election, in a form prescribed by the Committee, to defer receipt of bonus amounts otherwise payable to the Executive.

 

2


1.11 “Deferred Compensation” means the portion of a Participant’s compensation for any Fiscal Year, or part thereof, that has been deferred pursuant to the Plan.

1.12 “Effective Date” means the effective date of the amended and restated plan, January 1, 2005, except where otherwise noted. The Plan was initially effective, November 30, 2001.

1.13 “Executive or Eligible Executive” means a Senior Officer, a Key Manager, or a President, each as defined herein. Any dispute regarding any individual’s eligibility for the Plan shall be resolved by the Committee in its sole discretion.

1.14 “Fiscal Year” means the fiscal year of the Company commencing on September 1 and ending on August 31 of the following calendar year, or such other fiscal year as may be established in the future.

1.15 “Key Manager” means an assistant vice president or other key management employee (as determined by the Committee or its designee) of the Company or an Adopting Employer.

1.16 “NSI” means National Service Industries, Inc., a Delaware corporation.

1.17 “Participant” means a person a portion of whose compensation for any Fiscal Year has been deferred pursuant to the Plan and whose interests in the Plan have not been wholly forfeited or distributed.

1.18 “Plan or Executives’ Plan” means the Acuity Brands, Inc. Executives’ Deferred Compensation Plan as described in this instrument, and as it may be amended from time to time.

1.19 “President” means the president of a business unit of the Company or an Adopting Employer.

1.20 “Primary Account” means the sum of all amounts deferred by a Participant pursuant to Section 2.1 including any amounts previously deferred to the Participant’s Primary Account under the Prior Plan and transferred to this Plan, plus interest allowances thereon credited pursuant to Section 4.1 herein.

1.21 “Prior Plan” means the National Service Industries, Inc. Executives’ Deferred Compensation Plan.

1.22 “Senior Officer” means the president or an executive vice president, senior vice president, or vice president of the Company or an Adopting Employer.

1.23 “Termination of Service” or similar expression means the termination of the Participant’s employment as an Eligible Executive of the Company. A Participant who is granted a temporary leave of absence, whether with or without pay, shall not be deemed to have terminated his service. In the event of a transfer of an Eligible Executive to a position in which he would no longer be eligible to continue in this Plan, or in the event of the disability of a Participant (as determined by the Committee), the Committee, in its sole discretion, shall determine whether a Termination of Service has occurred.

 

3


1.24 “Total and Permanent Disability” means a physical or mental incapacity which impairs the Participant’s ability to substantially perform his duties for a period of one hundred eighty (180) consecutive days, as determined by the Committee, and, with respect to a Participant’s Section 409A Account, consistent with the requirements of Section 409A.

1.25 “Valuation Dates” mean March 31 and September 30 of each year.

1.26 “Section 409A” means Section 409A of the Code and the regulations and rulings thereunder.

1.27 “Section 409A Account” means that portion of a Participants Class Year Account that was not vested as of December 31, 2004 and which is subject to certain special provisions of the Plan.

 

4


ARTICLE II

Amounts Deferred

2.1 Each Eligible Executive may elect to have a portion of the annual performance or discretionary bonus (“bonus”), if any, to be received by him for the Fiscal Year commencing September 1, 2001, and for any Fiscal Year thereafter, irrevocably deferred in accordance with the terms and conditions of the Plan. The amount of such bonus that may be so deferred shall not exceed the lower of:

(a) the Executive’s Compensation for the Class Year which is in excess of the average Compensation paid or credited to the Executive (including any amounts deferred under this Plan, but excluding Company Contributions under this Plan) for services rendered as an Eligible Executive over the three (3) full Fiscal Years immediately preceding the Class Year. If the Executive has completed two (2) but less than three (3) full Fiscal Years of Continuous Service in an eligible position the average shall be computed based upon the average Compensation paid or credited to the Executive for the two (2) full Fiscal Years immediately preceding the Class Year. Any Executive who has not completed two (2) full Fiscal Years in an eligible position shall be entitled to defer for the Class Year not more than (1) twenty-five hundred dollars ($2,500) for a Senior Officer and (2) twelve hundred fifty dollars ($1,250) for a Key Manager; and

(b) the Executive’s bonus for the Class Year.

An Executive desiring to exercise such election shall deliver a Deferral Election to the Company or the Executive’s Adopting Employer, as applicable, prior to the beginning of each such Fiscal Year, or if an individual first becomes an Eligible Executive during a Fiscal Year, within 30 days after the date the individual first becomes an Eligible Executive (or within such other period as may be established by the Committee). Any such Deferral Election delivered under the Prior Plan with respect to the Fiscal Year ending August 31, 2002 shall continue in effect under this Plan for such Fiscal Year. If the Executive’s Deferral Election would result in a deferral greater than the maximum provided herein, any deferred amount shall be reduced to the maximum limit provided herein.

2.2 The Executive’s Primary Account shall be credited, as of October 1 next following the end of each Class Year for which the election was made, with the dollar amount of the Compensation deferred for such Class Year pursuant to Section 2.1.

2.3 A Participant’s accounts shall be distributable in the manner and subject to the conditions set forth in Article V, Article VI and Article IX.

2.4 Effective for Fiscal Years commencing on or after September 1, 2002, Eligible Executives shall not be permitted to defer any portion of their bonus for such Fiscal Year to the Plan.

 

5


ARTICLE III

Company Contribution

As of each October 1, the Company shall contribute to a Company Contribution Account on behalf of each Eligible Executive an amount equal to the Executive’s Deferred Compensation for the immediately preceding Class Year, up to a maximum of five thousand dollars ($5,000) for a Senior Officer or President and twenty-five hundred dollars ($2,500) for a Key Manager.

The inability of a Participant to fully utilize the maximum Company Contribution for any Class Year, whether due to lack of qualified earnings, eligible service, failure to elect or any other reason, shall not result in a carry-over of unused credits to any subsequent year.

After October 1, 2002, the Company shall cease to make contributions to the Company Contribution Account for Eligible Executives.

 

6


ARTICLE IV

Interest Allowance

Each Primary Account and Company Contribution Account of each Participant shall be credited as of each September 30 with an interest allowance which shall be computed and compounded on semi-annual Valuation Dates based upon the Average Prime Rate as follows:

 

 

 

 

When the Average Prime Rate is:

  

The Interest Credit Shall Be:

 

 

• more than 12.00%

  

• Average Prime Rate less 3%

 

 

• more than 8.00% but not more than 12.00%

  

• Average Prime Rate less 2%

 

 

• 8.00% or less

  

• Average Prime Rate less 1%

This interest allowance shall be applied to the balances standing, as of said date, in each Participant’s accounts for all Class Years.

 

7


ARTICLE V

Vesting

5.1 A Participant shall at all times have a non-forfeitable (vested) right to the amounts in his Primary Account subject to the distribution provisions of Article VI.

5.2 (a) Subject to Article IX, the Company Contribution Account of a Participant for each Class Year shall become vested in him upon the completion of five full Fiscal Years of Continuous Service as an Eligible Employee after the end of such Class Year.

(b) Subject to Article IX, the Company Contribution Account of a Participant for all Class Years shall become vested in him upon the occurrence of any of the following events:

(i) Total and Permanent Disability of the Participant (as determined by the Committee); or

(ii) Retirement after the Participant has attained age 55; or

(iii) Death of the Participant; or

(iv) Termination of this Plan.

5.3 Notwithstanding anything to the contrary herein, prior to a Change in Control should the Participant be found by the Committee to be guilty of theft, embezzlement, fraud or misappropriation of the Company’s property or of any action which, if the individual were an Officer of the Corporation, would constitute a breach of fiduciary duty, the Company Contribution Account for all Class Years which had not yet vested in the Participant shall be immediately forfeited.

 

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ARTICLE VI

Distribution

6.1 Subject to Article IX, distribution of the vested portion of a Participant’s Account shall be made in a lump sum as soon as practicable following the Participant’s Total and Permanent Disability, death or Termination of Service for any other reason prior to attainment of age 55. If a Participant terminates employment on or after age 55, the provisions of any benefit elections made by the Participant pursuant to Section 6.3 shall be recognized. In the event of the termination of the Plan or the Total and Permanent Disability or death of a Participant, interest allowance pursuant to Article IV shall be computed to the date of payment hereunder. In the event of Term


 
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